In re Marriage of Banister, 22-0221

CourtCourt of Appeals of Iowa
Writing for the CourtBADDING, JUDGE.
Docket Number22-0221
Decision Date17 November 2022


No. 22-0221

Court of Appeals of Iowa

November 17, 2022

Appeal from the Iowa District Court for Lyon County, Shayne Mayer, Judge.

Heather Banister appeals a dissolution-of-marriage decree.

Missy J. Clabaugh, Sioux Center, for appellant.

Matthew T. E. Early of Matthew Early Law Office, Spirit Lake, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.



Heather Banister, a former stay-at-home mother of three children, appeals the decree dissolving her marriage to Shaun Banister. At the trial on her petition, Shaun complained that he had not gotten "a sniff of a win since this whole thing started." So to be "fair with the property division and with the kids," he asked for everything to be split "down the middle," children included. The district court went along with Shaun's request and placed the children in the parties' joint legal custody and physical care. On appeal, Heather challenges that decision, along with the court's division of the parties' property and treatment of attorney fees.

I. Background Facts and Proceedings

Shaun is a native of New Mexico, while Heather grew up in Iowa, where her family still lives. The parties met in August 2014 when Shaun was working on the road in Sanborn, Iowa on a wind turbine project. They began living together about three months later, soon after Heather found out she was pregnant with the couple's first child. When the parties met, Shaun's employment in the wind turbine industry required him to work long hours. Heather had a teaching degree, but because she could not find full-time employment in that field, she supplemented her substitute teaching jobs with work in flooring sales. The parties' relationship from there is a tale of travels, with frequent moves driven by Shaun's work. From the fall of 2014 through the spring of 2015, the parties lived together in Texas, where Shaun went for turbine work during the offseason in Iowa.

The parties moved back to Sanborn in March 2015 and remained there until November 2016. After the parties' first child was born in June 2015, Heather


stayed home to care for him, while Shaun continued to work long hours away from home. The parties married in February 2016.

After their marriage, the parties moved to Carlsbad, New Mexico for the winter months between November 2016 and March 2017. While there, Shaun worked odd jobs for his uncle Melvin, and Heather stayed home with the child. According to Heather, even though Shaun's work schedule during this time was much less demanding than when he worked with wind turbines, their parenting roles did not change. Heather continued to provide most of the care for the parties' child with little involvement from Shaun.

The parties returned to Iowa and lived in Ames from April to July 2017. Their second child was born shortly after the move to Ames. While there, Shaun returned to his work with wind turbines, which again involved long hours. During the first month following their return to Iowa, Shaun lived in his boss's camper and would only visit Heather and the children on weekends.

In July 2017, the parties moved to Humboldt, where they remained until April 2019. Though they were back to living together, Shaun was still minimally involved with the children, preferring to let Heather do most of the caretaking. The goal, according to Shaun, was for him "to work ungodly hours, save up as much money as possible, and build a house" in New Mexico. To that end, the parties bought a lot in New Mexico from Shaun's uncle Melvin. From April through October 2019, Heather and the children lived with Heather's sister in Rock Rapids, Iowa, while Shaun lived in an RV he used to travel between job sites. He typically visited Heather and the children every other weekend.


In October 2019, the parties began renting a house in Rock Rapids. By then, the marriage was "pretty rocky." The couple's third child was born in January 2020. Just a few months later, they were discussing divorce. Yet in April, Heather agreed to move back to Carlsbad with Shaun in a final effort to save the marriage. The impetus for the move was the sale of a heating-and-cooling business in New Mexico once owned by Shaun's uncle, Melvin. The parties purchased the business on July 1, though Shaun took over managerial duties of the business soon after the family moved to Carlsbad. Shaun felt it was the right time to make this change because the wind turbine business was slowing down. It also dovetailed with the parties' plan to build a home in New Mexico. Shaun explained:

[T]he whole point of me going down there was to be with family and to get off the road, quit building wind turbines and try to be home a little more even though I knew and I told her at the start it's going to be tough. It's going to take a little time to get the thing out of the hole and I would be busy.

