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IN THE COURT OF APPEALS OF IOWA No. 2-467 / 11-1695 Filed June 27, 2012 IN RE THE MARRIAGE OF ASHLEY E. MOYER AND DANIEL R. MOYER Upon the Petition of ASHLEY E. MOYER, Petitioner-Appellee, vs. DANIEL R. MOYER, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Pottawattamie County, James M. Richardson, Judge.

A father appeals from the child custody, visitation, and support provisions of a dissolution of marriage decree. AFFIRMED AS MODIFIED.

DeShawne L. Bird-Sell of Sell Law, P.L.C., Glenwood, for appellant. Mandy L. Whiddon of Primmer Law, Council Bluffs, for appellee.

Considered by Vogel, P.J., and Tabor and Bower, JJ.

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TABOR, J. A young father and college student appeals the district court's decision to grant physical care of his son to his ex-wife based on her proximity to extended family members. In addition to the child custody arrangement, Daniel (Dan)

Moyer challenges the visitation and support provisions of the decree dissolving his marriage to Ashley Moyer. He contends he has been their son's primary caregiver. In the event that we affirm the custody provisions, he requests

additional visitation. Dan also disputes the court's imputing of income for support purposes when his sole income is from student loans. We agree with the district court that granting Ashley physical care is in the child's best interest. But we modify the visitation schedule to provide Dan

additional contact with his son during school breaks. We also modify the decree to require travel expenses be shared during summer and school-break visitations. Finally, we find a substantial injustice would occur if Dan's child Because Dan is

support obligation was calculated on his actual earnings.

capable of working part-time, we affirm the portion of the decree ordering him to pay child support of $195.13 per month. I. Background Facts and Proceedings. Dan and Ashley were married in March 2008. They have one child,

Gabriel, who was born in July 2006. When Ashley was pregnant, the parties moved in with Dan's parents. Dan and Ashley were able to live there without paying rent or other expenses after Gabriel's birth and while married.

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From our de novo review of the record, we find that despite being young parents, both Dan and Ashley have been industrious and earnest in their responsibilities. During the marriage, Dan worked and attended school to earn his associate degree in mathematics. Ashley did not work outside the home for a year after Gabriel's birth so that she could care for him. She has attended

culinary school and is two classes short of earning her degree. Ashley has held several jobs in the food service industry, frequently working as a bartender. When the parties separated in February 2010, Ashley moved out of Dan's parents' home. Gabriel lived with Ashley, but Ashley relied on Dan to care for their son when she worked night shifts. Ashley filed for divorce in June 2010. Ashley's family belongs to the Catholic Church and it is important to her that Gabriel be raised in that faith. To that end, the parents had Gabriel baptized by a Catholic priest shortly after he was born. In the fall of 2010, the parents clashed over Ashley's decision to enroll Gabriel in the St. Albert preschool. Although Ashley said she told Dan of her intentions, Dan claims he never agreed that Gabriel should attend that preschool. In September 2010, Ashley moved for a temporary hearing on child custody, stating the parties had been unable to concur on a regular schedule. The district court held a hearing to resolve the custody issue as well as the preschool dispute. In October 2010, the court ordered the parents to alternate custody on a weekly basis. The order noted the parties ' agreement to enroll Gabriel in preschool at the YMCA beginning November 1, 2010.

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In August 2011, Dan moved to Laramie, Wyoming to pursue a degree in petroleum engineering at the University of Wyoming. He expects to graduate in 2014. Dan attends classes during the day. He testified that he will consider working while in school if offered an internship in the petroleum engineering field, but intends to cover his expenses with student loans. He received approximately $6000 in student loan money for living expenses in 2011, and was sharing a twobedroom apartment with his girlfriend and her child. In August 2011, Ashley was working approximately twenty hours per week at a bar and grill, but planned to start a new job at Verizon. She shared an apartment with her best friend and her friend's two children in Council Bluffs. The court heard the dissolution case on August 19, 2011. The only issues were Gabriel's custody and support. The court entered the decree dissolving the marriage on August 23, 2011. The decree granted physical care to Ashley with Dan receiving visitation every other weekend from 9:00 a.m. Saturday until 7:00 p.m. Sunday when he is in Iowa. Dan received six weeks of summer visitation and visitation for one-half of Gabriel's winter break from school. Finally, the court ordered Dan to pay $195.13 per month in child support and to provide medical insurance for Gabriel. On September 6, 2011, Dan filed a combined motion for new trial, expanded findings, and interpretation. He alleged the court erred in its fact

finding and, given his status as a full-time student, should not have imputed income to him or required him to provide Gabriel with medical insurance. He also sought additional visitation, including holiday visitation, and asserted each

