In re the Marriage of Anderson

IN THE COURT OF APPEALS OF IOWA

No. 23-1224
Filed October 30, 2024

IN RE THE MARRIAGE OF MOLLY G. ANDERSON
AND NICHOLAS J. ANDERSON

Upon the Petition of
MOLLY G. ANDERSON,
Petitioner-Appellee,

And Concerning
NICHOLAS J. ANDERSON,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Mills County, Greg W. Steensland,

Judge.

The husband appeals the decree dissolving his marriage. AFFIRMED.

Meredith L. Ludens and Andrew B. Howie of Shindler, Anderson, Goplerud

& Weese, P.C., West Des Moines, for appellant.

DeShawne L. Bird-Sell of Sell Law, PLC, Glenwood, for appellee.

Heard by Greer, P.J., Buller, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

GREER, Presiding Judge.

Nicholas Anderson challenges the decree dissolving his marriage to Molly

Anderson. He argues (1) the parties premarital agreement was valid and should

have been enforced; (2) the parties should have been awarded joint legal custody

instead of giving Molly sole legal custody; (3) the children should have been placed

in his physical care instead of Molly’s; (4) the district court abused its discretion in

ordering him to pay Molly’s attorney fees and, instead, should have ordered Molly

to pay his attorney fees; and (5) Molly should be required to pay his appellate

attorney fees. Molly asks that we affirm the dissolution decree and award her

appellate attorney fees.

I. Background Facts and Proceedings.

Molly and Nicholas met while both were living in Florida. They entered into

a premarital agreement on August 12, 2016, and were married eight days later.

The parties’ first child, J.A., was born in early 2020.

The family of three moved to Iowa in October 2020, where Nicholas’s

parents and some of his other family members lived. Z.A., the parties’ second

child, was born mid-2021.

Molly took the children and moved out of the family home in July 2022. She

filed a petition for dissolution soon after.

After much contentious litigation, a three-day dissolution trial took place

beginning March 15, 2023, and ending on May 4. By the time of the final day of

trial, Nicholas was living in Florida, where he moved after accepting a new job.

Molly, who had physical care of the children under temporary orders, was in the

process of moving to Maryland with the children. Each parent requested physical
3

care, while Molly asked for sole legal custody and Nicholas requested the parties

share joint legal custody.

In the dissolution decree, the district court concluded the premarital

agreement was unenforceable. The court ordered Nicholas to pay Molly $56,000

as part of the property division. As for the issues involving the children, the court

gave Molly sole legal custody and physical care of the children; Nicholas was given

visitation time over school breaks. Finally, Nicholas was ordered to pay $30,000

of Molly’s attorney fees “[d]ue to the needlessly protracted nature of these

proceedings, the failure to timely provide required discovery, including exhibits,

and the relative ability of the parties to pay.”

Nicholas appeals.

II. Discussion.

A. Premarital Agreement.

Nicholas challenges the district court’s ruling that the parties’ premarital

agreement is unenforceable. Yet, he makes no argument how enforcement of the

agreement would result in a different property distribution and—admitting that he

cannot make that showing on this record—he requests that we remand the case

so he can address the division in additional proceedings. Because a determination

over whether the premarital agreement is valid and enforceable is unnecessary,

we see no reason to conduct the choice-of-law analysis or determine its viability

related to the issues raised on appeal.1

1 Nicholas spends much of his appellate brief arguing that—unlike in Iowa—Florida

law allows a party to waive their right to future spousal support in a premarital
agreement. The district court did not award Molly spousal support (and she did
4

The court ordered Nicholas to pay Molly $56,000 as part of the property

distribution; he asks us to vacate this award “and remand for further proceedings

to divide the parties’ property by the terms of the [premarital] agreement.” But

Nicholas fails to identify what property, if any, the parties owned at the time of the

dissolution trial that was his separate property based on the premarital agreement.

