IN THE SUPREME COURT OF IOWA
No. 59 / 06-0191
Filed June 15, 2007
IN RE THE MARRIAGE OF LYLE MARTIN
HANSEN and DELORES LORENE HANSEN
Upon the Petition of
LYLE MARTIN HANSEN,
Appellee,
And Concerning
DELORES LORENE HANSEN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Washington County, Dan F.
Morrison, Judge.
Former husband seeks further review after court of appeals modified
dissolution decree. DECISION OF THE COURT OF APPEALS AFFIRMED
AS MODIFIED; DISTRICT COURT JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND CASE REMANDED WITH INSTRUCTIONS.
Frank J. Nidey of Nidey Peterson Erdahl & Tindal, PLC, Cedar Rapids,
for appellee.
Constance Peschang Stannard of Johnston & Nathanson, P.L.C., Iowa
City, for appellant.
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APPEL, Justice.
In this case, we review physical care and property issues related to
the parties’ dissolution of marriage. The district court granted joint legal
custody and joint physical care of the two children to Lyle and Delores
Hansen. The district court also distributed the property in the marital
estate, ordered Lyle to pay alimony, and established child and medical
support. Delores appealed. We transferred the case to the court of appeals.
The court of appeals reversed the district court on the physical care issue,
granting physical care of the children to Delores. The court of appeals
decreased the amount Delores was required to pay Lyle as a result of the
property distribution and increased the monthly amount and duration of
Lyle’s alimony payments. The court of appeals further made corrections
related to the amount of child and medical support, and awarded Delores
$1,000 in attorneys’ fees. Lyle sought further review.
With respect to the holdings of the court of appeals, we affirm the
holding as modified in this opinion on the physical care issue, order Delores
to pay Lyle $22,263 as a result of the property distribution, affirm the
increase in alimony, affirm the recalculation of child support and medical
benefits, and affirm the award of appellate attorneys’ fees. The matter is
remanded to the district court for further proceedings consistent with this
opinion.
I. FACTUAL BACKGROUND.
Lyle and Delores were married on September 4, 1987. The marriage
lasted approximately eighteen years. At the time of trial, Lyle was forty-five
years of age and Delores was forty-six. Two children were born of the
marriage, Miranda, who was twelve years old at the time of the district court
proceedings, and Ethan, who was eight.
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At all times prior to the filing of the divorce petition, Delores was the
primary caregiver. Lyle, alternatively, was the main breadwinner. For
example, during the course of the marriage Delores attended parent teacher
conferences on a regular basis, while Lyle did not. The vast majority of the
time, it was Delores who helped the children with their homework. Lyle
admits that she was better at it, particularly math. During the marriage,
Lyle missed important childhood events because of social activities or work-
related assignments. When the children were in infancy, Delores opened a
day care center in their home. Later, when family finances became an
issue, she held full-time employment outside the home. After the parties’
separation, however, Lyle has become more involved in the lives of the
children.
The record developed at trial reveals serious marital stress. The
record demonstrates a history of recurrent arguments, excessive
consumption of alcohol, allegations of infidelity and sexual misconduct, and
allegations of domestic abuse. Unfortunately, at least some of these
contretemps were in front of the children. It was not a pleasant proceeding.
As part of our de novo review, we have reviewed thoroughly all of these
matters, which need not be described in detail here.
The record further reveals that Delores tended to acquiesce to Lyle
when there were disagreements. For example, when Delores was pregnant
with Miranda, she wanted to attend child-birthing classes, but Lyle stated
that he had already undergone training and that, as a result, the classes
were not needed. When Delores began operating a child care center out of
their home, Lyle insisted on reviewing applicant backgrounds and controlled
which children could utilize the service. He further demanded that parents
or custodians pick up their children by 5:00 p.m. sharp. Delores did not
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agree with these practices, but felt she had no choice but to acquiesce. In
addition, Delores asked Lyle if he would participate in marital counseling,
but he refused, stating that he did not believe in counseling. Delores
testified that she agreed to temporary joint physical care prior to trial only
because she did not feel she could stand up to her husband. Delores
expressed concern that if she disagrees with Lyle, he becomes angry and
intimidating.
The parties appear to have different approaches to child rearing.
Delores wants the children to be active in the Methodist church and other
extracurricular activities. While not being overtly resistant, during the
course of the marriage, Lyle did not encourage these kinds of activities. The
parties also have different approaches to discipline. Lyle claims to have
been the disciplinarian in the marital home. The record reveals that there
are occasions when Lyle believed that discipline needed to be more severe
than Delores was willing to impose. Lyle acknowledged that, at times, he is
overprotective. As Lyle admitted, there are some things that he might let
the children do that Delores might not, and vice versa.
At trial, Lyle expressed concern that Delores will expose their children
to her family, which he finds highly dysfunctional. Delores testified that her
father abused her as a child, but they have reconciled sufficiently to
maintain an ongoing relationship. Lyle’s concern, however, extends beyond
the father, as other members of Delores’ family have been convicted of child
endangerment and drug offenses. Delores counters that when the children
visit her family, it is always under her supervision.
Prior to trial, the parties were apparently able to work out the
scheduling issues inherent in a joint physical care arrangement. There was
not always agreement, however, on matters related to the children. For
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instance, when one child experienced unexpected academic difficulties,
Delores believed professional counseling would be of help. Lyle disagreed,
once again stating that he did not believe in professional counseling.
Delores acquiesced, and counseling was not obtained. On another
occasion, the kids called their mother and asked to be picked up because
Lyle was angry that they had not cleaned their rooms, and had slammed the
kitchen door, breaking its glass pane. Moreover, Delores testified that
Miranda told her she desired a more stable living arrangement with a home
base.
While much of the record in this case is unattractive, it is clear that
both Lyle and Delores love their children. They are both capable of making
substantial contributions to their lives. The record further reveals that the
children are bright and generally well-adjusted.
With respect to financial matters, the record shows that at the time of
trial, Lyle was earning $46,300 per year as a detective for the City of
Washington Police Department. Delores was employed as a bank teller,
earning $18,900 per year. Delores has only a high school education and
little prospect in Washington, Iowa, for substantial increase in income.
The main asset accumulated by the parties was the marital residence.
An appraisal obtained in 2001 stated that the value of the property was
$112,000. Delores testified that a real estate agent had appraised the value
of the residence at $130,000 in 2003 when the parties were seeking to
refinance their mortgage. No documentary evidence of the appraisal was
introduced at trial.
During the course of the marriage, the parties accumulated
considerable debt, at one time rising to as much as $26,000 on numerous
credit cards. There is no suggestion that the funds were improperly spent,
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but only that Delores and Lyle were, for a period of time, living well beyond
their means. Delores testified that she would get cash advances on credit
cards so that she could supply her husband with cash when he requested
it. She especially did this during times of marital stress hoping to smooth
out the relationship. Lyle, however, came to the conclusion that the level of
debt was unacceptable, and developed a plan to reduce it. The parties sold
their boat and hot tub, and Lyle took an additional job at Hy-Vee. Delores
closed the day care, and sought outside employment. As a result of these
and other efforts, the debt load was substantially reduced by the time of
trial.
The parties also borrowed money from their respective relatives prior
to the dissolution of marriage. Delores and Lyle borrowed money from
Delores’ parents during their marriage, and Lyle borrowed money from his
sister, Leigh Wolf, after the separation. At the time of trial, the loans
remained unpaid in the amount of $6,500 and $7,391 respectively.
