IN THE COURT OF APPEALS OF IOWA

No. 22-0238

Filed August 17, 2022

IN RE THE MARRIAGE OF ANDREA M. HARGRAFEN

AND KYLE D. HARGRAFEN

Upon the Petition of

ANDREA M. HARGRAFEN, n/k/a ANDREA M. CANBY,

Petitioner-Appellant/Cross-Appellee,

And Concerning

KYLE D. HARGRAFEN,

Respondent-Appellee/Cross-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Delaware County, Michael J. 

Shubatt, Judge.

A party appeals the parenting time and physical care provisions of a 

dissolution decree and the other party cross-appeals. AFFIRMED ON BOTH 

APPEALS.

Jeremy N. Gallagher of Kintzinger, Harmon, Konrardy, P.L.C., Dubuque, for 

appellant/cross-appellee.

Mark A. Roeder of Roeder Law Office, Manchester, for appellee/crossappellant.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.

Andrea Canby, formerly Andrea Hargrafen, appeals the parenting time and 

physical care provisions of the parties’ dissolution decree. Kyle Hargrafen crossappeals on issues of physical care, daily video and/or telephone calls with the 

children, and the property distribution. Both parties request appellate attorney 

fees. We affirm on both appeals.

I. Background Facts & Proceedings

Kyle and Andrea were married in 2016. They have two children, E.H., born 

in 2017, and K.H., born in 2019. The parties separated in July 2020. Andrea 

remained in the marital home in Manchester and Kyle moved to his parents’ home 

in Hopkinton. The distance between homes is about eighteen miles. Andrea filed 

a petition for dissolution of marriage on July 29, 2020. The parties informally 

agreed to joint physical care of the children; a temporary order was not requested. 

Andrea cared for the children three and one-half days a week when she was not 

working and Kyle cared for the children on the remaining three and one-half days 

of the week. This joint physical care arrangement continued for approximately a 

year before the dissolution trial.

Andrea is employed as an emergency room nurse at Regional Medical 

Center in Manchester. She works three days a week, from 6:30 p.m. to 7:00 a.m. 

The three days are usually consecutive but are not always the same three days 

each week. In order to help pay for the dissolution, Andrea began working one to 

two days a month at the Anamosa State Penitentiary. She has annual income of 

$52,629.00 from these two jobs.
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Kyle works at Colony Brands in Peosta. Throughout most of the marriage 

he worked the second shift, usually from 3:00 p.m. to 11:00 p.m., on Monday 

through Friday. A few weeks before the dissolution trial Kyle changed to the first 

shift, which is from 6:30 a.m. to 2:30 p.m. Kyle works some overtime during the 

holiday season. Kyle’s annual income is $33,959.00.

The parties stipulated to the disposition of all liabilities and most assets prior 

to trial. The dissolution trial was held in September 2021. The older child was 

then four-years-old and the younger child was two. The parties agreed to joint 

legal custody of the children. Both parties requested that they be awarded physical 

care or in the alternative, that the parties be awarded joint physical care. Andrea 

requested a right of first refusal, so that if Kyle was not able to personally care for 

the children, she would be given the option to care for them. Kyle requested that 

daily video and/or phone contact be allowed with the children. 

In the dissolution decree, filed in November 2021, the court awarded the 

parties joint physical care on “a week-on, week-off schedule,” with exchanges 

every Sunday at 6:00 p.m. The court denied Andrea’s request for a right of first 

refusal and denied Kyle’s request for daily video and/or telephone contact with the 

children. The court set a holiday visitation schedule and ordered Andrea to pay 

$155.00 per month in child support.

Concerning the contested assets of the parties, the court set aside to Kyle 

a 1999 Firebird valued at $3000.00 and an Edward Jones account valued at 

$25,000.00, as such were gifts Kyle received prior to the marriage from his parents. 

The court found the marital residence was a marital asset, although Andrea paid 

the down payment with premarital funds. Andrea’s student loan debt was included 
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as a marital liability. The court found Kyle was awarded a slightly greater amount 

of net marital property but did not require him to pay an equalization payment. The 

court determined each party should be responsible for their own attorney fees.