See Iowa R. App. P. 6.904(3)(e) (“Ordinarily, the burden of proof on an issue is

upon the party who would suffer loss if the issue were not established.”); In re

F.W.S., 698 N.W.2d 134, 135 (Iowa 2005) (“It is the appellant’s duty to provide a

record on appeal affirmatively disclosing the alleged error relied upon.”); cf. In re

Marriage of Keener, 728 N.W.2d 188, 194–95 (Iowa 2007) (ruling on property

distribution based on evidence from dissolution proceedings even though “the

record lack[ed] sufficient evidence concerning a specific dollar amount to attach to

the[] assets”). Without identifying what items or values were wrongly awarded to

Molly or citing to record evidence that supports his claim, we would have “to

assume a partisan role and undertake [Nicholas’s] research and advocacy” to find

fault with the district court’s ruling. See Inghram v. Dairyland Mut. Ins. Co., 215

N.W.2d 239, 240 (Iowa 1974). “This role is one we refuse to assume.” Id.

As noted above, Nicholas contends we should remand the case for further

proceedings regarding the division of property. The trouble is, we see no reason

to allow Nicholas a second chance to prove his case. The parties had three days

to try their dissolution to the district court; they introduced nearly 1000 pages of

exhibits and were allowed to submit written closing arguments (of which Nicholas

not appeal the denial of her request). So again, we find no reason to analyze the
premarital agreement’s application to the issue of spousal support.
5

filed four). Yet on this record, we find Nicholas failed to advocate for a different

division of property, even though the property division was an issue at the trial.

The time has come and gone to present the necessary evidence so the property

can be divided pursuant to the premarital agreement. Moreover, the district court

noted Nicholas’s “continuous problems with discovery and filing of pleadings and

exhibits in an untimely manner” during the dissolution proceedings; we will not give

him a second bite at the proverbial apple.2 We affirm the district court’s property

distribution.

B. Legal Custody.

The district court awarded Molly sole legal custody of the parties’ two

children. Nicholas challenges that award, arguing the court should have awarded

the parties joint legal custody instead. Compare Iowa Code § 598.1(5) (2022),

with id. § 598.1(3).

“‘Legal custody’ carries with it certain rights and responsibilities, including,

but not limited to, ‘decision making affecting the child[ren]’s legal status, medical

care, education, extracurricular activities, and religious instruction.’” In re Marriage

of Hynick, 727 N.W.2d 575, 579 (Iowa 2007) (quoting Iowa Code § 598.1(3), (5)).

“When parties are awarded ‘joint legal custody,’ ‘both parents have legal custodial

rights and responsibilities toward the child[ren]’ and ‘neither parent has legal

2 In the dissolution decree, the court concluded “[t]he best evidence” indicated that

Nicholas should pay a property settlement of $56,000 to Molly and explicitly
pointed to “the fact that exhibits were not filed timely. Even during the trial when
reference was made by [Nicholas] to certain exhibits, it was discovered that those
exhibits had not been filed. This made the case very difficult.”
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custodial rights superior to those of the other parent.’” Id. (quoting Iowa Code

§ 598.1(3)).

“The children’s best interests are the primary concern in determining a legal

custody award.” In re Marriage of Gensley, 777 N.W.2d 705, 714 (Iowa Ct.

App. 2009). “The district court shall make an award that, so long as reasonable

and in the best interests of the children, assures the children the ‘opportunity for

the maximum continuing physical and emotional contact with both parents.’” Id.

(quoting Iowa Code § 598.41(1)(a)). In the same vein, “[t]he court shall consider

the denial by one parent of the child[ren]’s opportunity for maximum continuing

contact with the other parent, without just cause, a significant factor in determining

the proper custody arrangement.” Iowa Code § 598.41(1)(c). And the court

considers several statutory factors, including:

a. Whether each parent would be a suitable custodian for the
child[ren].
b. Whether the psychological and emotional needs and
development of the child[ren] will suffer due to lack of active contact
with and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child[ren]’s needs.
d. Whether both parents have actively cared for the child[ren]
before and since the separation.
e. Whether each parent can support the other parent’s
relationship with the child[ren].
....
g. Whether one or both of the parents agree or are opposed
to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other
parent will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation.
j. Whether a history of domestic abuse, as defined in
section 236.2, exists. In determining whether a history of domestic
abuse exists, the court’s consideration shall include but is not limited
to commencement of an action pursuant to section 236.3, the
issuance of a protective order against the parent or the issuance of
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a court order or consent agreement pursuant to section 236.5, the
issuance of an emergency order pursuant to section 236.6, the
holding of a parent in contempt pursuant to section 664A.7, the
response of a peace officer to the scene of alleged domestic abuse
or the arrest of a parent following response to a report of alleged
domestic abuse, or a conviction for domestic abuse assault pursuant
to section 708.2A.

