In re the Marriage of Harper

IN THE COURT OF APPEALS OF IOWA

No. 22-0041
Filed January 11, 2023

IN RE THE MARRIAGE OF MATTHEW CALVIN HARPER
AND STEPHANIE MAE HARPER

Upon the Petition of
MATTHEW CALVIN HARPER,
Petitioner-Appellee,

And Concerning
STEPHANIE MAE HARPER,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

A wife appeals the district court’s grant of physical care to the husband,

division of a retirement account, the calculation of her spousal support, and award

of attorney fees. AFFIRMED AS MODIFIED AND REMANDED WITH

INSTRUCTIONS.

Thomas J. Viner of Viner Law Firm P.C., Cedar Rapids, for appellant.

Rachel R. McCrate of Gray, Stefani, & Mitvalsky, P.L.C., Cedar Rapids, for

appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.

Matthew Harper petitioned to dissolve his marriage with Stephanie Harper

in 2019. When their trial date came around, Stephanie requested a continuance

because of a potential COVID-19 exposure, which the district court granted.

Following the dissolution trial nine months later, the district court gave Matthew

physical care of the couple’s two children, divided Matthew’s retirement accounts

using their values as of the original trial date, and ordered him to pay $10,000.00

toward Stephanie’s attorney fees. Stephanie appeals, arguing the district court

should have awarded joint physical care, divided the retirement accounts as of

their actual trial date, and awarded her full attorney fees. Because joint physical

care is not in the children’s best interests and we find no abuse of the trial court’s

discretion in its award of attorney fees, we do not disturb those portions of the

decree. But, because equity typically requires marital assets be divided on the

date of the dissolution and we find no facts mandating an alternate date here, we

modify the decree and remand so the district court can file appropriate qualified

domestic relations orders (QDRO).

I. Background Facts and Prior Proceedings.

Stephanie and Matthew were married in June 2010 and have two children,

ages ten and seven at the time of trial. After their first child was born, Stephanie

forwent working outside of the home to care for the child full time and avoid the

cost of daycare. Matthew continued working as an engineer, a job he still had at

the time of the dissolution hearing.

In 2016, Stephanie left the home with both children and did not return.

Stephanie filed a temporary protective order claiming Matthew was physically
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abusing her and the children. Days later, police found her wandering down the

middle of a street with both children around 2:30 a.m.; they took her to the hospital

for a mental-health evaluation. Stephanie was hospitalized, but because of the

protective order, the children could not be placed with Matthew. The Iowa

Department of Human Services (DHS) removed the children from Stephanie’s

care, adjudicated them children in need of assistance (CINA), and placed them

with a family friend. Soon after, the protective order was dismissed and, while the

CINA cases stayed open, the children were returned to Matthew’s custody.

Stephanie remained out of the family home until 2018 while she engaged

with mental-health treatment. During this time, Matthew was the sole caregiver for

the children. The older child was exhibiting challenging behaviors before

Stephanie left the home, but Matthew was able to adjust his parenting style and

establish a routine that mitigated these issues.

In 2018, Stephanie moved back into the family home. DHS recommended

the CINA case be closed because Stephanie had addressed her mental-health

concerns and appeared stable since April 2017, and the juvenile court agreed.

The relationship began to deteriorate, however, and Matthew petitioned for

dissolution of the marriage in January 2019. In February, Stephanie left the family

home and moved into an apartment. Without Matthew’s consent, she took the

children with her, stating she would only allow him supervised time with the

children until he agreed to a joint-care arrangement. Matthew filed an emergency

motion for a temporary injunction requiring the children to reside in the family

home, which the district court granted. Within hours, Stephanie filed a petition for

relief from domestic abuse, alleging Matthew had assaulted her—the petition was
 4

dismissed when the court found no assault occurred.1 She also moved to vacate

the temporary injunction, but the motion was denied. Stephanie and the children

moved back into the family home. Both Matthew and Stephanie asked their

mothers to move in to the home.2 This period was rife with tension and a lack of

communication between the parents, which led to stress for the children,

manifesting in negative shifts in their behavior.

But an April 28 court order on temporary matters named Matthew the

children’s physical caregiver, required Stephanie to move out of the marital home,

and established a visitation schedule that remained in place at the time of the

dissolution hearing. According to that temporary schedule, Stephanie exercised

visitation from Tuesday afternoon to Wednesday afternoon and on alternating

weekends. The order afforded each parent the right to a phone call each Saturday

night during the other parent’s visitation. Stephanie was ordered to pay $167.00

per month in temporary child support while Matthew was ordered to pay Stephanie

$1000.00 per month in temporary spousal support.