Kyle filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). 

Andrea also filed a rule 1.904(2) motion. Each party resisted the other party’s 

motion. 

The court entered a ruling on the post-trial motions on January 25, 2022. 

The court (1) instituted a cost-sharing provision requiring Andrea to pay fifty-nine 

percent and Kyle to pay forty-one percent of some of the children’s expenses; 

(2) denied Andrea’s request for a right of first refusal; (3) adjusted the property 

division to require Andrea to pay $5000.00 to Kyle; (4) denied Kyle’s request for 

daily scheduled telephone and video visitation on the days the parents did not have 

the children in their care; (5) clarified who would receive the dependent income tax 

credit for tax purposes; (6) specified who would be responsible for transportation 

for visitation; and (7) set out which school district the children would attend. Andrea 

appealed and Kyle cross-appealed.

II. Standard of Review

We review dissolution of marriage decrees in equity. In re Marriage of

Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). In equitable actions, our review

is de novo. Iowa R. App. P. 6.907. “In such cases, ‘[w]e examine the entire record

and adjudicate anew rights on the issues properly presented.’” Knickerbocker, 601

N.W.2d at 50–51 (alteration in original) (citation omitted). “In equity cases, 

especially when considering the credibility of witnesses, the court gives weight to 
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the fact findings of the district court, but is not bound by them.” Iowa R. App. P. 

6.904(3)(g).

III. Right of First Refusal

Andrea claims the court should have included a right of first refusal in the 

parties’ dissolution decree. She states that such a provision would be in the 

children’s best interests because the children could be cared for by a parent while 

the other parent is working, rather than placing the children in the care of relatives 

or in daycare. During the weeks Kyle has the children, they must be cared for by 

someone other than Kyle during the time he is at work. The same holds true for 

the weeks Andrea has the children. Andrea requests a provision that requires that 

if a parent is going to be unable to care for the children because they are working, 

the parent should be required to ask the other parent to care for the children before 

asking anyone else. The primary consideration in determining whether a right of 

first refusal should be granted is the best interests of the children. In re Marriage 

of Klemmensen, No. 14-1292, 2015 WL 2089699, at *3 (Iowa Ct. App. May 6, 

2015).

A right of first refusal has been approved in certain situations. See Varner 

v. Conway, No. 20-0143, 2021 WL 3661143, at *7 (Iowa Ct. App. Aug. 18, 2021) 

(granting a right of first refusal “when either biological parent knows they will be 

leaving town during their care time and unable to personally care for the child for 

more than twenty-four hours”); In re Marriage of Brown, No. 19-0705, 2020 WL 

569344, at *5 (Iowa Ct. App. Feb. 5, 2020) (providing for a right of first refusal when 

a parent was unable to care for the children for twelve hours or more); 
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Klemmensen, 2015 WL 2089699, at *3 (granting a right of first refusal where the 

father was required to work twelve or more hours on some weekends). 

A right-of-first-refusal provision has been rejected, however, where adding 

the provision “would only complicate matters and create stress and animosity 

between the parties.” Dirks v. Eccles, No. 19-0994, 2020 WL 2071116, at *4 (Iowa 

Ct. App. Apr. 29, 2020). There, the court noted the child would “benefit from a 

structured custodial schedule.” Id.; see also In re Marriage of Johnsen, No. 20-

0779, 2021 WL 2690019, at *4 (Iowa Ct. App. June 30, 2021) (denying a request 

for a right of first refusal when a parent was away for four hours or more, as it 

would “only result in additional conflict”); c.f. Klemmensen, 2015 WL 2089699, at 

*4 (finding the provision was appropriate because it would not result in heightened 

conflict between the parents).

The district court did not include a right-of-first-refusal provision in the 

parties’ dissolution decree but informed the parties they could agree to this 

practice, stating:

The parties are divorcing themselves from each other and will be coparenting on a shared care basis. They should remain free to care 

for and raise the children as they see fit during those times when the 

decree provides that they are to be in their care. If the parties want 

to agree with one another to allow each other visitation time during 

their respective weeks when they are unable to care for the children 

personally, they certainly may do so. That is between them, 

however, and will not be Court-ordered. The same is true with any 

temporary adjustments or variations the parties want to make with 

respect to the week-on, week-off schedule.

