In re Marriage of Hargrafen

IN THE COURT OF APPEALS OF IOWA

No. 22-0238
Filed August 17, 2022

IN RE THE MARRIAGE OF ANDREA M. HARGRAFEN
AND KYLE D. HARGRAFEN

Upon the Petition of
ANDREA M. HARGRAFEN, n/k/a ANDREA M. CANBY,
Petitioner-Appellant/Cross-Appellee,

And Concerning
KYLE D. HARGRAFEN,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Delaware County, Michael J.

Shubatt, Judge.

A party appeals the parenting time and physical care provisions of a

dissolution decree and the other party cross-appeals. AFFIRMED ON BOTH

APPEALS.

Jeremy N. Gallagher of Kintzinger, Harmon, Konrardy, P.L.C., Dubuque, for

appellant/cross-appellee.

Mark A. Roeder of Roeder Law Office, Manchester, for appellee/cross-

appellant.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.

Andrea Canby, formerly Andrea Hargrafen, appeals the parenting time and

physical care provisions of the parties’ dissolution decree. Kyle Hargrafen cross-

appeals on issues of physical care, daily video and/or telephone calls with the

children, and the property distribution. Both parties request appellate attorney

fees. We affirm on both appeals.

I. Background Facts & Proceedings

Kyle and Andrea were married in 2016. They have two children, E.H., born

in 2017, and K.H., born in 2019. The parties separated in July 2020. Andrea

remained in the marital home in Manchester and Kyle moved to his parents’ home

in Hopkinton. The distance between homes is about eighteen miles. Andrea filed

a petition for dissolution of marriage on July 29, 2020. The parties informally

agreed to joint physical care of the children; a temporary order was not requested.

Andrea cared for the children three and one-half days a week when she was not

working and Kyle cared for the children on the remaining three and one-half days

of the week. This joint physical care arrangement continued for approximately a

year before the dissolution trial.

Andrea is employed as an emergency room nurse at Regional Medical

Center in Manchester. She works three days a week, from 6:30 p.m. to 7:00 a.m.

The three days are usually consecutive but are not always the same three days

each week. In order to help pay for the dissolution, Andrea began working one to

two days a month at the Anamosa State Penitentiary. She has annual income of

$52,629.00 from these two jobs.
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Kyle works at Colony Brands in Peosta. Throughout most of the marriage

he worked the second shift, usually from 3:00 p.m. to 11:00 p.m., on Monday

through Friday. A few weeks before the dissolution trial Kyle changed to the first

shift, which is from 6:30 a.m. to 2:30 p.m. Kyle works some overtime during the

holiday season. Kyle’s annual income is $33,959.00.

The parties stipulated to the disposition of all liabilities and most assets prior

to trial. The dissolution trial was held in September 2021. The older child was

then four-years-old and the younger child was two. The parties agreed to joint

legal custody of the children. Both parties requested that they be awarded physical

care or in the alternative, that the parties be awarded joint physical care. Andrea

requested a right of first refusal, so that if Kyle was not able to personally care for

the children, she would be given the option to care for them. Kyle requested that

daily video and/or phone contact be allowed with the children.

In the dissolution decree, filed in November 2021, the court awarded the

parties joint physical care on “a week-on, week-off schedule,” with exchanges

every Sunday at 6:00 p.m. The court denied Andrea’s request for a right of first

refusal and denied Kyle’s request for daily video and/or telephone contact with the

children. The court set a holiday visitation schedule and ordered Andrea to pay

$155.00 per month in child support.

Concerning the contested assets of the parties, the court set aside to Kyle

a 1999 Firebird valued at $3000.00 and an Edward Jones account valued at

$25,000.00, as such were gifts Kyle received prior to the marriage from his parents.

The court found the marital residence was a marital asset, although Andrea paid

the down payment with premarital funds. Andrea’s student loan debt was included
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as a marital liability. The court found Kyle was awarded a slightly greater amount

of net marital property but did not require him to pay an equalization payment. The

court determined each party should be responsible for their own attorney fees.

