In Re the Marriage of Bill E. Margellos and Holly C. Margellos Upon the Petition of Bill E. Margellos, and Concerning Holly C. Margellos

• Court: Court of Appeals of Iowa
• Decided: April 8, 2015
• Docket: 14-0524
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0524 Filed April 8, 2015

IN RE THE MARRIAGE OF BILL E. MARGELLOS AND HOLLY C. MARGELLOS

Upon the Petition of BILL E. MARGELLOS, Petitioner-Appellee,

And Concerning HOLLY C. MARGELLOS, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.

Holly Margellos appeals the district court’s physical care decision in the

decree dissolving her marriage to Bill Margellos. AFFIRMED.

Tara S. Vonnahme of Vonnahme Law, P.C., Sioux City, for appellant.

Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

VAITHESWARAN, P.J.

Bill and Holly Margellos married in 2004 and divorced in 2014. They had

two children, who were eight and three at the time of trial. The district court

granted Bill physical care of the children, subject to liberal visitation with Holly.

On appeal, Holly contends (1) the court should have awarded her physical care

of the children and (2) “the district court had no finding of fact to support the

determination of physical care due to inadequate counsel.”

I. Physical Care

The first and governing consideration in resolving custody disputes is the

best interests of the children. Iowa R. App. P. 6.904(3)(o). Holly contends their

best interests required placement with her because she spent more “quality time”

with them. Bill counters that his “living arrangements and financial situation are

demonstrably stable, whereas Holly’s are not.” He also asserts he “will keep the

children in a school and neighborhood that they are familiar with, and where they

have friends and family, and where they will be safe.”

The district court determined Bill was the more stable parent. The court

made detailed findings of fact drawn directly from the concededly short trial

transcript. In pertinent part, the court stated:

Bill has the greater employment stability which would allow him to provide an appropriate home for the needs of the children. The court finds th[at] Bill has maintained a stable home environment for children. Holly lived with her father for five months after the breakup and for whatever reason, was kicked out of the home by her father. The court finds Holly’s evidence on that point not to be credible. Then, Holly almost immediately began living with Roger and introducing the children to a new man whom they would live with when she had the kids. Although Holly and Roger are intending to get married, there was no way that Holly would have known that when she made the decision to move in with Roger. 3

Therefore, based on the limited record, the court finds that awarding Bill primary physical care is in the long-term best interests of the children.

On our de novo review, we agree with these findings.

The district court’s physical care determination also finds support in an

affidavit on temporary matters offered by Bill and admitted without objection at

trial. Bill attested the older child should remain in the elementary school she had

always attended, where she excelled as a student and enjoyed the company of

friends and cousins. He opined the school would bring her “comfort” and a sense

of normalcy during a turbulent period. In his view, “[t]here is no reason [the child]

should have to go to a new school where she doesn’t know anyone there and

start all over again.”

Bill described his work hours and his routine with the children. If the

children were with him, he stated they would have the benefit of primarily

sleeping in their own beds in their own rooms instead of having to share rooms

with the children of Holly’s fiancé. He also asserted his father could assist with

school pick-ups and after-school care for the older child.

At trial, Holly conceded she would move the older child to her fiancé’s

school district in the event she was granted physical care. While she testified

there were “kids up and down the street” with whom the older child could play,

she did not identify any of them by name, as Bill did. And, while she maintained

the older child wished to transfer schools, the district court found—and we

agree—“[t]here is no record made on [the child’s] level of maturity to make such

a choice.” 4

As for the younger child, the parents agreed she would stay with Holly

during Bill’s work hours, in order to avoid day care costs. This meant the child

spent more waking time with Holly than with Bill, a fact Holly contends supports

reversal of the physical care determination. We disagree. As the district court

pointed out, the day care arrangement would only last until the younger child

began attending school, at which point the parents would have to come up with

alternate plans.

Holly also testified the younger child threw tantrums when she had to

return to Bill’s house. However, the tantrums also occurred before transfers from

Bill to Holly. Accordingly, this evidence did not favor either parent.

We conclude the district court acted equitably in granting Bill physical care

of the children.

II. Inadequate Counsel

Holly contends both trial attorneys were ineffective in failing to develop a

more complete record on the custody issue. She asserts their omissions

prevented the court from making findings of fact, and she is entitled to a new trial.

“The general rule in civil cases is a claim of inadequate representation is

not a sufficient basis for granting a new trial.” In re Marriage of Johnson, 499

N.W.2d 326, 327 (Iowa Ct. App. 1993). This court has applied the general rule to

custodial matters. See In re Marriage of Risbeck & Riley, No. 12-1828, 2013 WL

1749822, at *4 n.6 (Iowa Ct. App. Apr. 24, 2013) (“A party is not entitled to

effective assistance of counsel in a custodial matter.”). Holly has cited no

contrary authority allowing us to consider an ineffective-assistance-of-counsel

claim in this context. 5

Assuming without deciding we had such authority, we would conclude the

district court was presented with sufficient evidence to make fact findings on the

custody issue. As noted, those findings were detailed. Accordingly, we discern

no basis for an ineffective-assistance-of-counsel claim, even if one were

permissible.

III. Appellate Attorney Fees

Both parties request appellate attorney fees. An award is discretionary.

In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). We decline

Holly’s request because she did not prevail and we deny Bill’s request because

he has the ability to pay his own fees.

AFFIRMED.