IN THE COURT OF APPEALS OF IOWA

No. 14-1923

Filed October 28, 2015

IN RE THE MARRIAGE OF HEATHER LEIGH HERMAN

AND MARK ANTHONY HERMAN

Upon the Petition of

HEATHER LEIGH HERMAN,

Petitioner-Appellee,

And Concerning

MARK ANTHONY HERMAN,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Harrison County, James M. 

Richardson, Judge.

Mark Herman appeals from the child custody and property distribution 

provisions of the decree dissolving his marriage to Heather Herman. 

AFFIRMED.

Chad D. Primmer of Chad Douglas Primmer, P.C., Council Bluffs, for 

appellant.

J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck, Swain 

& Argotsinger, P.C., Harlan, for appellee.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2

POTTERFIELD, Presiding Judge.

Mark Herman appeals from the decree dissolving his marriage to Heather 

Herman. He contends the trial court erred in denying his request for shared 

physical care of the parties’ two children, seven-year-old twins. He also asserts 

the district court should have followed his proposed property distribution. We do 

not disturb the decree.

The parties were married in 2002. They live in Missouri Valley, Iowa, and 

Heather teaches third grade in a neighboring community. Mark’s employer is in 

Omaha, Nebraska, but he is able to work from home. The children are in good 

health yet both have learning challenges: G.H. experiences reading difficulties 

and has been diagnosed with attention deficit hyperactivity disorder, for which 

she takes medication; Q.H. has speech difficulties. The following findings of the 

district court are fully supported by the record:

Both parents love their children. The twins love both their 

parents. Historically, Heather has been the primary caretaker of 

the twins in seeing to their daily needs. Heather has participated in 

the children’s out of school activities. Mark has been a good father 

and participated in their sporting activities. . . .

It is clear that Mark and Heather can communicate on the 

big picture items but cannot communicate concerning details. This 

is evidenced by their past arguments and name-calling. . . . 

The testimony proffered by Mark primarily dealt with the 

rights of the father. The rights of the parents are important but not 

germane to this Court’s task. The polestar for this Court is what is 

in the best interest of the twins. Specifically the issue is which 

parent can more successfully meet the needs of the children. 

History is the best guide to the future. Heather has addressed the 

learning needs of the children as well as their religious, social, 

medical, and living requirements. Alternating physical care would 

handicap either parent in addressing the speech and reading needs 

of the twins. . . . [C]onsistent bedtime, bed, homework time, and 

meals [are] required by the twins. This has been proven by the 

advancement of the twins’ learning experience pursuant to the 

temporary order.
3

This Court specifically finds that Heather is superior in 

meeting the needs of the twins. The minor children have flourished 

under her care pursuant to the temporary order. Heather

historically has cared for the twins’ physical needs as well as their 

learning disabilities. This is not to say that Mark is a bad parent. 

Rather, the specific needs of the twins are more adequately

addressed by Heather. The twins require a custodial arrangement 

wherein a structured stable environment maximizes their 

relationships with both parents.

The court accepted Heather’s valuation of the parties’ property and debts 

with two exceptions. Heather listed the marital house’s value at $130,000—the 

court determined the fair market value was $150,000. Heather noted Mark’s 

truck had a value of $20,000, but she did not list the debt owed on the vehicle 

was in excess of $23,000—the court considered Mark’s debt on the vehicle in the 

property allocation. Using the court’s valuations, Heather was awarded assets 

valued at $185,247 and debts totaling $162,043; Mark was awarded assets 

valued at $85,971 and debts of $66,060.

Mark appeals the child custody and property distribution provisions of the 

decree.

We review this equity action involving the dissolution of a marriage de 

novo. Iowa R. App. P. 6.907. We give weight to the findings of the district court, 

particularly concerning the credibility of witnesses; however, those findings are 

not binding upon us. Iowa R. App. P. 6.904(3)(g). 

We agree with the district court that joint physical care is not appropriate 

here, and that placing the children in Heather’s physical care will best advance 

their needs for structure and consistency. See In re Marriage of Hansen, 733 

N.W.2d 683, 695 (Iowa 2007) (“The objective of a physical care determination is 
4

to place the children in the environment most likely to bring them to health, both 

physically and mentally, and to social maturity.”). 

With respect to the property division, Mark states his “proposed 

distribution is equitable” and the court erred in not requiring Heather to pay him

an equalization payment of $12,430.05. Iowa is an equitable distribution state. 

This “means that courts divide the property of the parties at the time of divorce, 

except any property excluded from the divisible estate as separate property, in 

an equitable manner in light of the particular circumstances of the parties.” In re 

Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). We will disturb the trial 

court’s distribution of the marital property “only when there has been a failure to 

do equity.” In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013) 

(citations and internal quotation marks omitted). 

We have reviewed the court’s valuation and distribution of marital assets 

awarding the parties specific property and allocating debts. The difference in the 

net awards is about $3200. Under the circumstances here, including an 

inheritance to Heather, which was not set aside,

1 we find no failure to do equity. 

We therefore affirm the dissolution decree in its entirety. 

Heather requests an award of appellate attorney fees. An award of 

appellate attorney fees is not a matter of right, but rests within this court’s 

discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). 

 

1

In 2003, Heather received approximately $63,000. The parties used much of that 

inheritance for family purposes. See Iowa Code § 598.21(6) (2013) (“Property inherited 

by either party or gifts received by either party prior to or during the course of the 

marriage is the property of that party and is not subject to a property division under this 

section except upon a finding that refusal to divide the property is inequitable to the other 

party or to the children of the marriage.”). 
5

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 was obligated to defend 

the district court’s decision on appeal. Id. After considering these factors, we 

decline to award appellate attorney fees.

AFFIRMED.