author: APPEL, Justice.

text:
    In re The MARRIAGE OF Lyle Martin HANSEN and Delores Lorene Hansen Upon the Petition of Lyle Martin Hansen, Appellee, and Delores Lorene Hansen, Appellant.
    No. 06-0191.
    Supreme Court of Iowa.
    June 15, 2007.

      Frank J. Nidey of Nidey Peterson Er-dahl & Tindal, PLC, Cedar Rapids, for appellee.
    Constance Peschang Stannard of Johnston & Nathanson, P.L.C., Iowa City, for appellant.
   APPEL, Justice.

In this case, we review physical care and property issues related to the parties’ dissolution of marriage. The district court granted joint legal custody and joint physical care of the two children to Lyle and Delores Hansen. The district court also distributed the property in the marital estate, ordered Lyle to pay alimony, and established child and medical support. Delores appealed. We transferred the ease to the court of appeals. The court of appeals reversed the district court on the physical care issue, granting physical care of the children to Delores. The court of appeals decreased the amount Delores was required to pay Lyle as a result of the property distribution and increased the monthly amount and duration of Lyle’s alimony payments. The court of appeals further made corrections related to the amount of child and medical support, and awarded Delores $1,000 in attorneys’ fees. Lyle sought further review.

With respect to the holdings of the court of appeals, we affirm the holding as modified in this opinion on the physical care issue, order Delores to pay Lyle $22,263 as a result of the property distribution, affirm the increase in alimony, affirm the recalculation of child support and medical benefits, and affirm the award of appellate attorneys’ fees. The matter is remanded to the district court for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND.

Lyle and Delores were married on September 4, 1987. The marriage lasted approximately eighteen years. At the time of trial, Lyle was forty-five years of age and Delores was forty-six. Two children were born of the marriage, Miranda, who was twelve years old at the time of the district court proceedings, and Ethan, who was eight.

At all times prior to the filing of the divorce petition, Delores was the primary caregiver. Lyle, alternatively, was the main breadwinner. For example, during the course of the marriage Delores attended parent teacher conferences on a regular basis, while Lyle did not. The vast majority of the time, it was Delores who helped the children with their homework. Lyle admits that she was better at it, particularly math. During the marriage, Lyle missed important childhood events because of social activities or work-related assignments. When the children were in infancy, Delores opened a day care center in their home. Later, when family finances became an issue, she held full-time employment outside the home. After the parties’ separation, however, Lyle has become more involved in the lives of the children.

The record developed at trial reveals serious marital stress. The record demonstrates a history of recurrent arguments, excessive consumption of alcohol, allegations of infidelity and sexual misconduct, and allegations of domestic abuse. Unfortunately, at least some of these contretemps were in front of the children. It was not a pleasant proceeding. As part of our de novo review, we have reviewed thoroughly all of these matters, which need not be described in detail here.

The record further reveals that Delores tended to acquiesce to Lyle when there were disagreements. For example, when Delores was pregnant with Miranda, she wanted to attend child-birthing classes, but Lyle stated that he had already undergone training and that, as a result, the classes were not needed. When Delores began operating a child care center out of their home, Lyle insisted on reviewing applicant backgrounds and controlled which children could utilize the service. He further demanded that parents or custodians pick up their children by 5:00 p.m. sharp. Delores did not agree with these practices, but felt she had no choice but to acquiesce. In addition, Delores asked Lyle if he would participate in marital counseling, but he refused, stating that he did not believe in counseling. Delores testified that she agreed to temporary joint physical care prior to trial only because she did not feel she could stand up to her husband. Delores expressed concern that if she disagrees with Lyle, he becomes angry and intimidating.

The parties appear to have different approaches to child rearing. Delores wants the children to be active in the Methodist church and other extracurricular activities. While not being overtly resistant, during the course of the marriage, Lyle did not encourage these kinds of activities. The parties also have different approaches to discipline. Lyle claims to have been the disciplinarian in the marital home. The record reveals that there are occasions when Lyle believed that discipline needed to be more severe than Delores was willing to impose. Lyle acknowledged that, at times, he is overprotective. As Lyle admitted, there are some things that he might let the children do that Delores might not, and vice versa.

At trial, Lyle expressed concern that Delores will expose their children to her family, which he finds highly dysfunctional. Delores testified that her father abused her as a child, but they have reconciled sufficiently to maintain an ongoing relationship. Lyle’s concern, however, extends beyond the father, as other members of Delores’ family have been convicted of child endangerment and drug offenses. Delores counters that when the children visit her family, it is always under her supervision.

Prior to trial, the parties were apparently able to work out the scheduling issues inherent in a joint physical care arrangement. There was not always agreement, however, on matters related to the children. For instance, when one child experienced unexpected academic difficulties, Delores believed professional counseling would be of help. Lyle disagreed, once again stating that he did not believe in professional counseling. Delores acquiesced, and counseling was not obtained. On another occasion, the kids called their mother and asked to be picked up because Lyle was angry that they had not cleaned their rooms, and had slammed the kitchen door, breaking its glass pane. Moreover, Delores testified that Miranda told her she desired a more stable living arrangement with a home base.

