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IN THE COURT OF APPEALS OF IOWA No. 0-357 / 09-1652 Filed June 30, 2010

IN RE THE MARRIAGE OF JODI JEAN FITZGERALD AND KEVIN GERARD FITZGERALD Upon the Petition of JODI JEAN FITZGERALD, Petitioner-Appellee, And Concerning KEVIN GERARD FITZGERALD, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.

Kevin Fitzgerald appeals from the economic and child custody provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED.

Zoshua Z Zeutenhorst of Elverson, Vasey & Peterson, L.L.P., Des Moines, for appellant. Diane L. Dornburg of Carney & Appleby, P.L.C., Des Moines, for appellee.

Heard by Vogel, P.J., and Potterfield and Danilson, JJ.

2 DANILSON, J. Kevin Fitzgerald appeals from the economic and child custody provisions of the parties' dissolution decree. We affirm as modified. I. Background Facts & Proceedings. In 1998, both Kevin and Jodi were working for Data Transmission Network, a weather data company. They met during a sales training meeting while Jodi was married to another man. Jodi moved to New York where Kevin was living and they were married in 1999 following the birth of their son, Brian.1 The family moved to Iowa shortly after Brian was born. The move to Iowa was at Jodi's behest. Kevin agreed to the move after Jodi agreed that he could pursue a career in stand up comedy, a career that can take ten years to excel. In Iowa, Kevin and Jodi both worked temporarily for Farm Bureau after obtaining their insurance and investment licensing. Jodi went to work for

Principal Financial Group in July 2000. Kevin also began working at Principal later that year. While working at Farm Bureau and Principal, their incomes were similar. Jodi continued to work for Principal and received promotions and income increases. By 2008, she was earning about $74,500. In 2001, Kevin left his job at Principal and pursued his career as a stand up comedian. He spent several months in New York assisting a friend with a business venture during which time Jodi sent money to support him. Caitlin was born to the couple in 2004. When at home, Kevin performed many household chores and provided for the children's care, although the children also went to

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The boy's name is Anthony Brian, but the couple referred to him as Brian, as

will we.

3 daycare. Kevin would be gone for weeks at a time pursuing comedy work, and during those periods Jodi was the sole caregiver for the children. Kevin took the children to New York each summer for extended visits with his family, and Jodi would join them there for perhaps a week. In 2005, Kevin cut back on his travel and was away from home about twenty nights. For approximately eight to twelve months, he emceed at a local comedy club and sold t-shirts. In 2006, he traveled more doing comedy and was away from home between forty-five and sixty nights. In 2007, Kevin "traveled a little more than we were comfortable with" and was away from home approximately seventy-five to ninety nights. Kevin's

income from stand up comedy has been sporadic and involved substantial expenses. The most he has earned as a comedian was in 2007 when he earned $8000. Jodi's income has supported the family and Kevin's comedy car eer. In early 2008, Jodi informed Kevin she wanted a divorce; however, Kevin continued to live in the family home. In April, the two attempted reconciliation, taking a trip to Florida with thoughts of relocating there. There was no

reconciliation, and in May 2008, Kevin went to New York with Caitlin, with the intention that Brian would join him for the summer and the children would return to Iowa at the end of the summer. On June 1 Jodi took Brian to Indiana to meet Kevin's brother, who then drove with Brian to New York to join Kevin. Kevin moved in with his mother. Brian was diagnosed with attention deficit and hyperactivity disorder (ADHD) when he was in second grade. medication to assist with his hyperactivity. In third grade he was placed on

4 When Brian arrived in New York, where he was to stay for several weeks, he did not have an adequate supply of his ADHD medication. Kevin was unable to refill the prescription without having Brian being seen by a physician and that proved to be quite difficult. Kevin decided to take Brian off the medication, which was an unpleasant experience for Brian. Kevin placed Brian on a special diet and had him seen by a neuropsychologist and a therapist. On June 6, 2008, Jodi flew to Texas for an interview with JPMorgan Chase and was offered a job. On June 9 Jodi wrote to Kevin outlining her

proposals related to their divorce, including alternatives related to where the children would reside. She informed Kevin that she was leaving that weekend for Texas to start training. On June 11 Shaun Patman, a man Jodi had been communicating with online, came to Iowa to meet her in person. By the beginning of July, Jodi was pregnant. Jodi was assigned to various locations in Texas during training, eventually being permanently assigned to a branch office in Odessa, Texas, where Shaun lived. In August 2008, Kevin filed an action pro se in New York for custody of the children. By agreement, Kevin enrolled Brian and Caitlin in schools in New York. In September, Jodi filed this dissolution action in Iowa. Jodi challenged New York's jurisdiction, and that action was dismissed on November 16. Kevin and Jodi agreed the children would go to Texas over the winter school break to visit Jodi and were set to return to New York on January 3, 2009. The children met Shaun and were informed they were going to have a new

