In re Marriage of Kisting

IN THE COURT OF APPEALS OF IOWA

No. 23-0948
Filed February 7, 2024

IN RE THE MARRIAGE OF SARA BETH KISTING
AND MATTHEW MICHAEL KISTING

Upon the Petition of
SARA BETH KISTING n/k/a SARA BETH BAHL,
Petitioner-Appellee,

And Concerning
MATTHEW MICHAEL KISTING,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County,

Monica Zrinyi Ackley, Judge.

Matthew Michael Kisting appeals the order modifying his dissolution decree.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Stuart G. Hoover of Alliance Law Office, East Dubuque, Illinois, for

appellant.

Myia E. Steines of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,

Dubuque, for appellee.

Bridget L. Goldbeck of Hughes & Trannel, P.C., Dubuque, for minor

children.

Heard by Bower, C.J., and Greer and Chicchelly, JJ.
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CHICCHELLY, Judge.

Matthew Michael Kisting appeals the modification of the decree dissolving

his marriage to Sara Beth Bahl. He challenges the decision to grant physical care

of the parties’ children to Sara and contends the court interfered with his parental

rights in violation of both the United States and Iowa Constitutions. He also

challenges the award of Sara’s trial attorney fees. Finally, Sara requests an award

of appellate attorney fees. Upon our de novo review, we affirm the modification of

the dissolution decree but vacate the provisions allocating sole decision-making

authority to Sara. We find the district court did not interfere with Matthew’s

constitutional or parental rights. Finally, we decline to consider his challenge to

Sara’s award of trial attorney fees and further award her appellate attorney fees.

I. Background Facts and Proceedings.

The parties’ marriage was dissolved in 2016. In the decree, both parties

were granted joint legal custody and joint physical care of their two children: L.R.K.,

born in 2009; and S.J.K., born in 2011. The decree adopted the parties’ stipulation,

which determined the children’s expenses, religious participation, and education.

Before the dissolution, the children attended the Holy Family Catholic School, and

Matthew and Sara stipulated they would split expenses for the children to continue

to attend private Catholic school. Despite the stipulation, Sara paid the entire

tuition for both L.R.K. and S.J.K.
 3

Since the dissolution, the parties’ relationships and circumstances have

changed. Sara remarried in 2017 and moved to Dubuque.1 Her husband, Josh,

has two children from a previous relationship. Matthew continues to live in the

marital home and has been engaged twice. His current fiancée, Brittni, has three

children from a previous relationship. Matthew and Brittni are waiting to marry until

her previous marriage is annulled and they can be joined in the Catholic faith.

Following their union, Brittni desires to become a homemaker and homeschool all

the children, including L.R.K. and S.J.K.

The catalysts for this action were two events, occurring in November 2021

and January 2022 respectively. First, in November, twelve-year-old L.R.K. was

caught communicating with her “boyfriend,” a male classmate from school. The

conversations were conducted by email on L.R.K.’s school-issued computer while

she was at Matthew’s house and included age-inappropriate content.2 Both

Matthew and Sara were concerned about the content of these conversations as

well as L.R.K.’s access to electronics, but they disagreed substantially on how to

resolve these issues. Both parents use some form of supervision or controls

during their parenting time, but they were unable to agree on whether L.R.K.

should have a cell phone even with restrictions. They also fundamentally disagree

on the purpose of dating or at what age their children should begin dating.

Matthew’s view is that his children may meet someone, preferably Catholic, at

1 The district court was aware of Sara’s relationship and plan to move to Dubuque

at the time of the dissolution. Because these changes were contemplated at the
time of the dissolution, we do not factor them into our analysis.
2 We choose to be intentionally vague about the conversation to respect the privacy

of the two minor children involved and because the content is not directly
applicable to the appeal.
 4

around seventeen and be married once they “became that serious” at eighteen or

nineteen. Meanwhile, Sara sees “dating” at L.R.K.’s age as harmless because it

generally just means “sitting next to each other in the lunchroom.” She would

prefer to monitor them now while they have less freedom and access to driving.

Since this incident transpired, Matthew and Sara have argued about what

happened and how to move forward. Matthew’s communications with both Sara

and the school district have dramatically deteriorated.

A second event that motivated this modification action occurred on

January 1, 2022, when Sara arrived at Matthew’s home to pick up L.R.K. and

S.J.K. Before that day, Matthew and Sara had been arguing about whose

parenting time it was. Believing she was entitled to the children during the New

Year’s holiday, Sara arrived at Matthew’s that morning. She testified that before

anyone answered the door, she heard the sound of Matthew cocking his gun.