II. PRIOR PROCEEDINGS.
On November 15, 2004, Lyle filed a petition for dissolution of
marriage. The district court entered an order on December 30, 2004 which
granted temporary physical care and legal custody to both parents. The
temporary order did not establish a physical care schedule. Lyle suggested
a pattern of alternating care on a weekly basis, to which Delores
acquiesced. The matter came to trial on November 2, 2005. Each party
requested physical care. Only Lyle sought joint physical care as a
secondary alternative. The district court did not require the parties to
submit a joint physical care plan, and, as a result, none was provided to the
court. The district court heard testimony from each party and several
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additional witnesses. On December 30, 2005, the district court entered
findings of fact, conclusions of law, and a decree in the case.
The district court granted “joint legal custody” and “joint physical
care” of the minor children to Lyle and Delores. The district court order,
however, established a schedule where “physical care” would alternate
between Lyle and Delores for six-month periods beginning on January 1,
2006, with liberal visitation for the spouse not currently having physical
care.
The district court order nevertheless, recognized the parties’ difficulty
in making mutual decisions. For example, the court ordered that each
parent “shall permit the child(ren) to continue the activities after a physical
care change.” Because Delores was awarded physical care for the first six-
month period, the effect of the court order was that her choices of
extracurricular activities would be binding on Lyle. The district court
additionally ordered that Delores “shall select the church affiliation for the
children.” The district court ordered that Delores be present when the
children visited her family. The court further ordered that if a party moved
from the Washington School District, the nonmoving party shall become the
physical custodian until further order of the court.
Lastly, the district court decision contained the following language in
bold print:
This custody arrangement is predicated on the court’s
belief that the parties are able to communicate regarding
the best interests of their children. Failure to
communicate in a positive manner may constitute a basis
for modification of this decree.
With respect to the disposition of the marital property, the district
court presented its division of the assets and liabilities of the parties as
follows:
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LYLE DELORES
ASSETS
NWML $17,189 Residence $130,000
Durango $13,700
Tools and Guns net 0 Appliances net 0
Bank Accounts net 0 Bank Accounts net 0
Personal Property net 0 Personal Property net 0
½ IPERS net 0 ½ IPERS net 0
½ NWML Contract net 0 ½ NWML Contract net 0
NWML $4,854
TOTAL ASSETS $17,189 $148,554
LIABILITIES
Mortgage $72,000
J.W. McGrath $541
Leigh A. Wolf $7,391 Parents $6,500
AT & T Credit Card $6,100
Capital One Card $8,600
Discover Card $1,030
TOTAL LIABILITIES $9,237 $94,230
NET TOTALS $7,952 $54,324
In light of the above disparity, the district court directed Delores to
pay Lyle one half the difference in net assets, which the district court
calculated as $23,186. The district court allowed Delores to make
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payments on this amount over the next ten years, with interest running at a
rate of five percent per annum.
While Delores was required to pay Lyle the above sum, the district
court awarded her alimony in the amount of $300 per month for three
years. The alimony payments of the district court totaled $10,800.
On appeal, Delores raises four issues.
First, she claims that the district court erred in awarding her and Lyle
physical care on an alternating six-month basis. She claims that she
should have been awarded physical care. Delores does not challenge,
however, the award of joint legal custody.
Second, she challenges the district court’s order that she pay Lyle an
equalization payment of $23,156 after the distribution of the marital
property. With respect to this financial issue, Delores claims that the
marital residence should have been valued at $112,000 instead of
$130,000, as found by the district court. Delores further claims she was
treated unfairly in the distribution of the parties’ assets. She generally
claims that the debt load assigned to her is excessive and that the resulting
debt service is beyond her means. Specifically, Delores asserts that the trial
court made a scrivener’s error in its calculations by transposing the
numbers for total liabilities and net total in Lyle’s column. She further
asserts that the debt to Lyle’s sister should not be allowed in light of the
absence of a legal obligation.
Third, Delores claims that the alimony awarded by the district court
of $300 per month over a period of three years is too low under these facts
and circumstances. Instead, she seeks an award of alimony of $600 per
month until she reaches retirement at age sixty-five.
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Fourth, she claims that there were errors in the calculation of child
and medical support. She claims the district court, in calculating child
support, used an incorrect figure for Lyle’s income. She further claims that
the district court’s award of medical support was too low and contrary to
Iowa law.
The court of appeals agreed with Delores that the best interests of the
children required that she should be awarded physical care. The court of
appeals held that the alternating six-month schedule did not promote the
legislature’s goal of frequent contact with both parents. Further, the court
of appeals specifically found that Delores was the primary caretaker and
that the children had thrived under her parenting and were comfortable
with her care. Although not expressed in these terms, the court of appeals
relied upon past history of caregiving and the desire for stability and
continuity in awarding physical care to Delores.
With respect to financial issues, the court of appeals held that the
marital residence should have been valued at $112,000. In addition, the
court of appeals modified the amount of the equalization payment ordered
by the district court to correct the scrivener’s error. The court of appeals
made no further changes in the property distribution. As a result, the court
of appeals held that Delores was required to pay Lyle an equalization
amount of $13,543, instead of $23,156, over a ten-year period at five
percent interest.
The court of appeals also found that the alimony established by the
district court was insufficient to do equity. It increased the amount of
alimony to $500 per month and extended the period of alimony payments
from three years to ten years.
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With respect to child support and medical issues, the court of appeals
held that the calculation of child support was flawed as a result of the
miscalculation of Lyle’s income. Further, the court of appeals held that the
amount of medical support provided by Lyle was to be increased to reflect
the seventy percent/thirty percent difference in their respective incomes.
Finally, with respect to attorneys’ fees, the court of appeals granted
Delores $1,000 in appellate attorneys’ fees.
III. STANDARD OF REVIEW.
The standard of review is de novo. In re Marriage of Sullins, 715
N.W.2d 242, 247 (Iowa 2006). We give weight to the findings of the district
court, especially to the extent credibility determinations are involved. Id.
IV. ANALYSIS.
A. Custody and Care Issues.
1. Legal Framework.
On appeal, no party contests the district court’s award of joint legal
custody. With respect to the children, Delores seeks to overturn the district
court’s ruling awarding joint physical care to both parties. She seeks
physical care. Lyle, however, seeks physical care, but in the event this does
not occur, is willing to accept joint physical care in the alternative.
At the outset, it is important to discuss the differences between joint
legal custody and joint physical care. In re Marriage of Hynick, 727 N.W.2d
575, 579 (Iowa 2007). “Legal custody” carries with it certain rights and
responsibilities, including but not limited to “decisionmaking affecting the
child’s legal status, medical care, education, extracurricular activities, and
religious instruction.” Iowa Code § 598.1(3), (5) (2005). When joint legal
custody is awarded, “neither parent has legal custodial rights superior to
those of the other parent.” Id. § 598.1(3). A parent who is awarded legal
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custody has the ability to participate in fundamental decisions about the
child’s life.
On the other hand, “physical care” involves “the right and
responsibility to maintain a home for the minor child and provide for
routine care of the child.” Id. § 598.1(7). If joint physical care is awarded,
“both parents have rights to and responsibilities toward the child including,
but not limited to, shared parenting time with the child, maintaining homes
for the child, [and] providing routine care for the child . . .” Id. § 598.1(4).
The parent awarded physical care maintains the primary residence and has
the right to determine the myriad of details associated with routine living,
including such things as what clothes the children wear, when they go to
bed, with whom they associate or date, etc.