The parties were set to have their dissolution trial in November 2020, and

in anticipation of it, they filed a stipulation of assets and liabilities.3 This stipulation

1 During the incident in question, Matthew and Stephanie were arguing in the
school parking lot about who was taking the children home and Matthew prevented
Stephanie from removing the younger child from his car. By Stephanie’s own
admission at the dissolution hearing, she never believed Matthew intended to harm
her.
2 Matthew testified he asked his mother to move in because he “was afraid that

[Stephanie] was going to make more false accusations against [him]. [Stephanie]
responded by having her mother come stay in the house during that time as well.”
3 This judicial district requires a joint pretrial statement before a trial date can be

set, and part of that statement requests asset values and whether those values
are contested or not.
 5

included the agreed value of Matthew’s retirement account. But, in the days

leading up to the trial, one of the children was exposed to COVID-19. Both parents

had spent time with the child before learning of the exposure; still, Stephanie said

she was uncomfortable being in the courtroom with Matthew because of his

potential exposure. So, Stephanie moved to continue the trial, and Matthew

resisted. The court recognized the concern and offered to hold the trial by video

conference—Matthew agreed, but Stephanie did not. With no agreement over the

video conference option, the trial was rescheduled at the next available date, which

was nine months later. In the interim, Matthew successfully requested a

modification of the temporary child support, and Stephanie was ordered to pay

$520.85 each month.

Ahead of the hearing in August 2021, Matthew filed an updated statement

of his assets and liabilities; one of his retirement accounts had increased by more

than $120,000.00. Again, the parties signed a stipulation of assets and liabilities,

but one of the account values used by Stephanie was not the new, updated value.

Adding to the confusion, in the joint pretrial statement filed by the parties, Matthew

proposed Stephanie be awarded $237,860.00 of the retirement account at issue

and Stephanie suggested a payment of $159,625.00. Yet at trial, Stephanie’s

attorney asked that the court use the current value and requested a payout of

$221,704.03.4 Matthew resisted the recalculation, arguing Stephanie should not

reap the benefit of unreasonably delaying the hearing. In the end, the district court

4 The value of the disputed retirement account at trial was $501,021.00. In
Stephanie’s calculation, she deducted the premarital value of $57,612.92 and then
divided the remainder in half.
 6

used the November 2020 value of $376,862.00, deducted the premarital value,

and awarded Stephanie one half of that net value or $159,594.53.

During the portion of the trial discussing the physical-care dispute, Matthew

explained his concerns with an award of joint physical care. First, he raised

concerns over Stephanie’s ongoing mental-health issues and some concerning

notes she wrote in her journal in 2018. Then, addressing her lack of focus, he

pointed to instances in the past where Stephanie sent the older child to school at

the regular time in spite of weather delays, was not there when the child got home

from school, or accidentally tried to give the child two doses of her medication.

More recently, when the children have returned from their visits with Stephanie,

they have reported to Matthew they have not taken their medication at all. He also

had concerns because the children sometimes came back after visits either hungry

or sick from eating “junk food,” unbathed, and dressed inappropriately for the

weather. Matthew reported difficulty getting Stephanie to answer emails or text

messages about the children or answer the phone for his scheduled calls during

her visits. He offered testimony that the older child’s behavior has improved under

the current schedule, but there are still times where the older child can be

aggressive toward the younger child; Matthew believed this behavior went

unchecked by Stephanie.5

On the custody subject, Stephanie emphasized her earlier role as the

primary caretaker of the children. She reported the work done on her mental health

5 Matthew gave examples of the younger child’s uncharacteristic behavior
indicating the issue, including once when the younger child reported the older child
had punched her in the stomach and later proceeded to throw up.
 7

during the CINA case had been helpful. Though she no longer participated in

counseling or regularly takes medication, she believed she had found ways to

maintain her mental health. Overall, she asserted she did not have the opportunity

to demonstrate her growth because of the limited time she was given with the

children. When asked, Stephanie stated she respected some aspects of Matthew

but did not really respect him. As for her financial stability, Stephanie testified she

was now working full-time as a seamstress making $21.75 per hour and earning

time-and-a-half pay for overtime.

Stephanie also offered, as exhibits, two promissory notes she had from her

parents. One reflected a $20,072.50 loan from her parents to pay for attorney

fees—Stephanie asked the district court to order Matthew to pay her total attorney

fees of $33,765.08, including the money her parents had fronted. Matthew

requested $15,000.00 in attorney fees from Stephanie.