Upon opening the door, Matthew demanded Sara leave his property and

threatened to remove her if she did not comply within ten seconds. When Sara

did not leave, Matthew immediately grabbed her by the arm and dragged her off

his porch. Sara sustained bruising on her arm from the contact.

After the incident, Sara contacted the Jackson County Sheriff’s Office and

the Iowa Department of Health and Human Services (HHS). Matthew testified she

also reported him to the Iowa Department of Natural Resources with allegations of

poaching. Three days later, Sara applied for relief from domestic abuse and was

granted a temporary protective order. She further petitioned for modification,

requesting physical care. On May 5, the court entered a permanent protective

order, altering the physical-care arrangement to allow Matthew visitation with the
 5

children every other weekend. This arrangement continued throughout the

modification proceedings, and the parties attempted to communicate for the benefit

of the children. Despite their efforts and the ongoing protective order, Matthew

and Sara continued to engage in arguments from time to time.

In March 2023, Matthew recorded conversations with both L.R.K. and

S.J.K., where he interviewed each child separately. In the conversations, Matthew

shared documents from the domestic-abuse proceedings and the HHS

assessment with the children. He also read to the children verbatim from the

reports and asked them about the differences between the two households. A

couple weeks later, this recording was admitted as evidence at trial, and L.R.K.

testified she “lied the entire time” to avoid Matthew’s “ranting.”

The district court granted Sara’s petition, maintaining joint legal custody but

granting Sara physical care. Despite maintaining joint legal custody, the court

gave Sara the authority to make all religious and educational decisions for the

children. It also granted Matthew visitation and awarded Sara trial attorney fees.

Finally, the court ordered the parties not to discuss the order or proceedings with

the children. Matthew appeals.

II. Review.

We review modifications of dissolution decrees de novo. See Thorpe v.

Hostetler, 949 N.W.2d 1, 4 (Iowa Ct. App. 2020). “While we are not bound by the

fact-findings of the district court, we give them weight, especially as to credibility

determinations.” Id.
 6

III. Discussion.

Matthew contends that Sara failed to prove a substantial change in

circumstances occurred since the date of the parties’ dissolution, that the district

court interfered with his parental rights, and it should not have awarded Sara

attorney fees. Sara requests we award her appellate attorney fees. We review

each argument in turn.

A. Modification of Dissolution Decree.

Matthew argues that Sara failed to demonstrate the requirements to justify

modification of the physical-care arrangement. “[O]nce custody of children has

been fixed it should be disturbed only for the most cogent reasons.” In re Marriage

of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (quoting In re Marriage of

Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). The parent seeking modification

bears the burden of proving (1) the circumstances have materially and

substantially changed since the decree’s entry and (2) the “ability to minister more

effectively to the children’s wellbeing.” Id. (quoting Frederici, 338 N.W.2d at 158).

Our primary consideration is not what is best for the parents but rather “what is

best for the child.” Id. at 34 (quoting In re Marriage of Hansen, 733

N.W.2d 683, 695 (Iowa 2007)).

First, Matthew contends that Sara failed to show a substantial change in

circumstances occurred that would warrant modification and the district court

improperly relied on the domestic-abuse allegations. The changed circumstances

“must not have been contemplated by the court when the decree was entered, and

they must be more or less permanent, not temporary.” In re Marriage of Harris, 877

N.W.2d 434, 440 (Iowa 2016) (quoting Frederici, 338 N.W.2d at 158). We have
 7

previously modified “when the parents simply ‘cannot cooperate or communicate

in dealing with their children.’” Id. at 441 (quoting In re Marriage of Walton, 577

N.W.2d 869, 870 (Iowa Ct. App. 1998)); accord Hansen, 733 N.W.2d at 700–01

(modifying joint physical care for parents with extreme differences in parenting

styles and discipline); In re Marriage of Swenka, 576 N.W.2d 615, 617 (Iowa Ct.