If joint physical care is not warranted, the court must choose a
primary caretaker who is solely responsible for decisions concerning the
child’s routine care. Id. § 598.1(7). Visitation rights are ordinarily afforded
a parent who is not the primary caretaker. Hynick, 727 N.W.2d at 579.
2. Traditional Approach of Iowa Appellate Courts to
Joint Physical Care.
For decades, Iowa appellate courts have disfavored joint physical care
arrangements in dissolution cases as not in the best interest of children. In
In re Marriage of Burham, 283 N.W.2d 269 (Iowa 1979), this court outlined
reasons against “divided custody.” Specifically, the court cited Iowa
precedent for the proposition that divided custody is destructive of
discipline, induces a feeling of not belonging to either parent, and in some
instances can permit one parent to sow seeds of discontent concerning the
other. Id. at 272. Although Burham referred to “divided custody,” later
cases made it clear that the underlying rationale regarding the best interest
of children applied to cases involving “joint physical care.” In re Marriage of
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Roberts, 545 N.W.2d 340, 342 (Iowa Ct. App. 1996); In re Marriage of
Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App. 1994); In re Marriage of
Coulter, 502 N.W.2d 168, 171 (Iowa Ct. App. 1993).
These cases have generally emphasized that the best interest of
children is promoted by stability and continuity. Although a child’s best
interests will be served by associating with both parents, “an attempt to
provide equal physical care may be harmfully disruptive in depriving a child
of a necessary sense of stability.” In re Marriage of Muell, 408 N.W.2d 774,
776 (Iowa Ct. App. 1987). As a result, Iowa appellate courts have stated
divided physical care is “strongly disfavored” as not in the best interest of
children except in the most unusual of circumstances. Roberts, 545 N.W.2d
at 342; Brainard, 523 N.W.2d at 615; Coulter, 502 N.W.2d at 170-71.
3. Legislative Action Regarding Joint Physical Care.
The Iowa legislature has shown recent interest in joint physical care
as a potential alternative in dissolution cases. In 1997 and again in 2004,
the legislature amended the Iowa Code to mandate certain procedures
regarding the request, award, and denial of joint physical care.
In 1997, the legislature for the first time defined “joint physical care.”
The legislature further stated that a district court “may consider” joint
physical care upon the application of either party. 1997 Iowa Acts ch. 175,
§ 199 (previously codified at Iowa Code § 598.1(4) (2005)). The 1997
legislation, however, did not contain any substantive standards for
determining when joint physical care might be appropriate, but only stated
that district courts “may consider” the alternative. As a result, the
amendment was a restatement of existing law.
In 2004, the legislature again revisited the issue of joint physical care
by amending Iowa Code section 598.41(5) to read, in relevant part:
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If joint legal custody is awarded to both parents, the court may
award joint physical care to both joint custodial parents upon
the request of either parent. . . . If the court denies the request
for joint physical care, the determination shall be accompanied
by specific findings of fact and conclusions of law that the
awarding of joint physical care is not in the best interest of the
child.
2004 Iowa Acts ch. 1169, § 1 (now codified at Iowa Code § 598.41(5) (2005)).
Like the 1997 amendment, the 2004 amendment did not contain a
new standard to be employed by the courts in considering whether to award
joint physical care. It simply provides that a party interested in joint
physical care should request it from the court, and if the court denies joint
physical care, it should make findings of fact and conclusions of law that
such an alternative was not in the “best interest of the child,” which is the
traditional standard in child custody matters.
This court has not had occasion to consider the implication of the
1997 and 2004 amendments. In In re Marriage of Ellis, 705 N.W.2d 96
(Iowa Ct. App. 2005), however, the court of appeals considered the impact of
the amendments on Iowa law. In that case, the court of appeals rejected
the claim that the new statutory provisions created a presumption in favor of
joint physical care. Id. at 101-02. On the other hand, the court of appeals
came to the conclusion that the amendments had the effect of reversing the
traditional disfavor against joint physical care by Iowa courts. Id. at 101.
According to the court of appeals, while joint physical care is no longer
disfavored, it is still not a “preferred” custodial arrangement. Id. at 101-02.
We agree with the court of appeals that the 1997 and 2004 legislation
did not create a presumption in favor of joint physical care. There is simply
nothing in the language of the amendments that supports such an
assertion. Indeed, the Iowa legislative action in 1997 and 2004 is strikingly
15
different from action in other states where presumptions in favor of joint
physical care were enacted into law.
Further, it is clear that the Iowa legislature knows how to enact
substantive standards in family law matters. With respect to joint custody,
the legislature has declared that if the court does not grant joint custody, it
shall “cite clear and convincing evidence” that joint custody is unreasonable
and not in the best interests of a child. Iowa Code § 598.41(2)(b). No
similar language appears in the joint physical care provisions of Iowa law.
We disagree, however, with the court of appeals as to whether the
1997 and 2004 amendments have affected any change in substantive law.
While the amendments clearly require that courts consider joint physical
care at the request of any party and that it make specific findings when
joint physical care is rejected, the legislation reiterates the traditional
standard—the best interest of the child—which appellate courts in the past
have found rarely served by joint physical care. The amendments only
require the courts to consider and explain the basis of decisions to deny
physical care. Scott v. Scott, 579 S.E.2d 620, 623-24 (S.C. 2003) (legislation
authorizing consideration of divided custody, when court finds it in best
interest of the child, does not overrule prior case law disfavoring
arrangement).
4. Review of the Traditional Approach to Joint Physical
Care.
While we find that the Iowa legislature has not overridden prior case
law regarding joint physical care, we nonetheless believe that the notion
that joint physical care is strongly disfavored except in exceptional
circumstances is subject to reexamination in light of changing social
conditions and ongoing legal and research developments. Increasingly in
Iowa and across the nation, our family structures have become more
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diverse. While some families function along traditional lines with a primary
breadwinner and primary caregiver, other families employ a more
undifferentiated role for spouses or even reverse “traditional” roles. A one-
size-fits-all approach in which joint physical care is universally disfavored is
thus subject to serious question given current social realities.
In addition, the social science research related to child custody issues
is now richer and more varied than it was in the past. In the past, many
scholars and courts rejected joint physical care based on the influential
writings of Joseph Goldstein, Anna Freud, and Albert J. Solnit. These
scholars utilized attachment theory to emphasize the need to place children
with a single “psychological parent” with whom the children had bonded.
Joseph Goldstein, Anna Freud, & Albert J. Solnit, Beyond the Best Interests
of the Child 98 (1979). Although the research upon which the
“psychological parent” attachment theory was based rested upon studies of
infants, it was also thought to apply throughout the life cycle of a child.
Shelley A. Riggs, Is the Approximation Rule in the Child’s Best Interests?, 43
Fam. Ct. Rev. 481, 484 (2005).
The psychological parent approach stressed the important role of a
strong, caring parent-child dyad and embraced what is sometimes termed a
monotropic view of infant-child bonding. Robert F. Kelley and Shawn L.
Ward, Social Science Research and the American Law Institute’s
Approximation Rule, 40 Fam. Ct. Rev. 350, 355-59 (2002); Peggy Cooper
Davis, The Good Mother: A New Look at Psychological Parent Theory, 22
N.Y.U. Rev. L. & Soc. Change 347, 360 (1996). The “psychological parent”
approach based on attachment theory seems to have influenced a number
of courts. Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985), superseded
by statute, Minn. Stat. § 248.2 (1989), as stated in Maxfield v. Maxfield, 452
17
N.W.2d 219 (Minn. 1990); In re Custody of D.G., 246 N.W.2d 892, 895-96
(N.D. 1976).