While much of the record in this case is unattractive, it is clear that both Lyle and Delores love their children. They are both capable of making substantial contributions to their lives. The record further reveals that the children are bright and generally well-adjusted.

With respect to financial matters, the record shows that at the time of trial, Lyle was earning $46,300 per year as a detective for the City of Washington Police Department. Delores was employed as a bank teller, earning $18,900 per year. Delores has only a high school education and little prospect in Washington, Iowa, for substantial increase in income.

The main asset accumulated by the parties was the marital residence. An appraisal obtained in 2001 stated that the value of the property was $112,000. Delores testified that a real estate agent had appraised the value of the residence at $130,000 in 2003 when the parties were seeking to refinance their mortgage. No documentary evidence of the appraisal was introduced at trial.

During the course of the marriage, the parties accumulated considerable debt, at one time rising to as much as $26,000 on numerous credit cards. There is no suggestion that the funds were improperly spent, but only that Delores and Lyle were, for a period of time, living well beyond their means. Delores testified that she would get cash advances on credit cards so that she could supply her husband with cash when he requested it. She especially did this during times of marital stress hoping to smooth out the relationship. Lyle, however, came to the conclusion that the level of debt was unacceptable, and developed a plan to reduce it. The parties sold their boat and hot tub, and Lyle took an additional job at Hy-Vee. Delores closed the day care, and sought outside employment. As a result of these and other efforts, the debt load was substantially reduced by the time of trial.

The parties also borrowed money from their respective relatives prior to the dissolution of marriage. Delores and Lyle borrowed money from Delores’ parents during their marriage, and Lyle borrowed money from his sister, Leigh Wolf, after the separation. At the time of trial, the loans remained unpaid in the amount of $6,500 and $7,391 respectively.

II. PRIOR PROCEEDINGS.

On November 15, 2004, Lyle filed a petition for dissolution of marriage. The district court entered an order on December 30, 2004 which granted temporary physical care and legal custody to both parents. The temporary order did not establish a physical care schedule. Lyle suggested a pattern of alternating care on a weekly basis, to which Delores acquiesced. The matter came to trial on November 2, 2005. Each party requested physical care. Only Lyle sought joint physical care as a secondary alternative. The district court did not require the parties to submit a joint physical care plan, and, as a result, none was provided to the court. The district court heard testimony from each party and several additional witnesses. On December 30, 2005, the district court entered findings of fact, conclusions of law, and a decree in the case.

The district court granted “joint legal custody” and “joint physical care” of the minor children to Lyle and Delores. The district court order, however, established a schedule where “physical care” would alternate between Lyle and Delores for six-month periods beginning on January 1, 2006, with liberal visitation for the spouse not currently having physical care.

The district court order nevertheless, recognized the parties’ difficulty in making mutual decisions. For example, the court ordered that each parent “shall permit the children) to continue the activities after a physical care change.” Because Delores was awarded physical care for the first six-month period, the effect of the court order was that her choices of extracurricular activities would be binding on Lyle. The district court additionally ordered that Delores “shall select the church affiliation for the children.” The district court ordered that Delores be present when the children visited her family. The court further ordered that if a party moved from the Washington School District, the nonmov-ing party shall become the physical custodian until further order of the court.

Lastly, the district court decision contained the following language in bold print:

This custody arrangement is predicated on the court’s belief that the parties are able to communicate regarding the best interests of their children. Failure to communicate in a positive manner may constitute a basis for modification of this decree.

With respect to the disposition of the marital property, the district court presented its division of the assets and liabilities of the parties as follows:

LYLE DELORES

ASSETS

NWML $ 17,189 Residence $130,000

Durango $ 13,700

Tools and Guns net 0 Appliances net 0

Bank Accounts net 0 Bank Accounts net 0

Personal Property net 0 Personal Property net 0

1/2 IPERS net 0 1/2 IPERS net 0

1/2 NWML Contract net 0 1/2 NWML Contract net 0

NWML $ 4,854

TOTAL ASSETS $17,189 $148,554

LIABILITIES

$ 72,000 Mortgage

J.W. McGrath $ 541

Leigh A. Wolf $ 7,391 Parents C> cn o o 'tyy

AT & T Credit Card 05 M o o tyt

Capital One Card CO 05 o o

Discover Card H O CO o ⅛/y

TOTAL LIABILITIES $ 9,237 $ 94,230

NET TOTALS $ 7,952 $ 54,324

In light of the above disparity, the district court directed Delores to pay Lyle one half the difference in net assets, which the district court calculated as $23,186. The district court allowed Delores to make payments on this amount over the next ten years, with interest running at a rate of five percent per annum.

While Delores was required to pay Lyle the above sum, the district court awarded her alimony in the amount of $300 per month for three years. The alimony payments of the district court totaled $10,800.

On appeal, Delores raises four issues.

First, she claims that the district court erred in awarding her and Lyle physical care on an alternating six-month basis. She claims that she should have been awarded physical care. Delores does not challenge, however, the award of joint legal custody.