App. 1998) (granting physical care after the parents could not “cooperate and

respect each other’s parenting and lifestyles”). While the district court considered

the allegations of domestic abuse, it primarily relied on the breakdown in Matthew

and Sara’s relationship to justify modification. Upon our own review, we agree that

Matthew and Sara’s ability to co-parent has deteriorated to the point that

modification is warranted. The record is replete with the differences between

Matthew and Sara’s parenting and their inability to compromise. At the time of the

dissolution, the parties were able to agree on the basics, such as the children’s

education and religious affiliation. Only two exceptions to this amicability stick

out: (1) Matthew alleging Josh committed child abuse at the children’s soccer

game; and (2) Matthew confronting Josh in the parking lot outside of a parent-

teacher conference, furious that Josh was in attendance. Outside of these

incidents, Matthew and Sara were generally able to communicate, even through

their disagreements. This continued for much of their co-parenting until the events

described previously. Especially after the physical-care arrangement was altered

in May 2022, their communication has greatly deteriorated.

Today, the parties cannot agree on the most significant parenting decisions.

Matthew wants the children to leave their private Catholic school while Sara wants

them to maintain enrollment. Matthew staunchly disagrees with the current school,
 8

finding it “a perverted and twisted form of ‘Catholicism.’” During the proceedings,

Matthew emailed several school officials, expressing his reservations with the

policies and curriculum, including “Marxist propaganda,” “women priests, denial of

biblical miracles,” and the events surrounding L.R.K.’s school emails. He also

condemned the school’s teaching that “masturbation was [ ] morally acceptable”

and employing a teacher “consistently breaking her vows of modesty by

jogging . . . in skin tight booty shorts and a sports bra.” Instead, he wants the

children to participate in “traditional Orthodox Catholic” homeschooling, with Brittni

serving as their teacher. Matthew would also prefer to remove the children from

any extracurriculars he considers “immodest” or immoral. In particular, he wants

to remove L.R.K. from both volleyball and show choir based on the uniforms and

costumes, dance moves, and music selection. In contrast, Sara prefers their

current school and encourages the children to participate in these social activities,

which L.R.K. and S.J.K. have expressed are important to them.

The parties’ parenting styles also differ wildly. They are unable to agree on

whether their children should be allowed even restricted access to cell phones or

other devices. They cannot decide at what point their children should be allowed

to start dating or what those relationships should look like. They further disagree

on the basic roles of men and women. L.R.K. testified that Matthew believes

women “should be like housewives” and encourages her to marry “right after my

senior year.” Matthew instructs L.R.K. to dress modestly through faith-based

internet articles and encourages S.J.K. to participate in football as “a good, manly

sport.” Sara takes a more well-rounded approach, encouraging a variety of

activities and viewpoints.
 9

While both Matthew and Sara are Catholic, their individual religious beliefs

drastically differ. Matthew adheres to more conservative Catholic views and is a

follower of Father James Altman.3 Matthew attends a Latin mass, where women

traditionally wear a veil for modesty, while Sara attends a local Catholic mass.

L.R.K. testified she does not like attending Latin mass because of the language

barrier and strict confession requirements. While Matthew argues that he has

always been Catholic and therefore this was contemplated by the original court,

Sara disagrees. She testified that Matthew has become “extremist” since their

dissolution. This has been extended to the schedules put in place for L.R.K. and

S.J.K. at each parent’s household. Both children participate in regularly scheduled

after-school activities at Matthew and Sara’s, but the similarities between the two

homes generally stop there. At Sara’s, the children have consistent chores and

homework time mixed with downtime. They attend a conventional Catholic mass

on Sundays. At Matthew’s, this is taken one step further, where the children follow

a rigorous regime of housework, exercise, and prayer. Matthew also observes a

strict Sunday Sabbath, which generally includes worship services and fellowship

and excludes work activities.

In its order, the district court recognized the conflict in the relationship and

addressed it. For example, it included a provision designating Sara to make all

religious and educational decisions, likely given the parties’ inability to agree. It is

not up to our court to “favor one religion over another in a custody determination.”

3 Father Altman is a Catholic priest of the La Crosse Archdiocese. He was
removed from his previous position as parish priest and currently has a YouTube
channel where he shares his teachings, which Matthew has viewed with the
children.
 10

In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct. App. 2003) (citation

omitted). But cf. In re Marriage of Anderson, 509 N.W.2d 138, 141 (Iowa Ct.

App. 1993) (finding positive values stemming from religious practice favor granting

physical care). We respect Matthew’s right to practice the religion of his choosing.

Decker, 666 N.W.2d at 179. But the district court’s lack of confidence in their ability

to make basic religious decisions and the high level of conflict between the parties

support a finding that there has been a substantial change in circumstances since

the court entered the original decree.