Kyle filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).

Andrea also filed a rule 1.904(2) motion. Each party resisted the other party’s

motion.

The court entered a ruling on the post-trial motions on January 25, 2022.

The court (1) instituted a cost-sharing provision requiring Andrea to pay fifty-nine

percent and Kyle to pay forty-one percent of some of the children’s expenses;

(2) denied Andrea’s request for a right of first refusal; (3) adjusted the property

division to require Andrea to pay $5000.00 to Kyle; (4) denied Kyle’s request for

daily scheduled telephone and video visitation on the days the parents did not have

the children in their care; (5) clarified who would receive the dependent income tax

credit for tax purposes; (6) specified who would be responsible for transportation

for visitation; and (7) set out which school district the children would attend. Andrea

appealed and Kyle cross-appealed.

II. Standard of Review

We review dissolution of marriage decrees in equity. In re Marriage of

Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). In equitable actions, our review

is de novo. Iowa R. App. P. 6.907. “In such cases, ‘[w]e examine the entire record

and adjudicate anew rights on the issues properly presented.’” Knickerbocker, 601

N.W.2d at 50–51 (alteration in original) (citation omitted). “In equity cases,

especially when considering the credibility of witnesses, the court gives weight to
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the fact findings of the district court, but is not bound by them.” Iowa R. App. P.

6.904(3)(g).

III. Right of First Refusal

Andrea claims the court should have included a right of first refusal in the

parties’ dissolution decree. She states that such a provision would be in the

children’s best interests because the children could be cared for by a parent while

the other parent is working, rather than placing the children in the care of relatives

or in daycare. During the weeks Kyle has the children, they must be cared for by

someone other than Kyle during the time he is at work. The same holds true for

the weeks Andrea has the children. Andrea requests a provision that requires that

if a parent is going to be unable to care for the children because they are working,

the parent should be required to ask the other parent to care for the children before

asking anyone else. The primary consideration in determining whether a right of

first refusal should be granted is the best interests of the children. In re Marriage

of Klemmensen, No. 14-1292, 2015 WL 2089699, at *3 (Iowa Ct. App. May 6,

2015).

A right of first refusal has been approved in certain situations. See Varner

v. Conway, No. 20-0143, 2021 WL 3661143, at *7 (Iowa Ct. App. Aug. 18, 2021)

(granting a right of first refusal “when either biological parent knows they will be

leaving town during their care time and unable to personally care for the child for

more than twenty-four hours”); In re Marriage of Brown, No. 19-0705, 2020 WL

569344, at *5 (Iowa Ct. App. Feb. 5, 2020) (providing for a right of first refusal when

a parent was unable to care for the children for twelve hours or more);
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Klemmensen, 2015 WL 2089699, at *3 (granting a right of first refusal where the

father was required to work twelve or more hours on some weekends).

A right-of-first-refusal provision has been rejected, however, where adding

the provision “would only complicate matters and create stress and animosity

between the parties.” Dirks v. Eccles, No. 19-0994, 2020 WL 2071116, at *4 (Iowa

Ct. App. Apr. 29, 2020). There, the court noted the child would “benefit from a

structured custodial schedule.” Id.; see also In re Marriage of Johnsen, No. 20-

0779, 2021 WL 2690019, at *4 (Iowa Ct. App. June 30, 2021) (denying a request

for a right of first refusal when a parent was away for four hours or more, as it

would “only result in additional conflict”); c.f. Klemmensen, 2015 WL 2089699, at

*4 (finding the provision was appropriate because it would not result in heightened

conflict between the parents).

The district court did not include a right-of-first-refusal provision in the

parties’ dissolution decree but informed the parties they could agree to this

practice, stating:

The parties are divorcing themselves from each other and will be co-
parenting on a shared care basis. They should remain free to care
for and raise the children as they see fit during those times when the
decree provides that they are to be in their care. If the parties want
to agree with one another to allow each other visitation time during
their respective weeks when they are unable to care for the children
personally, they certainly may do so. That is between them,
however, and will not be Court-ordered. The same is true with any
temporary adjustments or variations the parties want to make with
respect to the week-on, week-off schedule.