The district court awarded Matthew physical care; it granted Stephanie

visitation every other weekend from Friday afternoon to Monday afternoon and

every Tuesday afternoon to Wednesday afternoon. Stephanie was required to pay

$713.91 each month in child support, and Matthew was required to pay $1000.00

in spousal support each month until January 2026. The district court also divided

Matthew’s retirement accounts based on their value at the original trial date rather

than the actual trial date. After comparing each party’s requested attorney fees

and ability to pay, the district court ordered Matthew to pay $10,000.00 of

Stephanie’s attorney fees.

Matthew and Stephanie each filed a motion to reconsider and amend; the

district court denied both. Stephanie now appeals.
 8

II. Discussion.

Stephanie appeals the dissolution decree, arguing the district court should

have awarded her and Matthew joint physical care, the retirement accounts should

have been valued at the date of the dissolution trial, and she should have been

awarded all of her attorney fees.6 Our review is de novo, but we give weight to the

findings of the district court, especially its credibility determinations. See In re

Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007).

A. Joint Physical Care.

Both parties agreed to joint legal custody; Stephanie focused in her

appellate brief on a request for joint physical care. So we do as well. “‘Physical

care’ means the right and responsibility to maintain a home for the minor child[ren]

and provide for the routine care of the child[ren].” Iowa Code § 598.1(7) (2019).

When one parent is granted physical care, the other parent is often given the right

to visitation. Hansen, 733 N.W.2d at 691. But, when a court awards joint physical

care, the parents both “have rights and responsibilities toward the child[ren]

including but not limited to shared parenting time with the child[ren], maintaining

homes for the child[ren], providing routine care for the child[ren] and under which

neither parent has physical care rights superior to those of the other parent.” Iowa

Code § 598.1(4). Courts consider the unique facts of each case to determine if

joint physical care is in the best interests of the children, ensuring they are placed

6Stephanie also argues the district court erred in not granting her spousal support.
This is factually inaccurate—Stephanie was awarded $1000.00 in monthly spousal
support for sixty-two months, which was the amount she requested. Insofar as the
argument is meant to head off any assertion by Matthew that she should not have
been awarded spousal support, as Matthew has not cross-appealed the issue, we
address it no further.
 9

“in the environment most likely to bring them to health, both physically and

mentally, and to social maturity.” Hansen, 733 N.W.2d at 695. Importantly,

“[p]hysical care issues are not to be resolved based upon perceived fairness to the

spouses, but primarily upon what is best for the child[ren].” Id. The factors courts

use to determine if joint physical care is in the children’s best interests 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).

i. Approximation.

Stephanie was undoubtedly the primary caregiver when the children were

younger, but Matthew has predominantly taken on this role in recent history. The

goal of approximation is to avoid disruption to the children’s lives, not to give credit

to the parents for their prior parenting time. See Hansen, 733 N.W.2d at 698–700

(“Conversely, where one spouse has been the primary caregiver, the likelihood

that joint physical care may be disruptive on the emotional development of the

children increases. . . . The concepts of continuity, stability, and approximation

thus cut strongly against joint physical care as a quality alternative least disruptive

to the children and most likely to promote their long-term physical and emotional

health.”). Since 2016, Matthew has been the constant for these children, providing

the lion’s share of their care apart from stints of attempted co-parenting. Thus,

Matthew has the edge on this factor. But approximation alone is not reason
 10

enough to make this decision, especially because both children have been in

school or daycare since at least 2016. See Berning, 745 N.W.2d at 93 (“We also

find approximation is mitigated in this case because [the child] has spent a

considerable portion of his life in daycare or pre-school.”); see also In re Marriage

of Vaughn, No. 14-0135, 2014 WL 6682052, at * 3 (Iowa Ct. App. Nov. 26, 2014)

(finding approximation concerns were allayed because the child would be in the

same school regardless of the physical-care arrangement, ensuring consistency

in a daily routine).

ii. Communication and Respect.

“Given the fact that neither parent has rights superior to the other with

respect to the child’s routine care, joint 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.” In re

Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). Even in recent years while

Matthew has had physical care, he and Stephanie have struggled to communicate

and are unable to agree even on a mode of communication. Stephanie herself

testified she respected some aspects of Matthew, but did not really respect him.