Second, she challenges the district court’s order that she pay Lyle an equalization payment of $23,156 after the distribution of the marital property. With respect to this financial issue, Delores claims that the marital residence should have been valued at $112,000 instead of $130,000, as found by the district court. Delores further claims she was treated unfairly in the distribution of the parties’ assets. She generally claims that the debt load assigned to her is excessive and that the resulting debt service is beyond her means. Specifically, Delores asserts that the trial court made a scrivener’s error in its calculations by transposing the numbers for total liabilities and net total in Lyle’s column. She further asserts that the debt to Lyle’s sister should not be allowed in light of the absence of a legal obligation.

Third, Delores claims that the alimony awarded by the district court of $300 per month over a period of three years is too low under these facts and circumstances. Instead, she seeks an award of alimony of $600 per month until she reaches retirement at age sixty-five.

Fourth, she claims that there were errors in the calculation of child and medical support. She claims the district court, in calculating child support, used an incorrect figure for Lyle’s income. She further claims that the district court’s award of medical support was too low and contrary to Iowa law.

The court of appeals agreed with Delores that the best interests of the children required that she should be awarded physical care. The court of appeals held that the alternating six-month schedule did not promote the legislature’s goal of frequent contact with both parents. Further, the court of appeals specifically found that Delores was the primary caretaker and that the children had thrived under her parenting and were comfortable with her care. Although not expressed in these terms, the court of appeals relied upon past history of caregiving and the desire for stability and continuity in awarding physical care to Delores.

With respect to financial issues, the court of appeals held that the marital residence should have been valued at $112,000. In addition, the court of appeals modified the amount of the equalization payment ordered by the district court to correct the scrivener’s error. The court of appeals made no further changes in the property distribution. As a result, the court of appeals held that Delores was required to pay Lyle an equalization amount of $13,543, instead of $23,156, over a ten-year period at five percent interest.

The court of appeals also found that the alimony established by the district court was insufficient to do equity. It increased the amount of alimony to $500 per month and extended the period of alimony payments from three years to ten years.

With respect to child support and medical issues, the court of appeals held that the calculation of child support was flawed as a result of the miscalculation of Lyle’s income. Further, the court of appeals held that the amount of medical support provided by Lyle was to be increased to reflect the seventy percent/thirty percent difference in their respective incomes.

Finally, with respect to attorneys’ fees, the court of appeals granted Delores $1,000 in appellate attorneys’ fees.

III. STANDARD OF REVIEW.

The standard of review is de novo. In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). We give weight to the findings of the district court, especially to the extent credibility determinations are involved. Id.

IV. ANALYSIS.

A. Custody and Care Issues.

1. Legal Framework.

On appeal, no party contests the district court’s award of joint legal custody. With respect to the children, Delores seeks to overturn the district court’s ruling awarding joint physical care to both parties. She seeks physical care. Lyle, however, seeks physical care, but in the event this does not occur, is willing to accept joint physical care in the alternative.

At the outset, it is important to discuss the differences between joint legal custody and joint physical care. In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). “Legal custody” carries with it certain rights and responsibilities, including but not limited to “decisionmaking affecting the child’s legal status, medical care, education, extracurricular activities, and religious instruction.” Iowa Code § 598.1(3), (5) (2005). When joint legal custody is awarded, “neither parent has legal custodial rights superior to those of the other parent.” Id. § 598.1(3). A parent who is awarded legal custody has the ability to participate in fundamental decisions about the child’s life.

On the other hand, “physical care” involves “the right and responsibility to maintain a home for the minor child and provide for routine care of the child.” Id. § 598.1(7). If joint physical care is awarded, “both parents have rights to and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, [and] providing routine care for the child ...” Id. § 598.1(4). The parent awarded physical care maintains the primary residence and has the right to determine the myriad of details associated with routine living, including such things as what clothes the children wear, when they go to bed, with whom they associate or date, etc.

If joint physical care is not warranted, the court must choose a primary caretaker who is solely responsible for decisions concerning the child’s routine care. Id. § 598.1(7). Visitation rights are ordinarily afforded a parent who is not the primary caretaker. Hynick, 727 N.W.2d at 579.

2. Traditional Approach of Iowa Appellate Courts to Joint Physical Care.

For decades, Iowa appellate courts have disfavored joint physical care arrangements in dissolution cases as not in the best interest of children. In In re Marriage of Burham, 283 N.W.2d 269 (Iowa 1979), this court outlined reasons against “divided custody.” Specifically, the court cited Iowa precedent for the proposition that divided custody is destructive of discipline, induces a feeling of not belonging to either parent, and in some instances can permit one parent to sow seeds of discontent concerning the other. Id. at 272. Although Burham referred to “divided custody,” later cases made it clear that the underlying rationale regarding the best interest of children applied to cases involving “joint physical care.” In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct.App.1996); In re Marriage of Brai-nard, 523 N.W.2d 611, 615 (Iowa Ct.App. 1994); In re Marriage of Coulter, 502 N.W.2d 168,171 (Iowa Ct.App.1993).

These cases have generally emphasized that the best interest of children is promoted by stability and continuity. Although a child’s best interests will be served by associating with both parents, “an attempt to provide equal physical care may be harmfully disruptive in depriving a child of a necessary sense of stability.” In re Marriage of Muell, 408 N.W.2d 774, 776 (Iowa Ct.App.1987). As a result, Iowa appellate courts have stated divided physical care is “strongly disfavored” as not in the best interest of children except in the most unusual of circumstances. Roberts, 545 N.W.2d at 342; Brainard, 523 N.W.2d at 615; Coulter, 502 N.W.2d at 170-71.

