IN RE THE MARRIAGE OF CLINTON, 01-0563 (Iowa App. 1-28-2002)

IN RE THE MARRIAGE OF CHAD WILLIAM CLINTON AND TANYA MARIE CLINTON Upon the Petition of CHAD WILLIAM CLINTON, Petitioner-Appellant/Cross-Appellee, And Concerning TANYA MARIE CLINTON, Respondent-Appellee/Cross-Appellant.

No. 1-858 / 01-0563.Court of Appeals of Iowa.
Filed January 28, 2002.

Appeal from the Iowa District Court for Carroll County, WILLIAM C. OSTLUND, Judge.

Chad Clinton appeals from the custody provisions of the decree dissolving the parties’ marriage. AFFIRMED.

Reed H. Reitz, Denison, for appellant.

Dee Ann Wunschel, Carroll, for appellee.

Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.

EISENHAUER, J.

Chad Clinton appeals from the custody provisions of the decree dissolving the parties’ marriage. He contends the district court erred in awarding physical care of the parties’ minor children to Tanya Clinton. Tanya cross-appeals the district court’s valuation of Chad’s pension and requests an award of appellate attorney fees.

Chad and Tanya Clinton were married in 1994. They have three minor children. Chad filed a dissolution petition in November 2000. Following trial, the court entered its decree awarding joint legal custody and physical care of the children to Tanya. Chad appeals, challenging the award of physical care. We review the court’s order de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).

The primary consideration in determining an award of child custody is the best interests of the child. Iowa R. App. P. 14(f)(15). The court’s objective is to place children in the environment most likely to bring them to healthy physical, mental, and social maturity. In re Murphy, 592 N.W.2d at 683. Here, the trial court found both parents to be competent and caring. However, the court had concerns about the “cumulative effect” of Chad’s character flaws or activities, including his tendency to refer to his wife and children as “hos,” his gambling activities, an affair with at least one woman, the time he has spent with co-workers, and his interest in internet pornography. Chad also admitted breaking into the internet accounts of Tanya and one of her friends.

Upon de novo review of the record, we find no error in awarding Tanya physical care of the children. While Chad argues shared care is more appropriate, this court shares the concerns of the district court. We find it is in the children’s best interests that Tanya be the primary caretaker of the children.

Tanya cross-appeals the district court’s valuation of Chad’s pension. The valuation found by the trial court was well within the permissible range of evidence and we are not inclined to disturb it. In re Marriage of Versluis, 521 N.W.2d 760, 761 (Iowa Ct. App. 1994). Therefore, we affirm the decision of the district court.

Finally, Tanya argues she should be awarded both trial and appellate attorney fees. We find Tanya failed to preserve error on the issue of trial attorney fees. An award of attorney fees on appeal is not a matter of right, but rests within the discretion of the court. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We award no attorney fees to Tanya. Costs of the appeal are taxed to Chad.

AFFIRMED.