IN THE COURT OF APPEALS OF IOWA
No. 19-1569
Filed November 30, 2020
IN RE THE MARRIAGE OF JOSEPH EDWARD GIFFORD SR
AND LEIA LYNN GIFFORD
Upon the Petition of
JOSEPH EDWARD GIFFORD SR,
Petitioner-Appellant/Cross-Appellee,
And Concerning
LEIA LYNN GIFFORD,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Jason D. Besler, Judge.
Joseph Gifford appeals and Leia Gifford cross-appeals the provisions of the
decree dissolving their marriage. AFFIRMED ON BOTH APPEALS.
David M. Cox of Bray & Klockau, P.L.C., Iowa City, for appellant.
Mark D. Fisher and Alexander S. Momany of Howes Law Firm, P.C., Cedar
Rapids, for appellee.
Considered by Doyle, P.J., Mullins, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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DOYLE, Presiding Judge.
Joseph Gifford (Joe) appeals and Leia Gifford cross-appeals from the
provisions of the decree dissolving their fifteen-year marriage. The parties
challenge various provisions of the decree concerning child custody and visitation
of their three children, as well as property division and spousal support. Because
dissolution actions are tried in equity, we review their claims de novo. See In re
Marriage of Anderson, 509 N.W.2d 138, 142 (Iowa Ct. App. 1993).
I. Partial Stipulation.
We first address Leia’s claim that the district court committed reversible
error by considering a partial stipulation of settlement the parties signed on
December 14, 2017, which addressed all matters except child support. When the
parties signed the stipulation, Joe had legal counsel but Leia did not. Leia emailed
Joe’s attorney1 on December 19 requesting a discussion for changing the
agreement, but Joe filed a copy of the stipulation when he petitioned to dissolve
the marriage the next day. Leia resisted entry of the partial stipulation, and the
court declined to approve or enforce it.
When the matter came to trial, Joe offered the partial stipulation into
evidence, and Leia objected. The court noted that the partial stipulation was
already part of the court file and admitted it into evidence, stating it would decide
how much weight to give it. On appeal, Leia contends the court committed
reversible error by admitting and considering the partial stipulation.
1 That attorney withdrew from representing Joe in February 2018, and another
attorney represented him throughout the proceedings.
3
A court sitting in equity may not exclude evidence but hears all evidence
subject to objection. See id.; United Props., Inc. v. Walsmith, 312 N.W.2d 66, 73-
74 (Iowa Ct. App. 1981). This practice affords us a complete record on appeal,
where we may rule on the merits after deciding the admissibility of the evidence.
See Anderson, 509 N.W.2d at 142; United Props., 312 N.W.2d at 74. If the district
court considers improper evidence, reversal is not required because we may
disregard that evidence in our de novo review. See In re Marriage of Williams, 303
N.W.2d 160, 163 (Iowa 1981).
Without deciding the question of admissibility, we find the partial stipulation
does not aid in our resolution of the issues. We exclude it from our review.
II. Child Custody and Visitation.
The district court granted joint legal custody of the parties’ three children.
When a court grants joint legal custody of a child, it may award joint physical care
if either parent requests it. See Iowa Code § 598.41(5)(a) (2017). In determining
whether joint physical care is appropriate, we consider “(1) stability, continuity of
caregiving, and approximation; (2) ‘the ability of the spouses to communicate and
show mutual respect’; (3) ‘the degree of conflict between parents’; and (4) ‘the
degree to which the parents are in general agreement about their approach to daily
matters.’” In re Marriage of Hansen, 886 N.W.2d 868, 874 (Iowa Ct. App. 2016)
(citation omitted).
Leia requested joint physical care, but the court determined it was not in the
children’s best interests. The court observed that Joe and Leia employ different
parenting styles and have opposing views as to how well the temporary joint-
physical-care arrangement worked while the dissolution was pending. It also found
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that the parties’ issues with communication, respect, and trust will prevent a joint-
physical-care arrangement from working permanently.
“When joint physical care is not warranted, the court must choose one
parent to be the primary caretaker, awarding the other parent visitation rights.” In
re Marriage of Hynick, 727 N.W.2d 575, 577 (Iowa 2007). The court ultimately
determined that granting Joe physical care is in the children’s best interests.
