IN THE COURT OF APPEALS OF IOWA
No. 16-0915 Filed October 26, 2016
IN RE THE MARRIAGE OF FRANCISCO GARCIA LOPEZ AND ANNA CHRISTINA GARCIA LOPEZ
Upon the Petition of FRANCISCO GARCIA LOPEZ, Petitioner-Appellee,
And Concerning ANNA CHRISTINA GARCIA LOPEZ, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Wright County, James M. Drew,
Judge.
Respondent appeals from decree of dissolution of marriage, challenging
the award of physical care of the parties’ child to her former spouse. AFFIRMED
AS MODIFIED AND REMANDED.
Eric R. Simonson of Houser, Berkland & Simonson, Belmond, for
appellant.
Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton,
for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
MCDONALD, Judge.
Anna Garcia Lopez appeals from the decree dissolving her marriage to
Francisco Garcia Lopez. On appeal, Anna challenges the district court’s award
of physical care of the parties’ only child to Francisco. She contends physical
care of the child should have been awarded to her with Francisco having liberal
rights of visitation.
Our review of cases in equity is de novo. See Iowa R. App. P. 6.907. We
review the entire record and decide anew the factual and legal issues presented.
See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Prior
cases have little precedential value; the court must make its determination based
on the unique facts and circumstances of each case. See In re Marriage of
Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Marriage of Snowden, No. 14-
1920, 2015 WL 4233449, at *1 (Iowa Ct. App. Jul. 9, 2015) (“All happy families
are alike; each unhappy family is unhappy in its own way.” (quoting Leo Tolstoy,
Anna Karenina 1 (1873))). We exercise de novo review with some deference
afforded to the district court. See In re P.C., No. 16-0893, 2016 WL 4379580, at
*2 (Iowa Ct. App. Aug. 17, 2016).
Physical care is defined as “the right and responsibility to maintain a home
for the minor child and provide for the routine care of the child.” Iowa Code
§ 598.1(7) (2015). In making the physical care determination, we look to the
factors set forth in Iowa Code section 598.41(3) and our case law. See Iowa
Code § 598.41(3); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa
1974). “Each factor, however, does not necessarily impact the decision with
equal force.” In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct. App. 1997). 3
In considering the factors, our ultimate objective “is to place the child in the
environment most likely to bring her to healthy mental, physical, and social
maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). The
controlling consideration is the best interests of the child. See id. at 736. Our
court will “ultimately decide[ ] by determining under the whole record which
parent can minister more effectively to the long-range best interests of the
child[ ].” Winter, 223 N.W.2d at 166.
The parties were married in 2002. One child was born to the marriage,
K.A.G., a daughter, in 2004. Over the course of the marriage, Francisco worked
outside the home as the family breadwinner, and Anna worked as K.A.G.’s
primary caretaker in addition to holding sporadic employment outside the home.
The parties separated in the fall of 2014. For most of the period of their
separation, the parties exercise shared care of K.A.G. on a week-on/week-off
schedule. At the dissolution trial, Francisco requested shared physical care of
K.A.G. or, in the alternative, primary physical care of the child. Anna requested
primary physical care of K.A.G. The district court found shared physical care of
K.A.G. was not feasible because Anna planned to move six or seven hours away
from Belmond, the family’s home, to central Missouri. Having found that shared
physical care was not feasible, the district court awarded physical care of K.A.G.
to Francisco. The district court reasoned Francisco could provide greater
stability to K.A.G. The district court noted Francisco had stable employment, a
stable residence, and a stable relationship with a woman he planned to marry. In
contrast, the district court found Anna had only ephemeral plans to move to 4
Missouri and obtain employment post-dissolution. The district court also placed
great weight on the fact Anna has been diagnosed with schizophrenia.
Unlike the district court, we place little, if any, weight on Anna’s mental
health history. While Anna has been hospitalized on two occasions, the record
reflects that she has effectively managed her condition for the last several years
with medication. See Vanden Heuvel v. Vanden Heuvel, 121 N.W.2d 216, 221
(Iowa 1963) (“Where the record does not bear out a finding that the mother of a
small child is presently suffering from a mental disease, but does show she has
been discharged from treatment of such a disease with symptoms under
remission for a reasonable length of time, and shows no probability of a
recurrence, the mother should not be deprived of the care and custody of her
child for that reason.”). Further, the parties’ conduct over the course of their
marriage and separation shows Anna has been a capable caretaker for K.A.G.
despite her mental health condition. See, e.g., In re Marriage of Gibler, No. 02-
0010, 2002 WL 31313374, at *2 (Iowa Ct. App. Oct. 16, 2002).
We also conclude Anna’s planned move to Missouri does not demonstrate
instability or otherwise militate against awarding Anna physical care of K.A.G.
