IN THE COURT OF APPEALS OF IOWA
No. 19-0768 Filed January 23, 2020
IN RE THE MARRIAGE OF LARA CHRISTINE LUETHJE AND NATHAN JON LUETHJE
Upon the Petition of LARA CHRISTINE LUETHJE, Petitioner-Appellant,
And Concerning NATHAN JON LUETHJE, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Paul R. Huscher,
Judge.
Wife appeals the district court’s custody determination in a dissolution
decree. AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.
Leslie Babich and Amy K. Davis of Babich Goldman, P.C., Des Moines, for
appellant.
Chira L. Corwin of Corwin Law Firm, Des Moines, for appellee.
Considered by May, P.J., Greer, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020). 2
GREER, Judge.
Lara Luethje appeals from the decree dissolving her marriage to Nathan
Luethje. The fighting issue is custody of the parties’ children. Lara contends the
shared custodial arrangement the district court crafted is unworkable and asks us
to award her physical care of the parties’ four children. Nathan maintains the
district court’s custodial care decision was correct. Both parties seek appellate
attorney fees.
I. Background Facts and Proceedings.
Lara and Nathan married in September 2005. The marriage was Lara’s first
and Nathan’s second. This union produced four children, born in 2007, 2013,
2015, and 2016. Nathan’s three children from his first marriage began living with
the couple in 2006. Over time, the marriage began to crumble, due in large part
to Nathan’s paranoia1 that Lara was having an affair.
In September 2018, Lara filed a dissolution petition and requested that the
court award her physical care of the children. Nathan answered, also requesting
physical care. As the legal proceedings advanced, the parties resolved some
issues, including agreeing to joint legal custody of the children. They continued to
disagree on a physical care arrangement.
The district court held a dissolution trial in April 2019, with the custody issue
as the primary focus. Allegations of marital infidelity and the parents’ behaviors
dominated the trial. Recognizing that Iowa abandoned the requirement of proving
1 Although not diagnosed with a paranoid personality disorder, Nathan’s therapist testified: “It [Nathan’s paranoia test score] was not above and beyond the normal population of that paranoia scale, but it does suggest one who is experiencing mistrust, resentful, past hurts that might lead to suspicious thinking, being vigilant.” 3
fault in dissolution proceedings long ago, the district court disregarded the
allegations of infidelity. Yet Nathan’s paranoia and persistence on confirming an
affair remained central to each party’s case at trial.2
In their testimony, Lara and Nathan emphasized their roles, and each
other’s failings, in the day-to-day care of the children. To prove Nathan’s lack of
parental capabilities, Lara submitted a calendar and memorandum detailing
Nathan’s inattention to the children’s needs, his consumption of alcohol, and their
overall inability to communicate about responsibilities and care of the children.
Nathan described his superior parenting abilities noting that the district court
awarded him physical care of his three children from a previous marriage in a
modification proceeding. Yet that ruling raised concerns about Nathan’s inability
to communicate with his first wife, even though custody ultimately transferred to
him.3
After a three-day trial, the district court entered a ruling finding that the
parties should share physical care of the children, alternating parenting time as
follows:
Lara shall have parenting time from Monday at 5:30 p.m. until Wednesday at 5:30 p.m. each week. Nathan shall have parenting time from Wednesday at 5:30 p.m. until Friday at 5:30 p.m. each week. The parties shall alternate every other weekend from Friday at 5:30 p.m. until Monday at 5:30 p.m. The party commencing their parenting time shall be responsible for transporting the children from school, daycare or the residence of the other parent unless otherwise agreed.
2 As the district court noted, “A substantial portion of the testimony at trial concerned [Nathan’s] suspicions that [Lara] engaged in extra-marital affairs, and his efforts to prove the truth of such suspicions through paternity testing, polygraph and confrontation of suspected paramours.” 3 The modification related to the first wife’s inability to provide a safe home and
issues with her live-in boyfriend’s conduct. 4
The court ordered the parties to share holidays and summer vacation. Based
on the shared-care arrangement, the court ordered Nathan to pay $93.17 per
month in child support. All expenses related to the children’s schooling and
extracurricular activities were to be split equally between the parties with no
expense made over $100 without prior approval by the other parent. The health
insurance obligation remained Lara’s as long as it was available through her
employer.
Lara appeals. On appeal, each party requests appellate attorney fees.
II. Standard of Review.
Marriage dissolution proceedings are equitable in nature. Iowa Code
§ 598.3 (2019). Thus, our review is de novo. See Iowa R. App. P. 6.907; Wilker
v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We review the entire record and
decide anew the factual and legal issues preserved and presented for review. See
In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Although
we give weight to the district court’s findings of fact, we are not bound by them.
See In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). Even so, we will
affirm the district court unless it failed to do substantial equity. See In re Marriage
of Mauer, 874 N.W.2d 103, 106 (Iowa 2016).
