In re Marriage of Lange

IN THE COURT OF APPEALS OF IOWA

No. 16-1484
Filed December 6, 2017

IN RE THE MARRIAGE OF KYLE LANGE
AND JESSICA LANGE

Upon the Petition of
KYLE LANGE,
Petitioner-Appellee,

And Concerning
JESSICA LANGE, n/k/a JESSICA L. SCHNEIDER,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clarke County, Patrick W.

Greenwood, Judge.

A mother appeals the custody and spousal support provisions of a decree

of dissolution. AFFIRMED.

Joseph G. Bertogli, Des Moines, for appellant.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

Jessica Lange n/k/a Schneider challenges several provisions of the decree

dissolving her marriage to Kyle Lange. Jessica argues shared physical care is not

in the best interest of the parties’ two children and she should receive physical care

of the children. She also seeks a greater amount of spousal support for longer

duration. Finally, Jessica argues Kyle should have been required to pay more of

her trial attorney fees.

I.

Jessica and Kyle Lange were married in 2005. At the time of trial, Jessica

was thirty-eight and Kyle thirty-seven. They have two children, R.L., born in 2008,

and A.L., born in 2010. Both Kyle and Jessica have undergraduate and graduate

degrees from Iowa State University. The couple resided in Osceola throughout

their marriage. Kyle is employed by DuPont Pioneer and makes $154,452.96

annually, plus bonuses. Jessica worked at John Deere from the beginning of the

marriage until she quit in May 2015. At the time she quit her employment, she

earned approximately $57,053 annually. Jessica testified she quit her employment

to become a stay-at-home mother until her children were independent. Kyle

testified Jessica’s absence from the workforce was meant to be temporary and

Jessica did not tell him she wanted to stay at home until July 2015. At the time of

trial in May 2016, Jessica was seeking employment.

Until shortly before the initiation of this dissolution proceeding, the parties’

care arrangement for the children was well established. Both Kyle and Jessica

worked in Des Moines. Their home was on an acreage approximately 700 feet

from Kyle’s parents’ home. Kyle and Jessica commuted together from Osceola to
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Des Moines. The children were dropped off at daycare at approximately 7 a.m.

Kyle’s parents picked up the children from daycare at approximately 4:30 p.m. and

cared for the children until Kyle and Jessica returned from Des Moines, typically

between 6 and 7 p.m. Kyle’s parents frequently prepared dinner for the family,

and the family frequently ate at Kyle’s parents’ home. When Jessica quit her

employment in May 2015, she provided care for the children while Kyle was at

work.

Kyle filed for divorce on August 24, 2015. Kyle, Jessica, and the children

all remained in the martial home until February 2016. Once Kyle moved out of the

marital home, the parties exercised shared physical care of the children.

At trial, Kyle and Jessica disagreed about the appropriate physical care

arrangement for their children. Kyle sought joint physical care while Jessica

sought physical care. Jessica argued that even when both parents worked full-

time she provided the day-to-day care for the children, including missing work

when the children were sick. Kyle testified as to his own involvement in raising the

children. His supervisor testified the company worked with Kyle to create a more

flexible schedule to allow Kyle to spend more time with the children. A court-

appointed custody evaluator found the children were bonded with both parents and

benefited from relationships with both parents. The evaluator concluded “[Jessica

and Kyle] are more than capable of co-parenting their children in a manner that

places the children’s needs as a priority.”

The trial court granted Jessica and Kyle joint legal custody and joint physical

care of the children. The trial court awarded $2000 per month in rehabilitative

alimony to Jessica for a period of twenty-four months. Based upon the parties’
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disparate earnings, the trial court awarded Jessica $5000 in attorney fees. Jessica

appeals all three of these decisions. She seeks physical care, $3000 a month in

rehabilitative alimony for sixty months, and $10,000 in trial attorney fees. In

addition, she requests appellate attorney fees.

II.

