In Re the Marriage of Cynthia Lynn Albertsen and Mark Duane Albertsen Upon the Petition of Cynthia Lynn Albertsen, and Concerning Mark Duane Albertsen

IN THE COURT OF APPEALS OF IOWA

No. 16-1644
Filed October 11, 2017

IN RE THE MARRIAGE OF CYNTHIA LYNN ALBERTSEN
AND MARK DUANE ALBERTSEN

Upon the Petition of
CYNTHIA LYNN ALBERTSEN,
Petitioner-Appellant,

And Concerning
MARK DUANE ALBERTSEN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Tama County, Christopher L.

Bruns, Judge.

Cynthia Albertsen appeals from the decree dissolving her marriage to

Mark Albertsen. AFFIRMED.

Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, L.L.P.,

Marshalltown, for appellant.

Cheryl L. Weber and Erich D. Priebe of Dutton, Braun, Staack & Hellman,

P.L.C., Waterloo, for appellee.

Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

Cynthia (Cindy) and Mark Albertsen married in 2000 and divorced sixteen

years later. Cindy appeals the provisions of a dissolution decree (1) granting

Mark physical care of the children and (2) extending property equalization

payments over eighty months.

I. Physical Care

Cindy and Mark had two children, born in 2003 and 2006. Mark was an

educator. He grew up in Dysart, Iowa, and became a principal there in 2005. He

remained in Dysart at the time of trial.

Cindy had a degree in exercise science. After the children were born, she

testified to becoming a “stay-at-home mom.” In time, she took on part-time

coaching positions.

In 2013, Cindy enrolled in a graduate sports management program. The

program required some travel to the Illinois campus and a three-month

internship, which she completed in Alabama. Mark served as primary caretaker

of the children while she was in Alabama.

Cindy graduated in a year and a half. She applied for ninety-six career-

related jobs around the country, including in Iowa. She was not hired within the

State, and, in mid-2014, she accepted a temporary position with the Oakland

Raiders in California. Later the same year, the Raiders hired her full time. Cindy

expected Mark and the children to move to California at the end of the school

year but later learned Mark signed a contract with the Dysart school system for

the upcoming year.
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Cindy petitioned for a dissolution of the marriage. The district court

granted Mark temporary physical care of the children and, following trial, made

that arrangement permanent.

On appeal, Cindy contends “the best interest of the children dictates that

they be placed in [her] primary care.” See Iowa Code § 598.41(3) (2015) (setting

forth factors for consideration in determining what custody arrangement is in the

best interest of the child); In re Marriage of Peake, No. 08-0131, 2009 WL

138778 at *3 (Iowa Ct. App. Jan. 22, 2009) (considering factors in primary

physical care determination); see also In re Marriage of Hansen, 733 N.W.2d

683, 696 (Iowa 2007) (“Although Iowa Code section 598.41(3) does not directly

apply to physical care decisions, we have held that the factors listed here as well

as other facts and circumstances are relevant in determining whether joint

physical care is in the best interest of the child.”). She asserts her decision to

relocate to California was not “unilateral” and the district court failed to consider

the surrounding circumstances, including her long-time role as primary caretaker.

See In re Marriage of Frederici, 338 N.W.2d 156, 160 (Iowa 1983) (noting in a

modification action, courts consider surrounding circumstances of parental

relocation, including “the reason for removal, location, distance, comparative

advantages and disadvantages of the new environment, impact on the children,

and impact on the joint custodial and access rights of the other parent”). To the

contrary, the district court made detailed fact findings on these topics.

The court found, “Up through the time Cindy began to attend [graduate

school], Mark was actively involved in caring for the children, but Cindy provided

the majority of the day-to-day care.” The court proceeded to break down each
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party’s parenting time during various periods of the children’s lives. When Cindy

went to graduate school, the court stated, “[T]he pattern of care for the children

changed so that Mark was now providing the majority of care for the children, but

Cindy was still providing a significant amount of care on a regular basis.” The

court found, “This pattern continued for slightly less than 1 1/2 years.” The court

further stated:

When Cindy moved to Alabama, the distribution of parental
responsibility shifted even more. Cindy did return to visit the family
on a few occasions, but from this point through the entry of
temporary orders in the case, Mark was providing the vast majority
of day-to-day care for the parties’ children. The children were living
with Mark and in Dysart, and Cindy was simply not there to provide
hands-on care. She did, however, maintain as much contact and
involvement as she could via phone and Skype.

The court explained that this pattern continued after entry of the temporary order.