3. Legislative Action Regarding Joint Physical Care.

The Iowa legislature has shown recent interest in joint physical care as a potential alternative in dissolution cases. In 1997 and again in 2004, the legislature amended the Iowa Code to mandate certain procedures regarding the request, award, and denial of joint physical care.

In 1997, the legislature for the first time defined “joint physical care.” The legislature further stated that a district court “may consider” joint physical care upon the application of either party. 1997 Iowa Acts ch. 175, § 199 (previously codified at Iowa Code § 598.1(4) (2005)). The 1997 legislation, however, did not contain any substantive standards for determining when joint physical care might be appropriate, but only stated that district courts “may consider” the alternative. As a result, the amendment was a restatement of existing law.

In 2004, the legislature again revisited the issue of joint physical care by amending Iowa Code section 598.41(5) to read, in relevant part:

If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent.... If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.

2004 Iowa Acts ch. 1169, § 1 (now codified at Iowa Code § 598.41(5) (2005)).

Like the 1997 amendment, the 2004 amendment did not contain a new standard to be employed by the courts in considering whether to award joint physical care. It simply provides that a party interested in joint physical care should request it from the court, and if the court denies joint physical care, it should make findings of fact and conclusions of law that such an alternative was not in the “best interest of the child,” which is the traditional standard in child custody matters.

This court has not had occasion to consider the implication of the 1997 and 2004 amendments. In In re Marriage of Ellis, 705 N.W.2d 96 (Iowa Ct.App.2005), however, the court of appeals considered the impact of the amendments on Iowa law. In that case, the court of appeals rejected the claim that the new statutory provisions created a 'presumption in favor of joint physical care. Id. at 101-02. On the other hand, the court of appeals came to the conclusion that the amendments had the effect of reversing the traditional disfavor against joint physical care by Iowa courts. Id. at 101. According to the court of appeals, while joint physical care is no longer disfavored, it is still not a “preferred” custodial arrangement. Id. at 101-02.

We agree with the court of appeals that the 1997 and 2004 legislation did not create a presumption in favor of joint physical care. There is simply nothing in the language of the amendments that supports such an assertion. Indeed, the Iowa legislative action in 1997 and 2004 is strikingly different from action in other states where presumptions in favor of joint physical care were enacted into law.

Further, it is clear that the Iowa legislature knows how to enact substantive standards in family law matters. With respect to joint custody, the legislature has declared that if the court does not grant joint custody, it shall “cite clear and convincing evidence” that joint custody is unreasonable and not in the best interests of a child. Iowa Code § 598.41(2)(6). No similar language appears in the joint physical care provisions of Iowa law.

We disagree, however, with the court of appeals as to whether the 1997 and 2004 amendments have affected any change in substantive law. While the amendments clearly require that courts consider joint physical care at the request of any party and that it make specific findings when joint physical care is rejected, the legislation reiterates the traditional standard— the best interest of the child — which appellate courts in the past have found rarely served by joint physical care. The amendments only require the courts to consider and explain the basis of decisions to deny physical care. Scott v. Scott, 354 S.C. 118, 579 S.E.2d 620, 623-24 (2003) (legislation authorizing consideration of divided custody, when court finds it in best interest of the child, does not overrule prior case law disfavoring arrangement).

A Review of the Traditional Approach to Joint Physical Care.

While we find that the Iowa legislature has not overridden prior case law regarding joint physical care, we nonetheless believe that the notion that joint physical care is strongly disfavored except in exceptional circumstances is subject to reexamination in light of changing social conditions and ongoing legal and research developments. Increasingly in Iowa and across the nation, our family structures have become more diverse. While some families function along traditional lines with a primary breadwinner and primary caregiver, other families employ a more undifferentiated role for spouses or even reverse “traditional” roles. A one-size-fits-all approach in which joint physical care is universally disfavored is thus subject to serious question given current social realities.

In addition, the social science research related to child custody issues is now richer and more varied than it was in the past. In the past, many scholars and courts rejected joint physical care based on the influential writings of Joseph Goldstein, Anna Freud, and Albert J. Solnit. These scholars utilized attachment theory to emphasize the need to place children with a single “psychological parent” with whom the children had bonded. Joseph Gold-stein, Anna Freud, & Albert J. Solnit, Beyond the Best Interests of the Child 98 (1979). Although the research upon which the “psychological parent” attachment theory was based rested upon studies of infants, it was also thought to apply throughout the life cycle of a child. Shelley A. Riggs, Is the Approximation Rule in the Child’s Best Interests?, 43 Fam. Ct. Rev. 481, 484 (2005).