Attachment theory that emphasizes primary relationships continues
to have strong advocates. Riggs, 43 Fam. Ct. Rev. at 482-90; James G.
Dwyer, A Taxonomy of Children’s Existing Rights in State Decision Making
About Their Relationship, 11 Wm. & Mary Bill Rts. J. 845, 913 (2003); Mary
Ann Mason, The Custody Wars: Why Children are Losing the Legal Battle,
and What We Can Do About It 116 (1999). The validity of the parent-child
dyad or monotropic view of attachments, however, has been subject to
substantial question. Many scholars now view infants as capable of
attaching to multiple caregivers and not simply one “psychological parent.”
Michael E. Lamb, Placing Children’s Interest First: Developmentally
Appropriate Parenting Plans, 10 Va. J. Soc. Pol’y and L. 98, 109-13 (2002).
Further, a growing body of scholarship suggests that the continued
presence and involvement of both parents is often beneficial to the lives of
children and not necessarily detrimental as believed by many adherents of
the “psychological parent” theory. Id. at 100 (citing disadvantages of
children growing up in fatherless families, including psychological
adjustment, behavior and achievement at school, educational attainment,
employment trajectories, and income generation); Michael T. Flannery, Is
“Bird Nesting” in the Best Interest of Children?, 57 S.M.U. L. Rev. 295, 302
(2004) (most commentators agree that, generally, children benefit from
continued contact with both parents after a divorce).
As a result, a substantial body of scholarly commentary now
challenges the blanket application of the monotropic psychological parent
attachment theory to avoid joint physical care. For example, reputable
scholars have stated that,
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despite literature that suggests moderate correlations between
conditions of early rearing and classes of later outcomes—for
example, with respect to attachment and parental bonding—
experts’ ability to make specific predictions, given specific
conditions (let alone ambiguous ones!) is weak to negligible.
Thomas M. Horner & Melvin J. Guyer, Prediction, Prevention, and Clinical
Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse
Have Been Made, 25 Fam. L. Q. 217, 248 (1991). Some academic observers
suggest that joint physical care may be a way to encourage continued
involvement of both spouses in the lives of the children. Matthew A. Kipp,
Maximizing Custody Options: Abolishing the Presumption against Joint
Physical Custody, 79 N.D. L. Rev. 59 (2003); Stephanie N. Barnes,
Strengthening the Father-Child Relationship through a Joint Custody
Presumption, 35 Willamette L. Rev. 601 (1999). They cite a wide range of
studies to suggest that children may be better off with joint physical care
than other arrangements.
The current social science research cited by advocates of joint custody
or joint physical care, however, is not definitive on many key questions. To
begin with, there are substantial questions of definition and methodology.
Such criticisms include: samples that only examine parents who voluntarily
choose joint custody, the use of small and homogenous groups, the skewing
of samples toward middle class parents with higher incomes and education,
the lack of control groups, and the lack of distinction between “joint
custody” arrangements and traditional sole custody with visitation, and the
failure to differentiate the effects of preexisting parental characteristics from
the effects of custody type. Jana B. Singer & William L. Reynolds, A Dissent
on Joint Custody, 47 Md. L. Rev. 497, 507 (1988); see also Diane N. Lye,
What the Experts Say: Scholarly Research on Post-Divorce Parenting and Child
Wellbeing, Report to the Washington State Gender and Justice Commission
19
and Domestic Relations Commission 4-2 (1999) (research fraught with
methodological difficulties and severe limitations) [hereinafter Lye, Report];
Daniel A. Krauss & Bruce D. Sales, Legal Standards, Expertise, and Experts
in the Resolution of Contested Child Custody Cases, 6 Psychol. Pub. Pol’y &
L. 843, 850 (2000) (noting myriad of conceptual and methodological
problems).
Further, the data is conflicting or ambiguous. As noted by one recent
academic observer, the research to date on the benefits of joint physical
care is inconclusive and has produced mixed results. Stephen Gilmore,
Contact/Shared Residence and Child Well-Being: Research Evidence and its
Implications for Legal Decision Making, 20 Int’l J. L. & Pol’y & Fam. 344,
352-53 (2006); see also Krauss & Sales, 6 Psychol. Pub. Pol’y & L. at 857-58
(recent empirical studies of joint custody have not been able to demonstrate
a substantial positive effect on postdivorce child adjustment when joint
physical care is compared with other custodial arrangements).
An exhaustive review commissioned by the Washington State
Supreme Court Gender and Justice Commission and the Domestic
Relations Commission examined the many studies related to child custody
issues. The review concluded that the available research did not reveal any
particular post-divorce residential schedule to be most beneficial to
children. While the review concluded that the research did not demonstrate
significant advantages to children of joint physical care, the research also
did not show significant disadvantages. Lye, Report at Summary.
While it seems clear that children often benefit from a continuing
relationship with both parents after divorce, the research has not
established the amount of contact necessary to maintain a “close
relationship.” Preeminent scholars have noted that “surprisingly, even a
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fairly small amount of close contact seemed sufficient to maintain close
relationships, at least as these relationships were seen from the
adolescents’ perspective.” Eleanor E. Maccoby, et al., Postdivorce Roles of
Mothers and Fathers in the Lives of Their Children, 7 J. Fam. Psychol. 24, 24
(1993); see also Michael E. Lamb, Noncustodial Fathers and Their Impact on
the Children of Divorce in The Postdivorce Family: Children, Parenting, and
Society 105, 111 (Ross A. Thompson & Paul R. Amato eds., 1999) (causal
link between frequency of father-child contact and child’s adjustment to
parental divorce “much weaker than one might expect”); Valarie King,
Variation in the Consequences of Nonresident Father Involvement for
Children’s Well-Being, 56 J. of Marriage & Fam. 963, 970-71 (1994) (benefit
to child not related to quantity of visits), as cited in American Law Institute,
Principles of the Law of Family Dissolution § 2.02 cmt. f. (2000) [hereinafter
Principles]; Gilmore, 20 Int’l J. L. & Pol’y & Fam. at 358 (not contact per se
but the nature and quality of contact that are important to children’s
adjustment).
There is thus growing support for the notion that the quality, and not
the quantity, of contacts with the non-custodial parent are the key to the
wellbeing of children. Quality interaction with children can, of course,
occur within the framework of traditional visitation and does not occur
solely in situations involving joint physical care.
At present, the available empirical studies do not provide a firm basis
for a dramatic shift that would endorse joint physical care as the norm in
child custody cases. Nonetheless, in light of the changing nature of the
structure of families and challenges to the sweeping application of
psychological parent attachment theory, we believe the joint physical care
issue must be examined in each case on the unique facts and not subject to
21
cursory rejection based on a nearly irrebuttable presumption found in our
prior cases. Gilmore, 20 Int’l J. L. & Pol’y & Fam. at 360-61 (the law should
eschew the use of presumptions in the process of deciding post-separation
parenting regimes); Krauss & Sales, 6 Psychol. Pub. Pol’y & L. at 857
(empirical research does not support presumptions to resolve custody
disputes); Lye, Report at 4-1 (circumstances of each family are unique,
recognition of unique circumstances central to good post-divorce parenting
choices).
