In Re the Marriage of George Thomas Davis III and Lizeth Marie Barcelo Aviles Upon the Petition of George Thomas Davis III, and Concerning Lizeth Marie Barcelo Aviles

IN THE COURT OF APPEALS OF IOWA

No. 16-1574
Filed October 11, 2017

IN RE THE MARRIAGE OF GEORGE THOMAS DAVIS III
AND LIZETH MARIE BARCELO AVILES

Upon the Petition of
GEORGE THOMAS DAVIS III,
Petitioner-Appellee,

And Concerning
LIZETH MARIE BARCELO AVILES,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.

Lizeth Barcelo appeals the custody, property distribution, and attorney fee

provisions of the decree dissolving her marriage to George Thomas Davis III.

AFFIRMED AS MODIFIED.

Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, L.L.P.,

Marshalltown, for appellant.

Carmen E. Eichmann of Eichmann Law Firm, Des Moines, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
 2

VAITHESWARAN, Presiding Judge.

Lizeth Barcelo1 appeals a provision of a dissolution decree granting

George Thomas Davis III sole legal custody of the parents’ two children. She

also challenges various other provisions of the decree.

I. Background Facts and Proceedings

Barcelo and Davis had a short-lived marriage. As Barcelo explains,

“[A]lthough the seven days of trial, hundreds of exhibits, and 1200+ page

transcript may not suggest it, this was a marriage of only 3+ years.” What the

voluminous record does suggest is that this was a highly fraught marriage and an

equally fraught divorce proceeding.

Following trial, the district court granted Davis sole legal custody and

physical care of the children. The court awarded Davis the family home and

ordered Barcelo to pay $20,000 towards Davis’ trial attorney fee obligation within

thirty days of the decree, liquidating assets if necessary. Barcelo moved for

enlarged findings and conclusions. The motion was denied, and Barcelo

appealed.

II. Joint Legal Custody

The legislature has defined joint legal custody as follows:

“Joint custody” or “joint legal custody” means an award of
legal custody of a minor child to both parents jointly under which
both parents have legal custodial rights and responsibilities toward
the child and under which neither parent has legal custodial rights
superior to those of the other parent. Rights and responsibilities of
joint legal custody include but are not limited to equal participation

1
Ms. Barcelo Aviles informed the district court she preferred to be referred to as Ms.
Barcelo.
 3

in decisions affecting the child’s legal status, medical care,
education, extracurricular activities, and religious instruction.

Iowa Code § 598.1(3) (2015). “The court may provide for joint custody of the

child by the parties.” Id. § 598.41(1)(a). If the court finds that a party has a

history of domestically abusing a spouse, a rebuttable presumption arises

against ordering joint custody. Id. § 598.41(1)(b); see also id. § 598.41(3)(j)

(considering “[w]hether a history of domestic abuse . . . exists”). An un-rebutted

finding of a history of domestic abuse outweighs any other statutory custody

factor. Id. § 598.41(2)(c).

In denying Barcelo joint legal custody of the children, the district court

relied on “a history of domestic abuse . . . with Ms. Barcelo as the aggressor and

Mr. Davis as the victim.” The court cited a September 2014 incident in which

Barcelo “used a dangerous weapon to assault Mr. Davis in the presence of one

of her children.” The court stated, “This is a severe and deeply concerning

incident, but it is not an isolated event.” The court determined, “The [statutory]

rebuttable presumption against joint legal custody is therefore applicable.” The

court further determined the remaining statutory factors militated in favor of “a

grant of sol[e] legal custody to Mr. Davis,” “[e]ven without the history of domestic

violence.”

On appeal, Barcelo contends “there is no pattern of documented domestic

abuse given that [Davis] submitted little more than the one September incident

with regard to allegations of domestic abuse perpetrated by her.” To the

contrary, Davis testified to several instances of domestic abuse perpetrated by

Barcelo.
 4

The September incident acknowledged by Barcelo began outside the

parties’ home. According to Davis, Barcelo told him “she was going to break out

every window of [his] vehicle.” She came into the home and “struck the concrete

countertop, and then came at” him. He stated, “She swung at me, and she did

not hit me with a hammer, but she hit me with her fist holding the hammer.”

