In re Malena

• Decision Date: 12 October 2016
• Docket Number: No. 15–2051.,15–2051.
• Parties: In re the MARRIAGE OF Michael Dean MALENA and Mariellen Lee Malena. Upon the Petition of Michael Dean Malena, Petitioner–Appellee, And Concerning Mariellen Lee Malena, Respondent–Appellant.
• Court: Iowa Court of Appeals

888 N.W.2d 682 (Table)

In re the MARRIAGE OF Michael Dean MALENA and Mariellen Lee Malena.

Upon the Petition of Michael Dean Malena, Petitioner–Appellee,

And Concerning Mariellen Lee Malena, Respondent–Appellant.

No. 15–2051.

Court of Appeals of Iowa.

Oct. 12, 2016.

Brad Sloter of Noah, Smith & Schuknecht, P.L.C., Charles City, for appellant.

David H. Skilton of Cronin, Skilton & Skilton, P.L.L.C., Charles City, for appellee.

Considered by TABOR, P.J., and BOWER and McDONALD, JJ.

McDONALD, Judge.

Michael Malena appeals from the decree dissolving his marriage to Mariellen Malena. Following trial in August 2015, the district court awarded Mariellen physical care of the parties' two children, child support in the amount of $531.03/month, permanent spousal support in the amount of $625/month, a property equalization payment of $75,694, attorney fees, and expert witness fees. Michael appeals, requesting shared care of the children, claiming the district court's resolution of economic issues was inequitable, and stating the court abused its discretion in awarding attorney and expert witness fees.

I.

Our review of cases in equity is de novo. See Iowa R.App. P. 6.907. We review the entire record and decide anew the factual and legal issues presented. See In re Marriage of Williams, 589 N.W .2d 759, 761 (Iowa Ct.App.1998). Prior cases have little precedential value; the court must make its determination based on the unique facts and circumstances of each case. See In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995) ; In re Marriage of Snowden, No. 14–1920, 2015 WL 4233449, at *1 (Iowa Ct.App. Jul. 9, 2015) ("All happy families are alike; each unhappy family is unhappy in its own way." (quoting Leo Tolstoy, Anna Karenina 1 (1873))). We exercise de novo review with some deference afforded to the district court. See, e.g., In re P.C., No. 16–0893, 2016 WL 4379580, at *2 (Iowa Ct.App. Aug. 17, 2016).

II.

Michael challenges the physical care award. Physical care is defined as "the right and responsibility to maintain a home for the minor child and provide for the routine care of the child." Iowa Code § 598.1(7) (2013). In making the physical care determination, we look to the factors set forth in Iowa Code section 598.41(3) and our case law. See Iowa Code § 598.41(3) ; In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). "Each factor, however, does not necessarily impact the decision with equal force." In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.App.1997). In considering the factors, our ultimate objective "is to place the child[ren] in the environment most likely to bring [them] to healthy mental, physical, and social maturity." McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct.App.2010). The controlling consideration is the best interests of the children. See id. at 736. Our court will "ultimately decide[ ] by determining under the whole record which parent can minister more effectively to the long-range best interests of the children." Winter, 223 N.W.2d at 166.

Michael argues shared care is in the children's best interests. If we decline to disturb the district court's physical care arrangement, however, Michael argues he should be given extraordinary visitation as provided in the parties' pretrial stipulation. In support of his argument for shared care, Michael notes both parties have actively cared for the children throughout the marriage and since their separation. The parties live near each other, which would make shared care less burdensome. Michael has a flexible work schedule, which would allow Michael to care for the children. Michael states the parties have been able to communicate regarding the children "when necessary" and they had shared care arrangements for both children in the summer of 2014 and for one child in the summer of 2015. See In re Marriage of Hansen, 733 N.W.2d 683, 697 (Iowa 2007) (finding long-term, successful, joint care is a significant factor in considering viability of joint care after divorce); see also In re Marriage of Schnitzler, No. 14–0858, 2015 WL 800064, at *4 (Iowa Ct.App. Feb. 25, 2015) (finding parties' communication difficulties throughout divorce did not preclude award of shared physical care). Michael also believes the children have suffered from not having active contact with him. See Iowa Code § 598.41(3)(b).

On de novo review, we agree with the district court it is in the children's best interests for Mariellen to have physical care of the children. First, the district court's award of physical care more closely approximates the parties' historical care giving arrangement. See Hansen, 733 N.W.2d at 697 (discussing the approximation principle). While Michael has been an active parent with respect to the children's activities, Mariellen has been the children's primary caregiver. This is a significant factor favoring the award of physical care to Mariellen. Second, Mariellen is in a better position to meet the children's needs. She has a strong bond with both children, is attentive to their physical and emotional well-being, and has a track record of positive parenting. See Hansen, 733 N.W.2d at 696–97 (avoiding "serious emotional harm" promotes child's best interest); In re Marriage of Shook, No. 00–1806, 2002 WL 984491, at *2 (Iowa Ct.App. May 15, 2002) (placing children in custody of parent "fully capable of providing ... the necessary physical and emotional support" for children). In contrast, Michael is having great difficulty in his relationship with the parties' older child related to the child's sense of abandonment precipitated by the facts and circumstances surrounding the dissolution of the parents' marriage and related to the child's perception of Michael's harsh criticism of the child. See Kantaris v. Kantaris, 169 N.W.2d 824, 831 (Iowa 1969) (affirming physical care award of son to father where mother's relationship with son had deteriorated to the point of emotional harm).

On this record, we decline to disturb the district court's physical care determination and visitation schedule. The parties are free to make arrangements for Michael to have additional visitation with the children.

III.

Michael challenges the economic provisions of the dissolution decree, specifically the spousal support award and the property division. Courts consider alimony and property divisions together in evaluating their individual sufficiency. In re Marriage of Callenius, 309 N.W.2d 510, 513–14 (Iowa 1981).

A.

We first address the award of spousal support, or alimony. Spousal support is a stipend to a former spouse in lieu of the other spouse's legal obligation to provide financial assistance. See In re Marriage of Anliker, 694 N.W.2d 535, 540...