Id. § 598.41(3).

The parties engaged in extensive, contentious litigation from the time Molly

petitioned for dissolution in August 2022 until the end of the dissolution trial in

May 2023. Each party painted the other as controlling, unreasonable, and only

minimally involved with the children’s care. Nicholas questioned Molly’s mental

health, while she alleged he was addicted to prescription medicine. Noting the

parties’ animosity, the district court appointed a child and family investigator, who

filed a report two weeks before the first day of the dissolution trial and was called

as a witness. See Id. § 598.12B. The investigator conducted a home visit with

Molly and the children on February 17; “[t]he home was clean, comfortable, and

appropriate” and the children were “clean, happy, and delightful little ones.” The

investigator was scheduled to have a home visit with Nicholas and the children on

February 18, but Nicholas cancelled, stating that the children were too sick for the

investigator to come to the home. Still, the investigator met with Nicholas and

Molly individually. In her report, she wrote:

Throughout the undersigned’s investigation into this matter, it is clear
that there is significant tension and discord between Molly and
Nicholas. Even simple parenting issues are still difficult and filled
with strain months after separation and the entry of the temporary
order. A complete lack of trust and respect by Nicholas towards
Molly as a parent is also evident. . . .
The undersigned fears that the tumultuous battles focusing
around the children in these proceedings will not end with the entry
of a dissolution decree and custody order. It seems as though, no
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matter what occurs, no matter what orders the Court enters, there is
a new fight waiting just around the corner, ready to be brought on by
[Nicholas], much of the focus centering around these young children.
This is not healthy and it is not an appropriate way to parent,
especially given that these children are babies. None of this centers
on these kids’ best interests. The kids were placed in Molly’s
physical care during the pendency of these proceedings, and they
are doing well. They are young. They will have illnesses, they will
have injuries and mishaps. This does not make Molly a bad mother.
It does, likely, make her fearful to communicate as a coparent
effectively, which is obvious in conversations, correspondence and a
review of the pleadings from both parties. This appears to be a one-
way street from [Nicholas’s] side and if things do not go that direction,
there is fury and incessant rampages that are relentless. This is not
good for these kids now and will not be good for them throughout the
coming years.

The investigator recommended that the court award Molly sole legal custody.

When asked at trial, she testified she had acted as a child custody investigator

“[p]robably at least twenty” times and had only recommended giving sole legal

custody one other time. In its ruling, the district court found the investigator to be

“[o]ne of the most compelling witnesses in this case” and described her testimony

as “compelling and corroborated.”

The court also found “compelling” the testimony of Tina Casey—the former

Florida neighbor of Nicholas and Molly, who was friends with both parties. Tina

testified about witnessing Nicholas’s “angry outbursts,” pointing to an instance

when Nicholas gave her a ride home and exhibited signs of road rage. She

described it as “terrifying,” adding:

I don’t know what mindset that he has when he gets into a car, but
he was up on people’s bumpers, he was weaving in and out of traffic,
and there was no urgency or emergency that we needed to go get
home so quickly. But I said to him a couple of times, God, Nick, slow
down, there’s no reason for you to get me home so fast. And it was
like he just turned into another person when he gets into a car, I
guess.
9

Tina also testified an instance when she was in Molly and Nicholas’s home after a

day of shopping with Molly:

There was some curtains that Molly had bought . . . . [It was] almost
like he forgot my aunt and I were standing in the living room, and he
was just screaming at her about these curtains. He told her that she
had to take them down, send them back, they weren’t what he
wanted, and it was jarring. Besides the word jarring, it was kind of a
little bit scary.

Finally, she described “realiz[ing] Molly was in a bad situation” when she was

supposed to pick Molly up one time before Molly and Nicholas moved to Iowa:

And so she came out, and she looked like she has been
crying. And, you know, immediately because I love her like a
daughter as well, motherly instincts, “Are you okay? What
happened?” . . . And she said, “No, I’m fine.” I said, “You don’t look
fine. What’s wrong?” And she said, “Nick blocked the door again
and wouldn’t let me out.” And I said, “Oh, hey, like maybe a romantic
thing?” “No, no. It wasn’t. It wasn’t that. I just don’t want to talk
about it.” . . .
I had, like, that feeling the whole time we were shopping,
something just doesn’t feel right, and Molly didn’t want to say
anything. And when I went home to my husband, he said, with his
behavior being so erratic, I’m hoping nothing is happening over there.
And so multiple times I asked Molly, “Are you okay? Are you
okay?” She’s, like, “Yeah, it is fine. I don’t want to talk about it.” And
so we just kept our eye to make sure there were no bruises or
actually not physically harming her, but we never saw any bruises or
anything like that. Otherwise, we would have stepped in.