The psychological parent approach stressed the important role of a strong, caring parent-child dyad and embraced what is sometimes termed a monotropic view of infant-child bonding. Robert F. Kelley and Shawn L. Ward, Social Science Research and the American Law Institute’s Approximation Rule, 40 Fam. Ct. Rev. 350, 355-59 (2002); Peggy Cooper Davis, The Good Mother: A New Look at Psychological Parent Theory, 22 N.Y.U. Rev. L. & Soc. Change 347, 360 (1996). The “psychological parent” approach based on attachment theory seems to have influenced a number of courts. Pikula v. Pi-kula, 374 N.W.2d 705, 711 (Minn.1985), superseded by statute, Minn.Stat. § 248.2 (1989), as stated in Maxfield v. Maxfield, 452 N.W.2d 219 (Minn.1990); In re Custody of D.G., 246 N.W.2d 892, 895-96 (N.D.1976).

Attachment theory that emphasizes primary relationships continues to have strong advocates. Riggs, 43 Fam. Ct. Rev. at 482-90; James G. Dwyer, A Taxonomy of Children’s Existing Rights in State Decision Making About Their Relationship, 11 Wm. & Mary Bill Rts. J. 845, 913 (2003); Mary Ann Mason, The Custody Wars: Why Children are Losing the Legal Battle, and What We Can Do About It 116 (1999). The validity of the parent-child dyad or monotropic view of attachments, however, has been subject to substantial question. Many scholars now view infants as capable of attaching to multiple caregivers and not simply one “psychological parent.” Michael E. Lamb, Placing Children’s Interest First: Developmentally Appropriate Parenting Plans, 10 Va. J. Soc. Pol’y and L. 98, 109-13 (2002). Further, a growing body of scholarship suggests that the continued presence and involvement of both parents is often beneficial to the lives of children and not necessarily detrimental as believed by many adherents of the “psychological parent” theory. Id. at 100 (citing disadvantages of children growing up in fatherless families, including psychological adjustment, behavior and achievement at school, educational attainment, employment trajectories, and income generation); Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 S.M.U. L.Rev. 295, 302 (2004) (most commentators agree that, generally, children benefit from continued contact with both parents after a divorce).

As a result, a substantial body of scholarly commentary now challenges the blanket application of the monotropic psychological parent attachment theory to avoid joint physical care. For example, reputable scholars have stated that,

despite literature that suggests moderate correlations between conditions of early rearing and classes of later outcomes — for example, with respect to attachment and parental bonding — experts’ ability to make specific predictions, given specific conditions (let alone ambiguous ones!) is weak to negligible.

Thomas M. Horner & Melvin J. Guyer, Prediction, Prevention, and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made, 25 Fam. L.Q. 217, 248 (1991). Some academic observers suggest that joint physical care may be a way to encourage continued involvement of both spouses in the lives of the children. Matthew A. Kipp, Maximizing Custody Options: Abolishing the Presumption against Joint Physical Custody, 79 N.D. L.Rev. 59 (2003); Stephanie N. Barnes, Strengthening the Father-Child Relationship through a Joint Custody Presumption, 35 Willamette L.Rev. 601 (1999). They cite a wide range of studies to suggest that children may be better off with joint physical care than other arrangements.

The current social science research cited by advocates of joint custody or joint physical care, however, is not definitive on many key questions. To begin with, there are substantial questions of definition and methodology. Such criticisms include: samples that only examine parents who voluntarily choose joint custody, the use of small and homogenous groups, the skewing of samples toward middle class parents with higher incomes and education, the lack of control groups, and the lack of distinction between “joint custody” arrangements and traditional sole custody with visitation, and the failure to differentiate the effects of preexisting parental characteristics from the effects of custody type. Jana B. Singer & William L. Reynolds, A Dissent on Joint Custody, 47 Md. L.Rev. 497, 507 (1988); see also Diane N. Lye, What the Experts Say: Scholarly Research on Post-Divorce Parenting and Child Wellbeing, Report to the Washington State Gender and Justice Commission and Domestic Relations Commission 4-2 (1999) (research fraught with methodological difficulties and severe limitations) [hereinafter Lye, Report]; Daniel A. Krauss & Bruce D. Sales, Legal Standards, Expertise, and Experts in the Resolution of Contested Child Custody Cases, 6 Psychol. Pub. Pol’y & L. 843, 850 (2000) (noting myriad of conceptual and methodological problems).

Further, the data is conflicting or ambiguous. As noted by one recent academic observer, the research to date on the benefits of joint physical care is inconclusive and has produced mixed results. Stephen Gilmore, Contact/Shared Residence and Child Well-Being: Research Evidence and its Implications for Legal Decision Making, 20 Int’l J.L. & Pol’y & Fam. 344, 352-53 (2006); see also Krauss & Sales, 6 Psychol. Pub. Pol’y & L. at 857-58 (recent empirical studies of joint custody have not been able to demonstrate a substantial positive effect on postdivorce child adjustment when joint physical care is compared with other custodial arrangements).

An exhaustive review commissioned by the Washington State Supreme Court Gender and Justice Commission and the Domestic Relations Commission examined the many studies related to child custody issues. The review concluded that the available research did not reveal any particular post-divorce residential schedule to be most beneficial to children. While the review concluded that the research did not demonstrate significant advantages to children of joint physical care, the research also did not show significant disadvantages. Lye, Report at Summary.