Review of dissolution cases is de novo. In re Marriage of McDermott, 827

N.W.2d 671, 676 (Iowa 2013). The court gives weight to the findings of the district

court, particularly concerning credibility, but they are not binding. Id. Appellate

review must focus on the particular circumstances of the parties; “[p]rior cases

have little precedential value.” Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.

App. 2002). The court will only “disturb the district court’s ‘ruling only where there

has been a failure to do equity.’” McDermott, 827 N.W.2d at 676 (citation omitted).

The district court’s award of attorney fees is reviewed for abuse of discretion. In

re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006).

III.

A.

We first address the issue of the physical care arrangement. In determining

physical care, the court is guided by two principles. First, “[t]he 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.” In re

Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Second, it is generally in

the best interests of the children to have maximum continuing physical and

emotional contact with both parents. Iowa Code § 598.41(1)(a) (2015). Iowa Code

section 598.41(5)(a) provides the court may award joint physical care at the
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request of either parent and if it does not award 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.”

Iowa Code § 598.41(5)(a).

In making the determination whether joint physical care is appropriate, the

Hansen court identified four non-exclusive factors to consider. See Hansen, 733

N.W.2d at 696. The first Hansen factor, approximation, addresses the “historic

patterns of caregiving.” Id. at 697. “[W]e 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.” Id. at 697–98. The

second factor is the ability of the parents to communicate and show mutual

respect. A lack of trust or a history of controlling or abusive behavior can be a

significant barrier to co-parenting. Id. at 698. Third, the degree of conflict between

the parents is a relevant consideration. Id. “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.” Id. Fourth and finally, “is

the degree to which the parents are in general agreement about their approach to

daily matters.” Id. at 699. In addition to these considerations, the court must

evaluate the unique circumstances of each case. Id.

If the court determines joint physical care is inappropriate, the court must

choose which caregiver is best suited for primary care. Id. at 700 (citing Iowa Code

§ 598.41(1)(a), (5)). The court considers which parent would support the other’s

relationship with the child as well as continuity, stability, and approximation. Id. A

list of other consideration factors includes the needs of the child, safety,
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geographic proximity, and the child’s wishes, among others. See Iowa Code §

598.41(3); In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974).

We discuss each of the relevant factors. The approximation factor favors

Jessica, although not as strongly as she suggests. The record reflects Kyle’s

parents provided a significant amount of care for the parties’ children for the great

majority of the parties’ marriage, including preparing and hosting dinner for the

family most nights. This was because both parents were employed full-time and

spent a great deal of time commuting to and from work. While the testimony did

support a finding that Jessica provided more care for the children when the parties

were home, Kyle was not an absent father. In addition, since their separation, the

parties have exercised joint physical care of the children without any significant

issue relating to the care arrangement.

The other Hansen factors support an award of joint physical care. Jessica

and Kyle are able to communicate and show respect for each other. From August

2015 to February 2016, Kyle and Jessica continued to reside in the martial home

with this dissolution action pending. The parents communicate now by text, email,

and a smartphone application for divorced parents to coordinate the children’s

activities, schedules, and needs. The record shows little in the way of conflict

between the parties. Jessica testified she and Kyle had “small arguments here

and there.” Since the separation, the parties have been mostly cooperative,

especially in regards to the welfare of their children. To the extent the parties do

have disputes, the disputes tended to concern financial matters associated with

the dissolution proceeding. We expect these disputes to dissipate post-

dissolution. Finally, the parties are in general agreement about the approach for
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handling daily matters. Jessica testified she and Kyle generally agree regarding

the children’s activities, educational needs, healthcare, and overall parenting

styles. Kyle agreed with Jessica’s sentiments.

Both Kyle and Jessica are loving and capable parents. They both have

strong bonds with their children and have been active participants in their children’s

lives. Kyle and Jessica have a history of appropriate communication and general

agreement on parenting matters. There is no evidence a joint physical care

arrangement is detrimental to the children. We affirm the district court’s award of

joint physical care.

