In re the Marriage of Luethje ( 2020 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 19-0768
    Filed January 23, 2020
    IN RE THE MARRIAGE OF LARA CHRISTINE LUETHJE
    AND NATHAN JON LUETHJE
    Upon the Petition of
    LARA CHRISTINE LUETHJE,
    Petitioner-Appellant,
    And Concerning
    NATHAN JON LUETHJE,
    Respondent-Appellee.
    ________________________________________________________________
    Appeal from the Iowa District Court for Warren County, Paul R. Huscher,
    Judge.
    Wife appeals the district court’s custody determination in a dissolution
    decree. AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.
    Leslie Babich and Amy K. Davis of Babich Goldman, P.C., Des Moines, for
    appellant.
    Chira L. Corwin of Corwin Law Firm, Des Moines, for appellee.
    Considered by May, P.J., Greer, J., and Potterfield, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206
    (2020).
    2
    GREER, Judge.
    Lara Luethje appeals from the decree dissolving her marriage to Nathan
    Luethje. The fighting issue is custody of the parties’ children. Lara contends the
    shared custodial arrangement the district court crafted is unworkable and asks us
    to award her physical care of the parties’ four children. Nathan maintains the
    district court’s custodial care decision was correct. Both parties seek appellate
    attorney fees.
    I. Background Facts and Proceedings.
    Lara and Nathan married in September 2005. The marriage was Lara’s first
    and Nathan’s second. This union produced four children, born in 2007, 2013,
    2015, and 2016. Nathan’s three children from his first marriage began living with
    the couple in 2006. Over time, the marriage began to crumble, due in large part
    to Nathan’s paranoia1 that Lara was having an affair.
    In September 2018, Lara filed a dissolution petition and requested that the
    court award her physical care of the children. Nathan answered, also requesting
    physical care. As the legal proceedings advanced, the parties resolved some
    issues, including agreeing to joint legal custody of the children. They continued to
    disagree on a physical care arrangement.
    The district court held a dissolution trial in April 2019, with the custody issue
    as the primary focus. Allegations of marital infidelity and the parents’ behaviors
    dominated the trial. Recognizing that Iowa abandoned the requirement of proving
    1
    Although not diagnosed with a paranoid personality disorder, Nathan’s therapist
    testified: “It [Nathan’s paranoia test score] was not above and beyond the normal
    population of that paranoia scale, but it does suggest one who is experiencing
    mistrust, resentful, past hurts that might lead to suspicious thinking, being vigilant.”
    3
    fault in dissolution proceedings long ago, the district court disregarded the
    allegations of infidelity. Yet Nathan’s paranoia and persistence on confirming an
    affair remained central to each party’s case at trial.2
    In their testimony, Lara and Nathan emphasized their roles, and each
    other’s failings, in the day-to-day care of the children. To prove Nathan’s lack of
    parental capabilities, Lara submitted a calendar and memorandum detailing
    Nathan’s inattention to the children’s needs, his consumption of alcohol, and their
    overall inability to communicate about responsibilities and care of the children.
    Nathan described his superior parenting abilities noting that the district court
    awarded him physical care of his three children from a previous marriage in a
    modification proceeding. Yet that ruling raised concerns about Nathan’s inability
    to communicate with his first wife, even though custody ultimately transferred to
    him.3
    After a three-day trial, the district court entered a ruling finding that the
    parties should share physical care of the children, alternating parenting time as
    follows:
    Lara shall have parenting time from Monday at 5:30 p.m. until
    Wednesday at 5:30 p.m. each week. Nathan shall have parenting time
    from Wednesday at 5:30 p.m. until Friday at 5:30 p.m. each week. The
    parties shall alternate every other weekend from Friday at 5:30 p.m.
    until Monday at 5:30 p.m. The party commencing their parenting time
    shall be responsible for transporting the children from school, daycare
    or the residence of the other parent unless otherwise agreed.
    2 As the district court noted, “A substantial portion of the testimony at trial
    concerned [Nathan’s] suspicions that [Lara] engaged in extra-marital affairs, and
    his efforts to prove the truth of such suspicions through paternity testing, polygraph
    and confrontation of suspected paramours.”
    3 The modification related to the first wife’s inability to provide a safe home and
    issues with her live-in boyfriend’s conduct.
