In re the Marriage of Kappelman

IN THE COURT OF APPEALS OF IOWA

No. 21-0353
Filed June 15, 2022

IN RE THE MARRIAGE OF MELISSA K. KAPPELMAN
AND GEORGE C. KAPPELMAN

Upon the Petition of
MELISSA K. KAPPELMAN,
Petitioner-Appellant,

And Concerning
GEORGE C. KAPPELMAN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.

Melissa Kappelman appeals the physical care provision from a dissolution

decree. AFFIRMED.

Shanon M. Hounshell of SMH Law, PLLC, Ankeny, for appellant.

Jami J. Hagemeier of Hagemeier Law, P.L.C., Clive, for appellee.

Considered by Bower, C.J., Schumacher, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
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BOWER, Chief Judge.

Melissa Kappelman—now known as Melissa Ausberger—appeals the

physical care provision of the decree dissolving her marriage with George

Kappelman. We affirm.

I. Background Facts and Proceedings

Melissa and George married in 2003. The couple have three children, born

in 2004, 2007, and 2012. The parties separated in early 2019. In April, Melissa

obtained an apartment in a nearby town with her then-boyfriend; they still lived

there at the time of trial. George remained in the family home; also living there are

George’s new girlfriend and their child, George’s father, and Melissa’s brother.

In September, Melissa filed a petition for dissolution of marriage. Melissa

requested temporary and permanent physical care of the children. The parents

disagreed which school system the children should attend. Melissa enrolled the

children in schools near her home without consulting George, and George filed an

application for an emergency hearing on temporary custody. The court’s October

2019 ruling on temporary matters ordered joint legal custody, placed the children

in George’s physical care, and set a visitation schedule for Melissa. The children

returned to their previous school district.

At the dissolution trial in September 2020, Melissa sought legal custody and

physical care of the children with limited visitation time for George. George asked

for physical care of the children with liberal visitation for Melissa. The children

requested joint legal custody and variations of splitting physical care time between

the parents. Two children expressed a preference to attend the school where

Melissa lived.
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The court heard testimony from the parents, their friends and family, and a

behavior health intervention services specialist who had been working with the

family for the children’s benefit since January 2019. The specialist stated she

thought Melissa and George were each good parents but “there’s room for

improvements on both ends.” She emphasized the children were her focus and

the parents needed to find a way to set aside their feelings and do what is best for

the children.

In February 2021, the court issued its findings of fact, conclusions of law,

and decree of dissolution of marriage.1 The court ordered joint legal custody of

the children, but found George and Mellissa’s “struggles to communicate and

cooperate with one another” weighed against shared physical care of the children.

The court acknowledged each parent’s concerns about the other’s parenting ability

and observed “(a) that both parents have actively cared for the children before and

since the separation, (b) that this has not resulted in any physical harm to the

children, and (c) that the children still want both parents involved in their lives.”

The court found “both parties are equally credible and equally capable of effectively

ministering to the long-range best interests of the children.” The court awarded

physical care to George with liberal visitation for Melissa “in the interests of stability

and continuity.”

1 Melissa filed a motion to reopen the record in January 2021, offering exhibits
relating to concerns of behavior in George’s home. These exhibits were not
admitted before the dissolution decree was filed. Melissa raised the issue again
in a motion to modify the decree, but she filed her notice of appeal before the court
could rule, which divested the district court of jurisdiction. Because the evidence
was not admitted in the district court, it is not part of the record, and we cannot
consider it here.
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Melissa appeals, asserting she should have physical care of the children.

II. Standard of Review

“We review dissolution cases de novo.” In re Marriage of Sullins, 715

N.W.2d 242, 247 (Iowa 2006). “[W]e give weight to the trial court’s factual findings,

especially with respect to the credibility of the witnesses.” Id. (citation omitted).

III. Analysis

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.

In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). We consider the

factors listed in Iowa Code section 598.41(3) (2020) and facts and circumstances

set forth in our case law. See id. at 696. When the court determines joint physical

care is not in the best interests of the children, it must choose with which parent

the children’s physical care should be placed. Id. at 700. The court must consider

who will best support the other parent’s relationship with the children. Id.

Continuity and stability in the children’s care are primary factors in the court’s

decision. Id. Yet, the court must also consider the strength of the existing

emotional bonds between children and parent. Id.

Both parents clearly love the children. However, their differing parenting

styles do not blend well. Each has their strong points. George has a strong

support system with both his and Melissa’s extended families who are comfortable

in his home. Melissa is less focused and structured but does better at listening to

the children’s concerns and focusing on their needs. Melissa is proactive about

getting the children evaluated and on any needed medication.
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Each parent has weaknesses. George can react harshly at times and has

placed a significant amount of caregiving responsibility on his new girlfriend

despite her conflicts with the middle child. George is more skeptical and prefers

non-medication alternatives.2 Melissa does not seem to recognize the children

need and want both parents in their lives equally.

George and Melissa both work full time. George goes to work at 8:00 a.m.,

usually returning home between 4:00 and 6:00 p.m. Melissa starts later in the

morning and is done with work at 7:00 p.m. At the time of trial, the children were

attending school virtually due to the COVID-19 pandemic, supervised by adults

living in the home. Because Melissa’s work schedule conflicted with the visitation

schedule under the temporary order, George agreed the children would be with

Melissa most weekends.

We, like the district court, recognize the concerns expressed regarding each

parent’s care. Each parent is trying to be a good parent, but they simply do not

agree on the form that parenting takes. George has a stable, if crowded, home in

the children’s long-time school district with family available to help supervise the

children as needed. He has also shown a willingness to support the children’s

relationship with their mother and a greater degree of flexibility regarding visitation.

Melissa has shown stronger protective actions.

2 For example, during the separation—without doctor approval—George stopped
giving the middle child prescribed medication “off and on. Until my lawyer advised
me not to.” He took the children to a new doctor for a more recent evaluation and
has agreed he will give the children whatever medication the new doctor
prescribes.
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Based on the record before the district court, we agree George has

demonstrated greater stability and continuity for the children and has better

supported the children’s relationship with the other parent. We affirm the grant of

physical care to George.

George requests an award of his appellate attorney fees and that costs be

taxed to Melissa. “Appellate attorney fees are not a matter of right, but rather rest

in this court’s discretion. In determining whether to award appellate attorney fees,

we consider the needs of the party seeking the award, the ability of the other party

to pay, and the relative merits of the appeal.” In re Marriage of McDermott, 827

N.W.2d 671, 687 (Iowa 2013) (internal quotation marks and citations omitted).

Although George asserts Melissa has “a far superior ability to pay,” we do not find

that to be the case. We decline to award appellate attorney fees. We assess costs

equally between the parties.

AFFIRMED.