While it seems clear that children often benefit from a continuing relationship with both parents after divorce, the research has not established the amount of contact necessary to maintain a “close relationship.” Preeminent scholars have noted that “surprisingly, even a fairly small amount of close contact seemed sufficient to maintain close relationships, at least as these relationships were seen from the adolescents’ perspective.” Eleanor E. Maccoby, et al., Postdivorce Roles of Mothers and Fathers in the Lives of Their Children, 7 J. Fam. Psychol. 24, 24 (1993); see also Michael E. Lamb, Noncustodial Fathers and Their Impact on the Children of Divorce in The Postdivorce Family: Children, Parenting, and Society 105, 111 (Ross A. Thompson & Paul R. Amato eds., 1999) (causal link between frequency of father-child contact and child’s adjustment to parental divorce “much weaker than one might expect”); Yalarie King, Variation in the Consequences of Nonresident Father Involvement for Children’s Well-Being, 56 J. of Marriage & Fam. 963, 970-71 (1994) (benefit to child not related to quantity of visits), as cited in American Law Institute, Principles of the Law of Family Dissolution § 2.02 cmt. f. (2000) [hereinafter Principles ]; Gilmore, 20 Int’l J.L. & Pol’y & Fam. at 358 (not contact per se but the nature and quality of contact that are important to children’s adjustment).

There is thus growing support for the notion that the quality, and not the quantity, of contacts with the non-custodial parent are the key to the wellbeing of children. Quality interaction with children can, of course, occur within the framework of traditional visitation and does not occur solely in situations involving joint physical care.

At present, the available empirical studies do not provide a firm basis for a dramatic shift that would endorse joint physical care as the norm in child custody cases. Nonetheless, in light of the changing nature of the structure of families and challenges to the sweeping application of psychological parent attachment theory, we believe the joint physical care issue must be examined in each case on the unique facts and not subject to cursory rejection based on a nearly irrebuttable presumption found in our prior cases. Gilmore, 20 Int’l J.L. & Pol’y & Fam. at 360-61 (the law should eschew the use of presumptions in the process of deciding post-separation parenting regimes); Krauss & Sales, 6 Psychol. Pub. Pol’y & L. at 857 (empirical research does not support presumptions to resolve custody disputes); Lye, Report at 4-1 (circumstances of each family are unique, recognition of unique circumstances central to good post-divorce parenting choices).

Any consideration of joint physical care, however, must still be based on Iowa’s traditional and statutorily required child custody standard — ’the best interest of the child. See Iowa Code § 598.41(5)(a). Physical care issues are not to be resolved based upon perceived fairness to the spouses, but primarily upon what is best for the child. The objective of a physical care determination is to place the children in the environment most likely to bring them to health, both physically and mentally, and to social maturity. Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995); In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996).

We recognize that the “best interest” standard is subject to attack on the ground that it is no standard at all, that it has the potential of allowing gender bias to affect child custody determinations, and that its very unpredictability increases family law litigation. See Robert H. Mnookin, Childr-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226, 256-60 (1975); Carl E. Schneider, Discretion, Rules and Law: Child Custody and the UMDA’s Best-Interest Standard, 89 Mich. L.Rev. 2215, 2220-25 (1991). On the other hand, the advantage of the standard is that it provides the flexibility necessary to consider unique custody issues on a case-by-case basis. Katharine T. Bartlett, Child Custody in the 21st Century: How the American Law Institute Proposes to Achieve Predictability and Still Protect the Individual Child’s Best Interests, 35 Willamette L.Rev. 467, 470 (1999). We believe the best approach to determining difficult child custody matters involves a framework with some spine, but the sufficient flexibility to allow consideration of each case’s unique facts.

In Iowa, the basic framework for determining the best interest of the child has long been in place. In the context of custody decisions, the legislature has established a nonexclusive list of factors to be considered. Iowa Code § 598.41(3) (citing nonexclusive factors including suitability of parents, whether psychological and emotional needs and development of child will suffer from lack of contact with and attention from both parents, quality of parental communication, the previous pattern of caregiving, each parent’s support of the other, wishes of the child, agreement of the parents, geographic proximity, and safety). Although Iowa Code section 598.41(3) does not directly apply to physical care decisions, we have held that the factors listed here as well as other facts and circumstances are relevant in determining whether joint physical care is in the best interest of the child. In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).

In considering whether to award joint physical care where there are two suitable parents, stability and continuity of caregiving have traditionally been primary factors. In re Marriage of Bevers, 326 N.W.2d 896, 898 (Iowa 1982) (noting who during the marriage provided routine care and questioning desirability of the children’s nomadic existence for sake of parents); In re Marriage of Decker, 666 N.W.2d 175, 178-80 (Iowa Ct.App.2003) (past primary caregiving a factor given heavy weight in custody matters); In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App.1998) (great emphasis placed on achieving emotional stability for children); RobeHs, 545 N.W.2d at 343 (though not controlling, due consideration to historical primary caregiver); Coulter, 502 N.W.2d at 171 (stability “cannot be overemphasized”). Stability and continuity factors tend to favor a spouse who, prior to divorce, was primarily responsible for physical care. See Iowa Code § 598.41(3)(d).