    4
    The court ordered the parties to share holidays and summer vacation. Based
    on the shared-care arrangement, the court ordered Nathan to pay $93.17 per
    month in child support.     All expenses related to the children’s schooling and
    extracurricular activities were to be split equally between the parties with no
    expense made over $100 without prior approval by the other parent. The health
    insurance obligation remained Lara’s as long as it was available through her
    employer.
    Lara appeals. On appeal, each party requests appellate attorney fees.
    II. Standard of Review.
    Marriage dissolution proceedings are equitable in nature.          
    Iowa Code § 598.3
     (2019). Thus, our review is de novo. See Iowa R. App. P. 6.907; Wilker
    v. Wilker, 
    630 N.W.2d 590
    , 594 (Iowa 2001). We review the entire record and
    decide anew the factual and legal issues preserved and presented for review. See
    In re Marriage of Williams, 
    589 N.W.2d 759
    , 761 (Iowa Ct. App. 1998). Although
    we give weight to the district court’s findings of fact, we are not bound by them.
    See In re Marriage of Gust, 
    858 N.W.2d 402
    , 406 (Iowa 2015). Even so, we will
    affirm the district court unless it failed to do substantial equity. See In re Marriage
    of Mauer, 
    874 N.W.2d 103
    , 106 (Iowa 2016).
    III. Custody Determination.
    When physical care is at issue, our primary consideration is the best
    interests of the children. See Iowa R. App. P. 6.904(3)(o). “The objective of a
    physical care determination is to place the children in the environment most likely
    to bring them to health, both physically and mentally, and to social maturity.” In re
    Marriage of Hansen, 
    733 N.W.2d 683
    , 695 (Iowa 2007).                  We review “a
    5
    nonexclusive list of factors to be considered when determining whether a joint
    physical care arrangement is in the best interests of the child.” In re Marriage of
    Berning, 
    745 N.W.2d 90
    , 92 (Iowa Ct. App. 2007).
    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.”
    
    Id.
     (quoting Hansen, 
    733 N.W.2d at
    697–99); see also Hensch v. Mysak, 
    902 N.W.2d 822
    , 824–25 (Iowa Ct. App. 2017) (same).
    Here, after considering many factors, the district court determined that
    shared physical care was in the children’s best interests, noting that “many good
    reasons exist for shared physical care, and [the court did] not find any compelling
    reason not to grant that request.” We review the shared physical care award in
    light of the best-interests factors and the specific facts developed here. We respect
    that “[t]he trial court has the advantage of hearing the evidence and observing the
    witnesses.” In re Marriage of Brainard, 
    523 N.W.2d 611
    , 614 (Iowa Ct. App. 1994).
    But we look to which parent will do better in raising the children into healthy,
    content, and well-adjusted young adults. See In re Marriage of Rodgers, 
    470 N.W.2d 43
    , 44 (Iowa Ct. App. 1991).
    Good qualities exist in each parent.      Factors supporting an award of
    physical care to Lara were her confirmed role as primary caretaker, the historical
    caregiving arrangement, and the flexibility afforded with her job at her family’s
    business. Lara described herself as the primary caregiver for not only the parties’
    four children, but also for Nathan’s three older children when they resided in the
    6
    home. She estimated she provided about eighty to ninety percent of the children’s
    care.    For the benefit of all the children, Lara handled scheduling doctor
    appointments, shopping for clothes, registering them for school, doing laundry,
    bathing the younger children, shopping for groceries, preparing meals, and staying
    home when a child was ill. Given all Lara did for the children, she emphasized her
    close relationship with the children and their dependence on her when asking the
    court to award her physical care. The district court supported Lara’s assertions
    that she primarily cared for the children’s day-to-day needs.            “[S]uccessful
    caregiving by one spouse in the past is a strong predictor that future care of the
    children will be of the same quality.” Hansen, 
    733 N.W.2d at 697
    .
    Moreover, for all of their lives, the four children resided in the family home,
    which the district court awarded to Lara.4 The oldest child testified he preferred to
    stay in the family home and live with his mother. Lara’s mother and aunt live next
    door and provide a significant support system for Lara and the children. After Lara
    and Nathan separated, Lara encouraged contact between her children and
    stepchildren.
