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IN THE COURT OF APPEALS OF IOWA No. 0-141 / 09-1656 Filed May 12, 2010

IN RE THE MARRIAGE OF JENNIFER A. MEYER AND ROBERT D. MEYER Upon the Petition of JENNIFER A. MEYER, Petitioner-Appellee, And Concerning ROBERT D. MEYER, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Harrison County, James M. Richardson, Judge.

A father appeals from the custodial and economic provisions of the decree dissolving the parties marriage. AFFIRMED AS MODIFIED AND REMANDED.

Julie A. Schumacher of Mundt, Franck & Schumacher, Denison, for appellant. Stephen C. Ebke of Porter, Tauke & Ebke, Council Bluffs, for appellee.

Heard by Sackett, C.J., and Doyle and Danilson, JJ.

2 DOYLE, J. Robert Meyer appeals from the custodial and economic provisions of the decree dissolving his marriage to Jennifer Meyer. We affirm the judgment of the district court as modified. I. Background Facts and Proceedings. Robert and Jennifer were married in November 2001. Robert adopted Jennifers son, Keenan, in 2002. They have two other children together: Jordan and Samantha. Jennifer filed a petition for dissolution of marriage in April 2009. The petition came before the district court for trial later that year. At the time of the trial, Robert was thirty-four years old and enrolled at a community college seeking a degree in computer sciences, with an emphasis in computer forensics. He earns approximately $9700 gross per year at an

internship through the school. Prior to returning to school in May 2008, Robert was employed at LifeNet Communications where he grossed $35,224 in 2007. He has a retirement account valued at $4849. Jennifer was thirty-two years old and employed as a registered nurse earning $66,782 gross annually at the time of the trial. She works twelve-hour night shifts for three days one week and four days the next week, with every other weekend off. She has a retirement account valued at $9430. Jennifer owned a house before the parties marriage, for which she paid $92,550. She put an $18,550 down payment on that home, resulting in a

mortgage of $74,000. Robert lived in the house with Jennifer and Keenan for a short time before Jennifer sold it. Jennifer used the proceeds from the sale to help purchase the home that the family lived in at the time of trial, which was

3 valued at $125,000 with an encumbrance of $110,000. Robert and Jennifer

continued to live together in that home with their children during the dissolution proceedings. Robert testified that before Jennifer initiated the dissolution proceedings, they shared the parenting duties for their three children. That arrangement

changed in the year preceding the trial, according to Robert. He testified that he began providing most of the care for the children because Jennifer was gone from the home a significant amount of time. Jennifer testified that sometimes she would go running, walking, or to Goodwill to look around. Jennifers absence to an extramarital affair. Robert attributes

Jennifer, however, testified she

would occasionally leave the home when both she and Robert were there to minimize the tension between them. Like Robert, Jennifer testified that they shared the parenting of their children during the marriage. However, she viewed herself as the more

organized and structured parent, testifying she often needed to remind Robert of the childrens schedules and extracurricular activities. Jennifer stated she also took most of the initiative with the childrens discipline and housekeeping. But she acknowledged Robert was an excellent father. The district court entered a decree dissolving the p arties marriage in October 2009. The court placed the children in the parties joint legal custody and Jennifers physical care. Robert was granted liberal visitation with the

children, including "every other weekend (that [Je nnifer] works) from Friday at 5 p.m. until Monday at 9 a.m. and three overnights during weeks without weekend visitation." The court imputed a gross annual income of $33,442 to

4 Robert based on his previous employment and ordered him to pay $747.77 per month in child support. However, the court determined that "[i]n lieu of any

spousal support said child support obligation shall be stayed until May 15, 2011." With respect to the division of the parties property, the court awarded Jennifer the marital home, its contents, a vehicle with a net value of $4445, a life insurance policy with a cash value of $500, and her retirement account. Robert was awarded two vehicles valued together at $9500 and his retirement account. The court ordered the parties to split the $12,000 student loan debt incurred by Robert during the marriage. attorney fees. Robert appeals. He claims the district court erred in (1) placing the Each party was ordered to pay his or her own

children in Jennifers physical care; (2) imputing income to him for child support purposes; (3) failing to award spousal support; (4) inequitably dividing the parties property; and (5) not requiring Jennifer to pay a portion of his attorney fees. He also requests an award of attorney fees on appeal. II. Scope and Standards of Review. Our scope of review is de novo. Iowa R. App. P. 6.907 (2009); In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). Although not bound by the district courts factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.904(3)(g); In re

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

5 III. Discussion. A. Physical Care. When considering the issue of physical care, the child rens best interests are the overriding consideration. Fennelly, 737 N.W.2d at 101. The court is guided by the factors set forth in Iowa Code section 598.41(3) (2009), as well as those identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). See In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007) (stating the custodial factors in section 598.41(3) apply equally to physical care determinations). Among the factors to be considered are whether each parent would be a suitable custodian for the children, whether both parents have actively cared for the children before and since the separation, the nature of each proposed environment, and the effect on the children of continuing or disrupting an existing custodial status. See Iowa Code

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