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IN THE SUPREME COURT OF IOWA
No. 59 / 06-0191 Filed June 15, 2007 IN RE THE MARRIAGE OF LYLE MARTIN HANSEN and DELORES LORENE HANSEN Upon the Petition of LYLE MARTIN HANSEN, Appellee, And Concerning DELORES LORENE HANSEN, Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Washington County, Dan F. Morrison, Judge.

Former husband seeks further review after court of appeals modified dissolution decree. DECISION OF THE COURT OF APPEALS AFFIRMED AS MODIFIED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH INSTRUCTIONS.

Frank J. Nidey of Nidey Peterson Erdahl & Tindal, PLC, Cedar Rapids, for appellee.

Constance Peschang Stannard of Johnston & Nathanson, P.L.C., Iowa City, for appellant.

2 APPEL, Justice. In this case, we review physical care and property issues related to the parties' dissolution of marriage. The district court granted joint legal custody and joint physical care of the two children to Lyle and Delores Hansen. The district court also distributed the property in the marital estate, ordered Lyle to pay alimony, and established child and medical support. Delores appealed. We transferred the case to the court of appeals. The court of appeals reversed the district court on the physical care issue, granting physical care of the children to Delores. The court of appeals decreased the amount Delores was required to pay Lyle as a result of the property distribution and increased the monthly amount and duration of Lyle's alimony payments. The court of appeals further made corrections related to the amount of child and medical support, and awarded Delores $1,000 in attorneys' fees. Lyle sought further review. With respect to the holdings of the court of appeals, we affirm the holding as modified in this opinion on the physical care issue, order Delores to pay Lyle $22,263 as a result of the property distribution, affirm the increase in alimony, affirm the recalculation of child support and medical benefits, and affirm the award of appellate attorneys' fees. The matter is remanded to the district court for further proceedings consistent with this opinion. I. FACTUAL BACKGROUND.

Lyle and Delores were married on September 4, 1987. The marriage lasted approximately eighteen years. At the time of trial, Lyle was forty-five years of age and Delores was forty-six. Two children were born of the marriage, Miranda, who was twelve years old at the time of the district court proceedings, and Ethan, who was eight.

3 At all times prior to the filing of the divorce petition, Delores was the primary caregiver. Lyle, alternatively, was the main breadwinner. For example, during the course of the marriage Delores attended parent teacher conferences on a regular basis, while Lyle did not. The vast majority of the time, it was Delores who helped the children with their homework. Lyle admits that she was better at it, particularly math. During the marriage, Lyle missed important childhood events because of social activities or workrelated assignments. When the children were in infancy, Delores opened a day care center in their home. Later, when family finances became an issue, she held full-time employment outside the home. After the parties' separation, however, Lyle has become more involved in the lives of the children. The record developed at trial reveals serious marital stress. The record demonstrates a history of recurrent arguments, excessive consumption of alcohol, allegations of infidelity and sexual misconduct, and allegations of domestic abuse. Unfortunately, at least some of these

contretemps were in front of the children. It was not a pleasant proceeding. As part of our de novo review, we have reviewed thoroughly all of these matters, which need not be described in detail here. The record further reveals that Delores tended to acquiesce to Lyle when there were disagreements. For example, when Delores was pregnant with Miranda, she wanted to attend child-birthing classes, but Lyle stated that he had already undergone training and that, as a result, the classes were not needed. When Delores began operating a child care center out of their home, Lyle insisted on reviewing applicant backgrounds and controlled which children could utilize the service. He further demanded that parents or custodians pick up their children by 5:00 p.m. sharp. Delores did not

4 agree with these practices, but felt she had no choice but to acquiesce. In addition, Delores asked Lyle if he would participate in marital counseling, but he refused, stating that he did not believe in counseling. Delores

testified that she agreed to temporary joint physical care prior to trial only because she did not feel she could stand up to her husband. Delores expressed concern that if she disagrees with Lyle, he becomes angry and intimidating. The parties appear to have different approaches to child rearing. Delores wants the children to be active in the Methodist church and other extracurricular activities. While not being overtly resistant, during the course of the marriage, Lyle did not encourage these kinds of activities. The parties also have different approaches to discipline. Lyle claims to have been the disciplinarian in the marital home. The record reveals that there are occasions when Lyle believed that discipline needed to be more severe than Delores was willing to impose. Lyle acknowledged that, at times, he is overprotective. As Lyle admitted, there are some things that he might let the children do that Delores might not, and vice versa. At trial, Lyle expressed concern that Delores will expose their children to her family, which he finds highly dysfunctional. Delores testified that her father abused her as a child, but they have reconciled sufficiently to maintain an ongoing relationship. Lyle's concern, however, extends beyond the father, as other members of Delores' family have been convicted of child endangerment and drug offenses. Delores counters that when the children visit her family, it is always under her supervision. Prior to trial, the parties were apparently able to work out the scheduling issues inherent in a joint physical care arrangement. There was not always agreement, however, on matters related to the children. For