    While Lara’s schedule was flexible and allowed her to spend more time with
    the children, Nathan had a set work schedule and sometimes worked up to seventy
    hours per week. Yet until the parties separated, Nathan cared for the children after
    his work from 3:30 until 6:00 or 7:00 p.m. on most of Lara’s workdays, per the
    schedule the parents arranged. Contrary to Lara’s description of the caretaking
    4 Lara’s deceased father’s trust owns this home, where Lara, Nathan, and their
    family resided since 2006. In February 2019, Nathan bought a house within
    walking distance to Lara’s. At the time of trial, he had been living in the home for
    a few weeks.
    7
    roles, Nathan’s self-described parenting role involved bathing the children, putting
    them to bed, feeding them, playing video games with them, helping them with
    homework, and, when he attended college for a year, being a stay-at-home dad.
    As might be expected, each parent recounted the personal failings of the
    other as it related to their caretaking abilities. Lara referenced Nathan’s poor
    memory and his paranoid and accusatory behavior, coupled with his excessive
    nightly drinking of alcohol. She described Nathan as withdrawn, unavailable, and
    depressed. Lara points to a history of Nathan’s failure to communicate with her
    regarding day-to-day care of the children and to a letter he wrote confirming he
    was “withdrawing” from the family. Nathan could not have overnight visitation of
    the parties’ children after he moved out of the marital home because he had no
    beds or car seats available for the children.
    Nathan accused Lara of limiting his time and contact with the children,
    exaggerating his failures, and turning family members against him. Nathan’s
    witnesses supported his solid parenting skills and deep relationship with the
    children. Nathan contended that Lara and her family evicted him from the family
    home to obtain a custodial advantage. Nathan’s counselor confirmed Nathan’s
    feeling of withdrawal from the family, that he and Lara were poor communicators
    with each other about co-parenting, and that Nathan’s emotions led him into
    isolation at times. Another concern that arose at trial was Nathan’s drinking habit.
    Nathan acknowledged an uptick in his drinking because of an inability to sleep and
    the stress in his life. His counselor confirmed the heavy drinking as a poor coping
    skill. Nathan claimed he quit drinking after concerns arose in mediation.
    8
    The most concerning issue, however, is Nathan’s unrelenting belief that
    Lara is having an affair. The district court brushed off these allegations as an
    attempt to prove fault and did not acknowledge any potential impact of that
    behavior to the appropriateness of a shared physical care arrangement. We
    assess his behavior differently.
    While this case does not rise to the level of physical abuse, Nathan’s
    persistent accusations of Lara for affairs yet unproven cannot be ignored.
    Beginning in 2011, and without evidence, Nathan accused Lara of having profiles
    on sex solicitation websites and of having affairs with his brother, coworkers, and
    family friends. Later that year, Nathan was driving in West Des Moines when he
    encountered a male family friend on a walk. The man got into Nathan’s car, and
    after some small talk Nathan began accusing the man of having an affair with Lara.
    Nathan started driving the man to Indianola without his permission, apparently to
    take him to a computer so Nathan could show him proof of the affair. The man
    eventually convinced Nathan to take him home. Understandably, this incident
    terrified the family friend. Nathan was also convinced he was not the biological
    father of one of the parties’ children. After a paternity test showed a 99.999%
    probability that he was the child’s father, he remained unconvinced and suggested
    his brother could have fathered the child. He would sometimes come home from
    trips early to try to catch her cheating. Lara also presented evidence at trial that
    Nathan tracked her location, recorded video and audio of her, and in 2017 installed
    a camera in the living room of their home, all without her knowledge.
    To quell Nathan’s assertions of infidelity, and at Nathan’s counselor’s
    suggestion, Lara underwent a polygraph exam to prove no extramarital affair
    9
    occurred. Even so, Nathan’s paranoia persisted. At one point Nathan threatened
    suicide. After sixty-three counseling sessions over a two-year period, Nathan
    remained steadfast in his beliefs about Lara’s infidelity even through trial.5
    Nathan’s counselor testified he had “obsessive thought causing anxiety that leads
    to compulsive strategies, psycho-obsessive compulsive features” related to his
    continued conviction that Lara cheated on him. The counselor, however, related
    the focus on infidelity to situational depression or anxiety that likely would subside
    after the divorce.
