IN THE COURT OF APPEALS OF IOWA

No. 3-1070 / 13-0662

Filed March 12, 2014

IN RE THE MARRIAGE OF ALLAN LEGRAND

AND CONNIE LEGRAND

Upon the Petition of

ALLAN LEGRAND,

Petitioner-Appellant,

And Concerning

CONNIE LEGRAND,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica L. 

Ackley, Judge. 

Allan appeals the award of physical care of two children to Connie, the 

calculation of child support, and the requirement that he pay a bill for the internet 

provider. AFFIRMED.

Andrew Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des 

Moines, for appellant.

Bradley Boffeli of Boffeli & Spannagel, P.C., Dubuque, for appellee.

Considered by Vogel, P.J., and Mullins and McDonald, JJ.
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MULLINS, J.

Allan LeGrand appeals from a decree dissolving his marriage to Connie 

LeGrand. Allan argues the district court erred by giving joint legal custody to 

both parties but physical care to Connie. He also contends the district court 

erred in calculating his child support obligation and in ordering him to pay the 

utility bills of the marital home. On February 5, 2014, we filed a decision in which 

we affirmed the district court order. We subsequently granted Connie’s petition 

for rehearing to address her request for appellate attorney fees and, pursuant to 

Iowa Rule of Appellate Procedure 6.1204, vacated our prior decision. After 

rehearing, we affirm and grant Connie $1500 in attorney fees. 

I. Background Facts and Proceedings.

Allan and Connie LeGrand married in 1989. The petition for dissolution of 

marriage was filed in June 2012. They had been married twenty-three years at 

the time of trial. Allan was forty-five years old and Connie was forty-two. The 

parties have four children: two adult female children, and fifteen-year-old twins, 

L.L. (a boy) and S.L. (a girl). 

At the time of trial, Allan worked part-time at Energetics Industrial as a 

delivery driver, earning ten dollars an hour. Previously, he worked for Horsfield 

Construction from April 2012 to December 2012 as a truck driver, earning $14.50

an hour. He testified he worked seasonally for Horsfield and anticipated they 

would rehire him in spring 2013. Prior to Horsfield, and for a large part of their 

marriage, Allan worked for Superior Welding, which required twelve-hour days 
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and significant travel. Consequently, Connie was the children’s primary 

caregiver and had been for most or all of their lives.

Connie had worked for Nagle Publishing for eighteen years as a part-time 

publishing assistant. Nagle was never able to hire her for more than part-time 

work. She earned $12.50 per hour and worked a varied part-time schedule: one 

week each month, she would work 36.5 hours, to meet a publishing deadline; the 

remaining weeks of the year, she worked 26.5 hours. 

Connie left the marital home in May 2012 and moved in with her parents, 

intending to obtain an apartment after the dissolution. S.L. joined her mother in 

the maternal grandparents’ home. L.L. remained living with Allan in the marital 

home. In September 2012, the district court entered a temporary order granting 

Allan physical care of L.L. and Connie physical care of S.L., with visitation for 

each noncustodial parent. The children have Title XIX insurance. S.L. has a 

major hip injury from playing soccer and will require several future surgeries. L.L. 

also has had a number of health issues. Connie has largely been responsible for 

making arrangements for the twins’ medical care, with help from her own parents

to get them to appointments.

L.L. testified at trial that while living with Allan in the marital home after the

parties had separated, Allan spent many evenings with his girlfriend, leaving L.L. 

alone, including around ten times overnight. Connie would occasionally check on 

L.L. in the marital home. She observed the house had fallen into very poor 

condition with dirty dishes left everywhere covered in spoiled or moldy food, 

spoiled food in the refrigerator, and BB gun bullet holes in walls and in decorative 
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items, which were Connie’s personal belongings. L.L. testified the house was in 

an unsanitary condition. Connie also testified L.L. had used one of the girl’s old 

bedrooms as a shooting range. L.L. admitted to shooting the BB gun purposely 

at Connie’s personal items. When asked why, he testified, “I was just bored. I 

don’t know.” Connie had received a letter from a school truancy officer warning 

that L.L. had been missing many days of school. L.L. admitted he had missed 

some school to go hunting and testified he had a 1.4 grade point average.