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party should be required to provide transportation to visitations equally. The district court overruled and denied the motions on October 3, 2011. Dan brings this appeal. II. Scope and Standard of Review. We review de novo decisions on child custody. In re Marriage of Hynick, 727 N.W.2d 575, 577 (Iowa 2007). We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Despite our de novo

review, we give strong consideration to the trial court's fact findings, especially with regard to witness credibility. Hynick, 727 N.W.2d at 577. III. Physical Care. Dan first contends the district court erred in granting Ashley physical care of Gabriel. In seeking a physical care award, he argues: (1) he is the more stable parent, (2) he has been the primary caregiver, (3) Gabriel's proximity to his grandparents should not be the key factor in deciding custody, and (4) Ashley shows a lack of regard for his role as parent. Iowa law distinguishes custody from physical care; while child custody concerns a parent's legal privileges and obligations for his or her offspring, physical care is "the right and responsibility to maintain a home for the minor child and provide for the routine care of the child." In re Marriage of Fennelly, 737 N.W.2d 97, 100-01 (Iowa 2007) (quoting Iowa Code section 598.1(7) (2005)). The child's best interest is the overriding consideration in deciding

physical care. Id. at 101. We look to the factors set forth in Iowa Code section

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598.41(3) (2009) and those identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974) when deciding the preferable care assignment. Fennelly, 737 N.W.2d at 101. If the court determines joint physical care is not appropriate, it must choose one parent to be the primary caretaker and award the other parent visitation rights. Id. A. Stability. In Winters, our supreme court said physical care should be determined by examining, among other factors, "[t]he characteristics of each parent, including age, character, stability, mental and physical health." 223 N.W.2d at 166. Dan first argues he should be granted physical care of Gabriel because he is the more stable parent. In support of his argument, Dan contends he has maintained more long-standing housing and employment and points to his academic achievements. The record shows that in February 2010, Ashley moved out of the basement she shared with Dan at his parents' home. From that point until the August 2011 trial, Ashley lived at two different residences for approximately six months each before moving into her current apartment in Council Bluffs. She shares that apartment with her best friend and her friend's two young daughters. Ashley testified that she moved to residences she could afford as she worked two jobs to meet her financial obligations. At trial she testified that she had no plan to move from her current apartment or the Council Bluffs area. While the parties were separated, Dan completed his associate degree in mathematics, earning a 3.763 grade point average. During this time, he

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continued to live rent-free in his parents' home.

Dan has only lived

independently two times; once for a period of approximately six months and again when he moved to the University of Wyoming in Laramie--which is about an eight-hour drive from Council Bluffs. Daniel is supporting himself with student loans. We find nothing in the record regarding Ashley's employment or living situation that impedes her ability to care for their son. We agree with the district court's assessment that Ashley offers the more stable environment for Gabriel because she remains in the vicinity of the child's "family support group." B. Primary Caregiver. Dan also claims he has been Gabriel's primary caregiver. One of the factors the court is to consider in determining physical care is "[t]he effect on the child of continuing or disrupting an existing custodial status." Winters, 223

N.W.2d at 166. Iowa Code section 598.41(3)(d) directs us to consider whether both parents have actively cared for the child before and since the separation. While greater primary care experience is "one of the many factors the court considers," it does not ensure an award of physical care. Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996). Ashley testified, and Dan agreed, that she was Gabriel's primary caretaker in his first two years. She took a year away from the workforce to care for him. During the parties' separation, Ashley left Gabriel in Dan's care overnight when she worked late shifts. The temporary court order, entered in October 2010, granted the parties temporary joint physical care on an alternating weekly basis. In re Marriage of

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We find both parties are capable of caring for the child and shared in the caregiving responsibilities equally at the time of trial. C. Physical proximity to the grandparents. Dan argues the district court relied too heavily on Gabriel's proximity to his grandparents in Iowa in determining physical care. He claims both parties will be leaving the Council Bluffs area, which neutralizes the factor of exposure to extended family. On that basis, he argues the decision should be made based on the quality of care each parent is capable of providing on his or her own. The record shows that Ashley had a romantic relationship with a man who was serving in the armed forces. He had three years left in his commitment. Ashley testified that sometime in the future, she may move to be with him. But she told the court she had no plan to move for "a long time" and it was her intent at the time of trial to remain in Council Bluffs. In contrast, Dan has already moved to Wyoming, a significant distance from not only Ashley, but from his son's maternal and paternal grandparents, aunts, uncles, and extended family. The parties relied on their families

extensively during their marriage and the early years of Gabriel's life. The record shows Gabriel enjoys close ties to both families. Although colleges as close as three hours away offer degrees in petroleum engineering, Dan chose to move eight hours away from family to an area where he had no connection. Furthermore, Dan testified it was likely he would have to relocate again following his graduation from the University of Wyoming because jobs in his field would be most available in Texas, Louisiana, Pennsylvania, and California.

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While Dan should not be faulted for pursuing his education and career goals, we agree with the district court that the distance and separation from the extended family tips the scales in favor of granting Ashley physical care of the child. See In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982)

(recognizing that where both parents are capable of caring for the child, the fact one parent will allow extended contact with the grandparents rather than placing the child in the care of strangers was in the child's best interests); Lovett v. Lovett, 164 N.W.2d 793, 803 (Iowa 1969) (considering the father's decision to keep the children in the same community to attend the same school and church with the same daycare provider in making the determination the children's best interests were served by granting the father physical care); In re Marriage of Donly, 528 N.W.2d 663, 665 (Iowa Ct. App. 1995) (recognizing that granting the father physical care would allow the child to maintain close geographic proximity to both parents' extended families). Ashley plans to remain in Council Bluffs where Gabriel will have contact with his extended family, including his paternal grandparents. In addition, the decree noted: "Any move of Gabriel from his family support group or the Council Bluffs area will be deemed a material change in circumstances." We do not believe that the district court placed too much emphasis on proximity to grandparents in assigning physical care to Ashley. D. Support of the other parent's relationship with the child. Finally, Dan contends Ashley's actions show a disregard for his rights as a parent. Whether each parent can support the other's relationship with the child is

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a factor to consider in making a physical care determination. 598.41(3)(e).

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