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.
2
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
3
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’
4
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
5
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,
6
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
7
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
8
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
9
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.
In re Marriage of Lange
Combined Opinion