At the time of trial, the marital home was in foreclosure, and Allan and L.L. 

had moved in with Allan’s girlfriend and her then-sixteen-year-old son. The 

parties filed a pretrial stipulation outlining and dividing their assets and debts, 

including an equitable division of personal items from the marital home. The 

district court held trial in the matter on March 14, 2013. The court heard 

testimony from Allan; Connie; S.L.; L.L.; an adult daughter, Megan; and Connie’s 

mother, Mary. The parties also offered into evidence child support guideline 

worksheets reflecting different net incomes for both Allan and Connie. 

On March 28, 2013, the court issued a judgment and decree of dissolution 

of marriage. The decree gave the parties joint legal custody and Connie physical 

care of L.L. and S.L. It ordered Allan to pay $689 per month in child support. It 

also divided the marital property, incorporating the pretrial stipulation, and 

ordered Allan to pay the remaining utility bills. Allan appeals, arguing the court 

should have given him physical care of the children, the court calculated child 

support incorrectly, and Connie should have to pay an outstanding utility bill. 
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II. Standard of Review.

We review cases tried in equity de novo. In re Marriage of Hansen, 733

N.W.2d 683, 690 (Iowa 2007). Although we decide the issues raised anew, we 

give deference to the district court’s findings, especially those involving credibility 

of witnesses. In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006).

III. Analysis.

A. Physical Care.

Allan contends the district court erred in awarding physical care to Connie. 

He argues the court should have awarded him physical care because he can 

better meet the children’s needs. He also argues the court did not give sufficient 

weight to L.L.’s preferences. Finally, he argues Connie’s current residence is 

unsuitable for the children. 

In matters of child custody, the first and governing consideration of the 

court is the best interest of the child. Iowa R. App. P. 6.904(3)(o). Prior cases 

have little precedential value, except to provide a framework for analysis; we 

must base our decision on the facts and circumstances before us. In re Marriage 

of Will, 489 N.W.2d 394, 397 (Iowa 1992). The Iowa Code provides a 

nonexclusive list of factors the court shall consider in determining a custodial 

arrangement. Iowa Code § 598.41(3) (2011). Here, both parties agreed to, and 
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the court awarded joint legal custody.1 Neither party requested joint physical 

care,

2

and the district court granted physical care to Connie. 

“The ultimate objective of a physical care determination is to place the 

child in the environment most likely to bring him to healthy mental, physical, and 

social maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). 

The critical issue is “which parent will do better in raising the child[.]” In re 

Marriage of Barry, 588 N.W.2d 711, 712 (Iowa Ct. App. 1998). The statutory 

factors for determining custody and the factors identified in In re Marriage of 

Winter, 223 N.W.2d 165, 166-67 (Iowa 1974),3 must be considered when 

determining the award of physical care. Will, 489 N.W.2d at 398. 

 

1 Custody is “a parent’s rights and responsibilities toward the child in matters such as 

decisions affecting the child’s legal status, medical care, education, extracurricular 

activities, and religious instruction.” Will, 489 N.W.2d at 397. 

2 Physical care is the “right and responsibility to maintain the principal home of the minor 

child and provide for the routine care of the child.” Will, 489 N.W.2d at 397. If either 

party had requested joint physical care, the court would have been required to consider 

the request. Iowa Code § 598.41(5).

3 These factors are:

1. The characteristics of each child, including age, maturity, mental and 

physical health.

2. The emotional, social, moral, material, and educational needs of the 

child.

3. The characteristics of each parent, including age, character, stability, 

mental and physical health.

4. The capacity and interest of each parent to provide for the emotional, 

social, moral, material, and educational needs of the child.

5. The interpersonal relationship between the child and each parent.

6. The interpersonal relationship between the child and its siblings.

7. The effect on the child of continuing or disrupting an existing custodial 

status.

8. The nature of each proposed environment, including its stability and 

wholesomeness.

9. The preference of the child, if the child is of sufficient age and maturity.

10. The report and recommendation of the attorney for the child or other 

independent investigator.

11. Available alternatives.
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In granting physical care to Connie, the district court found that although

both parents were capable of caring for the children, Connie was the superior 

choice. It determined that Connie, as primary caregiver throughout their lives, 

understood the children’s needs and could provide more stability in the future. 

The court noted, based on Allan’s testimony and mannerisms, his controlling 

nature would likely hamper the parents’ ability to communicate about the 

children’s needs. It found, based on his past conduct, Allan had issues with 

commitment and fidelity and would provide an unstable environment for the 

children, particularly with respect to his living with his new paramour. Upon our 

review, we find these factual determinations made by the district court are 

supported by the record, and we defer to them in our analysis. 