Although much of the witness testimony did not help the court in determining
physical care, it made particular note of the testimony of a witness who had lived
with Leia for a long time. That witness admitted he was not “an overly protective
parent” and believed in allowing children some freedom, but he believed Leia took
that philosophy “to an extreme.” The court found this witness’s testimony was in
keeping with other evidence of Leia’s lax attitude, which had placed the children’s
physical health at risk. Although Joe has faults, the court determined he “is doing
a better job watching, protecting, and providing for the minor children” and “is
prepared, ready, and able to make the sort of day-to-day decisions required of the
[parent] who has primary physical care.”
When the court grants physical care to one parent, it should provide liberal
visitation to the other parent to “assure the child the opportunity for the maximum
continuing physical and emotional contact with both parents.” Iowa Code
§ 598.41(1)(a). The visitation schedule must serve the best interests of the
children. In re Marriage of Gensley, 777 N.W.2d 705, 718 (Iowa Ct. App. 2009).
Noting the amount of Leia’s involvement in the children’s lives, the court granted
her extraordinary visitation, with Leia receiving only one less overnight visitation
than she had under the court’s temporary order for joint physical care. The court
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also determined Leia is entitled to another day of visitation when school is out or
the children are sick following a weekend visitation.
Leia challenges the decision to grant Joe physical care of the children and
seeks joint physical care or, in the alternative, asks us to grant her physical care.
She complains that the district court failed to provide continuity in the children’s
care because it deviated from the joint-physical-care arrangement that was in
place in the thirteen months before trial and disregarded her historical role as
primary caretaker. She notes that the court found the parties could communicate
sufficiently for joint legal custody and granted her extraordinary visitation, which
she believes contradicts the court’s reason for denying joint physical care. She
also claims she is better suited to protect the noncustodial parent’s relationship
with the children.
For his part, Joe seeks to have Leia’s visitation reduced to alternating
weekends and holidays. To support his argument for less visitation, he cites the
same issues with instability, lack of supervision, and communication that led the
court to conclude Leia was the less suitable caretaker. He also complains about
the provision granting Leia an extra day of visitation when the children are not in
school, arguing it grants Leia unilateral discretion to keep the children for another
day if she believes the children are sick.
In addressing the parties’ claims, we begin by noting that although our
review is de novo, the district court observed the witnesses at trial and is in a better
position to determine their interests, as well as “their motive, candor, bias, and
prejudice.” See Albert v. Conger, 886 N.W.2d 877, 880 (Iowa Ct. App. 2016). For
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this reason, we give weight to the trial court’s findings regarding conflicting
testimony and defer to its credibility determinations. See id. We do so here.
We agree that Joe should be granted physical care of the children.
Although continuity of care is one factor to consider in determining physical care,
the court is not required to place a child with the parent who has acted as primary
caretaker before the parties’ separation. See In re Marriage of Knight, 507 N.W.2d
728, 730 (Iowa Ct. App. 1993). We also find no contradiction between granting
the parties joint legal custody and placing the children in Joe’s physical care with
Leia receiving extraordinary visitation. Legal custody provides “the ability to
participate in fundamental decisions about the child’s life, whereas physical care
encompasses the right to determine a myriad of details associated with routine
living.” See In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). Because
joint physical care affords greater involvement in day-to-day decision-making, it
also requires greater communication and cooperation between the parents. See
Hynick, 727 N.W.2d at 579 (“[J]oint physical care also envisions shared decision
making on all routine matters. Obviously, such decision making requires good
communication between the parents as well as mutual respect.”). “[T]he main
distinction between joint physical care and primary physical care with liberal
visitation rights is the joint decision making on routine matters required when
parents share physical care.” Id. at 580. By granting physical care to Joe with
extraordinary visitation to Leia, the court sought to balance these parents’ ability
to communicate and cooperate, safety concerns, and the need to maximize the
children’s contact with both parents. On the record before us, we concur with its
conclusion.
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III. Marital Home.
The district court awarded the marital home to Leia, noting that she had
lived in the home for over two years and “has worked hard on the house and made
it her home.” The court found it would be equitable to allow Leia to remain in the
home if she takes over the mortgage, and gave her ninety days to do so. If Leia
fails to refinance the home and remove Joe from the mortgage within that time
frame, the court ordered the parties to sell the home with Leia receiving the first
$16,360.33 of net proceeds and any remaining proceeds would be divided equally.