We determine that a right of first refusal on this record is not in the children’s 

best interest. Andrea’s work schedule is not the same every week. And the hours 

Andrea gets off and picks up the children have widely varied. While Andrea was 
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scheduled to pick the children up from Kyle’s at 5:00 p.m., those pickups varied 

from 3:20 p.m. to 8:05 p.m. with less than a half hour notice to Kyle. The 

consistency of a schedule when the children are with each parent is in the 

children’s best interest. Under the proposed right of first refusal, the parents could 

be exchanging the children daily. These exchanges would occur, under the 

parties’ current work schedule, on many occasions before 6:30 a.m. We affirm the 

district court on this issue.

IV. Physical Care

Andrea contends that if her request for a right of first refusal is denied, then 

she should be awarded physical care of the children. She states that while the 

parents shared many tasks equally, she took the children to medical appointments. 

She also states that she involved the children in activities, such as dance lessons 

and swimming lessons. Andrea believes Kyle did not respect her and tried to spy 

on her. In his cross-appeal, Kyle asks to have the children placed in his physical 

care. He questions Andrea’s mental stability, highlighting alleged suicidal ideation.

In considering which parent should be awarded physical care of children, 

the court considers the factors in Iowa Code section 598.41(3) (2020) and In re

Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). “[T]he factors of 

continuity, stability, and approximation are entitled to considerable weight” when 

making a decision regarding physical care. In re Marriage of Hansen, 733 N.W.2d 

683, 700 (Iowa 2007). Courts look for a placement that will best promote the longterm physical and emotional health of the child. Id. Each decision is based on the 

unique facts and circumstances of the case. Id. “In child custody cases, the first 

and governing consideration of the courts is the best interests of the child.” Iowa 
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R. App. P. 6.904(3)(o); In re Marriage of Roberts, 954 N.W.2d 757, 760 (Iowa Ct. 

App. 2020).

The district court addressed each spouse’s concerns regarding the 

parenting of the other spouse. The court found, “While Andrea may have 

underlying mental health issues, it appears to the Court that she has addressed 

whatever those issues might be and that they will not prevent her from being a 

good parent to her children.” Concerning Kyle’s actions when he was spying on 

Andrea, the court found, “[A]s with Andrea’s behaviors, they do not appear likely 

to continue once this action is concluded and the parties go on with their lives, nor 

do they appear likely to impact his ability to parent the children.”

While each parent sought physical care of the children, they alternatively 

requested joint physical care. The court carefully considered the appropriate 

factors for determining whether joint physical care was in the best interests of the 

children. See Hansen, 733 N.W.2d at 697–99. These factors are:

(1) “approximation”—what has been the historical care giving 

arrangement for the child between the two parties; (2) the ability of 

the spouses to communicate and show mutual respect; (3) the 

degree of conflict between the parents; and (4) “the degree to which 

the parents are in general agreement about their approach to daily 

matters.”

In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (quoting 

Hansen, 733 N.W.2d at 697–99). The court determined joint physical care with a 

“week-on, week-off schedule” was in the children’s best interests, as it provided 

“the greatest amount of certainty as to [the parents’] parenting responsibilities.”

The district court heard the parties’ testimony and observed them in the 

courtroom. The Iowa Supreme Court has stated:
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The deference we pay to trial court findings is especially strong here. 

As will appear, the case turns, not so much on what was said and

done, as upon the implications of the words and actions of the

parties. In resolving such a case a trial court, as first-hand observer

of witnesses, holds a distinct advantage over an appellate court,

which necessarily must rely on a cold transcript.

In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). We agree with 

the district court’s assessment that joint physical care is in the best interests of the 

children.

V. Visitation

Kyle requests video and/or telephone visitation with the children every day 

while they are in Andrea’s care. He states that he would allow Andrea the same 

access to the children while they are in his care. Kyle argues it is important for the 

parents to have daily contact with the children, even when they are not in the 

parent’s care. Specifically, Kyle requests that he have video and/or telephone

visitation nightly when the children are in Andrea’s care for up to five minutes with 

each child within an hour before the children’s bedtime, and that Andrea exercise

five minutes of telephone and/or video visitation between 5:30 p.m. and 6:30 p.m. 

on nights she works, and within one hour before the children’s bedtimes when 

Andrea does not work. 