Tina also explained about times when she would provide J.A. with care during the

day so Molly could get some sleep. “[A] good handful of times, [Nicholas] was also

upstairs sleeping.”

Molly introduced an office note from Nicholas’s doctor written in June 2021

with the following:

Patient signed a contract the last time he came in to get six
oxycodone daily. The patient last week refill that early because he
stated that he was going to be out of the area for the Memorial Day
holiday weekend. Then, he wanted a refill today. It is very clear that
10

he is using the oxycodone much more quickly than the contract
stated. . . . The patient does readily admit that he has been taking
more oxycodone than he was supposed to. He is not really upfront
[or] clear whether this was because of increased pain or whether
because he has an issue. When confronted about his use of
narcotics in Florida, the patient stated that he did not have a problem.
However, earlier this year unbeknownst to me until later, he received
540 tramadol pills from his Florida physician.
I told the patient that I truly care for him and [I] care that he
has pain and I do not doubt for a minute that he has pain. However,
with that being said, I did remind him that he signed a pain contract
that we are going to stay without contract. After thirty years of
medical practice, I can tell manipulation when I see it. The patient is
clearly trying to manipulate me. He was confronted with that and did
admit to that. . . . I told him that if we ever detect that there is any
variation in the contract that we had written, he will not be a patient
here any longer.

Nicholas later obtained a new doctor, who provided a letter in October 2022 that

stated Nicholas was “no longer taking Oxycodone for back pain and is not addicted

to this medication.” At trial, Nicholas denied having an addiction to prescription

pills. But he admitted being prescribed and taking eight tramadol,3 three

oxycodone, one Ambien, and two Xanax daily. And he compared his need for pain

pills to his need for oxygen or water: “[I]t is not something you can just say, oh, I’ll

go without. I’ll go without oxygen today, or I’ll go without water today, or I’ll go

without pain medication.”

In its ruling, the district court found the following:

During the pendency of this action, [Nicholas] was in an
accident. There is apparently criminal charges pending. It is not
clear if those have been resolved or not. There is evidence that
[Nicholas] was subject to road rage. This would be consistent with
other evidence showing that [he] has a volatile personality when it
comes to being placed in circumstances he does not agree with.
That would include this custody dispute.
....

3 Nicholas testified he was prescribed twelve tramadol each day but “self-reduced”

to eight.
11

Custody and physical care of the children was the most
important component of this case. The Court heard lengthy
testimony from [Nicholas] on this issue. Frankly, his testimony was
hard to follow. It was evasive and needlessly confrontational. He
simply could not answer a question without going into all the reasons
he was justified in doing what he was doing and then taking the next
step of attacking those who disagreed with him. The parties did not
use this term during trial, but [Nicholas’s] conduct is what is
commonly known as “gaslighting.” He goes to great efforts to
convince all persons concerned that their recollection of what
happened is wrong. He is manipulative and domineering.

On appeal, Nicholas generally challenges the value of the child and family

investigator’s opinion—noting that she never witnessed Nicholas with the

children—and the weight the district court seemed to place on it. He minimizes

the parties’ inability to communicate, suggesting that it might improve without court

proceedings hanging over their heads. He argues that awarding the parties joint

legal custody is in the children’s best interests.

While our review is de novo, “[w]e give weight to the findings of the district

court, particularly concerning the credibility of witnesses.” In re Marriage of

McDermott, 827 N.W.2d 671, 676 (Iowa 2013). And we agree with the district

court; the parties’ inability to communicate and cooperate “rise[s] above the ‘usual

acrimony that accompanies a divorce.’” Gensley, 777 N.W.2d at 715 (citation

omitted). When Molly shared information about the children with Nicholas, he

badgered her about the decisions she made while the children were in her care.