5 sibling. Just hours before Kevin was to pick the children up at the airport on January 3, Jodi e-mailed Kevin that the children were going to stay in Texas. She enrolled them in school, and Brian was placed back on ADHD medication. On January 15, 2009, the Iowa district court appointed Angela GruberGardner as guardian ad litem (GAL) for the children. On February 27 the GAL submitted a report to the court outlining the materials she had read and reviewed, as well as the persons she had interviewed. She concluded, Although it is a very close call, applying the [In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974)] factors to the instant case demonstrates Kevin should be awarded physical care of the children. [Brian] is a ten-year-old boy with ADHD. Caitlin is a fouryear-old girl with no known health concerns. Both parties exhibit the ability to meet the emotional, social, moral, material and educational needs of the children. The educators in New York and Texas reported that the children interact well with others, are welladjusted, polite, respectful and on target with educational goals. In addition, the children have solid relationships with both parents, and a solid relationship with each other. . . . [T] he children should not be separated. The GAL stated the "case turns upon the characteristics of each parent, the nature of each proposed environment and the ability of one parent to support the other's relationship with the children." She noted Jodi's "sudden relationship with Shaun" and found "Jodi's actions over Christmas break draw into question whether she acted in the children's best interest." On March 3, 2009, the district court granted temporary physical care to Jodi. Kevin was to have four weeks of summer visitation prior to the trial date. Trial was held on July 21 through 24, 2009. The GAL submitted a

supplemental report in which she had changed her recommendation. Kevin's anger issues have surfaced since the hearing on temporary matters. Kevin got into an argument with Jodi and Shaun while the

6 children were present. According to [Brian], Kevin yelled and cussed at Jodi and Shaun. Jodi and Shaun maintained their composure during this incident and attempted to calm Kevin down. [Brian] reported a hotel worker asked Kevin to leave because Kevin was yelling. Kevin's anger is further demonstrated in viewing his reaction when he learned [Brian] talked to me about the incident. First, Kevin confronted [Brain] about the conversation. Kevin then got angry with [Brian] and kicked the area around [Brian's] chair. [Brian] was frightened by Kevin's reaction. Kevin's reaction indicated he is not capable of promoting a relationship with Jodi. Kevin told [Brian] his mother tried to "manufacture crisis" by bringing Shaun to the hotel. Kevin told [Brian] the reason Jodi brought Shaun to the hotel was to help her court case because it caused him to react in the manner he did. . . . Kevin does not seem to appreciate that he placed [Brian] in the middle. Kevin claimed he made the statements to inform [Brian] of the situation created by his mother. The undersigned recognizes her recommendation has changed since the hearing on temporary matters. Jodi's conduct in her personal life remains a concern as discussed in the [earlier report.] Jodi has been with Shaun for a short period of time and it is difficult to ascertain what the future will bring. However, the children have done well in her household, developed a relationship with Shaun and have not been subject to the level of negativity Kevin has demonstrated. The GAL testified that prior to the temporary hearing, she had been informed that Kevin had anger issues, but she had not verified that characteristic until after the hearing on temporary matters. She testified that initially she felt this was a close case, but that Kevin's behavior and negativity had made her decision "a little easier." On August 24, 2009, the district court filed the decree of dissolution in which the court awarded Jodi physical care of the children, rejected Kevin's claims that Jodi had dissipated marital assets, and denied Kevin's request for rehabilitative alimony. The court found that application of the child support

7 guidelines would be unjust and waived Kevin's child support obligation.2 However, the court imposed all of the children's transportation costs incurred in the exercise of visitation upon Kevin. Kevin now appeals. He argues the court erred in: (1) its division of assets and liabilities, (2) failing to award him rehabilitative alimony, and (3) not awarding him attorney fees. He also argues the court erred in awarding Jodi physical care. He asks for an award of appellate attorney fees. We will address each argument in turn, providing further facts when relevant. II. Scope and Standard of Review. We review dissolution cases de novo. Iowa R. App. P. 6.907 (2009). "Although we decide the issues raised on appeal anew, we give weight to the trial court's factual findings, especially with respect to the credibility of witnesses." In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007) (citation omitted). Our determination necessarily depends on the facts of the particular case and, consequently, precedent is of little value. Id. We approach our review from a gender-neutral position. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct. App. 2002).

Although the record does not reflect it, appellant's counsel at oral argument noted, and appellee's counsel conceded, that the district court adopted almost verbatim, Jodi's proposed findings of fact and conclusions of law. Our courts have highly discouraged the practice of adopting verbatim the proposed findings and conclusions submitted by one of the parties. In re Integrated Res. Life Ins. Co., 562 N.W.2d 179, 181 (Iowa 1997); In re Marriage of Siglin, 555 N.W.2d 846, 848 (Iowa Ct. App. 1996). We recognize legitimate concerns as to the extent of the judge's actual input into the process when adopting a proposed decree verbatim, but these concerns do not necessarily mean the decision was not a product of independent judicial judgment. Siglin, 555 N.W.2d at 848. In any event, our review in this case is de novo, and we therefore proceed to a discussion of the merits of the present appeal.

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8 III. Discussion. A. Distribution of assets. In a dissolution of marriage, the court makes an equitable distribution of "all property, except inherited property or gifts" after considering numerous statutory factors, including the length of the marriage, contributions of each party to the marriage, the age and health of the parties, each party's earning capacity, and any other factor the court may determine to be relevant to any given case. Iowa Code

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