    Crafting a joint custodial plan with the best interests of the children remains
    the goal. Both parents love these children, and by all accounts, the children are
    thriving. In addition, a primary consideration of the district court was preserving
    the children’s bond with their stepsiblings. Iowa law presumes it is not in children's
    best long-term interests to deprive them “of the benefit of constant association
    with” their siblings. See In re Marriage of Will, 
    489 N.W.2d 394
    , 398 (Iowa 1992).
    The same principles govern awards of physical care when half-siblings are
    involved. In re Marriage of Orte, 
    389 N.W.2d 373
    , 374 (Iowa 1986). But the
    presumption may be overcome by compelling reasons. In re Marriage of Pundt,
    
    547 N.W.2d 243
    , 245 (Iowa Ct. App. 1996). Nathan’s behaviors before the trial
    work against a shared-care arrangement. See Hansen, 
    733 N.W.2d at
    700–01
    (concluding joint physical care was not in the best interests of the children, at least
    in part, due to the parents’ “significant difficulties in communication” and the
    5 The counselor noted that in the two years of therapy, Nathan’s “narrative never
    really changed in that way. At times throughout the course of therapy he did begin
    to become more open and flexible about some of his beliefs.”
    10
    presence of “communication and respect issues”); In re Marriage of Toedter, 
    473 N.W.2d 233
    , 234 (Iowa Ct. App. 1991) (finding mother’s emotional problems
    weighed against her while continuous grandparent contact supported custody to
    the father).
    While noting difficulties in communications between these parties, the
    district court believed the litigation to be the root cause. But this storyline began
    long before the divorce proceedings and involved Nathan’s allegations against his
    brother, suicidal threats, and possible kidnapping of another suspected paramour.
    Requiring paternity tests and a polygraph and then threatening suicide in a letter
    strike of instability. This history fails to establish behavior supporting co-parenting
    skills, especially where Nathan has yet to make peace with these fears. Nathan’s
    obsession with proving infidelity spilled over into his relationships with coworkers,
    friends, and family. We find it difficult to reconcile this history with a coordinated
    and conflict-free, shared-care plan. See Hansen, 
    733 N.W.2d at 698
     (“A lack of
    trust poses a significant impediment to effective co-parenting.”). Coupled with
    Lara’s other allegations that Nathan failed to respond to her messages and
    inadequately communicated about meals, activities, and other needs of the
    children, we find stability weighs in favor of Lara.       Additionally, Lara set no
    limitations on contact between her natural children and stepchildren,6 so contact
    between all siblings can be often and substantial while she has physical care.
    We do not believe that shared physical care is in the best interests of the
    children. We do, however, support a liberal visitation schedule for Nathan. Given
    6Some evidence suggested Nathan prohibited his fifteen-year-old daughter from
    speaking with or visiting Lara.
    11
    the lingering issues between these parents and Nathan’s inability to move forward
    by the time divorce was imminent, we reverse the award of the district court and
    find that primary physical care should be with Lara. We remand the case for entry
    of an order establishing this change, providing Nathan liberal visitation, and
    recalculating the child support obligation to align with this opinion.
    IV. Attorney Fees.
    Each party requests appellate attorney fees. Appellate attorney fees are
    not a matter of right but may be awarded in the court’s discretion. See, e.g., In re
    Marriage of Sullins, 
    715 N.W.2d 242
    , 255 (Iowa 2006).7 In determining whether to
    award appellate attorney fees, we consider the needs of the party making the
    request, the ability of the other party to pay, and whether the party making the
    request had to defend the decision of the trial court on appeal. Hensch v. Mysak,
    
    902 N.W.2d 822
    , 827 (Iowa Ct. App. 2017). Having considered those factors, we
    decline to award appellate attorney fees.
    V. Disposition.
    We modify the district court’s custody determination and remand the case
    for entry of a modified decree reflecting Lara’s primary physical care, Nathan’s
    visitation, and a recalculation of child support. We deny the parties’ requests for
    appellate attorney fees.
    AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.
    7  By agreement at trial, each party paid their own attorney fees and no attorney
    filed fee affidavits.