We determine that a right of first refusal on this record is not in the children’s

best interest. Andrea’s work schedule is not the same every week. And the hours

Andrea gets off and picks up the children have widely varied. While Andrea was
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scheduled to pick the children up from Kyle’s at 5:00 p.m., those pickups varied

from 3:20 p.m. to 8:05 p.m. with less than a half hour notice to Kyle. The

consistency of a schedule when the children are with each parent is in the

children’s best interest. Under the proposed right of first refusal, the parents could

be exchanging the children daily. These exchanges would occur, under the

parties’ current work schedule, on many occasions before 6:30 a.m. We affirm the

district court on this issue.

IV. Physical Care

Andrea contends that if her request for a right of first refusal is denied, then

she should be awarded physical care of the children. She states that while the

parents shared many tasks equally, she took the children to medical appointments.

She also states that she involved the children in activities, such as dance lessons

and swimming lessons. Andrea believes Kyle did not respect her and tried to spy

on her. In his cross-appeal, Kyle asks to have the children placed in his physical

care. He questions Andrea’s mental stability, highlighting alleged suicidal ideation.

In considering which parent should be awarded physical care of children,

the court considers the factors in Iowa Code section 598.41(3) (2020) and In re

Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). “[T]he factors of

continuity, stability, and approximation are entitled to considerable weight” when

making a decision regarding physical care. In re Marriage of Hansen, 733 N.W.2d

683, 700 (Iowa 2007). Courts look for a placement that will best promote the long-

term physical and emotional health of the child. Id. Each decision is based on the

unique facts and circumstances of the case. Id. “In child custody cases, the first

and governing consideration of the courts is the best interests of the child.” Iowa
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R. App. P. 6.904(3)(o); In re Marriage of Roberts, 954 N.W.2d 757, 760 (Iowa Ct.

App. 2020).

The district court addressed each spouse’s concerns regarding the

parenting of the other spouse. The court found, “While Andrea may have

underlying mental health issues, it appears to the Court that she has addressed

whatever those issues might be and that they will not prevent her from being a

good parent to her children.” Concerning Kyle’s actions when he was spying on

Andrea, the court found, “[A]s with Andrea’s behaviors, they do not appear likely

to continue once this action is concluded and the parties go on with their lives, nor

do they appear likely to impact his ability to parent the children.”

While each parent sought physical care of the children, they alternatively

requested joint physical care. The court carefully considered the appropriate

factors for determining whether joint physical care was in the best interests of the

children. See Hansen, 733 N.W.2d at 697–99. These factors are:

(1) “approximation”—what has been the historical care giving
arrangement for the child between the two parties; (2) the ability of
the spouses to communicate and show mutual respect; (3) the
degree of conflict between the parents; and (4) “the degree to which
the parents are in general agreement about their approach to daily
matters.”

In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (quoting

Hansen, 733 N.W.2d at 697–99). The court determined joint physical care with a

“week-on, week-off schedule” was in the children’s best interests, as it provided

“the greatest amount of certainty as to [the parents’] parenting responsibilities.”

The district court heard the parties’ testimony and observed them in the

courtroom. The Iowa Supreme Court has stated:
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The deference we pay to trial court findings is especially strong here.
As will appear, the case turns, not so much on what was said and
done, as upon the implications of the words and actions of the
parties. In resolving such a case a trial court, as first-hand observer
of witnesses, holds a distinct advantage over an appellate court,
which necessarily must rely on a cold transcript.

In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). We agree with

the district court’s assessment that joint physical care is in the best interests of the

children.

V. Visitation

Kyle requests video and/or telephone visitation with the children every day

while they are in Andrea’s care. He states that he would allow Andrea the same

access to the children while they are in his care. Kyle argues it is important for the

parents to have daily contact with the children, even when they are not in the

parent’s care. Specifically, Kyle requests that he have video and/or telephone

visitation nightly when the children are in Andrea’s care for up to five minutes with

each child within an hour before the children’s bedtime, and that Andrea exercise

five minutes of telephone and/or video visitation between 5:30 p.m. and 6:30 p.m.

on nights she works, and within one hour before the children’s bedtimes when

Andrea does not work.

