In re the Marriage of Fraker

IN THE COURT OF APPEALS OF IOWA

No. 17-2012
Filed July 18, 2018

IN RE THE MARRIAGE OF DEVON LEE FRAKER
AND KASANDRA FRAKER

Upon the Petition of
DEVON LEE FRAKER,
Petitioner-Appellant,

And Concerning
KASANDRA FRAKER, n/k/a KASANDRA MOORE,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates,

Judge.

A father appeals the physical care provision of his dissolution decree.

AFFIRMED.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

David M. Cox of Bray & Klockau, P.L.C., Iowa City, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

Devon and Kasandra Fraker married in 2011. They have two children, born

in 2010 and 2012. The couple divorced in 2017. The district court granted

Kasandra physical care of the children. On appeal, Devon contends the court

should have continued a joint physical care arrangement mandated by a temporary

custody order or, alternatively, granted him physical care of the children.

Four non-exclusive factors guide joint physical care decisions: (1) “stability

and continuity of caregiving,” (2) “the ability of spouses to communicate and show

mutual respect,” (3) “the degree of conflict between parents,” and (4) “the degree

to which the parents are in general agreement about their approach to daily

matters.” In re Marriage of Hansen, 733 N.W.2d 683, 696-99 (Iowa 2007). The

district court considered these and other factors. See id. at 699-700 (noting the

factors “present important considerations, but no iron clad formula or inflexible

system of legal presumptions”).

The court found, “rather easily,” that Kasandra was the children’s primary

caretaker. Devon argues the finding is incomplete. He contends the court

“disregarded the timeframe from the point of the temporary order forward.” To the

contrary, the court acknowledged that the parties exercised joint physical care in

the year preceding trial but elected to focus on the period “from the respective

births of the children to the present time.” This was the appropriate time frame for

consideration. See id. at 697 (“[T]he American Law Institute’s Principles of Family

Law, published in 2000, adopted the general rule that custodial responsibility

should be allocated ‘so that the proportion of custodial time the child spends with

each parent approximates the proportion of time each parent spent performing
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caretaking functions for the child prior to the parents’ separation.’” (quoting

American Law Institute, Principles of the Law of Family Dissolution § 2.08, at 178

(2000) (emphasis added))).

The district court’s finding on Kasandra’s caretaking role is fully supported

by the record. Kasandra served as the children’s primary caretaker for the first

four years of their lives. Devon acknowledged Kasandra “was a stay-at-home

mother” and agreed she was the parent who took the children to the doctor, cared

for them when they were sick, and transported them to evening activities. Although

Devon undertook more of these tasks after the temporary joint physical care order

was entered, Kassandra estimated she still provided well over fifty percent of the

care during this period. And despite Devon’s assertion that he had “a very flexible

job,” his historical schedule as a full-time cattle and crop farmer suggested

otherwise.

The district court next considered the parents’ communication skills. The

court observed, “Each party talks poorly of and at the other. Each needs to show

improvement in terms of respect for the other.” The record supports this

observation. Kasandra described Devon’s ability to communicate as “[v]ery poor

depending on what topic.” Devon said the same of Kasandra, testifying she tried

to “belittle [him] as a parent.” Although he believed her conduct would improve

after the litigation ended, the district court noted the relevant time period was the

present. As of trial, the parents failed to inform each other of routine events in the

children’s lives and failed to show mutual respect. Both are prerequisites to an

effective joint physical care arrangement.
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On a related note, the district court found the parents had “numerous

conflicts and disagreements.” The court provided a non-exhaustive list of issues

the parents had not resolved, including certain issues revolving around

“childrearing practices.” Again, the record fully supports the court’s finding.

Although none of the conflicts were insurmountable, the ongoing disputes militated

against a permanent joint physical care arrangement.

As a final consideration, the court pointed to the likelihood “these parties will

not be residing in the same school district.” Kasandra testified she would be

moving to the town where she grew up to take advantage of her friend network.

The distance between the parents’ prospective homes did not foreclose a joint

physical care arrangement but would have made transport to the children’s

numerous extracurricular activities more cumbersome.

On our de novo review, we conclude the court appropriately denied Devon’s

request for joint physical care of the children.

When joint physical care is not appropriate, “the court must choose one

parent to be the primary caretaker, awarding the other parent visitation rights.” In

re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). Devon contends he

should have been chosen for this role.

As noted, Kasandra was the children’s primary caretaker for all but one year

of the children’s lives. This factor weighs heavily in favor of the district court’s

decision to grant her physical care. We recognize the decision resulted in a

change of school districts. The change gives us pause, given the testimony of the

children’s teachers that they were doing well in their current school. But Kasandra

testified that the children also had friends in her hometown and had participated in
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summer activities in the town, making the transition easier. Additionally, she had

a job opportunity within the school system the children would attend. Based on

the historical care giving pattern and the children’s familiarity with their new

hometown, we conclude the district court acted equitably in granting Kasandra

rather than Devon physical care of the children.

Kasandra requests appellate attorney fees. An award rests within our

discretion. In re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013). Because

she prevailed and her income is less than half of Devon’s, we order Devon to pay

$2000 toward her appellate attorney fee obligation.

AFFIRMED.