She also stated, “I’ve shied away from . . . a lot of in-depth conversations because

I just don’t feel like they’ve been productive. . . . I just feel like, given the

circumstances, it’s been really hard to do that.” She prefers not to speak with him

in person at exchanges because when “it’s happening in real time . . . you never

know exactly what’s going to come up and what emotions it might bring up.” But

Matthew testified that even when he attempted to send her a text message or

email, Stephanie will not always respond; Stephanie explained she will not respond
 11

if she takes issue with what Matthew is asking. And while in a dissolution “excellent

communication and cooperation [are] the exception and certain failures in

cooperation and communication [are not] surprising,” In re Marriage of Ellis, 705

N.W.2d 96, 103 (Iowa Ct. App. 2005), Matthew and Stephanie have not

demonstrated they could successfully cooperate enough and share care of the

children. So, this factor weighs against joint physical care.

iii. Conflict.

“The prospect for successful joint physical care is reduced when there is a

bitter parental relationship and one party objects to the shared arrangement.”

Hansen, 733 N.W.2d at 698. Because of the potential detriment conflict can cause

to the children, “[c]ourts must balance the marginal benefits obtained from the

institution of a joint physical care regime as compared to other alternatives against

the possibility that interparental conflict will be exacerbated by the arrangement.”

Id. at 699. In its dissolution decree, the district court gave great weight to Matthew

and Stephanie’s “strained and contentious” relationship. We agree the conflict

between these parents does not promote a grant of joint physical care. In a time

of attempted coparenting, Stephanie made the unilateral decision to take the

children out of their home and used time with them as a bargaining chip; when an

injunction prevented her from doing so, she tried to file for a protective order

against Matthew without merit. And when they tried to coparent afterwards,

tensions in the home grew until the district court ordered her to move out and

established the current care pattern. While Stephanie argues joint physical care

would lessen the conflict between the parents by equalizing the power balance,

we cannot agree given the parents’ track record. Ultimately, as long as the focus
 12

remains on what power balance is fair to the parents rather than what is best for

these children, the conflict will likely never dissipate and the children will suffer its

effects.

iv. Daily Matters.

Both parents testified to the differences in their parenting styles, and

Stephanie argues these types of differences do not necessarily weigh against an

award of joint physical care. See In re Marriage of Kreager, No. 07-1587, 2008

WL 4569885, at *5 (Iowa Ct. App. Oc. 15, 2008) (“The district court found, and we

agree, that although the parties have different parenting styles, neither style is

necessarily right or wrong and they in fact complement each other.”). Based on

Matthew’s testimony about how the parents differ in feeding the children,

medicating the children, and controlling the older child’s behavior toward the

younger child, we are not convinced these differences are quite so benign. We

believe Matthew shows more stability in the caretaking role since he began

handling more of the daily responsibilities. And, the concerns raised by Matthew

over Stephanie’s ability to deal with daily matters directs us away from a joint-

physical-care plan.

It is clear that both Matthew and Stephanie love their children and wish to

spend time with them. But, focusing on what is in the children’s best interests and

considering the factors important to the success of a joint-physical-care plan, we

affirm the district court’s decision to award the parties joint legal custody with

Matthew as the physical caretaker.
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B. Division of Retirement Accounts.

Stephanie next argues the district court should have divided retirement

assets as of the actual trial date rather than the initial trial date.7

When dividing marital assets, “[i]n most cases, it is equitable to value [them]

as of the trial date.” In re Marriage of Milne, No. 20-0228, 2020 WL 5230461, at

*8 (Iowa Ct. App. Sept. 2, 2020). Nevertheless, there are “occasions when the trial

date is not appropriate to determine values. Equitable distributions require

flexibility and concrete rules of distribution may frustrate the court’s goal of

obtaining equitable results.” In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa

Ct. App. 1997). These determinations depend on the unique facts of each case.

Id.

Matthew argued, and the district court agreed, that Stephanie should not

glean the benefit of the increase in his retirement account after she delayed their

trial date. We find this argument unconvincing. The district court was presented

with evidence of Stephanie’s “questionable motives” for the continuance at the time

she made the request. Still, in granting the continuance against Matthew’s

objections, the court had to be “satisfie[d] that substantial justice [would] be more

nearly obtained” by doing so. See Iowa R. Civ. P. 1.911(1). While equity requires

some flexibility, we will not use that flexibility to penalize Stephanie for the district

court’s decision to grant the continuance—a choice that, on appeal, we presume

is correct. See, e.g., Countryman v. McMains, 381 N.W.2d 638, 639 (Iowa 1986).