During the incident, the parties’ “daughter was underfoot.” Davis called the

police. A five-year criminal protective order was entered prohibiting contact

between Barcelo and Davis. This was followed by the entry of a domestic abuse

protective order.

Davis also described an incident in which Barcelo “tried to push [him]

down the stairs from behind,” another incident in which Barcelo “hit him with a full

water bottle in the back of the head,” and an incident in which Barcelo “came at”

him “swinging her heavy bag, hitting [him] with her heavy bag.” He described yet

another incident which resulted in a “bruised and scratched bicep,” and he

testified Barcelo threatened to have him killed.

In sum, Davis testified to multiple assaults by Barcelo. See Iowa Code §

236.2 (defining domestic abuse as “assault . . . between family or household

members who resided together at the time of the assault”). On our de novo

review, we agree with the district court’s finding of a history of domestic abuse.

This history triggered a rebuttable presumption against joint legal custody.

Barcello argues the presumption was rebutted with “ample evidence . . .

that the primary aggressor . . . was [Davis]” or “[a]t the very least . . . both parties

were perpetrators of abuse or marital discord.” She cites In re Marriage of

Forbes, 570 N.W.2d 757, 760 (Iowa 1997), in which the Iowa Supreme Court
 5

concluded evidence of mutual abuse rebutted the presumption of a history of

domestic abuse by one of the parties.

Barcelo testified to several incidents of domestic abuse by Davis. Over

the years, she stated he threw “a coffee cup at [her] head,” “grabbed [her] hair

and pulled [her] to the ground right in front of [one of the children],” “pushed [her],

grabbed [her], bruised [her],” threw “a shoe at [her] head so hard [her] earring fell

out,” and “threw a phone at [her] head.” She also testified to a bruise on her arm

caused by Davis when he “grabbed [her] by the arm and shoved [her] to the

side,” and she described an incident at the Iowa State Fair during which Davis

“reached from the driver’s side [of her car] and slapped [her] sunglasses off of

[her] head.” She discussed an incident in which Davis “took a swing at [her,] and

[she] ducked, and he broke some shelves.” Although she did not call the police

following this incident, she testified to otherwise calling them “[s]everal times.”

The calls from the couple’s home were logged in an official database and the log

was admitted into evidence without objection. One of the pages contained the

following remark: “Lisa, having problem with Toby, has assaulted her but refusing

rescue. No weapons.”

Barcelo’s testimony, if believed, might have been sufficient to rebut the

presumption of a history of domestic abuse perpetrated by her. See Forbes, 570

N.W.2d at 760 (“[T]he record reflects that the abuse was inflicted by both parties,

not just Shane.”); In re Marriage of Ford, 563 N.W.2d 629, 633 (Iowa 1997)

(stating testimony of party opposing finding of history of domestic abuse

“certainly convinced the district court and suggests to us that the domestic abuse

is no longer a problem” and finding “the presumption against awarding custody to
 6

an abusive spouse has been successfully rebutted”). But the district court found

Davis’ testimony more credible as to some of the incidents of abuse. Because

the court had the opportunity to view the demeanor of the witnesses when

testifying, we give weight to this credibility finding. See Forbes, 570 N.W.2d at

759.

The court’s decision to credit Davis’ testimony is also supported by

Barcelo’s admission to the September 2014 episode involving the hammer, her

acknowledgment that she “definitely partook in abusive behavior,” and her failure

to controvert Davis’ remaining allegations of abuse except his assertion that she

pushed him down the stairs. Without credible testimony to rebut the presumption

of a history of domestic abuse, this factor “outweigh[ed] the consideration of any

other factor” in the custody determination. See Iowa Code § 598.41(2)(c); In re

Floyd ex rel. Cummings, No. 02-1009, 2003 WL 558510, at *2 (Iowa Ct. App.

Feb. 28, 2003) (“Given the lack of credible evidence to rebut the presumption

against an award of joint custody, the trial court properly awarded Tara sole

custody of Cassie.”). But, even without a history of domestic abuse by Barcelo,

we agree with the district court that the children’s best interests were served by

granting Davis sole legal custody of the children.