Any consideration of joint physical care, however, must still be based
on Iowa’s traditional and statutorily required child custody standard—the
best interest of the child. See Iowa Code § 598.41(5)(a). Physical care
issues are not to be resolved based upon perceived fairness to the spouses,
but primarily upon what is best for the child. The objective of a physical
care determination is to place the children in the environment most likely to
bring them to health, both physically and mentally, and to social maturity.
Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995); In re Marriage
of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996).
We recognize that the “best interest” standard is subject to attack on
the ground that it is no standard at all, that it has the potential of allowing
gender bias to affect child custody determinations, and that its very
unpredictability increases family law litigation. See Robert H. Mnookin,
Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy,
39 Law & Contemp. Probs. 226, 256-60 (1975); Carl E. Schneider,
Discretion, Rules and Law: Child Custody and the UMDA’s Best-Interest
Standard, 89 Mich L. Rev. 2215, 2220-25 (1991). On the other hand, the
advantage of the standard is that it provides the flexibility necessary to
consider unique custody issues on a case-by-case basis. Katharine T.
22
Bartlett, Child Custody in the 21st Century: How the American Law Institute
Proposes to Achieve Predictability and Still Protect the Individual Child’s Best
Interests, 35 Willamette L. Rev. 467, 470 (1999). We believe the best
approach to determining difficult child custody matters involves a
framework with some spine, but the sufficient flexibility to allow
consideration of each case’s unique facts.
In Iowa, the basic framework for determining the best interest of the
child has long been in place. In the context of custody decisions, the
legislature has established a nonexclusive list of factors to be considered.
Iowa Code § 598.41(3) (citing nonexclusive factors including suitability of
parents, whether psychological and emotional needs and development of
child will suffer from lack of contact with and attention from both parents,
quality of parental communication, the previous pattern of caregiving, each
parent’s support of the other, wishes of the child, agreement of the parents,
geographic proximity, and safety). 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.
In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).
In considering whether to award joint physical care where there are
two suitable parents, stability and continuity of caregiving have traditionally
been primary factors. In re Marriage of Bevers, 326 N.W.2d 896, 898 (Iowa
1982) (noting who during the marriage provided routine care and
questioning desirability of the children’s nomadic existence for sake of
parents); In re Marriage of Decker, 666 N.W.2d 175, 178-80 (Iowa Ct. App.
2003) (past primary caregiving a factor given heavy weight in custody
matters); In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App.
23
1998) (great emphasis placed on achieving emotional stability for children);
Roberts, 545 N.W.2d at 343 (though not controlling, due consideration to
historical primary caregiver); Coulter, 502 N.W.2d at 171 (stability “cannot
be overemphasized”). Stability and continuity factors tend to favor a spouse
who, prior to divorce, was primarily responsible for physical care. See Iowa
Code § 598.41(3)(d).
We continue to believe that stability and continuity of caregiving are
important factors that must be considered in custody and care decisions.
As noted by a leading scholar, “past caretaking patterns likely are a fairly
reliable proxy of the intangible qualities such as parental abilities and
emotional bonds that are so difficult for courts to ascertain.” Bartlett, 35
Willamette L. Rev. at 480. While no post-divorce physical care arrangement
will be identical to predissolution experience, preservation of the greatest
amount of stability possible is a desirable goal. In contrast, imposing a new
physical care arrangement on children that significantly contrasts from
their past experience can be unsettling, cause serious emotional harm, and
thus not be in the child’s best interest.
As a result, the successful caregiving by one spouse in the past is a
strong predictor that future care of the children will be of the same quality.
In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct. App. 1998).
Conversely, however, long-term, successful, joint care is a significant factor
in considering the viability of joint physical care after divorce. Ellis, 705
N.W.2d at 103.
Stability and continuity concepts have been refined in the recent
literature and expressed in terms of an approximation rule, namely, that
the caregiving of parents in the post-divorce world should be in rough
proportion to that which predated the dissolution. Elizabeth S. Scott,
24
Pluralism, Parental Preference, and Child Custody, 80 Cal. L. Rev. 615, 617
(1992). Recently, the American Law Institute’s Principles of Family Law,
published in 2000, adopted the general rule that custodial responsibility
should be allocated “so that the proportion of custodial time the child
spends with each parent approximates the proportion of time each parent
spent performing caretaking functions for the child prior to the parents’
separation . . . .” Principles § 2:08, at 178. A reporter of the ALI Project on
Family Dissolution that produced Principles suggests that the ALI
approximation rule is gender neutral, focuses on historical facts rather than
subjective judgments, and is, in most cases, likely to provide an
environment that is in the best interest of the child. Bartlett, 35 Willamette
L. Rev. at 480-82.
We do not, however, adopt the ALI approximation rule in its entirety.
Iowa Code section 598.41(3) and our case law requires a multi-factored test
where no one criterion is determinative. Any wholesale adoption of the
approximation rule would require legislative action. See W. Va. Code Ann. §
48-9-206(a) (2007).
Nonetheless, we believe that the approximation principle is a factor to
be considered by courts in determining whether to grant joint physical care.
By focusing on historic patterns of caregiving, the approximation rule
provides a relatively objective factor for the court to consider. The principle
of approximation also rejects a “one-size-fits-all” approach and recognizes
the diversity of family life. Finally, it tends to ensure that any decision to
grant joint physical care is firmly rooted in the past practices of the
individual family.
There may be circumstances, of course, that outweigh considerations
of stability, continuity, and approximation. For example, if a primary
25
caregiver has abandoned responsibilities or had not been adequately
performing his or her responsibilities because of alcohol or substance
abuse, there may be a strong case for changing the physical care
relationship. In re Marriage of Ford, 563 N.W.2d 629, 633 (Iowa 1997)
(absence from home and less personal stability of former primary caregiver);
see also Principles § 2.08(1)(a)-(h). In addition, the quality of the parent-
child relationship is not always determined by hours spent together or
solely upon past experience. Gary Crippen, Stumbling Beyond the Best
Interests of the Child: Reexamining Child Custody Standard-Setting in the
Wake of Minnesota’s Four Year Experiment with Primary Caretaker
Preference, 75 Minn. L. Rev. 427, 489-92 (1990); Schneider, 89 Mich. L.
Rev. at 2283-87.
All other things being equal, however, we believe that joint physical
care is most likely to be in the best interest of the child where both parents
have historically contributed to physical care in roughly the same
proportion. Ellis, 705 N.W.2d at 103; Singer & Reynolds, 47 Md. L. Rev. at
521-22. Conversely, where one spouse has been the primary caregiver, the
likelihood that joint physical care may be disruptive on the emotional
development of the children increases. Coulter, 502 N.W.2d at 171; Muell,
408 N.W.2d at 777.
A second important factor to consider in determining whether joint
physical care is in the child’s best interest is the ability of spouses to
communicate and show mutual respect. Hynick, 727 N.W.2d at 580; Ellis,
705 N.W.2d at 101; Iowa Code § 598.41(3)(c). A lack of trust poses a
significant impediment to effective co-parenting. Eleanor E. Maccoby &
Robert H. Mnookin, Dividing the Child: Social Costs and Legal Dilemmas of
Custody 276 (1992) [hereinafter Maccoby & Mnookin]. Evidence of
26
controlling behavior by a spouse may be an indicator of potential problems.
McGee v. McGee, 224 A.D.2d 832, 835 (N.Y. App. Div. 1996) (citing
domineering attitude); Kline v. Kline, 686 S.W.2d 13, 15-16 (Mo. Ct. App.
