In re the Marriage of Cleary

IN THE COURT OF APPEALS OF IOWA
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No. 25-1216
Filed May 13, 2026
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In re the Marriage of Arthur James Cleary and Angelica Cleary
Andrade
Upon the Petition of
Arthur James Cleary,
Petitioner–Appellant,

And Concerning
Angelica Cleary Andrade, n/k/a Angelica Andrade Ponce,
Respondent–Appellee.
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Appeal from the Iowa District Court for Polk County,
The Honorable Michael D. Huppert, Judge.
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AFFIRMED
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Colin McCormack of Van Cleaf & McCormack Law Firm, LLP, Des
Moines, attorney for appellant.

Sandra E. Suarez of Suarez Law Firm, Des Moines, attorney for appellee.
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Considered without oral argument
by Ahlers, P.J., and Buller and Sandy, JJ.
Opinion by Sandy, J.

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SANDY, Judge.

Arthur Cleary appeals the district court’s order granting Angelica
Andrade sole legal custody and physical care of their shared child. Arthur
also appeals the district court’s decision to assign him the loan debt
associated with OneMain Financial. Angelica requests appellate attorney
fees. For the reasons stated below, we affirm the district court’s order and
award appellate attorney fees to Angelica.

BACKGROUND FACTS AND PROCEEDINGS
Arthur and Angelica1 married in July 2016. The parties had one child
together during their marriage. Their child, L.C.A., was born in 2017 and
would later be diagnosed with autism spectrum disorder. The parties moved
in with Angelica’s family in 2015 until they moved to Bondurant with L.C.A.
in 2022. The parties separated in May 2023. Arthur continues to live at the
Bondurant address while Angelica has moved back in with her family in
Des Moines. Nine people live in Angelica’s family home: Angelica and
L.C.A., Angelica’s parents, Angelica’s sister, and her sister’s family.
Angelica and L.C.A. share a bedroom but have separate beds, and nothing in
the record indicates Angelica’s family home is in any way inadequate for
L.C.A.

Before the parties separated, Arthur had a good relationship with
Angelica’s family. But that relationship deteriorated quickly when they
separated. Visitation exchanges between Arthur and Angelica have been
contentious. Two videos from 2024 were shown at trial as examples of the
conflict between the parties at visitation exchanges. In an October exchange,
Arthur moved his car behind Angelica’s car and refused to allow her to leave

1
Part of the district court’s order restored Angelica Andrade’s original birthname.

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a parking lot. He said it was because L.C.A. refused to buckle her seat belt
and escalated into both parties yelling at one another until Angelica called the
police.2

During a different exchange in December at a gas station, Arthur was
supposed to hand L.C.A. over to Angelica. Arthur instead tried to take
L.C.A. with him into a combined Starbucks and gas station convenience store
to avoid Angelica but could not get inside as both stores were closed. Arthur
then brought the child to Angelica’s car but attempted to access her vehicle’s
glove box without her permission. Angelica told Arthur to stop, and the two
started grabbing each other’s arms. This altercation became the basis for a
temporary protective order Angelica obtained a few days later. The consent
decree issued by the district court stated the parties (1) shall have no contact
for one year; (2) shall use the Talking Parents application and limit their
communication only to issues involving L.C.A.; and (3) all visitation
exchanges shall take place at the Altoona Police Department with limits on
who could participate in the exchanges.

Another pivotal incident occurred in April 2025, when Arthur picked
the child up from school and took her to a medical appointment. It was not,
however, his scheduled time to be with L.C.A. Both Arthur and Angelica
attended the medical appointment. When leaving the hospital, Arthur took
Angelica’s car for several hours while leaving his own car in the parking lot.
This, in effect, stranded Angelica and L.C.A. at the hospital until Angelica’s
friend picked them up later that evening. Arthur returned later to get his own
car but never returned Angelica’s car. Angelica’s purse and personal
belongings in her car were eventually returned to her, but Arthur still retains
control of her car. Arthur disputes this version of events and claims he had

2
The record does not reflect that any report from this incident was filed.

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the right to take the vehicle because he and Angelica were “co-owners.”
When asked more precise questions about the event at trial, Arthur “took the
Fifth” and refused to answer any questions.

At trial, the district court judge granted Angelica sole legal custody and
physical care of L.C.A. and gave visitation rights to Arthur. The district court
also assigned the debt associated with a loan from OneMain Financial to
Arthur. Arthur now appeals.

STANDARD OF REVIEW
“Dissolution of marriage actions are reviewed de novo.” In re Marriage
of Towne, 966 N.W.2d 668, 674 (Iowa Ct. App. 2021). In child custody
matters, “our review is de novo and our primary consideration is the best
interest of the child.” In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa
1995). While we are not bound by the district court’s findings, we give them
weight, especially concerning witness credibility. Towne, 966 N.W.2d at 674.
We only disturb the district court’s ruling if the ruling fails to do equity. Id.

DISCUSSION
I. Legal Custody and Physical Care

Arthur argues he should be granted sole legal custody and physical care
of L.C.A. Both parties requested sole legal custody and physical care of the
child, with the other party receiving visitation rights. Neither party requested
joint legal custody.

If the court declines to grant joint legal custody, it “shall cite clear and
convincing evidence, pursuant to the factors in [Iowa Code section
598.41(3)], that joint custody is unreasonable and not in the best interest of
the child to the extent that the legal custodial relationship between the child

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and a parent should be severed.” Iowa Code § 598.41(2)(b) (2025). While
section 598.41(3) provides a list of factors we “shall consider” to determine
a proper custody arrangement, the statute requires us to consider only the
factors that are relevant to the specific case before us. See In re Marriage of
Liebich, 547 N.W.2d 844, 848 (Iowa Ct. App. 1996); In re Marriage of Gensley,
777 N.W.2d 705, 714 (Iowa Ct. App. 2009).

