IN RE THE MARRIAGE OF REBECCA JUNE KIA VANDERHOLM AND PAUL GEORGE VANDERHOLM Upon the Petition of REBECCA JUNE KIA VANDERHOLM, Petitioner-Appellee, And Concerning PAUL GEORGE VANDERHOLM, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-350 / 08-1882
Filed June 17, 2009
IN RE THE MARRIAGE OF REBECCA
JUNE KIA VANDERHOLM
AND PAUL GEORGE VANDERHOLM
Upon the Petition of
REBECCA JUNE KIA VANDERHOLM,
Petitioner-Appellee,
And Concerning
PAUL GEORGE VANDERHOLM,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Montgomery County, J.C. Irvin,
Judge.
A father appeals from the district court’s decree that awarded physical
care of the children to their mother. AFFIRMED.
Jay W. Mez of Law Office of Jay W. Mez, Council Bluffs, for appellant.
Michael J. Winter, Council Bluffs, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
Paul and Rebecca Vanderholm married on June 3, 1995. Three children
were born during the marriage. The children were ages eleven, nine, and three
at the time of trial. Paul and Rebecca separated in August of 2007. Rebecca
filed a petition for dissolution on January 7, 2008.
Both parents agreed to share joint legal custody of the children. Paul
requested an award of joint physical care, but Rebecca sought physical care of
the children. After trial, the district court awarded Rebecca physical care of the
children. Paul appeals, arguing the district court erred in granting physical care
of the children to Rebecca without making specific findings of fact and
conclusions of law regarding why an award of joint physical care would not be in
the best interests of the children.
II. Standard of Review
Our standard of review in this equitable proceeding is de novo. Iowa R.
App. P. 6.4. We examine the entire record and adjudicate anew rights on the
issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa
Ct. App. 1999). We give weight to the district court’s findings of fact, especially in
determining the credibility of witnesses, but are not bound by them. Iowa R. App.
P. 6.14(6)(g).
III. Joint Physical Care
Paul asserts the district court failed to make specific findings as to why
joint physical care was not in the children’s best interests. Joint physical care is
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an award of physical care of a child to both parents. Iowa Code § 598.1(4)
(2007). Iowa Code section 598.41(5)(a) provides:
If joint legal custody is awarded to both parents, the court may
award joint physical care to both joint custodial parents upon the
request of either parent . . . . If the court denies the request for joint
physical care, the determination shall be accompanied by specific
findings of fact and conclusions of law that the awarding of joint
physical care is not in the best interest of the child.
Our supreme court recently devised a nonexclusive list of factors to be
considered when determining whether a joint physical care arrangement is in the
best interests of the children.
The factors 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 In re
Marriage of Hansen, 745 N.W.2d 683, 697-99 (Iowa 2007)).
Because the district court did not award joint physical care, it is required to
“specifically explain why joint physical care is not in the children’s best interest.”
In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007). The district court
made the required specific findings of fact and conclusions of law. The district
court considered testimony regarding Paul’s controlling behavior, citing three
specific concerning incidents. The district court also discussed Paul’s inflexibility
and lack of cooperation concerning care of the children under the temporary
order. The district court stated that considering the parties’ schedules, the only
way joint care could be accomplished would be if the parties agreed to cooperate
with one another, but Paul had not demonstrated such cooperation in the past.
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For these reasons, the district court determined the best interests of the children
would be served by placing their physical care with Rebecca. We conclude that
the district court properly made the required specific findings of fact and
conclusions of law explaining why joint physical care was not in the children’s
best interests.
On our de novo review, we also agree with the district court that Paul
demonstrated an inability to communicate effectively with Rebecca and a lack of
respect for her. Paul’s suspicion of Rebecca and his covert surveillance of her
created a degree of conflict that is not conducive to shared physical care.
Although Paul historically was an active parent of the children, his actions at the
end of the marriage make shared physical care unworkable. For these reasons,
we agree that the best interests of the children are supported by the award of
physical care to Rebecca.
IV. Appellate Attorney Fees
Rececca filed an application for attorney fees on March 13, 2009,
requesting that Paul pay her appellate attorney fees. An award of attorney fees
is not a matter of right, but rests within the court’s sound discretion.
Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct. App. 1997).
In re
The court
considers the needs of the party making the request, the ability of the other party
to pay, and whether the party making the request is obligated to defend the trial
court’s decision on appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa
1991).
Applying these factors to the circumstances in this case, we award
Rebecca $1000 in appellate attorney fees.
AFFIRMED.
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