1984) (citing power struggles and hostility). Evidence of untreated domestic
battering should be given considerable weight in determining custody and
gives rise to a presumption against joint physical care. Iowa Code
§ 598.41(2)(c); Hynick, 727 N.W.2d at 579; In re Marriage of Daniels, 568
N.W.2d 51, 55 (Iowa Ct. App. 1997).
Third, the degree of conflict between parents is an important factor in
determining whether joint physical care is appropriate. Joint physical care
requires substantial and regular interaction between divorced parents on a
myriad of issues. Where the parties’ marriage is stormy and has a history
of charge and countercharge, the likelihood that joint physical care will
provide a workable arrangement diminishes. It is, of course, possible that
spouses may be able to put aside their past, strong differences in the
interest of the children. Reality suggests, however, that this may not be the
case. Maccoby & Mnookin at 284 (expressing deep concern in cases where
there is substantial parental conflict); The Wingspread Report and Action
Plan, High-Conflict Custody Cases, 39 Fam. Ct. Rev. 146, 146 (2001)
(“[h]igh-conflict custody cases seriously harm the children involved”).
In short, a stormy marriage and divorce presents a significant risk
factor that must be considered in determining whether joint physical care is
in the best interest of the children. The prospect for successful joint
physical care is reduced when there is a bitter parental relationship and one
party objects to the shared arrangement. Burkhart v. Burkhart, 876 S.W.2d
675, 680 (Mo. Ct. App. 1994) (allegations of infidelity and breach of trust);
Braiman v. Braiman, 378 N.E.2d 1019, 1021 (N.Y. 1978) (court ordered joint
27
custody involving embattled and embittered parents, accusing one another
of vices and wrongs, can only enhance familial chaos). As noted in the
Washington state review, there is evidence that high levels of child contact
with a nonresidential father are beneficial to children in low conflict
families, but harmful to children in high conflict families. Lye, Report at 4-
17; see also Kelly & Ward, 40 Fam. Ct. Rev. at 364 (“much of the research
on shared parenting that finds positive effects finds them in the context of
postdivorce parental relationships in which high levels of conflict are
absent”).
Conflict, of course, is a continuum, but expressions of anger between
parents can negatively affect children’s emotions and behaviors. Hildy
Mauzerall, Patricia Young, & Debra Alsaker-Burke, Protecting of the Children
of High Conflict Divorce: An Analysis of the Idaho Bench/Bar Committee to
Protect Children of High Conflict Divorce’s Report to the Idaho Supreme Court,
33 Idaho L. Rev. 291, 305 (1997). Even a low level of conflict can have
significant repercussions for children. Robert E. Shepherd, Jr., Legal
Dispute Resolution in Child Custody: Comments on Robert H. Mnookin’s
“Resolving Child Custody Disputes” Conference Presentation, 10 Va. J. Soc.
Pol’y 89, 91 (2002). Courts must balance the marginal benefits obtained
from the institution of a joint physical care regime as compared to other
alternatives against the possibility that interparental conflict will be
exacerbated by the arrangement, to the detriment of the children. Elizabeth
Scott & Andre Derdeyn, Rethinking Joint Custody, 45 Ohio St. L. J. 455, 457
(1984).
Because of the perceived detrimental impact of parental conflict on
children, some commentators have urged that joint physical care should be
encouraged only where both parents voluntarily agree to it. Frank F.
28
Furstenberg, Jr. & Andrew J. Cherlin, Divided Families: What Happens to
Children When Parents Part 75-76 (1991); see Or. Rev. Stat. § 107.169(3)
(2007) (joint custody only upon agreement of parents); Vt. Stat. Ann. tit 15,
§ 665(a) (2007) (“When parents cannot agree to divide or share parental
rights and responsibilities, the court shall award parental rights and
responsibilities primarily or solely to one parent.”). Iowa Code section
598.41(5)(a), however, requires the court to consider joint physical care
upon the request of either party. While we, therefore, reject the notion that
one spouse has absolute veto power over whether the court grants joint
physical custody, In re Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983),
the lack of mutual acceptance can be an indicator of instability in the
relationship that may impair the successful exercise of joint physical care.
See Iowa Code § 598.41(3)(g) (court should consider whether one or both
spouses agree or are opposed).
A fourth important factor in determining whether joint physical care
is in the best interest of the children, particularly when there is a turbulent
past relationship, is the degree to which the parents are in general
agreement about their approach to daily matters. Burham, 283 N.W.2d at
275 (citing Dodd v. Dodd, 93 Misc.2d 641, 647 (N.Y. Sup. Ct. 1978) for the
proposition that even joint legal custody assumes “agreement about child
rearing practices”); Burkhart, 876 S.W.2d at 680 (where record does not
show commonality of ideas about child rearing, joint physical care
inappropriate); Horton v. Horton, 891 A.2d 885, 892 (R.I. 2006) (lack of
agreement on discipline a factor). It would be unrealistic, of course, to
suggest that parents must agree on all issues all of the time, but in order
for joint physical care to work, the parents must generally be operating from
the same page on a wide variety of routine matters. The greater the amount
29
of agreement between the parents on child rearing issues, the lower the
likelihood that ongoing bitterness will create a situation in which children
are at risk of becoming pawns in continued post-dissolution marital strife.
While the above factors are often significant in determining the
appropriateness of joint physical care, we do not mean to suggest that they
are the exclusive factors or that these factors will always be determinative.
This court has stated, despite application of a multi-factored test, that
district courts must consider the total setting presented by each unique
case. In re Weidner, 338 N.W.2d 351, 356 (Iowa 1983) (each case to be
considered upon its peculiar circumstances). The above factors present
important considerations, but no iron clad formula or inflexible system of
legal presumptions.
Once it is decided that joint physical care is not in the best interest of
the children, the court must next choose which caregiver should be
awarded physical care. Iowa Code § 598.41(1)(a), (5). The parent awarded
physical care is required to support the other parent’s relationship with the
child. Id. § 598.41(5)(b). In making this decision, the factors of continuity,
stability, and approximation are entitled to considerable weight. The court
should be alert, however, to situations where the emotional bonds between
children and a parent who has not been the primary caregiver are stronger
than the bonds with the other parent.
In making decisions regarding joint physical care and, if joint physical
care is not appropriate, in choosing a spouse for physical care, courts must
avoid gender bias. In re Marriage of Tresnak, 297 N.W.2d 109, 112-13 (Iowa
1980). There is no preference for mothers over fathers, or vice versa. The
preference is to advance gender neutral goals of stability and continuity
30
with an eye toward providing the children with the best environment
possible for their continued development and growth.
In summary, we believe that statements in the case law indicating
that joint physical care is strongly disfavored are overbroad. Factors often
of importance in determining the viability of joint physical care include an
overriding interest in stability and continuity, the degree of communication
and mutual respect, the degree of discord and conflict prior to dissolution,
and the extent to which the parties agree on matters involving routine care.
While we believe that in many contested cases, the best interests of the
child will not be advanced by joint physical care, the courts must examine
each case based on the unique facts and circumstances presented to arrive
at the best decision.
5. Best Interests of Children in this Case.
In light of the above principles, and after our de novo review of the
entire record, we agree with the court of appeals that joint physical care is
not in the best interest of the children under the unique facts presented in
this case. For most of the marriage, Delores has been the primary
caregiver. The concepts of continuity, stability, and approximation thus cut
strongly against joint physical care as a quality alternative least disruptive
to the children and most likely to promote their long-term physical and
emotional health. Decker, 666 N.W.2d at 178; Walton, 577 N.W.2d at 870;
Bevers, 326 N.W.2d at 898.