We continue to believe that stability and continuity of caregiving are important factors that must be considered in custody and care decisions. As noted by a leading scholar, “past caretaking patterns likely are a fairly reliable proxy of the intangible qualities such as parental abilities and emotional bonds that are so difficult for courts to ascertain.” Bartlett, 35 Willamette L.Rev. at 480. While no post-divorce physical care arrangement will be identical to predissolution experience, preservation of the greatest amount of stability possible is a desirable goal. In contrast, imposing a new physical care arrangement on children that significantly contrasts from their past experience can be unsettling, cause serious emotional harm, and thus not be in the child’s best interest.

As a result, the successful caregiv-ing by one spouse in the past is a strong predictor that future care of the children will be of the same quality. In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct.App.1998). Conversely, however, long-term, successful, joint care is a significant factor in considering the viability of joint physical care after divorce. Ellis, 705 N.W.2d at 103.

Stability and continuity concepts have been refined in the recent literature and expressed in terms of an approximation rule, namely, that the caregiving of parents in the post-divorce world should be in rough proportion to that which predated the dissolution. Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, 80 Cal. L.Rev. 615, 617 (1992). Recently, the American Law Institute’s Principles of Family Law, published in 2000, adopted the general rule that custodial responsibility should be allocated “so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation .... ” Principles § 2:08, at 178. A reporter of the ALI Project on Family Dissolution that produced Principles suggests that the ALI approximation rule is gender neutral, focuses on historical facts rather than subjective judgments, and is, in most cases, likely to provide an environment that is in the best interest of the child. Bartlett, 35 Willamette L.Rev. at 480-82.

We do not, however, adopt the ALI approximation rule in its entirety. Iowa Code section 598.41(3) and our case law requires a multi-factored test where no one criterion is determinative. Any wholesale adoption of the approximation rule would require legislative action. See W. Va.Code Ann. § 48-9-206(a) (2007).

Nonetheless, we believe that the approximation principle is a factor to be considered by courts in determining whether to grant joint physical care. By focusing on historic patterns of caregiving, the approximation rule provides a relatively objective factor for the court to consider. The principle of approximation also rejects a “one-size-fits-all” approach and recognizes the diversity of family life. Finally, it tends to ensure that any decision to grant joint physical care is firmly rooted in the past practices of the individual family.

There may be circumstances, of course, that outweigh considerations of stability, continuity, and approximation. For example, if a primary caregiver has abandoned responsibilities or had not been adequately performing his or her responsibilities because of alcohol or substance abuse, there may be a strong case for changing the physical care relationship. In re Marriage of Ford, 563 N.W.2d 629, 633 (Iowa 1997) (absence from home and less personal stability of former primary caregiver); see also Principles § 2.08(l)(a)-(h). In addition, the quality of the parent-child relationship is not always determined by hours spent together or solely upon past experience. Gary Crip-pen, Stumbling Beyond the Best Interests of the Child: Reexamining Child Custody Standardr-Setting in the Wake of Minnesota’s Four Year Experiment with Primary Caretaker Preference, 75 Minn. L.Rev. 427, 489-92 (1990); Schneider, 89 Mich. L.Rev. at 2283-87.

All other things being equal, however, we believe that joint physical care is most likely to be in the best interest of the child where both parents have historically contributed to physical care in roughly the same proportion. Ellis, 705 N.W.2d at 103; Singer & Reynolds, 47 Md. L.Rev. at 521-22. Conversely, where one spouse has been the primary caregiver, the likelihood that joint physical care may be disruptive on the emotional development of the children increases. Coulter, 502 N.W.2d at 171; Muell, 408 N.W.2d at 777.

A second important factor to consider in determining whether joint physical care is in the child’s best interest is the ability of spouses to communicate and show mutual respect. Hynick, 727 N.W.2d at 580; Ellis, 705 N.W.2d at 101; Iowa Code § 598.41(3)(c). A lack of trust poses a significant impediment to effective co-parenting. Eleanor E. Maccoby & Robert H. Mnookin, Dividing the Child: Social Costs and Legal Dilemmas of Custody 276 (1992) [hereinafter Maccoby & Mnookin]. Evidence of controlling behavior by a spouse may be an indicator of potential problems. McGee v. McGee, 224 A.D.2d 832, 835, 637 N.Y.S.2d 816 (1996) (citing domineering attitude); Kline v. Kline, 686 S.W.2d 13, 15-16 (Mo.Ct.App. 1984) (citing power struggles and hostility). Evidence of untreated domestic battering should be given considerable weight in determining custody and gives rise to a presumption against joint physical care. Iowa Code § 598.41(2)(c); Hynick, 727 N.W.2d at 579; In re Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa Ct.App.1997).

Third, the degree of conflict between parents is an important factor in determining whether joint physical care is appropriate. Joint physical care requires substantial and regular interaction between divorced parents on a myriad of issues. Where the parties’ marriage is stormy and has a history of charge and countercharge, the likelihood that joint physical care will provide a workable arrangement diminishes. It is, of course, possible that spouses may be able to put aside their past, strong differences in the interest of the children. Reality suggests, however, that this may not be the case. Maccoby <& Mnookin at 284 (expressing deep concern in cases where there is substantial parental conflict); The Wingspread Report and Action Plan, High-Conflict Custody Cases, 39 Fam. Ct. Rev. 146, 146 (2001) (“[h]igh-eonflict custody cases seriously harm the children involved”).