Because both parents served as primary caretakers of the children at

different times but Mark’s primary caretaking role was “established for only a very

few years,” the district court found “the care determination in this case” to be “a

relatively close one,” turning on “subtle distinctions between the parties.” One

such distinction, the court said, had to do “with parental priorities.” The court

found Mark more willing to prioritize his parenting obligations over his work

obligations. A second distinction had “to do with the parties’ desire and capacity

to support a positive relationship with the other parent.” Again, the court found

Mark made greater efforts to facilitate the children’s relationship with their mother

than Cindy did with their father. The court also considered “the parties’

respective capacity to exercise good judgment.” After recounting claimed

incidents of poor judgment by both parents, the court expressed no “significant
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concern about either party’s judgment going forward.” Finally, the court

considered “the most important factor in assessing care . . . [,] continuity.” The

court noted that the younger child had lived in Dysart “for his entire life” and the

older child had lived there “for almost his entire life,” both had friends and family

in the community, and the older child was “thriv[ing] in school and activities” while

the younger child was making “steady improvement” in school and also was

involved “in multiple activities.” As a result, the court said, “[I]f the court awards

custody to Mark, the children will maintain all the relationships they have in the

Dysart community.” The court considered Cindy’s evidence “that the schools in

[California] are top-notch” and the children would have more opportunities there

than they had in Dysart. The court was not convinced the children “would be

able to take advantage of these opportunities.”

The court concluded as follows:

In the final analysis, the court cannot find it is in the children’s best
interest to move them from their life-long home in Dysart to live with
Cindy in California. The children are doing very well where they
are. Mark is an excellent parent. Mark has family in and near
Dysart to assist with the children as needed. Cindy does not have
the same support in California. A move involves significant change
and stress. In the present case, there is no good reason to subject
the children to that change and stress. Thus, it is in the best
interest of [the children] toward primary care to Mark.

On our de novo review of the record, we agree with the bulk of the district court’s

findings. The court did not penalize Cindy for moving, as Cindy argues, but

considered the children’s deep involvement with their schools, community,

extended family, and friends in Iowa. While Cindy hoped to replicate that lifestyle

in California, her expectation was unrealistic for at least two reasons. First, by

her own admission, the marriage was on its last legs long before her move; the
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family would not be a unit as they knew it even if Mark relocated to California with

the children. Second, Cindy lacked the extensive family support she had in Iowa.

Although one of her sisters lived in California, Cindy presented scant, if any,

evidence that this sister was involved in the children’s lives. In contrast, Mark’s

parents and his three sisters, together with extended family, lived in or around

Dysart as the children were growing up and one of the sisters and another

relative continued to provide assistance as needed.

That said, we are not convinced Cindy failed to prioritize the children.

Employment in her chosen career field was unavailable in Iowa at the time she

completed graduate school. Given this hard reality, Cindy accepted a coveted

position with an out-of-state professional team and advanced to a permanent

position in a short period of time. Certainly, she could have taken employment

with a local fast-food chain, as she testified. But she believed pursuit of the

career in which she obtained a graduate degree would allow her “to be able to

take care of” the children and provide them with “a nice way of life.” Notably,

Cindy made a point of communicating with the children for approximately two

hours a day. She remained a significant part of their lives notwithstanding the

geographic distance.

The distance, however, made a joint physical care arrangement unfeasible

and required the district court to choose one of two loving parents as a physical

caretaker. We conclude the district court acted in the best interest of the children

by granting Mark physical care, subject to visitation with Cindy. We affirm the

physical care determination.
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II. Property Distribution

The district court divided the property as agreed by the parties and

ordered Mark to make a $20,000 cash equalization payment to Cindy in $250

monthly increments. Cindy contends, “[T]he $250 amount per month is

inequitable in that her portion of the property division will not be fully realized for

at least 80 months” and “[d]uring the 80 month payment period, Mark is enjoying

the benefits of the marital property and is able to take advantage of the full

amount of equity in the home.” According to Cindy, Mark has “the ability to

comply with a more accelerated payment schedule of the ordered offset amount.”

We afford district courts considerable latitude in addressing property division

issues and reverse only if there was a failure to do equity. In re Marriage of

Smith, 573 N.W.2d 924, 926 (Iowa 1998).

The district court provided detailed reasons for the extended payment

plan, including Mark’s payment of marital debts, the need to retain the parties’

home for the children, and Mark’s contribution of an inheritance to the marriage.

Although we sympathize with Cindy’s argument, we cannot conclude the district

court failed to do equity, particularly where the court required Mark to pay interest

on the equalization payment. We affirm the payment plan.

III. Appellate Attorney Fees

Mark seeks an award of $5000 in appellate attorney fees and asks that

costs of the appeal be taxed to Cindy. Because he has a higher income, we

decline his request. See In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct.

App. 2007) (considering the needs of the party making the request, the ability of

the other party to pay, and whether the party making the request was obligated to
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defend the district court’s decision on appeal). Costs on appeal are taxed

equally to the parties.

AFFIRMED.