The record also shows that the parties have significant difficulties in
communication. Lyle has strong beliefs, and Delores tends to attempt to
avoid conflicts with him by simply acquiescing. Further, the divorce
proceedings demonstrated considerable mutual distrust and a high level of
conflict between the parties, complete with allegations of sexual
31
improprieties and domestic abuse. It is noteworthy that while Lyle disputed
most of the alleged incidents of physical abuse, he admitted that he and
Delores engaged in “pushing matches.” Furthermore, there was substantial
evidence in the record that Lyle has a controlling personality that could
extend into the post-divorce world. In light of this record, there is a distinct
danger that flare-ups in the relationship could disrupt the children’s lives in
a joint physical care context. Hynick, 727 N.W.2d at 580.
The record also demonstrates differences in parenting styles. Lyle
admits to being “overly protective.” Their discipline styles are also different,
with Lyle recognizing that there are some things that he would allow, but
Delores would not, and vice versa. Additionally, Lyle and Delores have
different views on the potential role of counseling in helping the children
through the difficulties created by divorce. While the parties were able to
handle the logistics of joint physical care pursuant to the district court’s
temporary order, this factor is not dispositive. Over the long haul, we
believe there is a high potential for conflict if joint physical care were to
continue.
The district court recognized the problems in the relationship and
attempted to address them in its order. For example, the court found it
necessary to decide who would determine the children’s religious affiliation
and to include pointed language ensuring that extracurricular choices of
each spouse would be honored. These are the kind of decisions that inhere
in joint custody, not joint physical care. See Iowa Code § 598.41(5)(b). The
fact that the district court found it necessary to include such provisions,
and thereby raise the possibility of contempt in the event of violation, does
not reflect a high degree of confidence in the ability of the parties to have a
32
smooth, working relationship which is a prerequisite to a successful joint
physical care arrangement.
The district court’s order alternating physical custody on six-month
intervals may have also been designed to lessen potential friction between
the parties. There was no evidence in the record to suggest that the
alternate six-month arrangement was designed to accommodate work
schedules of the parties or was based on some other logistical factor. Like
the court of appeals in this case, a number of appellate courts have
invalidated similar arrangements. Ireland v. Ireland, 914 S.W.2d 426, 429
(Mo. Ct. App. 1996) (invalidating change of custody every two months); In re
Custody of D.M.G., 951 P.2d 1377, 1387 (Mont. 1998) (reversing two-year
alternating custody order); Reavis v. Reavis, 955 P.2d 428, 432-33 (Wyo.
1998) (reversing two-month alternate custody). As noted by the Washington
Supreme Court, orders which provide for alternating residence of the child
for substantially equal intervals can result when the parties and the courts
are searching to avoid underlying disputes. In re Marriage of Littlefield, 940
P.2d 1362, 1369 (Wash. 1997), superseded by statute, Wash. Rev. Code
§ 26.09.405-560 (2000); but see Kaloupek v. Burfening, 440 N.W.2d 496,
498-99 (N. D. 1989) (affirming trial court order alternating custody on six-
month basis); Drewry v. Drewry, 622 S.W.2d 206, 209 (Ark. Ct. App. 1981)
(same).
It is not necessary, however, for us to consider the validity of such an
alternating physical care arrangement. Having examined the entire record,
we hold that this is not a case where joint physical care is in the best
interest of the children in light of the primary caregiving responsibilities of
Delores, the communication and respect issues, the contentiousness of the
marriage, and the lack of agreement on daily matters. We conclude that the
33
best interest of the children will be advanced by awarding physical care to
Delores rather than to award joint physical care. 1
At the same time, Lyle has an important role to play in his children’s
lives. No one questions his devotion to them and their need for his
guidance and support. A responsible, committed, nonresident parent, with
good parenting skills, has the potential to engage in a high-quality
relationship with his or her child and to positively impact the child’s
adjustment. Gilmore, 20 Int’l J. L. & Pol’y & Fam. at 352.
Because the district court ordered the parties to share joint legal
custody, Lyle will continue to be involved in major decisionmaking for his
children. In order to promote the desirable level of physical contact, on
remand, the district court should establish liberal visitation for Lyle, which
includes visitation every other weekend, commencing at 6:00 p.m. on Friday
night and concluding at 6:00 p.m. Sunday evening and every Wednesday
night commencing at 6:00 p.m. and ending at 8:00 a.m. Thursday morning.
Lyle shall have visitation on his birthday and Father’s Day every year.
Delores, conversely, shall have physical custody of the children on her
birthday and Mother’s Day each year. In addition, Lyle shall have visitation
on every other holiday including New Year’s Day, Easter, Memorial Day,
Fourth of July, Labor Day, Thanksgiving Day, Christmas Eve, Christmas,
New Year’s Eve. Holiday visitation shall be from 9:00 a.m. to 9:00 p.m.
Lyle shall have visitation on the children’s birthdays on odd numbered
years, while Delores shall have even numbered years. In addition, Lyle
shall have visitation of the children in the summer for a total of four weeks
1Lyleclaims the court of appeals did not make specific findings of fact and
conclusions of law as required by Iowa Code section 598.41(5)(a). The court of appeals,
however, did find that Delores was the primary caregiver, had been a good mother, that the
children had thrived in her care, and that the best interest of the children would be served
by awarding Delores physical care. We find that the court of appeals adequately explained
its reasoning to meet the requirement of section 598.41(5)(a).
34
at two two-week intervals. These two-week intervals shall be separated by
at least one week. Lyle shall give Delores written notice no later than April
15 of each year of the times at which he wishes to exercise these vacation
periods. During one of those two-week intervals, Lyle shall have
uninterrupted visitation. Delores is also entitled to exercise one two-week
period of visitation exclusive of Lyle’s rights each summer. Delores shall
provide Lyle written notice no later than April 30 of each year of the weeks
she has selected. Each party is further entitled to uninterrupted visitation
during alternating spring breaks. Delores shall have visitation in even
numbered years and Lyle shall have visitation in odd numbered years.
Finally, the parties shall alternate visitation during Christmas break. In
odd numbered years, Delores shall have visitation the first half and Lyle the
second. The reverse is true in even numbered years. Lyle is further entitled
to any additional visitation that can be agreed upon by the parties.
We expect Delores to support Lyle’s relationship with the children as
required by Iowa Code section 598.41(5)(b). Through liberal visitation and
the exercise of joint legal custody, the children can realize the benefits of
Lyle’s continued involvement in their lives.
B. Property and Alimony Issues.
1. Legal Framework for Property and Alimony Issues.
In dissolution-of-marriage cases, marital property is to be divided
equitably, considering the factors outlined in Iowa Code section 598.21(1).
Equitable distribution depends upon the circumstances of each case. In re
Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). An equitable
division is not necessarily an equal division. In re Marriage of Anliker, 694
N.W.2d 535, 542 (Iowa 2005).
35
Alimony may also be awarded to a spouse in addition to the
distribution of property. “Alimony ‘is a stipend to a spouse in lieu of the
other spouse’s legal obligation for support.’ ” In re Marriage of Probasco, 676
N.W.2d 179, 184 (Iowa 2004) (quoting In re Marriage of Francis, 442 N.W.2d
59, 62 (Iowa 1989)). Whether alimony is awarded depends on the particular
circumstances of each case. In re Marriage of Spiegel, 553 N.W.2d 309, 319
(Iowa 1996). Factors to be considered in awarding alimony are set forth in
Iowa Code section 598.21A(1).