III. Custody Determination.
When physical care is at issue, our primary consideration is the best
interests of the children. See Iowa R. App. P. 6.904(3)(o). “The objective of a
physical care determination is to place the children in the environment most likely
to bring them to health, both physically and mentally, and to social maturity.” In re
Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). We review “a 5
nonexclusive list of factors to be considered when determining whether a joint
physical care arrangement is in the best interests of the child.” In re Marriage of
Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007).
The factors are (1) “approximation”—what has been the historical care giving arrangement for the child between the two parties; (2) the ability of the spouses to communicate and show mutual respect; (3) the degree of conflict between the parents; and (4) “the degree to which the parents are in general agreement about their approach to daily matters.”
Id. (quoting Hansen, 733 N.W.2d at 697–99); see also Hensch v. Mysak, 902
N.W.2d 822, 824–25 (Iowa Ct. App. 2017) (same).
Here, after considering many factors, the district court determined that
shared physical care was in the children’s best interests, noting that “many good
reasons exist for shared physical care, and [the court did] not find any compelling
reason not to grant that request.” We review the shared physical care award in
light of the best-interests factors and the specific facts developed here. We respect
that “[t]he trial court has the advantage of hearing the evidence and observing the
witnesses.” In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct. App. 1994).
But we look to which parent will do better in raising the children into healthy,
content, and well-adjusted young adults. See In re Marriage of Rodgers, 470
N.W.2d 43, 44 (Iowa Ct. App. 1991).
Good qualities exist in each parent. Factors supporting an award of
physical care to Lara were her confirmed role as primary caretaker, the historical
caregiving arrangement, and the flexibility afforded with her job at her family’s
business. Lara described herself as the primary caregiver for not only the parties’
four children, but also for Nathan’s three older children when they resided in the 6
home. She estimated she provided about eighty to ninety percent of the children’s
care. For the benefit of all the children, Lara handled scheduling doctor
appointments, shopping for clothes, registering them for school, doing laundry,
bathing the younger children, shopping for groceries, preparing meals, and staying
home when a child was ill. Given all Lara did for the children, she emphasized her
close relationship with the children and their dependence on her when asking the
court to award her physical care. The district court supported Lara’s assertions
that she primarily cared for the children’s day-to-day needs. “[S]uccessful
caregiving by one spouse in the past is a strong predictor that future care of the
children will be of the same quality.” Hansen, 733 N.W.2d at 697.
Moreover, for all of their lives, the four children resided in the family home,
which the district court awarded to Lara.4 The oldest child testified he preferred to
stay in the family home and live with his mother. Lara’s mother and aunt live next
door and provide a significant support system for Lara and the children. After Lara
and Nathan separated, Lara encouraged contact between her children and
stepchildren.
While Lara’s schedule was flexible and allowed her to spend more time with
the children, Nathan had a set work schedule and sometimes worked up to seventy
hours per week. Yet until the parties separated, Nathan cared for the children after
his work from 3:30 until 6:00 or 7:00 p.m. on most of Lara’s workdays, per the
schedule the parents arranged. Contrary to Lara’s description of the caretaking
4 Lara’s deceased father’s trust owns this home, where Lara, Nathan, and their family resided since 2006. In February 2019, Nathan bought a house within walking distance to Lara’s. At the time of trial, he had been living in the home for a few weeks. 7
roles, Nathan’s self-described parenting role involved bathing the children, putting
them to bed, feeding them, playing video games with them, helping them with
homework, and, when he attended college for a year, being a stay-at-home dad.
As might be expected, each parent recounted the personal failings of the
other as it related to their caretaking abilities. Lara referenced Nathan’s poor
memory and his paranoid and accusatory behavior, coupled with his excessive
nightly drinking of alcohol. She described Nathan as withdrawn, unavailable, and
depressed. Lara points to a history of Nathan’s failure to communicate with her
regarding day-to-day care of the children and to a letter he wrote confirming he
was “withdrawing” from the family. Nathan could not have overnight visitation of
the parties’ children after he moved out of the marital home because he had no
beds or car seats available for the children.
Nathan accused Lara of limiting his time and contact with the children,
exaggerating his failures, and turning family members against him. Nathan’s
witnesses supported his solid parenting skills and deep relationship with the
children. Nathan contended that Lara and her family evicted him from the family
home to obtain a custodial advantage. Nathan’s counselor confirmed Nathan’s
feeling of withdrawal from the family, that he and Lara were poor communicators
with each other about co-parenting, and that Nathan’s emotions led him into
isolation at times. Another concern that arose at trial was Nathan’s drinking habit.
Nathan acknowledged an uptick in his drinking because of an inability to sleep and
the stress in his life. His counselor confirmed the heavy drinking as a poor coping
skill. Nathan claimed he quit drinking after concerns arose in mediation. 8
The most concerning issue, however, is Nathan’s unrelenting belief that
Lara is having an affair. The district court brushed off these allegations as an
attempt to prove fault and did not acknowledge any potential impact of that
behavior to the appropriateness of a shared physical care arrangement. We
assess his behavior differently.
While this case does not rise to the level of physical abuse, Nathan’s
persistent accusations of Lara for affairs yet unproven cannot be ignored.