Both parties admitted they could not communicate with each other

regarding the children’s needs. See Iowa Code § 598.41(3)(c). Davis

characterized the tensions in the marriage as “scary” and testified Barcelo’s

reactions to even “mundane disagreements” were “emotionally explosive” or

geared to the other extreme—“complete silent treatment.” He stated, “I think it’s

pretty much impossible to co-parent with [Barcelo]. There is very little that we
 7

can agree upon, and it is incredibly frustrating.” Similarly, Barcelo testified the

couple “lacked problem resolution skills, communication.” She described the

“inability to communicate and resolve issues” and the “inability to move on from

that” as “a two-way street.” The record is replete with examples of each parent’s

failure to inform the other of key events or decisions. Without belaboring the

point, this factor weighed heavily against a joint custody award.

There is also no question Barcelo failed to support Davis’ relationship with

the children. See id. § 598.41(3)(e). The district court provided a detailed

summary of her refusal to adjust her visitation schedule to facilitate the children’s

participation in a Davis family vacation. This was just one of several examples of

non-cooperation. Davis testified Barcelo scheduled medical appointments for the

younger child on days and times she knew would be incompatible with his work

schedule. She enrolled the older child in a preschool of her choice, without the

approval of Davis and, even after a temporary order was entered granting him

sole custody of the children, scheduled dental appointments for the children

without his knowledge.

We recognize the parents lived close to each other. See id.

§ 598.41(3)(h). But this factor was far outweighed by the cited factors. As the

district court stated, “The parents have a complete inability or unwillingness to

cooperate in the best interests of the children.”

We affirm the district court’s grant of sole legal custody of the children to

Davis.
 8

III. Physical Care

Barcelo also contends the district court should have granted her physical

care. Davis responds that she failed to preserve error on this issue. We

disagree. Physical care was a contested issue at trial and was decided by the

district court. The issue is properly before us.

“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). Courts examine the statutory “custody” factors in determining physical

care as well as other relevant considerations. See Iowa Code § 598.41(3); In re

Marriage of Peake, No. 08-0131, 2009 WL 138778, at *3 (Iowa Ct. App. Jan. 22,

2009) (considering factors in physical care determination); see also Hansen, 733

N.W.2d at 696 (“Although Iowa Code section 598.41(3) does not directly apply to

physical care decisions, we have held that the factors listed here as well as other

facts and circumstances are relevant in determining whether joint physical care is

in the best interest of the child.”).

In granting Davis physical care of the children, the district court relied on

the statutory factors, the fact that the children “thrived in his care during the

pendency of this case,” and Davis’ “strong family support system.” On our de

novo review, we are not as convinced as the district court that Davis’ “strong

family support system” gave him an advantage in the physical care

determination, in light of Barcelo’s equally strong family support system. But we

agree the statutory factors discussed above favored physical care with Davis.

And, again, we give weight to the court’s application of these statutory factors,
 9

given the district court’s ability to see and hear the witnesses. In re Marriage of

Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (“A trial court deciding dissolution

cases ‘is greatly helped in making a wise decision about the parties by listening

to them and watching them in person.’”) (quoting In re Marriage of Callahan, 214

N.W.2d 133, 136 (Iowa 1974))). We affirm the grant of physical care to Davis.

IV. Trial Attorney Fees/Property Distribution

Lisa makes a combined challenge to the district court’s property division

and its award to Davis of $20,000 in trial attorney fees. Her challenge to the

property division is premised in large part on the district court’s order requiring

her “to liquidate the necessary assets immediately in order to pay this sum to Mr.

Davis.” Accordingly, we will begin with the trial attorney fee award.

In ordering Barcelo to pay $20,000 towards Davis’ attorney fee obligation,

the district court stated:

As noted above, like in [In re Marriage of Christensen, No.
11-0332, 2011 WL 4578425, at *4-6 (Iowa Ct. App. Oct. 5, 2011)],
the Court has found that Ms. Barcelo did not disclose necessary
documents in discovery. Although Mr. Davis was unsuccessful pre-
trial in pursuing motions to compel, the evidence at trial
demonstrated that Ms. Barcelo had not provided the opposing party
with complete, timely, and accurate financial materials. For these
reasons, an award of attorney’s fees is appropriate. Having
reviewed the attorney fee affidavit submitted by Mr. Davis’s
attorney, and having considered the case as a whole, the Court
finds an award of $20,000 in attorney’s fees is appropriate.

Barcelo challenged the award in a motion for enlarged findings and conclusions.