Anna’s planned move was not motivated by ill will toward Francisco. Anna’s
father and mother purchased a farm in central Missouri and intended to move
there to work the farm and invest in real estate. Anna’s extended family intended
to move to Missouri in June 2016, after the school year ended, to help with the
farm. Anna testified she intended to do the same because of the cultural
importance of maintaining close relationships with extended family and because
her extended family could provide support in raising K.A.G. The record reflects 5
Anna’s extended family has played a significant role in helping raise K.A.G.
during the course of the parties’ marriage. Francisco testified about the critical
role Anna’s extended family played in providing assistance with the care of
K.A.G. It thus comes as no surprise Anna wishes to continue these relationships
post-dissolution.
On de novo review, we find and conclude it is in the child’s best interests
for Anna to have physical care of the child. First, approximation weighs heavily
in favor of placing the child with Anna. See In re Marriage of Hansen, 733
N.W.2d 683, 697 (Iowa 2007) (discussing approximation principle). Anna,
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IN THE COURT OF APPEALS OF IOWA
No. 16-0915 Filed October 26, 2016
IN RE THE MARRIAGE OF FRANCISCO GARCIA LOPEZ AND ANNA CHRISTINA GARCIA LOPEZ
Upon the Petition of FRANCISCO GARCIA LOPEZ, Petitioner-Appellee,
And Concerning ANNA CHRISTINA GARCIA LOPEZ, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Wright County, James M. Drew,
Judge.
Respondent appeals from decree of dissolution of marriage, challenging
the award of physical care of the parties’ child to her former spouse. AFFIRMED
AS MODIFIED AND REMANDED.
Eric R. Simonson of Houser, Berkland & Simonson, Belmond, for
appellant.
Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton,
for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
MCDONALD, Judge.
Anna Garcia Lopez appeals from the decree dissolving her marriage to
Francisco Garcia Lopez. On appeal, Anna challenges the district court’s award
of physical care of the parties’ only child to Francisco. She contends physical
care of the child should have been awarded to her with Francisco having liberal
rights of visitation.
Our review of cases in equity is de novo. See Iowa R. App. P. 6.907. We
review the entire record and decide anew the factual and legal issues presented.
See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Prior
cases have little precedential value; the court must make its determination based
on the unique facts and circumstances of each case. See In re Marriage of
Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Marriage of Snowden, No. 14-
1920, 2015 WL 4233449, at *1 (Iowa Ct. App. Jul. 9, 2015) (“All happy families
are alike; each unhappy family is unhappy in its own way.” (quoting Leo Tolstoy,
Anna Karenina 1 (1873))). We exercise de novo review with some deference
afforded to the district court. See In re P.C., No. 16-0893, 2016 WL 4379580, at
*2 (Iowa Ct. App. Aug. 17, 2016).
Physical care is defined as “the right and responsibility to maintain a home
for the minor child and provide for the routine care of the child.” Iowa Code
§ 598.1(7) (2015). In making the physical care determination, we look to the
factors set forth in Iowa Code section 598.41(3) and our case law. See Iowa
Code § 598.41(3); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa
1974). “Each factor, however, does not necessarily impact the decision with
equal force.” In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct. App. 1997). 3
In considering the factors, our ultimate objective “is to place the child in the
environment most likely to bring her to healthy mental, physical, and social
maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). The
controlling consideration is the best interests of the child. See id. at 736. Our
court will “ultimately decide[ ] by determining under the whole record which
parent can minister more effectively to the long-range best interests of the
child[ ].” Winter, 223 N.W.2d at 166.
The parties were married in 2002. One child was born to the marriage,
K.A.G., a daughter, in 2004. Over the course of the marriage, Francisco worked
outside the home as the family breadwinner, and Anna worked as K.A.G.’s
primary caretaker in addition to holding sporadic employment outside the home.
The parties separated in the fall of 2014. For most of the period of their
separation, the parties exercise shared care of K.A.G. on a week-on/week-off
schedule. At the dissolution trial, Francisco requested shared physical care of
K.A.G. or, in the alternative, primary physical care of the child. Anna requested
primary physical care of K.A.G. The district court found shared physical care of
K.A.G. was not feasible because Anna planned to move six or seven hours away
from Belmond, the family’s home, to central Missouri. Having found that shared
physical care was not feasible, the district court awarded physical care of K.A.G.
to Francisco. The district court reasoned Francisco could provide greater
stability to K.A.G. The district court noted Francisco had stable employment, a
stable residence, and a stable relationship with a woman he planned to marry. In
contrast, the district court found Anna had only ephemeral plans to move to 4
Missouri and obtain employment post-dissolution. The district court also placed
great weight on the fact Anna has been diagnosed with schizophrenia.
Unlike the district court, we place little, if any, weight on Anna’s mental
health history. While Anna has been hospitalized on two occasions, the record
reflects that she has effectively managed her condition for the last several years
with medication. See Vanden Heuvel v. Vanden Heuvel, 121 N.W.2d 216, 221
(Iowa 1963) (“Where the record does not bear out a finding that the mother of a
small child is presently suffering from a mental disease, but does show she has
been discharged from treatment of such a disease with symptoms under
remission for a reasonable length of time, and shows no probability of a
recurrence, the mother should not be deprived of the care and custody of her
child for that reason.”). Further, the parties’ conduct over the course of their
marriage and separation shows Anna has been a capable caretaker for K.A.G.
despite her mental health condition. See, e.g., In re Marriage of Gibler, No. 02-
0010, 2002 WL 31313374, at *2 (Iowa Ct. App. Oct. 16, 2002).