Beginning in 2011, and without evidence, Nathan accused Lara of having profiles
on sex solicitation websites and of having affairs with his brother, coworkers, and
family friends. Later that year, Nathan was driving in West Des Moines when he
encountered a male family friend on a walk. The man got into Nathan’s car, and
after some small talk Nathan began accusing the man of having an affair with Lara.
Nathan started driving the man to Indianola without his permission, apparently to
take him to a computer so Nathan could show him proof of the affair. The man
eventually convinced Nathan to take him home. Understandably, this incident
terrified the family friend. Nathan was also convinced he was not the biological
father of one of the parties’ children. After a paternity test showed a 99.999%
probability that he was the child’s father, he remained unconvinced and suggested
his brother could have fathered the child. He would sometimes come home from
trips early to try to catch her cheating. Lara also presented evidence at trial that
Nathan tracked her location, recorded video and audio of her, and in 2017 installed
a camera in the living room of their home, all without her knowledge.
To quell Nathan’s assertions of infidelity, and at Nathan’s counselor’s
suggestion, Lara underwent a polygraph exam to prove no extramarital affair 9
occurred. Even so, Nathan’s paranoia persisted. At one point Nathan threatened
suicide. After sixty-three counseling sessions over a two-year period, Nathan
remained steadfast in his beliefs about Lara’s infidelity even through trial.5
Nathan’s counselor testified he had “obsessive thought causing anxiety that leads
to compulsive strategies, psycho-obsessive compulsive features” related to his
continued conviction that Lara cheated on him. The counselor, however, related
the focus on infidelity to situational depression or anxiety that likely would subside
after the divorce.
Crafting a joint custodial plan with the best interests of the children remains
the goal. Both parents love these children, and by all accounts, the children are
thriving. In addition, a primary consideration of the district court was preserving
the children’s bond with their stepsiblings. Iowa law presumes it is not in children's
best long-term interests to deprive them “of the benefit of constant association
with” their siblings. See In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992).
The same principles govern awards of physical care when half-siblings are
involved. In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). But the
presumption may be overcome by compelling reasons. In re Marriage of Pundt,
547 N.W.2d 243, 245 (Iowa Ct. App. 1996). Nathan’s behaviors before the trial
work against a shared-care arrangement. See Hansen, 733 N.W.2d at 700–01
(concluding joint physical care was not in the best interests of the children, at least
in part, due to the parents’ “significant difficulties in communication” and the
5 The counselor noted that in the two years of therapy, Nathan’s “narrative never really changed in that way. At times throughout the course of therapy he did begin to become more open and flexible about some of his beliefs.” 10
presence of “communication and respect issues”); In re Marriage of Toedter, 473
N.W.2d 233, 234 (Iowa Ct. App. 1991) (finding mother’s emotional problems
weighed against her while continuous grandparent contact supported custody to
the father).
While noting difficulties in communications between these parties, the
district court believed the litigation to be the root cause. But this storyline began
long before the divorce proceedings and involved Nathan’s allegations against his
brother, suicidal threats, and possible kidnapping of another suspected paramour.
Requiring paternity tests and a polygraph and then threatening suicide in a letter
strike of instability. This history fails to establish behavior supporting co-parenting
skills, especially where Nathan has yet to make peace with these fears. Nathan’s
obsession with proving infidelity spilled over into his relationships with coworkers,
friends, and family. We find it difficult to reconcile this history with a coordinated
and conflict-free, shared-care plan. See Hansen, 733 N.W.2d at 698 (“A lack of
trust poses a significant impediment to effective co-parenting.”). Coupled with
Lara’s other allegations that Nathan failed to respond to her messages and
inadequately communicated about meals, activities, and other needs of the
children, we find stability weighs in favor of Lara. Additionally, Lara set no
limitations on contact between her natural children and stepchildren,6 so contact
between all siblings can be often and substantial while she has physical care.
We do not believe that shared physical care is in the best interests of the
children. We do, however, support a liberal visitation schedule for Nathan. Given
6Some evidence suggested Nathan prohibited his fifteen-year-old daughter from speaking with or visiting Lara. 11
the lingering issues between these parents and Nathan’s inability to move forward
by the time divorce was imminent, we reverse the award of the district court and
find that primary physical care should be with Lara. We remand the case for entry
of an order establishing this change, providing Nathan liberal visitation, and
recalculating the child support obligation to align with this opinion.
IV. Attorney Fees.
Each party requests appellate attorney fees. Appellate attorney fees are
not a matter of right but may be awarded in the court’s discretion. See, e.g., In re
Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).7 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 had to defend the decision of the trial court on appeal. Hensch v. Mysak,
902 N.W.2d 822, 827 (Iowa Ct. App. 2017). Having considered those factors, we
decline to award appellate attorney fees.
V. Disposition.
We modify the district court’s custody determination and remand the case
for entry of a modified decree reflecting Lara’s primary physical care, Nathan’s
visitation, and a recalculation of child support. We deny the parties’ requests for
appellate attorney fees.
AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.
7 By agreement at trial, each party paid their own attorney fees and no attorney filed fee affidavits.