We further find Sara established herself as the parent who is better able to

meet the children’s needs.4 “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.” Hansen, 733 N.W.2d at 695

(citations omitted). Again, our primary focus is the best interests of the children.

Hoffman, 867 N.W.2d at 34. While not controlling, we consider the history of

caregiving to make this determination. In re Marriage of Roberts, 545

N.W.2d 340, 343 (Iowa Ct. App. 1996). Sara has historically been the primary

caregiver for the children. She has generally been responsible for school

registration, most appointments, and scheduling parent-teacher conferences. She

encourages L.R.K. and S.J.K. to participate in school and community activities,

and we have previously recognized the importance of extracurriculars for

socialization. See Harris, 877 N.W.2d at 444 (finding one parent more suitable

“based on her understanding of the children’s needs for socialization through

4 Matthew neglected to make any argument on this issue, and we therefore find it

waived. See Iowa R. App. P. 6.903(2)(g)(3).
 11

extracurricular activities”); see also In re Marriage of Hubbard, 315 N.W.2d 75, 82

(Iowa 1982) (granting physical care to the parent who “worked diligently to correct

the educational deficiencies of his children” and involved them in extracurriculars).

The children are also bonded to her, and L.R.K. testified she wanted to live with

Sara primarily with limited weekend visitation for Matthew. While not controlling,

we do consider the children’s wishes, especially when the child is of suitable age,

intelligence, and maturity. See Iowa Code § 598.41(3)(f) (2022); Hoffman, 867

N.W.2d at 35. L.R.K. was a bright fourteen-year-old at the time of the proceedings,

and we do consider her desire to live with Sara in our analysis.

The Iowa Code also requires the parent awarded primary physical care to

“support the other parent’s relationship with the [children].” Iowa Code

§ 598.41(5)(b). Sara is capable of fostering the relationship between Matthew and

the children. The record clearly shows her willingness to communicate with

Matthew regarding the children’s needs. She provides regular updates about the

children’s health and well-being and keeps him aware of their events and school

activities. She has been supportive of L.R.K. and S.J.K. bonding with Matthew

and his family, and she has attempted to share holidays based on Matthew and

Brittni’s schedules.

Based on past performance, Matthew is unable to reciprocate. When the

protective order prevented both parents from being able to attend L.R.K.’s show

choir event, Sara attempted to split the two performances so each parent could

watch her. Matthew told Sara he would be attending both performances, telling

her he would “immediately call the police” upon seeing her. More disturbing,

Matthew has been discussing the parties’ legal proceedings with L.R.K. and S.J.K
 12

in a way that is not age appropriate. He has shared court documents with the

children and made disparaging comments about Sara. He has bluntly discussed

their dissolution and alleged that her infidelity was the reason for their divorce.

During his visitation time, Matthew has had the children watch videos about Father

Altman’s teachings; the flaws of the judicial system and its preference for mothers

who make domestic-abuse allegations; and the rise of toxic masculinity and need

for male father figures and mentors. These were accompanied by discussions of

the videos and included materials and statistics about the outcomes of children

coming from “fatherless homes.” Matthew directly involved the children in the

proceedings when he made recorded interrogations of them, which he offered into

evidence. In the recordings, Matthew coached L.R.K. and S.J.K., using leading

questions until he received responses that he wanted. He read some of the

domestic-abuse allegations verbatim and encouraged the children to tell him these

statements were false. This behavior was not lost on the district court, which filed

a supplemental order after the modification that directed the parents to not discuss

the proceedings with the children. Based on these circumstances and Matthew’s

conduct, we find it is likely that granting physical care to Matthew would isolate the

children from Sara, while the reverse would allow the children to have a

relationship with both parents.

Because a substantial change in circumstances occurred justifying a

change in the physical-care arrangement and because Sara is better able to meet

the best interests of the children, we affirm the modification.
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B. Alleged Interference with Parental Rights.

Next, Matthew argues the district court violated his constitutional rights in

its modification order by restricting Matthew’s parental rights. He first challenges

the district court’s order as a violation of his religious freedoms. See U.S. Const.

amends. I, XIV; Iowa Const. art. I, § 3 (preventing the United States and Iowa

legislatures from “respecting an establishment of religion, or prohibiting the free

exercise thereof”). Despite awarding the parties joint legal custody of the children,

the district court’s order provided, “All education and religious decisions shall be

made by [Sara]. The children cannot be made to attend Latin mass with

[Matthew].” Matthew argues this prevents him from exercising his own beliefs and

bringing up his children in his preferred faith.