The motion was argued and decided by a different district court judge than the

judge who presided over trial. The posttrial judge concluded, “While the

undersigned may not have awarded the amount or method of payment of
 10

attorney fees as did the trial court herein, the undersigned cannot rule that such

was an abuse of discretion.”

It is well established that our review of an award of trial attorney fees is for

an abuse of discretion. See In re Marriage of Francis, 442 N.W.2d 59, 67 (Iowa

1989). But the same standard does not apply to a district court deciding a

posttrial motion for enlarged findings and conclusions, because that court does

not sit in an appellate capacity to review the trial court decree. The court is

simply charged with deciding whether to change the decree. See Iowa R. Civ. P.

1.904(2) (“On motion joined with or filed within the time allowed for a motion for

new trial, the findings and conclusions may be reconsidered, enlarged, or

amended and the judgment or decree modified accordingly or a different

judgment or decree substituted.”).

The posttrial court stated it might have changed the attorney-fee provision

of the decree but for the abuse-of-discretion standard. We believe the court

could have made a change.

In deciding on an attorney fee application, “[t]he controlling factor is ability

to pay the fees.” Francis, 442 N.W.2d at 67 (citing In re Marriage of Muelhaupt,

439 N.W.2d 656, 662-63 (Iowa 1989)). “In addition, the fees must be fair and

reasonable.” In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994).

Barcelo lacked an ability to pay $20,000 in thirty days. She earned about

the same annual income as Davis—approximately $63,000—which translated

into net monthly income of $3638.51. She had a child support obligation of just

under $530 per month and, according to her affidavit of financial status,

approximately $2370.50 in personal monthly living expenses. Her savings were
 11

minimal. As the district court essentially acknowledged, the $20,000 award

would have required her to invade her pension accounts. Barcelo’s financial

condition did not support a $20,000 award.

Nor was the award “fair and reasonable.” Id. The trial court based its

decision to award $20,000 on a discovery violation that was previously the

subject of a motion to compel filed by Davis—a motion that a pretrial judge

denied. We recognize the trial court allowed the introduction of extensive

evidence on the discovery violation and, based on that evidence, found “any

representation to the” pretrial judge was “not accurate.” But, even though pretrial

and trial time was expended in correcting the inaccuracies, we cannot say the

time amounted to 100 hours at the specified hourly rate of $200. On our review

of the trial transcript and Davis’ trial attorney fee affidavit and giving Davis’

attorney the benefit of the doubt on certain notations in her affidavit, we modify

the amount of the award to $6653 in trial attorney fees. See, e.g., In re Marriage

of Christensen, No. 11-0332, 2011 WL 4578425, at *6 (Iowa Ct. App. Oct. 5,

2011) (reducing $20,000 trial attorney fee award to $5000).

As for the payment time, the thirty-day period has long since expired and

Barcelo’s motion for a stay on enforcement of the decree was denied by the Iowa

Supreme Court. That said, our appellate court docketing system discloses that

the obligation remains outstanding. We modify the payment terms to require

Barcelo to pay the adjusted sum within two years of the issuance of procedendo

in this appeal.

This brings us to Barcelo’s challenge to the property division. Her request

for the marital home is largely premised on a hope for modification of the physical
 12

care provision of the decree. As we have affirmed that provision, we decline her

request.

Barcelo also asserts that some of the retirement or savings accounts were

premarital property and not subject to division. See Iowa Code § 598.21(5); In re

Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). The district court

considered Barcelo’s retirement accounts in making the property division but

awarded them all to Barcelo. The court’s disposition was more favorable to

Barcelo than the relief she requested at trial. While noting that her prior

employment began before the date of the marriage, she agreed her W-2 forms

would seem to show “that the pension [from that employment] accrued during

[the] marriage.” When asked if she understood the pension needed to be divided

equitably, she responded, “That’s fine.” In light of this testimony, we conclude

the district court acted equitably in including the pension accounts in the property

division rather than setting a portion of them aside to her before making the

division.

V. Appellate Attorney Fees

Davis seeks an award of $7000 in appellate attorney fees. An award rests

within this court’s discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa

Ct. App. 2007). Given the parties’ relatively equal incomes, we decline his

request.

AFFIRMED AS MODIFIED.