B.

We next address the issue of spousal support. Spousal support is not

awarded as a matter of right. See In re Marriage of Becker, 756 N.W.2d 822, 825

(Iowa 2008). Instead, it is in the discretion of the district court to award spousal

support as needed based on the particular circumstances of each case. See In re

Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015). The factors relevant to the

determination are set forth at Iowa Code section 598.21A. The court must consider

all of the factors in relation to one another when making an award. See id. “Our

cases applying the statute have identified three kinds of support: traditional,

rehabilitative, and reimbursement.” Id. However, the categories may overlap in

some cases. See id.

In this case, the district court awarded Jessica rehabilitative spousal support

in the amount of $2000 per month for twenty-four months. “Rehabilitative spousal

support is ‘a way of supporting an economically dependent spouse through a

limited period of re-education or retraining following divorce, thereby creating
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incentive and opportunity for that spouse to become self-supporting.’” Becker, 756

N.W.2d at 826 (citation omitted). Since the goal of rehabilitative support is self-

sufficiency, the award should be of an appropriate duration for the “realistic needs

of the economically dependent spouse.” Id.

On de novo review of the evidence in light of the statutory factors, we affirm

the award of spousal support. Jessica received significant assets as a result of

the division of the parties’ property. The marriage was not of long duration. The

parties are both in their late thirties and are in good health. Jessica has an

advanced degree and strong employment history. She has been out of the labor

force for only a short period of time. While the district court denominated the

support here as rehabilitative, Jessica does not need traditional rehabilitative

support so much as transitional support while finding suitable employment. See

In re Marriage of Lee, No. 10–0948, 2011 WL 227573, at *6–7 (Iowa Ct. App. Jan.

20, 2011) (affirming two-year award alimony where wife had same education level

as husband and strong employment history but there was disparity between the

parties’ income). Rehabilitative alimony in the amount of $2000 a month for

twenty-four months is equitable under the circumstances presented.

C.

Jessica challenges the district court’s award of attorney fees. The district

court ordered Kyle to pay $5000 in attorney’s fees. Jessica argues Kyle should

have to pay a greater proportion of her attorney fees.

Trial courts have considerable discretion in awarding attorney fees. In re

Marriage of Rosenfeld, 668 N.W.2d 840, 849 (Iowa 2003). A trial court’s award of

attorney fees is reviewed under an abuse of discretion standard. Sullins, 715
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N.W.2d at 247. “Whether attorney fees should be awarded depends on the

respective abilities of the parties to pay.” Id. at 255 (quoting In re Marriage of

Guyer, 522 N.W.2d 818, 822 (Iowa 1994)). “In addition, the fees must be fair and

reasonable.” Guyer, 522 N.W.2d at 822.

Jessica has not identified any abuse of discretion. The district court based

its award on the disparity in income between the parties and Kyle’s ability to pay

in light of his expenses. The district court also assessed court costs and the fees

of the custody evaluator against Kyle, which was approximately $4000. Based on

these facts, there is no evidence to conclude the trial court abused its discretion.

This court declines to disturb the trial court’s award of $5000 in attorney fees to

Jessica.

D.

Both parties seek appellate attorney fees. “An award of appellate attorney

fees is not a matter of right but rests within our discretion.” In re Marriage of Kurtt,

561 N.W.2d 385, 389 (Iowa Ct. App. 1997) (citing In re Marriage of Scheppele,

524 N.W.2d 678, 680 (Iowa Ct. App. 1994)). “[W]e consider the needs of the party

making the request, the ability of the other party to pay, and whether the party

making the request is obligated to defend the trial court’s decision on appeal.” In

re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Taking these factors into

consideration, we decline to award Jessica appellate attorney fees.

IV.

For these reasons, we affirm the judgment of the district court in all respects.

AFFIRMED.