Generally, liberal visitation with the noncustodial parent is in the children’s 

best interests. Iowa Code § 598.41(1)(a); In re Marriage of Stepp, 485 N.W.2d 

846, 849 (Iowa Ct. App. 1992). In the case In re Marriage of Coon, a father who 

did not have physical care of the children was granted the right to have a daily 

telephone call. No. 14-1919, 2015 WL 5308976, at *1 (Iowa Ct. App. Sept. 10, 

2015). Later, the decree was modified to reduce the number of telephone calls. 
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Id. Also, in In re Marriage of Kraft, a father who did not have physical care of the 

children was granted two mandatory telephone calls per week. No. 99-1719, 2000 

WL 1289135, at *2 (Iowa Ct. App. Sept. 13, 2000). Kyle’s situation is not like either 

of these cases because he has joint physical care of the children and spends 

alternating weeks with them.

The district court ruled, “The Court views this issue the same way it views 

Andrea’s request for a right of first refusal. It is an issue that the parties should be 

able to negotiate themselves. Accordingly, this request for enlargement is denied.” 

We agree with the denial of daily video and/or telephone contact. The district 

courts cannot be in the business of micromanaging the parties’ and the children’s 

lives. The parties are required to communicate as they share joint physical care. 

But the proposal, if adopted by the court, invites disagreements on when and if 

each parent received daily video and/or telephone contact at the correct time and 

for the correct length of time with the children when not in that parent’s physical 

care. We decline to modify the decree concerning the requested daily video and/or 

telephone contact. 

VI. Property Division

In the dissolution decree, the court determined a 1999 Firebird valued at 

$3000.00 and an Edward Jones account valued at $25,000.00 should be set aside 

to Kyle because they were gifts he received from his parents prior to the marriage. 

The table of assets and liabilities attached to the dissolution decree, however, 

included the two items in the assets awarded to Kyle, resulting in total net assets 

awarded to Kyle of $54,349.00. Andrea received total net assets of $49,212.00. 
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The court did not order Kyle to pay an equalization payment, stating the result was 

equitable although not equal.

Kyle raised the discrepancy between the language of the dissolution decree 

and the court’s calculation of the net martial assets he received in his rule 1.904(2) 

motion. He stated that if the value of the Firebird and Edward Jones account were 

excluded from the marital assets, he received total net marital assets of 

$26,349.00. Kyle asked for an equalization payment of $11,431.50. Andrea 

resisted Kyle’s motion. She pointed out that the court did not give her credit for 

paying the down payment of $13,000.00 on the marital residence from her 

premarital funds.

In the ruling on the post-trial motions, the court recognized that it had 

incorrectly calculated the parties’ assets in the table of assets and liabilities 

attached to the dissolution decree. The court determined Kyle had total net marital 

assets of $26,349.00 and Andrea had total net marital assets of $49,212.00. The 

court concluded Andrea should pay Kyle an equalization payment of $5000.00, 

rather than $11,431.50 as he requested. The court stated, “This decrease is 

equitable because it gives Andrea credit for approximately one-half of the down 

payment on the house, which came primarily out of her pre-marital funds.” In the 

post-trial ruling, the district court listed the marital assets and liabilities of the 

marriage as follows:

 MARITAL ASSETS

KYLE’S ASSETS $37,549

KYLE’S DEBT $11,200

KYLE’S NET $26,349
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ANDREA’S ASSETS $200,266

ANDREA’S DEBT $151,054

ANDREA’S NET $49,212

Under this computation, Andrea’s net is $22,863.00 more than Kyle. Kyle 

claims the division of assets and debts by the court was inequitable. He contends 

that the court should not have given Andrea credit for her payment of $13,000.00 

for the down payment on the marital residence from premarital funds because she 

also had $13,701.00 of premarital student debt. He also asserts that Andrea kept 

the children’s portion of $5455.00 from COVID stimulus money. Kyle states 

Andrea should be required to pay $11,431.50 to him as an equalization payment.