After our de novo review, we conclude joint legal custody is not in the
child’s best interests, and Angelica should have sole legal custody and
physical care of L.C.A. In making this determination, we consider the
following relevant factors under section 598.41(3): (a) whether each parent
would be a suitable custodian for L.C.A.; (b) whether the psychological and
emotional needs and development of L.C.A. will suffer due to lack of active
contact and attention from both parents; (c) whether the parents can
communicate with each other regarding L.C.A.’s needs; (d) whether both
parents have actively cared for L.C.A. before and since the separation;
(e) whether each parent can support the other parent’s relationship with
L.C.A.; and (g) whether one or both parents agree or are opposed to joint
custody. See Iowa Code § 598.41(3)(a)–(e), (g).

Joint legal custody is not workable, and both parents are opposed to it.
See id. § 598.41(3)(g). The record reflects that Arthur and Angelica are
consistently unable to communicate productively regarding L.C.A.’s best
interests. Personal conflict between the parents prevents them from
effectively making decisions regarding the child’s health and day-to-day life.
This is particularly important for this child given her diagnoses. The district
court determined that many of the communication issues between the
parents are due primarily to Arthur’s actions and behavior. Giving due
deference to the district court, we find no reason to disturb that finding.

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Arthur refused to use the Talking Parents application, which was the
only method afforded to the parties to communicate about L.C.A. See id.
§ 598.41(3)(c). Arthur enrolled the child in a new school district without
consulting Angelica. See id. The record reflects that Arthur is openly hostile
to Angelica and her family regarding their undocumented status. While
raising his concerns about members of Angelica’s undocumented family
potentially driving L.C.A. without a valid driver’s license, he consistently
referred to them as Angelica’s “illegal family” throughout the trial. See id.
§ 598.41(3)(e). Angelica testified at trial that she and her family fear that
Arthur may get immigration officials involved and attempt to have Angelica
and undocumented members of her family deported. 3 See id. Further, the
district court found that Arthur’s “overall attitude also strongly suggests that
he does not support an ongoing relationship between [Angelica] and the
child.” See id.

Arthur’s other actions show he is willing to act against Angelica to the
detriment of the child—like when he took Angelica’s car without permission
at the doctor’s appointment and effectively stranded Angelica and L.C.A. at
the hospital. See id. § 598.41(3)(a), (c), (d), (e). Another example is the
visitation exchange in the convenience store parking lot where Arthur
refused to let Angelica leave by parking his car behind hers. Or the handoff
that ended in a brief physical altercation when Arthur tried to go through
Angelica’s glove box without permission. See id. § 598.41(3)(c).

There is also the issue of L.C.A.’s autism diagnosis and treatment.
Arthur has been less involved in the effort to obtain proper therapies and
treatment for L.C.A., largely because he disagrees with the medical

3
Angelica testified at trial that if she and her family were ever deported, Angelica’s
adult niece (who is a United States citizen) would take care of L.C.A.

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professionals’ conclusions that the child needs prescribed therapies for
treatment. See id. § 598.41(3)(b). Instead, Arthur believes the child needs
only to engage in more activities to achieve better “socialization.” This is
squarely against the medical advice given to the parents that Angelica is
following for L.C.A., and we agree with the district court’s conclusion “that
if [Arthur] were afforded the sole responsibility for the child’s medical needs,
much if not all of the progress made up to now would be squandered.” See
id. § 598.41(3)(b), (c).

We do not doubt that Arthur loves L.C.A. See id. § 598.41(3)(d). But
given his behavior and attitude, the intense conflict and inability to
communicate between the parties, and the district court’s credibility
determinations, the order giving Angelica sole legal custody and physical care
serves the best interests of the child. We decline to disturb it and therefore
affirm.

II. OneMain Financial Loan

Arthur argues that the district court erred by assigning him the
OneMain Financial loan. Angelica argues this issue is not properly preserved
for our review because Arthur failed to file a subsequent motion under Iowa
Rule of Civil Procedure 1.904(2) or an application for nunc pro tunc. But such
a motion is only required to preserve error if the district court failed to rule
on an issue presented to it. See Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa
2002). It its order, the district court assigned the OneMain Financial loan
debt to Arthur. The issue is thus preserved.

Yet, Arthur fails to cite any applicable law in his brief as to why the
debt should be reassigned to Angelica or how the district court’s assignment
failed to do equity. He instead argues that because Angelica testified at trial
that the OneMain Financial loan belonged to her and that she was willing to

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keep the debt, the district court’s order assigning the debt to Arthur was
possibly a scrivener’s error. Iowa Rule of Appellate
Procedure 6.903(2)(a)(8)(3) provides that “[f ]ailure to cite authority in
support of an issue may be deemed waiver of that issue.” Because Arthur fails
to cite any applicable authority in support of his argument, we deem the issue
waived.

III. Appellate Attorney Fees

Angelica argues she is entitled to appellate attorney fees in this case.
“Appellate attorney fees are not a matter of right, but rather rest in [our]
court’s discretion.” In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa
2013) (citation omitted). In making this determination, “we consider the
needs of the party seeking the award, the ability of the other party to pay, and
the relative merits of the appeal.” Id. (cleaned up).

Given the merits of the appeal and the income disparity between the
parties, we conclude Angelica is entitled to reasonable appellate attorney
fees. Angelica submitted an affidavit requesting $5,400 in appellate attorney
fees. We thus award Angelica $5,400 in appellate attorney fees.

AFFIRMED.

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