IN RE THE MARRIAGE OF SHELBY MAE TARRENCE AND JOSEPH LEWIS TARRENCE Upon the Petition of SHELBY MAE TARRENCE, Petitioner-Appellee, And Concerning JOSEPH LEWIS TARRENCE, Respondent-Appellant.
from the Iowa District Court for Washington County, Joel D.
Tarrence appeals the physical care provision of his
Constance Peschang Stannard of Johnston, Stannard, Klesner,
Burbidge & Fitzgerald, PLC, Iowa City, for appellant.
A. Huddle of Weaver & Huddle Law Office, Wapello, for
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
(Joe) Tarrence appeals from the decree dissolving his
marriage to Shelby Tarrence. He argues the district court
erred in granting physical care of their children to Shelby.
He asks us to award physical care to him or joint physical
care and to make a corresponding change in his child support
obligation. Both parties request appellate attorney fees. We
find the district court's factual determinations are
supported by the record and affirm the physical care award
and child support calculation. We also find Shelby is
entitled to partial appellate attorney fees.
Shelby Tarrence married in September 2012. The marriage
produced two children. Shelby filed the petition for dissolution
of marriage on November 14, 2016. Trial was held on October
17 and 18, 2017. The district court entered the decree of
dissolution on November 9, which states:
[Joe] has requested joint physical [care]. The Court has
considered [In re Marriage of Hansen, 733 N.W.2d 683
(Iowa 2007)] and the specific requirements that need to be
met there, and the court finds that on that particular issue,
this is not a close call, and that based on the factors set
forth in [Hansen], joint physical [care] is not
workable, nor advisable.
In making that, the Court would point to the following: (1)
Shelby has been the primary caretaker of these children; (2)
Both parties acknowledge that their communication is abysmal
and has deteriorated over the period of their separation, and
while it needs to improve, there is simply not the
communication level that would allow for joint physical
[care]. And, finally, the Court concludes that based on the
testimony of each of the parties, they do not share a similar
parenting philosophy that would allow for joint physical
[care]. Beyond that, the Court then has determined the
criteria set forth in [Iowa Code section 598.41 (2017)] and
determines that it is in the children's best interest for
primary physical care to be awarded to Shelby, subject to the
frequent and liberal visitation of Joe.
In making that determination, the Court determines that is
the best in terms of continuity for the children, the best in
terms of stability, and relies heavily on the finding that
Shelby has been their primary caretaker during their
review dissolution cases de novo, giving "weight to the
trial court's factual findings, especially with respect
to the credibility of the witnesses." In re Marriage
of Witten, 672 N.W.2d 768, 773 (Iowa 2003). Questions of
physical care are based upon the best interest of the child.
Hansen, 733 N.W.2d at 696.
district court found both parties are "suitable parents
for their children, and both are capable of providing and
caring for their children." The court also found both
parties had behaved poorly at times since their separation,
including using inappropriate and immature language towards
each other and occasionally in the presence of their
children. The district court was in the best position to see,
hear, and evaulate the parties first-hand. Witten,
672 N.W.2d at 773. After reviewing the entire record,
including the testimony of all witnesses, we are convinced
the district court properly considered all factors in making
physical care decisions in the best interest of the children.
We affirm the physical care, visitation, and child support
determinations without further opinion. Iowa Ct. R.
21.26(1)(a), (b), (d), (e).
parties request appellate attorney fees. Appellate attorney
fees are within the discretion of the appellate court. In
re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996).
"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 was obligated to defend the decision of
the trial court on appeal." In re Marriage of
Hoffman, 891 N.W.2d 849, 852 (Iowa Ct. App. 2016). We
note Joe has a significantly higher ...