On appeal, Joe argues Leia should have to move out of the marital home
while it awaits sale because she has not maintained the property, makes late
mortgage payments, and has no incentive to ready the home for sale. Because
the court awarded the property to Leia, we disagree. If the house sale provision is
triggered and Leia violates the decree’s provisions on sale of the home, Joe has
other remedies available.
IV. Spousal Support.
We next consider Leia’s request for spousal support. Such an award is not
an absolute right but depends on the circumstances of each case. See In re
Marriage of Tzortzoudakis, 507 N.W.2d 183, 186 (Iowa Ct. App. 1993). In deciding
whether to award spousal support, the court looks at each party’s earning capacity
and balances one spouse’s needs against the other spouse’s ability to pay. See
id. It also considers the length of the marriage, each party’s age and health, the
distribution of property, each party’s education, and the feasibility of the party
seeking maintenance becoming self-supporting at a standard of living reasonably
comparable to that enjoyed during the marriage. See Iowa Code § 598.21A(1).
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We accord the trial court considerable latitude in determining whether to award
spousal support. See In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015).
Leia seeks a spousal-support award, noting that she was economically
dependent on Joe during their marriage and earns much less than he does. But
the district court noted that Leia has been in a new relationship since 2017 and
living with her boyfriend since February 2018. They have a child together, and
Leia claims his children as her stepchildren. Leia and her boyfriend also share a
bank account where they commingle their funds. The court considered Leia’s
complete financial picture, including her new relationship and the property division,
in determining spousal support was not appropriate.
We affirm the denial of spousal support. Although cohabitation is not a
ground for automatic denial or limitation of spousal support, the court may consider
it when it affects a party’s financial status and need for support. See In re Marriage
of Orgren, 375 N.W.2d 710, 712 (Iowa Ct. App. 1985); see also In re Marriage of
Ales, 592 N.W.2d 698, 703 (Iowa Ct. App. 1999) (stating that “cohabitation can
affect the recipient spouse’s need for spousal support and is therefore a factor to
consider” in an action to modify). In considering the totality of Leia’s financial
status, she has not shown a need for support.
V. Dissipation of Property.
Leia seeks compensation for Joe’s alleged dissipation of funds from the sale
of a home in California, which totaled $208,531.43. That amount was deposited
into the parties’ joint bank account in April 2017. The parties used money from the
sale to pay off joint debts. Three weeks after the deposit, Joe withdrew $153,000.
Leia asks for an award of one-half of the $153,000.
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The court may consider the improper disposition or waste of marital property
before dissolution in determining an equitable property division. See In re Marriage
of Kimbro, 826 N.W.2d 696, 700-01 (Iowa 2013). Spending on legitimate
household expenses is not considered dissipation. See id. at 701.
The district court found insufficient evidence to show “either party spent or
used the money in any manner that was inconsistent with reasonable behavior.”
At the time of trial, $83,696.68 of the $153,000 remained in one of Joe’s accounts.
Although Joe testified that the California home was his premarital asset because
he owned it “long before [he and Leia] ever met,” the court determined that Leia
was entitled to one-half of the remaining $83,696.68 based on joint title and Leia’s
contributions during the marriage. The equalization payment of $26,135.37 that
the court ordered Joe to pay Leia is based in part on Leia’s entitlement to those
funds.
We agree that the evidence does not establish that Joe dissipated marital
funds. Rather, the money spent from the $153,000 Joe withdrew from the parties’
joint account was used to pay expenses. For instance, Joe made mortgage
payments on the marital home from the time the parties’ separated in May 2017
until the court entered a temporary order in April 2018 besides paying for his own
housing during the same period. Joe also gave Leia some money for her
expenses. The court included the remaining $83,696.68 in its property division,
awarding half to Leia. In considering the overall property division, we find it to be
equitable.
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VI. Appellate Attorney Fees and Costs.
Both parties seek an award of appellate attorney fees. Joe also asks that
Leia pay costs of the appeal.
An award of appellate attorney fees is not a matter of right but rests within
this court’s discretion. See In re Marriage of McDermott, 827 N.W.2d 671, 687
(Iowa 2013). In deciding whether to award appellate attorney fees, we consider
the needs of the party making the request, the ability of the other party to pay, and
the merits of the appeal. See id. After considering these factors, we decline to
award either party appellate attorney fees. We assess costs of the appeal equally
to both parties.
AFFIRMED ON BOTH APPEALS.