Upon our review, we conclude it is unnecessary to reach Matthew’s

arguments concerning constitutionality because we are required to vacate this

portion of the court’s order for other reasons. “The [Iowa Code] does not permit

an unequal distribution of decision-making authority, or an unbundling of decision-

making authority, when both parents retain joint legal custodian powers.” In re

Marriage of Sokol, No. 21-1918, 2022 WL 3440256, at *3 (Iowa Ct. App.

Aug. 17, 2022) (concluding Iowa Code sections 598.1 (defining legal custody)

and 598.41(2)(b) (regarding legal presumption in favor of joint legal custody) do

not permit inequal participation in decision-making by parents with joint legal

custody), aff’d in part and rev’d in part, 985 N.W.2d 177, 187 (Iowa 2023) (affirming

“the court of appeals modification of the custodial provisions of the decree”);

accord In re Marriage of Frazier, ___ N.W.2d ___, ___, 2024 WL 132508, at *2

(Iowa 2024) (treating the statutory definition of “joint custody as an all-or-nothing
 14

proposition” with equal shares of legal rights); In re Marriage of Makela, 987

N.W.2d 467, 471 (Iowa Ct. App. 2022) (concluding “the statutory definition of ‘joint

legal custody’ leaves no room for a parceling of rights”). Because the district court

gave Sara unilateral decision-making power without modifying legal custody, we

cannot consider this issue on appeal5 and must vacate this portion of the order.

The parties must be given equal rights in legal custody decisions, including “the

child’s legal status, medical care, education, extracurricular activities, and religious

instruction.” Iowa Code § 598.1(3). Therefore, we vacate any provisions that

contradict with the parties’ joint legal custody status.

Matthew also alleges that limiting visitation and communication with the

children further violates his constitutional rights. He specifically cites the district

court’s provisions allowing L.R.K. to disrupt his visitation, the court’s

recommendation that Matthew and L.R.K. seek counseling, the continued

representation of the children by their trial attorney, Sara’s privilege to

communicate with the children during his visitation time, and required mediation

should other issues arise. He also challenges the supplemental order, which

prevents him from discussing the modification proceedings with the children. The

district court’s primary considerations in its order were the children’s best interests

and the parties’ declining communication. Our authority “is not nullified merely

because the parent grounds his claim to control the child’s course of conduct on

religion or conscience.” In re A.O., No. 01-1445, 2002 WL 1973910, at *4 (Iowa

Ct. App. Aug. 28, 2002) (quoting Prince v. Massachusetts, 321

5 Neither party requested a change in legal custody as part of the modification.

Thus, this issue is not before our court on appeal, and we cannot consider it.
 15

U.S. 158, 166 (1944)). We may “override the parents’ qualified right to control the

upbringing of their children,” particularly when “harm to the physical or mental

health of the child” is established. Id. at *5 (quoting City of Panora v. Simmons,

445 N.W.2d 363, 369–70 (Iowa 1989)). Like the district court, we have concerns

about the level of conflict between the parties and the “disruptive effect” it imparts

on the children. See Harris, 877 N.W.2d at 441. This level of conflict can have

detrimental impacts on the children’s well-being, and a modification may prevent

such harm. See id. (noting children will inevitably become aware of parents’

disharmony). We further find each provision is intended to develop L.R.K.’s and

S.J.K.’s emotional, social, and physical health and to protect their interests. We

therefore find no unlawful interference with Matthew’s parental rights or violation

of his constitutional rights.

Though our allocation of physical care of the children to Sara does not

deprive Matthew of his “[r]ights and responsibilities as joint legal custodian . . . to

equal participation in decisions affecting the child[ren’s] legal status, medical care,

education, extracurricular activities, and religious instruction,” Iowa Code

§ 598.41(5)(b), in this case we find it necessary to stress the parents’ ongoing

mutual responsibility to cooperate in the best interests of their children. Our

decision to modify the joint physical care provisions of the decree is compelled by

the parents’ failure to cooperate and communicate in addressing the needs and

best interests of the children. Matthew has behaved as though by disputing an

issue concerning the children, then that decision is resolved in his favor and is