2. Value of Marital Residence.
Ordinarily, a trial court’s valuation will not be disturbed when it is
within the range of permissible evidence. In re Marriage of Wiedemann, 402
N.W.2d 744, 748 (Iowa 1987). In ascertaining the value of property, its
owner is a competent witness to testify to its market value. Holcomb v.
Hoffschneider, 297 N.W.2d 210, 213 (Iowa 1980). Although our review is de
novo, we ordinarily defer to the trial court when valuations are accompanied
by supporting credibility findings or corroborating evidence. In re Marriage
of Vieth, 591 N.W.2d 639, 640 (Iowa Ct. App. 1999).
In this case, the district court accepted the valuation of $130,000
offered by Delores in her financial affidavit and in trial testimony. She
testified that the figure was based upon an appraisal by a real estate agent.
Lyle testified that the marital residence was worth $112,000 based upon a
December 31, 2001 valuation performed by a certified appraiser.
While the court of appeals held that the district court erred in
valuating the house at $130,000, we find that the district court’s valuation
of the marital residence was within the range of the evidence and, as a
result, should not be disturbed.
36
3. Distribution of Marital Assets and Debts.
The second property issue is whether the trial court properly
distributed marital assets and debts. The court of appeals found that the
district court made a scrivener’s error in its distribution table when it
erroneously entered the figure $9,237 for Lyle’s total liabilities and $7,952
for Lyle’s net assets under the distribution plan. In fact, the numbers were
transposed: the figure of $9,237 should have been entered as Lyle’s net
assets and $7,952 as Lyle’s total liabilities. We agree with the court of
appeals that this error should be corrected. When this error is corrected,
the payment required by Delores to equalize the distribution of assets is
reduced from $23,186 to $22,543.
Both the district court and the court of appeals granted Lyle a $541
deduction for an outstanding debt to J.W. McGrath. Mr. McGrath served as
Lyle’s initial counsel in these dissolution proceedings. This allowance is
illogical considering that Delores was not given reciprocal credit for her
litigation expenses. Attorneys’ fees incurred in dissolution proceedings are
not marital debt. See Rodvik v. Rodvik, 151 P.3d 338, 346 (Alaska 2006). It
was, therefore, error to characterize the debt to J.W. McGrath as marital
debt—it is Lyle’s personal liability. The court, however, does have the
discretion to make an award of attorneys’ fees when equitable. In re
Marriage of Rosenfeld, 668 N.W.2d 840, 849 (Iowa 2003). Such was the
case here where Delores was awarded both trial and appellate attorneys’
fees. To then allow Lyle a credit for his fees would thus be unequitable.
While this debt is relatively minor it does affect Delores’ equalization
payment. The payment required by Delores to equalize the distribution of
assets is reduced from $22,543 to $22,263.
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With respect to the district court’s distribution of credit card debt, we
note that the Capital One credit card finances the Durango which Delores
has been awarded. Further, the Discover credit card represents debt
accumulated after the parties’ separation. We see no basis for disturbing
the trial court’s disposition of these liabilities. While the AT&T credit card
debt was marital debt, we believe it is equitable to require Delores to
assume this liability as the level of debt was incurred without Lyle’s
knowledge and without his consent.
In determining the total assets retained by each party in the property
division, both Lyle and Delores received deductions for obligations owed to
relatives. The net value of Lyle’s assets was reduced by $7,391 as a result
of loans by Lyle’s sister, Leigh A. Wolf, which were incurred after the parties
separated. The net value of assets retained by Delores was reduced by
$6,500 as a result of a loan obtained during the course of the marriage from
Delores’ parents. The loan Lyle obtained from his sister is not documented
by a promissory note or other debt instrument. The loan from Delores’
parents is documented, but payments on the loan have not been made over
the past several years.
Delores claims that the trial court erred in assigning to Lyle a liability
for an undocumented loan that may or may not be enforced. A similiar
argument, however, can be made with respect to the loan from Delores’
parents. Loans from family members are not the same as indebtedness to
disinterested third parties. There is nothing fundamentally unfair with the
district court’s treatment of these liabilities, and we decline to disturb it on
appeal.
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4. Alimony.
Under Iowa law, alimony is not a matter of absolute right, but
depends upon the circumstances of each particular case. Anliker, 694
N.W.2d at 540. Factors to be considered in awarding alimony are provided
in Iowa Code section 598.21A(1). These factors include: (1) the length of
the marriage, (2) the age and physical and emotional health of the parties,
(3) the property distribution, (4) the educational level of the parties at the
time of the marriage and at the time the dissolution action is commenced,
(5) the earning capacity of the party seeking alimony, and (6) the feasibility
of the party seeking alimony becoming self-supporting at a standard of
living reasonably comparable to that enjoyed during the marriage. Iowa
Code § 598.21A(1)(a)-(f).
Upon our de novo review of the record, we affirm the court of appeals’
alimony award—$500 per month for a period of ten years. Factors which
support the increase in amount and duration of alimony include the
comparative income of the parties ($46,300 vs. $18,900), the lack of upward
mobility for Delores, and the nature of the property division in which
Delores assumes most of the marriage’s high interest liabilities. In re
Marriage of Friedman, 466 N.W.2d 689, 693 (Iowa 1991) (length of marriage,
disparity of earning capacity); In re Marriage of Hitchcock, 309 N.W.2d 432,
436-37 (Iowa 1981) (earning capacity, present standard of living balanced
against relative need of other spouse).
5. Child and Medical Support.
The record demonstrates that both child and medical support were
improperly calculated in this case. The undisputed facts are that Lyle’s
income is $46,300, not the $43,000 used in determining child support
payments. As a result, the court of appeals correctly ordered remand to the
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district court for recalculation of the child support payment. In addition, on
remand, the district court shall determine whether the proper level of child
support has been impacted by the disposition of the joint physical care and
visitation issues in this opinion.
With respect to medical support, the court of appeals correctly ruled
that under Iowa Court Rule 9.12, after the first $250 per child is paid by the
custodial parent, the remainder of uncovered medical expenses is to be split
in proportion to the parents’ incomes. On remand, the district court should
correct this error.
6. Attorneys’ Fees and Costs.
Delores seeks an award of appellate attorneys’ fees. The court of
appeals granted Delores $1,000 in attorneys’ fees, with costs assessed to
Lyle. In the exercise of discretion, we affirm the court of appeals, but do not
award additional attorneys’ fees and costs as a result of this further review.
V. CONCLUSION.
The decision of the court of appeals is affirmed as modified. The
decision of the district court is affirmed in part and reversed in part. The
decision of the district court ordering joint physical care is reversed.
Physical care of the children shall be awarded to Delores, with liberal
visitation awarded to Lyle as described in this opinion. The decision of the
district court to require Delores to pay Lyle $23,186 is reduced to $22,263.
The district court’s award of alimony at $300 per month for three years is
reversed and increased to $500 per month, payable over a period of ten
years unless Delores dies or remarries. The decision of the district court
regarding child and medical support is reversed and remanded for
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recalculation consistent with this opinion. No further award of attorneys’
fees is made on this appeal.
DECISION OF THE COURT OF APPEALS AFFIRMED AS
MODIFIED; DISTRICT COURT JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND CASE REMANDED WITH INSTRUCTIONS.