While L.L. lived with Allan in the marital home, Allan regularly left L.L.

alone to spend time with his paramour, sometimes overnight. Allan failed to 

maintain the marital home in a sanitary condition, leaving dirty dishes and 

spoiled, moldy food out. L.L. shot his BB gun in the house, filling the walls of one 

of the girls’ former bedrooms with holes and purposefully damaging some of 

Connie’s personal items. L.L. has missed enough school days to warrant a 

warning letter from the school truancy officer. L.L. has a 1.4 grade point average 

and admitted to missing school days to go hunting. Allan’s past conduct has thus 

demonstrated his inability to provide a suitable environment for or to properly 

supervise L.L.

 

12. Any other relevant matter the evidence in a particular case may 

disclose.

Winter, 223 N.W.2d at 166-67. 
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Upon our review, we agree with the district court that Connie had been the 

children’s primary caregiver most of their lives. Connie’s testimony demonstrated

clear concern and commitment to both children’s care and development. She 

has strong support from the children’s grandparents, on whom the children often 

rely. 

Allan argues the district court should have given more weight to L.L.’s 

preference to live with his father and granted Allan physical care of L.L. In 

determining which parent should be granted physical care, the court’s primary 

concern is the best interest of the child. Will, 489 N.W.2d at 398. Iowa Code 

section 598.41(3) mandates a list of factors “the court shall consider” when 

determining whether joint custody under section 598.41(2) is in the best interest 

of a minor child. Among those factors is “[w]hether the custody arrangement is in 

accord with the child’s wishes or whether the child has strong opposition, taking 

into consideration the child’s age and maturity.” Iowa Code § 598.41(3)(f). 

Section 598.41(4), however, limits the legislative mandate of those factors by 

explaining that “[s]ubsection 3 shall not apply when parents agree to joint 

custody.” Id. § 598.41(4). In the present case, the parties agreed to joint 

custody. Thus, pursuant to section 598.41(4) we are not required to apply the 

subsection 3 factors. Although not required, those subsection 3 factors remain 

appropriate for our consideration when determining the award of physical care. 

Will, 489 N.W.2d at 398. L.L. testified he preferred to remain with Allan because 

he and Allan enjoy hunting and fishing together and Allan takes L.L. to baseball. 

In determining the weight to give L.L.’s testimony, we have considered the 
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factors listed in In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-60 (Iowa Ct. 

App. 1985).

4 We have considered his preferences together with other evidence 

in the record that discloses that L.L. needs more guidance and supervision than 

he received while under Allan’s care. 

Finally, Allan argues his home is more suitable for the children than 

Connie’s current living arrangement. The home to which Allan refers is his 

paramour’s home, where the children will have their own bedrooms. Currently, 

Connie and S.L. share a room, and L.L. has his own room. We do not find this 

arrangement unsuitable. Also, Connie testified she intends to move into a new 

home after the dissolution.

On our de novo review, after considering the arguments raised by the 

parties, and giving deference to the credibility determinations of the district court, 

we find both children are more likely to achieve healthy mental, physical, and 

social maturity in Connie’s care. Therefore, we agree with the district court’s 

decision to award Connie physical care. 

B. Child Support.

Allan contends the district court calculated his child support obligation 

incorrectly by using his earning capacity rather than his actual income. In 

applying the child support guidelines, the court must determine the parents’ 

 

4 Those factors include the child’s age and education level, the strength of preference, 

the intellectual and emotional make-up of the child, relationship with family members, the 

reasons given for the stated preference, the advisability of recognizing the child’s 

wishes, and the recognition that the court is not aware of all factors that influence the 

stated preference. Ellerbroek, 377 N.W.2d at 258-60.
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monthly income from the most reliable evidence presented. In re Marriage of 

Powell, 474 N.W.2d 531, 534 (Iowa 1991). The district court found

[Allan] is now working for Energentics MS as a delivery person, 

earning $10 per hour. He started this employment in January of 

2013, after having been laid off by Horsfield Construction for the 

winter. He anticipates being able to return to Horsfield Construction

once the weather improves and the construction projects 

commence again in spring. He was earning $14.50 per hour 

driving a truck and running heavy equipment for Horsfield. He 

represented that his 2012 income was approximately $16,285.00. 

He stipulated that his annual income could potentially be 

$20,800.00. 