absolute. We caution Matthew that this approach not only ignores the spirit and

intent of joint legal custody, but also what may be in the best interests of the
 16

children. See Frazier, 2024 WL 132508, at *3 (holding when parents are in conflict

regarding a joint decision, the “all-or-nothing statutory definition of joint legal

custody . . . favor[s] the status quo”). If the modification ordered here does not

achieve more mature and cooperative parental communication and decision-

making by both parents in furtherance of the best interests of the children, the

remedy of sole legal custody remains an option in any future modification

proceedings. See Iowa Code § 598.41(2)(b) (providing if joint custody is not

ordered, “the court shall cite clear and convincing evidence . . . that joint custody

is unreasonable and not in the best interest of the child to the extent that the legal

custodial relationship between the child and a parent should be severed”);

Walton, 577 N.W.2d at 871 (“The court cannot order an awakening by the

parties . . . . This is something [the parents] must do on their own.”); In re Marriage

of Garvis, 411 N.W.2d 703, 707 (Iowa Ct. App. 1987) (“[W]hatever discord that

may exist between [divorced parents] must end when the well-being of their

children is involved.”); see also Harris, 877 N.W.2d at 444.

C. Award of Trial Attorney Fees.

Matthew also challenges the district court’s award of trial attorney fees to

Sara and the assessment of the fees for the children’s attorney. The Iowa Code

allows the district court to “award attorney fees to the prevailing party in an amount

deemed reasonable by the court” in a modification action. Iowa Code § 598.36.

The district court is given “considerable discretion” in determining a trial attorney

fee award. In re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013).

Accordingly, we review the award of trial attorney fees for an abuse of discretion.

See id. at 635. We will overturn an award only if “it rests on grounds that are clearly
 17

unreasonable or untenable.” In re Marriage of Erpelding, 917 N.W.2d 235, 238

(Iowa 2018) (quoting In re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013)).

In making its determination, the district court referenced section 598.36 and

granted attorney fees to Sara based on her success on the merits, but it did not

determine a set amount. See Iowa Code § 598.36 (permitting an award of trial

attorney fees for the “prevailing party” of an action). Instead, the court directed

Sara to submit an affidavit of those fees within ten days, and it would “enter a

separate order for judgment thereon.” While Sara’s counsel submitted the relevant

affidavit, we have no record that an order was ever entered, and therefore this

challenge is premature. See Iowa R. App. P. 6.103(2) (“The district court retains

jurisdiction to consider an application for attorney fees notwithstanding the appeal

of a final order or judgment in the action. If the final order or judgment in the

underlying case is also appealed, the party appealing the attorney fee order or

judgment shall file a motion to consolidate the two appeals.”); see also

Schwickerath v. Anderson, No. 21-1465, 2022 WL 17481857, at *10 (Iowa Ct. App.

Dec. 7, 2022) (requiring party “to separately appeal the award of attorney fees to

bring that matter before us for review”). Further, because Matthew failed to file a

secondary appeal or request the two appeals be consolidated, we cannot consider

his challenge.

D. Award of Appellate Attorney Fees.

Finally, Sara asks us to also award her appellate attorney fees. An award

of appellate attorney fees is not a matter of right but rests in this court’s discretion.

See In re Marriage of Towne, 966 N.W.2d 668, 680 (Iowa Ct. App. 2021). Our

“controlling consideration” is the parties’ relative financial positions, but we also
 18

consider the merits of the appeal and “whether a party has been obliged to defend

the trial court’s decision on appeal.” Michael, 839 N.W.2d at 639. While each

party has some financial resources to pay their respective attorney fees, Sara

makes $20,000 less annually than Matthew. Sara is also the prevailing party in

this action. Under these circumstances, it is appropriate to award Sara appellate

attorney fees. But because she has not provided an affidavit of attorney fees with

documentation to support her request, we remand to the district court to determine

the amount of Sara’s appellate attorney fees and enter judgment against Matthew

in a reasonable amount. See Towne, 966 N.W.2d at 680 (remanding for the district

court to calculate ”reasonable and necessary fees” incurred on appeal).

IV. Disposition.

Because it is in the best interests of the children, we affirm the modification

but vacate the portion designating Sara as the sole decision-maker for religious

and educational matters. We find the district court did not interfere with Matthew’s

constitutional or parental rights. Finally, we decline to consider Matthew’s

challenge to Sara’s trial-attorney-fees award as premature, and we award Sara

appellate attorney fees.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.