And when she facilitated video calls between the young children and Nicholas—to

support his relationship with the children—he took screenshots that he later used

to show a cabinet the children could reach was unlocked (without any knowledge

of what was held in the cabinet). Audio from one of the times the parties

exchanged the children for a visit reveals Nicholas using the opportunity to demand
12

that Molly sign a contract promising to move to Florida. Nicholas’s domineering

personality and his attempts to manipulate are on full display in the parties’

communication. This, combined with the child and family investigator’s concern

about future “tumultuous battles” regarding the children weighs heavily against

awarding joint legal custody. See id. (“The overriding factor weighing against joint

legal custody is the parties’ utter inability to communicate with each other, which

is a result of their toxic relationship.”).

When testifying, the child and family investigator added:

I feel it would be very difficult for these two to work together
as joint legal custodians. Every single—it doesn’t even have to be a
decision. Every single situation that these two run into as parents
becomes a blown-up mess for no reason most of the time. I mean, I
haven’t really seen a reason. These are small kids. There has been
nothing major that has happened since the temporary order has been
put in place.
I mean, we see a lot of horrible custody situations, horrible
divorces, bad things happen between people or kids being put in very
unsafe situations. That is not this family. These kids are well taken
care of. They are fine.
Every little thing that occurs becomes a disaster, and it’s—
[Nicholas] wants to make it terrible for Molly, which in the turn makes
it terrible in the kids’ lives. And that, to me, is scary that that’s
happening now while they’re very little, and we have so many years
ahead of these two having to be parents of the same children.

Coupled with these communication issues, the geographical distance between the

parties—with Molly in Maryland and Nicholas in Florida—also weighs against joint

legal custody. See In re Marriage of Behn, 385 N.W.2d 540, 542 (Iowa 1986)

(providing that while geographic separation does not prevent joint legal custody, it

gave the court pause to award joint custody when one parent lived in the state of

Washington and the other lived in Iowa).
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Because there is clear and convincing evidence joint legal custody is

unreasonable and not in the children’s best interests, see Iowa Code

§ 598.41(2)(b), we affirm the district court’s decision to award Molly sole legal

custody.

C. Physical Care.

Nicholas argues he should have been awarded physical care of the children

instead of Molly. But because we affirm the award of sole legal custody to Molly,

we need not consider this claim—a parent without legal custody of a child cannot

be awarded physical care. Cf. Iowa Code § 598.41(5)(a) (limiting the award of joint

physical care to when the parents are awarded joint legal custody, thereby

preventing the court from giving a parent without legal custody a share of physical

care); In re Marriage of Frazier, 1 N.W.3d 775, 781 (Iowa 2024) (“Divorce under

Iowa law is strictly statutory, and the district court’s discretion in child custody

proceedings is limited to considering the circumstances set forth in Iowa Code

section 598.41.” (cleaned up)). To put a finer point on it, a parent without legal

custody lacks the “[r]ights and responsibilities . . . to decision making affecting the

child’s legal status, medical care, education, extracurricular activities, and religious

instruction.” Iowa Code § 598.1(5). A parent lacking these decision-making rights

and responsibilities cannot be the parent given “the right and responsibility to

maintain a home for the minor child[ren] and provide for the routine care of the

child[ren].” Id. § 598.1(7) (defining “physical care”); see also In re Marriage of

Hansen, 733 N.W.2d 683, 691 (Iowa 2007) (“The parent awarded physical care

maintains the primary residence and has the right to determine the myriad of
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details associated with routine living, including such things as what clothes the

children wear, when they go to bed, with whom they associate or date, etc.”).

We affirm the district court’s decision giving Molly physical care of the

parties’ minor children.

D. District Court Attorney Fees.

The district court granted Molly’s request that Nicholas pay $30,000 of her

trial attorney fees “[d]ue to the needlessly protracted nature of these proceedings,

the failure to timely provide required discovery, including exhibits, and the relative

ability of the parties to pay.”4 Arguing the district court abused its discretion,

Nicholas challenges that award, arguing that insofar as he was ordered to pay

Molly’s fees as punishment for the protracted litigation, “none of the issues or

points of contention can be attributed to one party alone.” He also argues that

while he was earning more than $100,000 annually and Molly was not working

outside the home, the court should have considered Molly’s ability to earn an

income and declined to award fees. Finally, Nicholas asserts he should not be

required to pay Molly’s trial attorney fees because of the premarital agreement,

which states:

If either Party contests the validity of this Agreement or any
provision thereof, that Party shall be responsible for the reasonable
value of any legal services rendered on behalf of either Party by
reason of the other Party’s unsuccessfully contesting the validity of
this Agreement or any provision hereof, whether such services arise
out of court action or other; and such attorneys’ fees shall be paid by

4 Molly’s attorney’s fee affidavit from May 9, 2023—a few days after trial ended but

before post-trial filings were completed—listed a total of $30,389.82. Later, Molly’s
attorney filed a written closing argument, contested Nicholas’s filing of four closing
arguments, and resisted a motion to reconsider. Nicholas’s attorney’s fee affidavit,
filed the same day, included a total of $34,712.98 of fees and costs.
15

the Party unsuccessfully contesting the validity of this Agreement or
any provision hereof.

Awards of attorney fees must be for fair and reasonable amounts and based

on the parties’ respective abilities to pay. In re Marriage of Witten, 672

N.W.2d 768, 784 (Iowa 2003). The district court has “wide” discretion when

deciding whether to impose sanctions for discovery violations, In re Marriage of

Butterfield, 500 N.W.2d 95, 98 (Iowa Ct. App.1993), and “considerable discretion

in awarding attorney fees.” Witten, 672 N.W.2d at 784 (citation omitted).

We start with Nicholas’s argument that, pursuant to the premarital

agreement, Molly should have to pay his trial attorney fees rather than him paying

hers. But on its face, the attorney-fees provision is limited to proceedings

specifically involving the validity of the premarital agreement—making Molly at

most responsible for her own fees that were related to contesting the agreement

and for Nicholas’s fees incurred while defending it. Nicholas urges us to “reverse

the award to Molly and order that Nicholas be awarded his attorney’s fees in full

for having to defend the [premarital] agreement.” But here, while Nicholas’s effort

focused on applying the premarital agreement terms when considering the

property award, he failed to explain how it would change the award, making the

premarital agreement question irrelevant. Similar to that situation, as to the

request for attorney fees from the district court, Nicholas gives us no basis to

consider the premarital agreement as he failed to itemize his request for attorney

fees, leaving us unable to make any award, even if we did determine the terms

applied. Each party filed statements of the total amount of fees expended, but
16

neither provided an itemized billing, so we cannot discern what fee related to what

work.

Because Nicholas is the party with the ability to pay the attorney fees and

the cost of litigation was unnecessarily increased by his actions, we find no abuse

of discretion in the district court’s award of fees to Molly. Additionally, much like

with the property distribution, Nicholas has failed to identify what attorney fees

incurred by him or Molly were caused by litigating the issue of the premarital

agreement. Even if the agreement is valid and enforceable, on the record before

us we cannot determine how applying the agreement to the issue of attorney fees

would lead to a different result. This is especially true because Nicholas cannot

be allowed to drum up the cost of litigation on issues potentially covered by the

premarital agreement and then force Molly to bear the costs. See NevadaCare,

Inc. v. Dep’t of Hum. Servs., 783 N.W.2d 459, 470 (Iowa 2010) (“When a contract

contains a clear and express provision regarding attorney fees, the court’s award

must be for reasonable attorney fees.”); accord id. at 472 (“The party seeking to

recover such fees must prove that the services were reasonably necessary and

the charges were reasonable in amount.”). We affirm the district court’s ruling

ordering Nicholas to pay $30,000 of Molly’s trial attorney fees.

E. Appellate Attorney Fees.

Nicholas and Molly each ask us to award them appellate attorney fees.

“Appellate attorney fees are awarded upon our discretion and are not a matter of

right.” In re Marriage of Heiar, 954 N.W.2d 464, 473 (Iowa Ct. App. 2020). When

deciding whether to exercise our discretion, “we consider ‘the needs of the party

seeking the award, the ability of the other party to pay, and the relative merits of
17

the appeal.’” Id. (citations omitted). We decline to award either party appellate

attorney fees.

III. Conclusion.

Following our review of the property distribution, award of legal custody,

award of physical care, and the order that Nicholas pay $30,000 of Molly’s attorney

fees, we affirm. We decline to award either party appellate attorney fees.

AFFIRMED.