The purchase price for the business was $100,000.00, with $50,000.00 due at closing, $25,000.00 by October 1, 2020, and another $25,000.00 by January 1, 2021. The parties borrowed the initial $50,000.00 from Shaun's uncle. They then deposited $75,000.00 from their personal account into the business account to get the business going, which took considerable work on Shaun's part. To pull the business "out of the gutter," Shaun was working from "sun up until sun down." He was "trying to bid jobs, sell jobs, run the crane, run the crews, order equipment, do inventory, keep the lights on, pay the bills." In the midst of this scramble, Heather


and the children left Carlsbad on July 7 and returned to Rock Rapids,[1] where they began living with Heather's parents. Heather told Shaun she was just taking the children to Iowa for a visit, but within a day or two of her arrival there, she filed for divorce. She then obtained a job at a dentist's office, where she works thirty-two hours per week, and enrolled the children in daycare and school.

Shaun remained in Carlsbad until December 2020, when he moved to Larchwood, Iowa to be closer to the children. He began renting a house and obtained employment with a local heating-and-cooling company. In Shaun's absence, his uncle Melvin agreed to run the business in New Mexico until it could be sold. Melvin looked for buyers before eventually agreeing to purchase the business himself for $75,000.00. The sale was completed at the end of December 2020, with Melvin forgiving the $50,000.00 he had loaned the parties and paying Shaun $25,000.00. Although not specified in the purchase agreement, Melvin said he also waived $62,500.00 due to him in lease payments for the building housing the business. Shaun testified that selling to Melvin was pretty much his only option. Melvin agreed, testifying: "If I hadn't stepped in, there would be no business, period." But within days after Melvin bought the business, he turned around and sold it to a company from Roswell, New Mexico for $125,000.00.

Following a hearing on temporary matters in mid-December, the court placed the parties' children in their joint legal custody, with physical care to Heather. Given her role as the historic "primary caregiver" of the children, the court


concluded that "[a] shared care arrangement would be too much of a change for the children's mental, emotional and physical health." Shaun had the children in his care every other weekend from Friday evening to Sunday evening and every Wednesday overnight. With this parenting schedule, and his less demanding job, Shaun became a more involved father. He testified this was an "eye-opening" experience for him: "[I]t's gotten a lot better now. I never had to do-it's kind of like if you didn't know how to ride a bike. You're not just going to jump on and ride a bike. You've got to crash a few times." Heather agreed "Shaun has definitely taken on a different role as father of the children since he . . . relocated back to Iowa."

The case proceeded to trial over three days in April and May 2021. The primary issues were the parties' competing requests on physical care-with Heather wanting physical care and Shaun seeking joint physical care-and distribution of the marital estate. Heather's case for physical care focused on her role as primary caregiver of the children, Shaun's claimed overbearing personality, and communication problems between the parties. For his part, Shaun acknowledged Heather was the primary caregiver during the marriage, but he contended that since their separation, "everything is totally different.... She's working as well. I mean, basically the daycare is raising the little ones and the school is raising" the oldest.

In its decree, the district court acknowledged that during the marriage, Heather was the primary caregiver, with Shaun working long hours, often away from home. But the court found that since Shaun's return to Iowa in December 2020, he

has been an involved parent who loves his children. He has exercised all the visitation awarded to him as well as any additional time offered by Heather, has become involved in the children's activities such as dance, and has pursued a job that allows him to be present for his children.

The court also found each party's home was appropriate; the children are bonded to both of them; and each can "provide for the emotional, social, moral, material and educational needs of the children." As to Heather's allegations of conflict and inability to communicate, the court found the parties' communications to be nothing more than "indicative of a couple going through a divorce." So the court granted Shaun's request for joint physical care on an alternating two-day, two-day, three-day basis.

Turning to the division of property, the court largely...

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