In re the Marriage of Brockman ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2013
Filed December 18, 2019
IN RE THE MARRIAGE OF JESSALYN C. BROCKMAN
AND MATTHEW C. BROCKMAN
Upon the Petition of
JESSALYN C. BROCKMAN,
Petitioner-Appellant,
And Concerning
MATTHEW C. BROCKMAN,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Timothy O’Grady,
Judge.
Jessalyn Brockman appeals the child custody provisions of the decree
dissolving her marriage to Matthew Brockman. AFFIRMED.
Jay W. Mez (until withdrawal) and William C. Bracker, Council Bluffs, for
appellant.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.
Jessalyn (Jess) Brockman appeals the child custody provisions of the
decree dissolving her marriage to Matthew (Matt) Brockman. She contends the
court erred in granting Matt physical care of their child. She instead asks for joint
physical care or, in the alternative, for the child’s placement in her physical care.
We review this claim de novo with an eye to the child’s best interests. See In re
Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
If the court grants joint legal custody of a child, the court may award joint
physical care if either parent requests it. See Iowa Code § 598.41(5)(a) (2017).
“If the court denies the request for joint physical care, the determination shall be
accompanied by specific findings of fact and conclusions of law that the awarding
of joint physical care is not in the best interest of the child.” Id. The court must
consider the factors listed in Iowa Code section 598.41(3) in determining what
custody arrangement is in the child’s best interests.
The district court noted that both parents are suitable custodians, love the
child, and want what is best for him. It noted that although each parent had
contributed to raising the child in different ways, each had made a substantial
contribution. The court found the child’s “emotional and social development will
be fostered by maximizing contact with both parents” and that both would do their
best to attend to the child’s best interests. But the court noted that joint physical
care was not practical or in the child’s best interests, noting:
Despite their commendable cooperation, Jess and Matt cannot
agree on which school [the child] should attend. They have not
agreed on where [the child] should live. Jess and Matt plan to live
more than eighty miles apart. It is not the Court’s role to decide
where the parties should live. It is likewise not the Court’s role to
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decide what school [the child] should attend. Neither party was
willing to compromise on these issues.
After weighing the merits of each parent, the court determined that it is in the child’s
best interests to grant Matt physical care.
Jess moved the court to reconsider, enlarge, or amend its ruling. She
stated, “If the court will award the parties joint physical care, Jess plans to move
back to Clarinda, keep the child in the Clarinda School System and commute to
her job in Omaha.” The court overruled this request, noting that the distance
between the parties’ residences was a factor in deciding physical care, but “it was
not the sole factor or even the most important factor.” Instead, the court found the
most significant factors to be Matt’s suitability as a caretaker and his role in
providing a significant portion of the child’s care in recent years. It also cited Matt’s
involvement with the child’s school and activities, his willingness to support the
child’s relationship with Jess when compared to Jess’s willingness to support the
child’s relationship with Matt, and Matt’s willingness to support the child’s
relationship with extended family. Finally, the court found “Matt’s candor in his
testimony” to be a factor in granting him physical care. It concluded by stating that
after revisiting the evidence, it again concluded the child’s best interests are served
by placing the child in Matt’s physical care.
We give weight to the trial court’s findings. Murphy, 592 N.W.2d at 683.
That is because, although our review is de novo, we do not “decide the case in a
vacuum, or approach it as though the trial court had never been involved.” See
Albert v. Conger, 886 N.W.2d 877, 880 (Iowa Ct. App. 2016).
Unlike this court, the trial court has a front row seat to observe the
witness’s facial expressions, vocal intonation, eye movement,
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gestures, posture, body language, and courtroom conduct, both on
and off the stand, as well as the witness’s nonverbal leakage
demonstrating hidden attitudes, feelings, and opinions that are not
reflected in the cold transcript this court reviews. Consequently, the
trial judge is in the best position to assess witnesses’ interest in the
trial, their motive, candor, bias, and prejudice.
Id. (cleaned up). After reviewing the record and giving the district court’s findings
the appropriate weight, we concur in its assessment of the evidence. So we affirm
the grant of physical care to Matt.
Jess asks for an award of her trial attorney fees. An award of trial attorney
fees in dissolution cases rests within the discretion of the district court, and we will
only disturb the court’s decision if it abused that discretion. See In re Marriage of
Francis, 442 N.W.2d 59, 67 (Iowa 1989). “Whether attorney fees should be
awarded depends on the respective abilities of the parties to pay.” In re Marriage
of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (citation omitted). In assessing the
parties’ respective ability to pay, we consider “the financial circumstances and
earnings of each.” In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995).
In denying Jess’s request for trial attorney fees, the district court noted that
Jess has the greater monthly income between the parties, each party received an
equitable award of the marital assets, and that neither party has any significant
debt. On this basis, the court determined that the parties can pay their own
attorney fees and it is equitable to do so. We find no abuse of discretion.
Jess also seeks an award of her appellate attorney fees. The decision to
award appellate attorney fees is within our discretion. See Sullins, 715 N.W.2d at
255. Like the trial court, we consider the needs of the party requesting the award
and the ability of the other party to pay. See id. We also consider whether the
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requesting party had to defend the trial court’s ruling on appeal. See id. For the
same reasons the trial court declined to award either party their trial attorney fees,
we decline to award Jess her appellate attorney fees.
AFFIRMED.