We also conclude Anna’s planned move to Missouri does not demonstrate
instability or otherwise militate against awarding Anna physical care of K.A.G.
Anna’s planned move was not motivated by ill will toward Francisco. Anna’s
father and mother purchased a farm in central Missouri and intended to move
there to work the farm and invest in real estate. Anna’s extended family intended
to move to Missouri in June 2016, after the school year ended, to help with the
farm. Anna testified she intended to do the same because of the cultural
importance of maintaining close relationships with extended family and because
her extended family could provide support in raising K.A.G. The record reflects 5
Anna’s extended family has played a significant role in helping raise K.A.G.
during the course of the parties’ marriage. Francisco testified about the critical
role Anna’s extended family played in providing assistance with the care of
K.A.G. It thus comes as no surprise Anna wishes to continue these relationships
post-dissolution.
On de novo review, we find and conclude it is in the child’s best interests
for Anna to have physical care of the child. First, approximation weighs heavily
in favor of placing the child with Anna. See In re Marriage of Hansen, 733
N.W.2d 683, 697 (Iowa 2007) (discussing approximation principle). Anna,
including her extended family, has been the child’s caretaker over the course of
the parties’ fairly lengthy marriage. See In re Marriage of Ford, 563 N.W.2d 629,
633 (Iowa 1997) (considering parent’s status as primary caregiver). The record
reflects Anna was the parent who took the child to all medical and dental
appointments. See, e.g., In re Marriage of Heitman, No. 15-0631, 2016 WL
742816, at *5 (Iowa Ct. App. Feb. 24, 2016) (considering which parent arranges
medical and dental appointments as a relevant factor). Anna attended all of the
school conferences for the child. See, e.g., In re Marriage of Gerholdt, No. 08-
1572, 2009 WL 1492270, at *3 (Iowa Ct. App. May 29, 2009). Francisco
attended his first school conference only after the parties’ separation. Second,
Anna will be able to minister more effectively to the child’s needs. See Winter,
223 N.W.2d at 166. Both Anna and the child are bilingual—speaking Spanish
and English. Francisco speaks only Spanish. He has not attended any medical
or educational appointments for the child because of this language barrier. He
testified he was largely unable to help K.A.G. with her school work because of 6
this language barrier. See In re Marriage of Dickey, No. 12-1393, 2013 WL
1453067, at *4 (Iowa Ct. App. Apr. 10, 2013) (considering parent’s assistance
with school work); In re Marriage of Erickson, 491 N.W.2d 799, 802 (Iowa Ct.
App. 1992) (same). Beyond this, K.A.G. has a closer relationship with the
mother. Third, Anna testified it was K.A.G.’s preference to move with Anna and
her extended family rather than live with the father and his new girlfriend. See
McKee, 785 N.W.2d at 738 (considering child’s preferences). Francisco did not
contradict this testimony, stating only that he had not discussed the issue with his
daughter. Finally, we conclude Anna’s proposed move to Missouri would not
substantially disrupt K.A.G.’s support networks. See In re Marriage of Vrban,
359 N.W.2d 420, 425 (Iowa 1984) (noting “stability in the lives of young children
can be nurtured as much by leaving them with the person who has been their
primary parent figure as by requiring them to live in a neighborhood from which
that person has moved”); In re Marriage of Jerome, 378 N.W.2d 302, 305–06
(Iowa Ct. App. 1985) (discussing our “mobile society”). The record reflects
K.A.G. attends church but has few other extracurricular activities. She does
spend a great deal of time with her extended family, and she would maintain the
continuity of those relationships if placed with her mother. In contrast, the
father’s extended family resides in Mexico with the exception of two cousins at
least one of who does not live in the area. Francisco has no support network of
any note in the area to provide assistance with care of K.A.G. See, e.g., In re
Marriage of Moyer, No. 11-1695, 2012 WL 2412075, at *4 (Iowa Ct. App. June
27, 2012) (collecting cases discussing importance of proximity to support
networks). 7
Both parties have requested appellate attorney fees. An award of attorney
fees is not a matter of right, but rests within the court’s discretion and the parties’
financial positions. See In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct.
App. 2007) (stating an award of appellate attorney fees is based upon the needs
of the party seeking the award, the ability of the other party to pay, and the
relative merits of the appeal). We decline both requests for appellate attorney
fees.
For the foregoing reasons, we affirm the judgment of the district court as
modified and remand this matter for calculation of child support based on the
current record and entry of an appropriate visitation schedule.
AFFIRMED AS MODIFIED AND REMANDED.