5 instance, when one child experienced unexpected academic difficulties, Delores believed professional counseling would be of help. Lyle disagreed, once again stating that he did not believe in professional counseling. Delores acquiesced, and counseling was not obtained. On another

occasion, the kids called their mother and asked to be picked up because Lyle was angry that they had not cleaned their rooms, and had slammed the kitchen door, breaking its glass pane. Moreover, Delores testified that Miranda told her she desired a more stable living arrangement with a home base. While much of the record in this case is unattractive, it is clear that both Lyle and Delores love their children. They are both capable of making substantial contributions to their lives. The record further reveals that the children are bright and generally well-adjusted. With respect to financial matters, the record shows that at the time of trial, Lyle was earning $46,300 per year as a detective for the City of Washington Police Department. Delores was employed as a bank teller, earning $18,900 per year. Delores has only a high school education and little prospect in Washington, Iowa, for substantial increase in income. The main asset accumulated by the parties was the marital residence. An appraisal obtained in 2001 stated that the value of the property was $112,000. Delores testified that a real estate agent had appraised the value of the residence at $130,000 in 2003 when the parties were seeking to refinance their mortgage. No documentary evidence of the appraisal was introduced at trial. During the course of the marriage, the parties accumulated considerable debt, at one time rising to as much as $26,000 on numerous credit cards. There is no suggestion that the funds were improperly spent,

6 but only that Delores and Lyle were, for a period of time, living well beyond their means. Delores testified that she would get cash advances on credit cards so that she could supply her husband with cash when he requested it. She especially did this during times of marital stress hoping to smooth out the relationship. Lyle, however, came to the conclusion that the level of debt was unacceptable, and developed a plan to reduce it. The parties sold their boat and hot tub, and Lyle took an additional job at Hy-Vee. Delores closed the day care, and sought outside employment. As a result of these and other efforts, the debt load was substantially reduced by the time of trial. The parties also borrowed money from their respective relatives prior to the dissolution of marriage. Delores and Lyle borrowed money from Delores' parents during their marriage, and Lyle borrowed money from his sister, Leigh Wolf, after the separation. At the time of trial, the loans

remained unpaid in the amount of $6,500 and $7,391 respectively. II. PRIOR PROCEEDINGS.

On November 15, 2004, Lyle filed a petition for dissolution of marriage. The district court entered an order on December 30, 2004 which granted temporary physical care and legal custody to both parents. The temporary order did not establish a physical care schedule. Lyle suggested a pattern of alternating care on a weekly basis, to which Delores acquiesced. The matter came to trial on November 2, 2005. Each party requested physical care. Only Lyle sought joint physical care as a

secondary alternative. The district court did not require the parties to submit a joint physical care plan, and, as a result, none was provided to the court. The district court heard testimony from each party and several

7 additional witnesses. On December 30, 2005, the district court entered findings of fact, conclusions of law, and a decree in the case. The district court granted "joint legal custody" and "joint physical care" of the minor children to Lyle and Delores. The district court order, however, established a schedule where "physical care" would alternate between Lyle and Delores for six-month periods beginning on January 1, 2006, with liberal visitation for the spouse not currently having physical care. The district court order nevertheless, recognized the parties' difficulty in making mutual decisions. For example, the court ordered that each parent "shall permit the child(ren) to continue the activities after a physical care change." Because Delores was awarded physical care for the first sixmonth period, the effect of the court order was that her choices of extracurricular activities would be binding on Lyle. The district court

additionally ordered that Delores "shall select the church affiliation for the children." The district court ordered that Delores be present when the children visited her family. The court further ordered that if a party moved from the Washington School District, the nonmoving party shall become the physical custodian until further order of the court. Lastly, the district court decision contained the following language in bold print: This custody arrangement is predicated on the court's belief that the parties are able to communicate regarding the best interests of their children. Failure to communicate in a positive manner may constitute a basis for modification of this decree. With respect to the disposition of the marital property, the district court presented its division of the assets and liabilities of the parties as follows:

8 LYLE ASSETS NWML $17,189 Residence Durango Tools and Guns Bank Accounts Personal Property

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