7The district court divided all marital assets based on their value as of the first trial
date. But Stephanie only asks us to remedy the division of the retirement accounts,
so we address only those.
 14

We also recognize and do not criticize how people chose to respond to any

exposure to COVID and do not think a sanction because of that avoidance should

be assessed here.

As we have noted in other cases, the default is to value assets as of the trial

date, and this case gives us no reason to deviate from that. See In re Marriage of

Campbell, 623 N.W.2d 585, 588 (Iowa Ct. App. 2001) (“We continue to use the

date of trial as the most appropriate date to value assets, while recognizing the

need for flexibility in making equitable distributions based on the unique

circumstances of each case. Under the facts of this case, it is neither practical nor

equitable to use the date of separation to value just one asset.”). The pretrial filings

presented various values for the district court to consider, so we think it best to

stick to one date to value all assets.8 See In re Marriage of Bangs, No. 09-0169,

2009 WL 2951513 at *4 (Iowa Ct. App. Sept. 2, 2009) (“[U]sing the date of trial to

fix the values of assets . . . avoid[s] asset valuation from becoming a moving

target.”). In the end, Matthew cannot argue that any efforts made by him, between

the initial trial date and the date the trial was held, resulted in the increased values

so that it would be inequitable for Stephanie to realize the same gain in the funds

he did under the decree.

8 As Matthew noted in one of his pretrial filings, some “values have not been
updated since the original trial date, which was November 2020. Some assets’
values have increased and some have decreased with the market’s ebb and flow
and as expenses (including attorney fees) have been paid. [Matthew’s] credit card
debt has increased since November 2020.” We believe all assets should be valued
as of the same date and not just selected assets that are only affected by the
market.
 15

The parties agreed that $57,612.93 of Matthew’s 401(k) and $18,233.81 of

his Roth IRA were premarital assets and should be deducted before distribution.

Matthew’s affidavit of financial status filed with the court just days before the trial

began, shows the values of the retirement accounts at $501,021.00 in his 401(k)

and $149,961.00 in his IRA. After subtracting the premarital amounts (pursuant to

the parties’ agreement),9 $443,408.07 of the 401(k) and $131,727.19 of the IRA

should be divided. To award an equal share of the marital balances, Stephanie is

entitled to $221,704.03 from the 401(k) and $65,863.60 from the Roth IRA. We

modify the property division accordingly.

C. Attorney Fees.

Stephanie’s final argument is that the district court should have granted her

the complete amount of her attorney fees. We review the grant of attorney fees

for an abuse of discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa

2006). “‘Whether attorney fees should be awarded depends on the respective

abilities of the parties to pay.’ To determine the ability to pay, we review the parties’

entire financial picture, ‘including their respective earnings, living expenses, and

liabilities.’” In re Marriage of Kimbro, 826 N.W.2d 696, 704 (Iowa 2013) (citations

omitted). We will not disturb the district court’s award unless it “rests on grounds

9 “Under our statutory distribution scheme, the first task in dividing property is to
determine the property subject to division. The second task is to divide this
property in an equitable manner according to the enumerated factors in section
598.21 of the Iowa Code.” In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa
2007) (internal citation omitted). “[T]he property included in the divisible estate
includes not only property acquired during the marriage by one or both of the
parties, but property owned prior to the marriage by a party.” Id. (citation omitted).
“The district court ‘may not separate [a premarital] asset from the divisible estate
and automatically award it to the spouse that owned the property prior to the
marriage.’” Id. (alteration in original) (citation omitted).
 16

that are clearly unreasonable or untenable.” Id. at 698. “A ruling is clearly

unreasonable or untenable when it is ‘not supported by substantial evidence or

when it is based on an erroneous application of the law.’” Id. at 698–99 (citation

omitted). The district court was within its right to require Matthew to pay Stephanie

an amount of attorney fees because she makes a fraction of Matthew’s income;

and we find no abuse of the court’s discretion in setting the amount at $10,000.00.

We will not disturb that award.

Stephanie also requests appellate attorney fees. We have broad discretion

to grant appellate attorney fees to the prevailing party and 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 Geil, 509 N.W.2d 738, 743 (Iowa 1993)

(citation omitted). Because Stephanie was unsuccessful in the majority of her

claims, we decline to award her appellate attorney fees.

III. Conclusion.

Because joint physical care is not in the children’s best interests and we find

no abuse of the trial court’s discretion in its award of attorney fees, we affirm those

portions of the decree. But, finding no facts to support using a date other than that

of the dissolution trial to determine the value of marital assets, we remand to the

district court with instructions to file the appropriate QDRO necessary to divide the

accounts appropriately.

AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.