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In re Marriage of Naber

Court of Appeals of Iowa

August 2, 2017

IN RE THE MARRIAGE OF ABBY HOEGER NABER AND WILLIAM MICHAEL NABER Upon the Petition of ABBY HOEGER NABER, Petitioner-Appellant, And Concerning WILLIAM MICHAEL NABER, Respondent-Appellee.

         Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.

         Abby Hoeger Naber appeals from the physical-care and property-distribution provisions of the decree dissolving her marriage to William Michael Naber.

          Mark D. Fisher of Nidey Erdahl Tindal & Fisher, P.L.C., Cedar Rapids, for appellant.

          Robert L. Sudmeier of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque, for appellee.

          Considered by Mullins, P.J., and Bower and McDonald, JJ.

          MULLINS, Presiding Judge.

         Abby Hoeger Naber appeals from the physical-care and property-distribution provisions of the decree dissolving her marriage to William Naber. We affirm as modified.

         I. Background Facts and Proceedings

         Abby, born in 1981, and William, born in 1974, met in 2000 and married in October 2004. The parties, both residents of Dyersville, Iowa, have three minor children: J.R.N., born in 2008; J.O.N., born in 2011; and J.W.N., born in 2012. Abby has an associate's degree in nursing and is employed as a nurse at a hospital. William, who has a vocational technical certificate, was employed by Mi-T-M for most of the duration of the parties' marriage. Throughout the marriage, Abby worked a 6 p.m. to 6 a.m. shift three days a week to maximize the time she could spend providing care for the parties' children. Because of this, Abby provided for the majority of the children's day-to-day needs. William also contributed to the maintenance of the family by, in addition to working an 8 a.m. to 5 p.m. job, performing the majority of the household cleaning and yard work. The record reflects that, despite the parties' differences, both parents were devoted to their children and greatly involved in their lives.

         In July 2015, the parties separated, and Abby filed a petition for dissolution of marriage. In August 2015, Abby filed a petition for relief from domestic abuse, and the court entered a temporary protective order that same day. On August 17, 2015, a temporary order was entered upon agreement of the parties by which Abby was awarded use of the marital home; Abby was also awarded physical care of the children, and William was awarded visitation. As a result of that agreement, the August 2015 petition for relief from domestic abuse and temporary order were dismissed. Leading up to the trial, William exercised his visitation in the marital home-by agreement of the parties to provide normalcy for the children-until this practice was discontinued when Abby took issues with some of William's conduct in the home.

         Trial on this matter was held in August 2016. Most of the parties' disputes revolved around each parent's respective involvement with the children, communication issues, and drinking habits. Abby and her family testified at length at how particular William was; how he was controlling toward Abby by constantly making demands of Abby and limiting her contact with her family; that he experienced great personal struggle as a result of the separation and divorce-some of which was exhibited in front of the children; and that he regularly consumed alcohol-including when supervising the children. William testified to specific incidents when Abby engaged in excessive drinking and extra-marital relations and that Abby had a history of dishonesty. The record clearly establishes William initially did not want this divorce, tried to reconcile with Abby, and experienced great personal difficulty throughout the divorce process. However, the record also establishes each party's acceptances that their marriage is now irreconcilably broken and commitment to focusing on their children. In October 2016, the district court entered its decree, awarding joint legal custody, establishing a shared-care arrangement, declining to award child support to either party, distributing the marital assets, and declining to award either party attorney fees. Abby appeals, seeking physical care of the children and a modification of the equalization payment awarded to William. William resists, and both parties seek an award of appellate attorney fees.

         II. Scope and Standard of Review

         We review dissolution cases, which are tried in equity, de novo. Iowa R. App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa 2012). While we give weight to the factual findings of the district court, especially when considering the credibility of witnesses, we are not bound by them. Iowa R. App. P. 6.904(3)(g). "Precedent is of little value as our determination must depend on the facts of the particular case." In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007) (citation omitted).

         III. ...


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