Generally, liberal visitation with the noncustodial parent is in the children’s

best interests. Iowa Code § 598.41(1)(a); In re Marriage of Stepp, 485 N.W.2d

846, 849 (Iowa Ct. App. 1992). In the case In re Marriage of Coon, a father who

did not have physical care of the children was granted the right to have a daily

telephone call. No. 14-1919, 2015 WL 5308976, at *1 (Iowa Ct. App. Sept. 10,

2015). Later, the decree was modified to reduce the number of telephone calls.
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Id. Also, in In re Marriage of Kraft, a father who did not have physical care of the

children was granted two mandatory telephone calls per week. No. 99-1719, 2000

WL 1289135, at *2 (Iowa Ct. App. Sept. 13, 2000). Kyle’s situation is not like either

of these cases because he has joint physical care of the children and spends

alternating weeks with them.

The district court ruled, “The Court views this issue the same way it views

Andrea’s request for a right of first refusal. It is an issue that the parties should be

able to negotiate themselves. Accordingly, this request for enlargement is denied.”

We agree with the denial of daily video and/or telephone contact. The district

courts cannot be in the business of micromanaging the parties’ and the children’s

lives. The parties are required to communicate as they share joint physical care.

But the proposal, if adopted by the court, invites disagreements on when and if

each parent received daily video and/or telephone contact at the correct time and

for the correct length of time with the children when not in that parent’s physical

care. We decline to modify the decree concerning the requested daily video and/or

telephone contact.

VI. Property Division

In the dissolution decree, the court determined a 1999 Firebird valued at

$3000.00 and an Edward Jones account valued at $25,000.00 should be set aside

to Kyle because they were gifts he received from his parents prior to the marriage.

The table of assets and liabilities attached to the dissolution decree, however,

included the two items in the assets awarded to Kyle, resulting in total net assets

awarded to Kyle of $54,349.00. Andrea received total net assets of $49,212.00.
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The court did not order Kyle to pay an equalization payment, stating the result was

equitable although not equal.

Kyle raised the discrepancy between the language of the dissolution decree

and the court’s calculation of the net martial assets he received in his rule 1.904(2)

motion. He stated that if the value of the Firebird and Edward Jones account were

excluded from the marital assets, he received total net marital assets of

$26,349.00. Kyle asked for an equalization payment of $11,431.50. Andrea

resisted Kyle’s motion. She pointed out that the court did not give her credit for

paying the down payment of $13,000.00 on the marital residence from her

premarital funds.

In the ruling on the post-trial motions, the court recognized that it had

incorrectly calculated the parties’ assets in the table of assets and liabilities

attached to the dissolution decree. The court determined Kyle had total net marital

assets of $26,349.00 and Andrea had total net marital assets of $49,212.00. The

court concluded Andrea should pay Kyle an equalization payment of $5000.00,

rather than $11,431.50 as he requested. The court stated, “This decrease is

equitable because it gives Andrea credit for approximately one-half of the down

payment on the house, which came primarily out of her pre-marital funds.” In the

post-trial ruling, the district court listed the marital assets and liabilities of the

marriage as follows:

MARITAL ASSETS
KYLE’S ASSETS $37,549
KYLE’S DEBT $11,200
KYLE’S NET $26,349
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ANDREA’S ASSETS $200,266
ANDREA’S DEBT $151,054
ANDREA’S NET $49,212

Under this computation, Andrea’s net is $22,863.00 more than Kyle. Kyle

claims the division of assets and debts by the court was inequitable. He contends

that the court should not have given Andrea credit for her payment of $13,000.00

for the down payment on the marital residence from premarital funds because she

also had $13,701.00 of premarital student debt. He also asserts that Andrea kept

the children’s portion of $5455.00 from COVID stimulus money. Kyle states

Andrea should be required to pay $11,431.50 to him as an equalization payment.