Allan testified he anticipated Horsfield would rehire him in the spring of 2013. He 

also stated he worked seasonally and only part-time. 

Courts are required to apply the Iowa Child Support Guidelines set out in 

Chapter 9 of the Iowa Court Rules. Rule 9.11 proscribes variance from the 

guidelines unless the court provides “a written finding that the guidelines would 

be unjust or inappropriate[.]” Iowa Ct. R. 9.11. In determining net monthly 

income, “the court may impute income[.]” Iowa Ct. R. 9.11(4). However, 

The court shall not use earning capacity rather than actual earnings 

or otherwise impute income unless a written determination is made 

that, if actual earnings were used, substantial injustice would occur 

or adjustments would be necessary to provide for the needs of the 

child(ren) or to do justice between the parties.

Id. The court ruled

[Allan] is capable of earning full time wages and will likely return to 

Horsfield. The need to provide for his children dictates he work fulltime. He has no medical or emotional conditions to preclude this. 

[Connie] on the other hand will need time to care for [S.L.] once she 

has additional surgeries [for her hip injury]. Full time employment 

has not been available to her over the course of her 18 years with 

Nagle. She has traditionally been the primary care provider for the 

children and will continue to do so under this decree.
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Connie argues, “The District Court may not have expressly stated that 

‘substantial injustice’ would incur [sic], but the District Court listed its reasons for 

imputing Allan’s income and those reasons clearly give the inference that 

substantial injustice would incur [sic].” We disagree that the district court’s 

findings give rise to the inference that substantial injustice would occur. We do 

find, however, that the court’s balancing of Allan’s ability to work full time and 

Connie’s long-term employment history with Nagle, coupled with her continuing 

and future care of the children, is a minimally sufficient written finding that 

imputing Allan’s income is necessary to do justice between the parties. 

Consequently, we affirm the district court’s use of imputed income as to Allan. 

Allan also contends the district court determined Connie’s income 

incorrectly: “The District Court never directly states but one can glean from its 

findings that it concluded Connie’s income was only $17,400, . . . ($12.50 x 26.5 

x 3 x 12) + ($12.50 x 36.5 x 1 x 12).”

5

 The district court does not make explicit its 

conclusion as to the amount of Connie’s net income. Although we encourage 

trial courts to include their calculations to aid our review, we find after our 

examination of the record, we are able to rule. Our examination of the record 

shows the district court found Connie’s income was the amount reported in her 

2012 W-2, $19,412.50. We affirm the district court’s order of $689 per month in 

child support.

 

5 The calculation Allan offers incorrectly calculates Connie’s income based on forty-eight 

weeks in a year. 
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C. Utility Bill.

Allan contends the district court erred in ordering him to pay the utilities on 

the marital home, including an internet bill of around $400 he alleges was left in 

arrears at the time Connie moved out in April 2012. Upon dissolution, courts are 

required to divide the property equitably between the parties. Iowa Code 

§ 598.21(1), (5). The factors the court must consider are set out in Iowa Code 

section 589.21(5). In dividing property, there need not be an equal division if the 

division is justified and equitable. In re Marriage of Anliker, 694 N.W.2d 535, 542 

(Iowa 2005). In their pretrial stipulation, the parties agreed Allan would take his 

retirement account of nearly $24,000 and Connie would take hers, a $3200 

value. They also agreed Connie would take a vehicle worth around $6000. They 

disputed who should pay several bills totaling over $1000, and the court ordered 

Allan to pay them. Upon our review, this appears to be an equitable division of 

the parties’ assets and debts. We affirm the district court order for Allan to pay 

the utility bill. 

D. Appellate Attorney Fees.

Connie requests appellate attorney fees and submitted a Statement of 

Legal Services. “An award of appellate attorney fees is not a matter of right but 

rests within our discretion.” In re Marriage of Applegate, 567 N.W.2d 671, 675 

(Iowa Ct. App. 1997). “In determining whether to award appellate attorney fees, 

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 
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the decision of the trial court on appeal.” Id. Under the circumstances of this 

case, we order Allan to pay $1500 of Connie’s appellate attorney fees.

IV. Conclusion. 

Following our de novo review, we affirm the district court dissolution 

decree granting both parties legal custody and Connie physical care. We also 

affirm Allan’s obligation to pay $689 in child support and the remaining utility bills 

from the marital home. Finally, we order Allan to pay $1500 of Connie’s 

appellate attorney fees. 

AFFIRMED.