“[C]ourts equitably divide all of the property owned by the parties at the time 

of divorce except inherited property and gifts received by one spouse.” In re 

Marriage of Keener, 728 N.W.2d 188, 193 (Iowa 2007). Property is divided “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). “An equitable distribution 

of marital property, based upon the factors in [section] 598.21(5), does not require 

an equal division of assets.” In re Marriage of McDermott, 827 N.W.2d 671, 682

(Iowa 2013) (quoting In re Marriage of Kimbro, 826 N.W.2d 696, 703 (Iowa 2013)). 

We ordinarily will not disturb the district court’s ruling unless it fails to do equity. 

See In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).

Premarital property is not set aside like gifted and inherited 

property. [In re Marriage of Fennelly, 737 N.W.2d 97,102 (Iowa 

2007)]; In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct. App.

1996). The district court should not separate a premarital asset from 

the divisible estate and automatically award it to the spouse who 

owned it prior to the marriage. Fennelly, 737 N.W.2d at 102; [In re 

Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006)]. Rather, 

property brought into the marriage by a party is merely a factor 
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among many to be considered under section 598.21(5). Schriner,

695 N.W.2d at 496. “[T]his factor may justify a full credit, but does 

not require it.” Miller, 552 N.W.2d at 465. Other factors under section 

598.21(5) include the length of the marriage, contributions of each 

party to the marriage, the age and health of the parties, each party’s 

earning capacity, and any other factor the court may determine to be 

relevant to any given case. See Fennelly, 737 N.W.2d at 102.

In contrast, gifted and inherited property are considered nonmarital property. Section 598.21(6), however, contains a 

qualification to the gift and inheritance set-aside rule: “[p]roperty 

inherited by either party or gifts received by either party prior to or 

during the course of the marriage . . . is not subject to a property 

division . . . except upon a finding that refusal to divide the property 

is inequitable to the other party.” Our supreme court has identified a 

number of factors for courts to consider in determining whether gifted 

or inherited property should be divided:

(1) contributions of the parties toward the 

property, its care, preservation or improvement;

(2) the existence of any independent close 

relationship between the donor or testator and the 

spouse of the one to whom the property was given or 

devised;

(3) separate contributions by the parties to their 

economic welfare to whatever extent those 

contributions preserve the property for either of them;

(4) any special needs of either party;

(5) any other matter which would render it 

plainly unfair to a spouse or child to have the property 

set aside for the exclusive enjoyment of the donee or 

devisee.

In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000) 

(quoting In re Marriage of Muelhaupt, 439 N.W.2d 656, 659 (Iowa 

1989)). The court has also stated that “the length of the marriage 

may be an important factor in determining whether gifted [or 

inherited] property should be included in the court's property 

distribution.” Goodwin, 606 N.W.2d at 319.

In re Marriage of Antoine, No. 09-1653, 2010 WL 5023072, at *6 (Iowa Ct. App. 

Dec. 8, 2010).

On this record, we do not find the trial court failed to do equity between the 

parties in awarding Kyle $5000.00 due to the down payment on the home made 

by Andrea with premarital funds. And we find the rational for inclusion of Andrea’s 
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student loan debt as marital to be supported by this record. We affirm the property 

division of the trial court.1

VII. Attorney Fees

Andrea and Kyle both seek attorney fees for this appeal. Neither have filed

an attorney fee affidavit. Appellate attorney fees are awarded upon our discretion

and are not a matter of right. See In re Marriage of Okland, 699 N.W.2d 260, 270

(Iowa 2005). When considering 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 the appeal.” Id. (citation omitted).

After carefully considering each of these factors, we conclude each party 

should be responsible for payment of their respective appellate attorney fees.

AFFIRMED ON BOTH APPEALS.

1 We decline to make any additional division concerning the stimulus checks 

received for the children, as we are unable to determine what, if any portion, of the 

children’s stimulus funds, are reflected in Andrea’s bank accounts that are included 

in the marital assets.