“[C]ourts equitably divide all of the property owned by the parties at the time

of divorce except inherited property and gifts received by one spouse.” In re

Marriage of Keener, 728 N.W.2d 188, 193 (Iowa 2007). Property is divided “in an

equitable manner in light of the particular circumstances of the parties.” In re

Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). “An equitable distribution

of marital property, based upon the factors in [section] 598.21(5), does not require

an equal division of assets.” In re Marriage of McDermott, 827 N.W.2d 671, 682

(Iowa 2013) (quoting In re Marriage of Kimbro, 826 N.W.2d 696, 703 (Iowa 2013)).

We ordinarily will not disturb the district court’s ruling unless it fails to do equity.

See In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).

Premarital property is not set aside like gifted and inherited
property. [In re Marriage of Fennelly, 737 N.W.2d 97,102 (Iowa
2007)]; In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct. App.
1996). The district court should not separate a premarital asset from
the divisible estate and automatically award it to the spouse who
owned it prior to the marriage. Fennelly, 737 N.W.2d at 102; [In re
Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006)]. Rather,
property brought into the marriage by a party is merely a factor
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among many to be considered under section 598.21(5). Schriner,
695 N.W.2d at 496. “[T]his factor may justify a full credit, but does
not require it.” Miller, 552 N.W.2d at 465. Other factors under section
598.21(5) include the length of the marriage, contributions of each
party to the marriage, the age and health of the parties, each party’s
earning capacity, and any other factor the court may determine to be
relevant to any given case. See Fennelly, 737 N.W.2d at 102.
In contrast, gifted and inherited property are considered non-
marital property. Section 598.21(6), however, contains a
qualification to the gift and inheritance set-aside rule: “[p]roperty
inherited by either party or gifts received by either party prior to or
during the course of the marriage . . . is not subject to a property
division . . . except upon a finding that refusal to divide the property
is inequitable to the other party.” Our supreme court has identified a
number of factors for courts to consider in determining whether gifted
or inherited property should be divided:
(1) contributions of the parties toward the
property, its care, preservation or improvement;
(2) the existence of any independent close
relationship between the donor or testator and the
spouse of the one to whom the property was given or
devised;
(3) separate contributions by the parties to their
economic welfare to whatever extent those
contributions preserve the property for either of them;
(4) any special needs of either party;
(5) any other matter which would render it
plainly unfair to a spouse or child to have the property
set aside for the exclusive enjoyment of the donee or
devisee.
In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000)
(quoting In re Marriage of Muelhaupt, 439 N.W.2d 656, 659 (Iowa
1989)). The court has also stated that “the length of the marriage
may be an important factor in determining whether gifted [or
inherited] property should be included in the court's property
distribution.” Goodwin, 606 N.W.2d at 319.

In re Marriage of Antoine, No. 09-1653, 2010 WL 5023072, at *6 (Iowa Ct. App.

Dec. 8, 2010).

On this record, we do not find the trial court failed to do equity between the

parties in awarding Kyle $5000.00 due to the down payment on the home made

by Andrea with premarital funds. And we find the rational for inclusion of Andrea’s
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student loan debt as marital to be supported by this record. We affirm the property

division of the trial court.1

VII. Attorney Fees

Andrea and Kyle both seek attorney fees for this appeal. Neither have filed

an attorney fee affidavit. Appellate attorney fees are awarded upon our discretion

and are not a matter of right. See In re Marriage of Okland, 699 N.W.2d 260, 270

(Iowa 2005). When considering whether to exercise our discretion, 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.” Id. (citation omitted).

After carefully considering each of these factors, we conclude each party

should be responsible for payment of their respective appellate attorney fees.

AFFIRMED ON BOTH APPEALS.

1 We decline to make any additional division concerning the stimulus checks
received for the children, as we are unable to determine what, if any portion, of the
children’s stimulus funds, are reflected in Andrea’s bank accounts that are included
in the marital assets.