In short, a stormy marriage and divorce presents a significant risk factor that must be considered in determining whether joint physical care is in the best interest of the children. The prospect for successful joint physical care is reduced when there is a bitter parental relationship and one party objects to the shared arrangement. Burk-hart v. Burkhart, 876 S.W.2d 675, 680 (Mo.Ct.App.1994) (allegations of infidelity and breach of trust); Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449, 378 N.E.2d 1019, 1021 (1978) (court ordered joint custody involving embattled and embittered parents, accusing one another of vices and wrongs, can only enhance familial chaos). As noted in the Washington state review, there is evidence that high levels of child contact with a nonresidential father are beneficial to children in low conflict families, but harmful to children in high conflict families. Lye, Report at 4-17; see also Kelly & Ward, 40 Fam. Ct. Rev. at 364 (“much of the research on shared parenting that finds positive effects finds them in the context of postdivorce parental relationships in which high levels of conflict are absent”).

Conflict, of course, is a continuum, but expressions of anger between parents can negatively affect children’s emotions and behaviors. Hildy Mauzerall, Patricia Young, & Debra AIsaker-Burke, Protect ing of the Children of High Conflict Divorce: An Analysis of the Idaho Bench/ Bar Committee to Protect Children of High Conflict Divorce’s Report to the Idaho Supreme Court, 33 Idaho L.Rev. 291, 305 (1997). Even a low level of conflict can have significant repercussions for children. Robert E. Shepherd, Jr., Legal Dispute Resolution in Child Custody: Comments on Robert H. Mnookin’s “Resolving Child Custody Disputes” Conference Presentation, 10 Va. J. Soc. Pol’y 89, 91 (2002). Courts must balance the marginal benefits obtained from the institution of a joint physical care regime as compared to other alternatives against the possibility that in-terparental conflict will be exacerbated by the arrangement, to the detriment of the children. Elizabeth Scott & Andre Der-deyn, Rethinking Joint Custody, 45 Ohio St. L.J. 455, 457 (1984).

Because of the perceived detrimental impact of parental conflict on children, some commentators have urged that joint physical care should be encouraged only where both parents voluntarily agree to it. Frank F. Furstenberg, Jr. & Andrew J. Cherlin, Divided Families: What Happens to Children When Parents Part 75-76 (1991); see Or.Rev.Stat. § 107.169(3) (2007) (joint custody only upon agreement of parents); Vt. Stat. Ann. tit 15, § 665(a) (2007) (“When parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.”). Iowa Code section 598.41(5)(a), however, requires the court to consider joint physical care upon the request of either party. While we, therefore, reject the notion that one spouse has absolute veto power over whether the court grants joint physical custody, In re Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983), the lack of mutual acceptance can be an indicator of instability in the relationship that may impair the successful exercise of joint physical care. See Iowa Code § 598.41(3)(í7 ) (court should consider whether one or both spouses agree or are opposed).

A fourth important factor in determining whether joint physical care is in the best interest of the children, particularly when there is a turbulent past relationship, is the degree to which the parents are in general agreement about their approach to daily matters. Burham, 283 N.W.2d at 275 (citing Dodd v. Dodd, 93 Misc.2d 641, 647, 403 N.Y.S.2d 401 (Sup. Ct.1978) for the proposition that even joint legal custody assumes “agreement about child rearing practices”); Burkhart, 876 S.W.2d at 680 (where record does not show commonality of ideas about child rearing, joint physical care inappropriate); Horton v. Horton, 891 A.2d 885, 892 (R.I.2006) (lack of agreement on discipline a factor). It would be unrealistic, of course, to suggest that parents must agree on all issues all of the time, but in order for joint physical care to work, the parents must generally be operating from the same page on a wide variety of routine matters. The greater the amount of agreement between the parents on child rearing issues, the lower the likelihood that ongoing bitterness will create a situation in which children are at risk of becoming pawns in continued post-dissolution marital strife.

While the above factors are often significant in determining the appropriateness of joint physical care, we do not mean to suggest that they are the exclusive factors or that these factors will always be determinative. This court has stated, despite application of a multi-factored test, that district courts must consider the total setting presented by each unique case. In re Weidner, 338 N.W.2d 351, 356 (Iowa 1983) (each case to be considered upon its peculiar circumstances). The above factors present important considerations, but no iron clad formula or inflexible system of legal presumptions.

Once it is decided that joint physical care is not in the best interest of the children, the court must next choose which caregiver should be awarded physical care. Iowa Code § 598.41(l)(a), (5). The parent awarded physical care is required to support the other parent’s relationship with the child. Id. § 598.41(5)(6). In making this decision, the factors of continuity, stability, and approximation are entitled to considerable weight. The court should be alert, however, to situations where the emotional bonds between children and a parent who has not been the primary caregiver are stronger than the bonds with the other parent.

In making decisions regarding joint physical care and, if joint physical care is not appropriate, in choosing a spouse for physical care, courts must avoid gender bias. In re Marriage of Tresnak, 297 N.W.2d 109, 112-13 (Iowa 1980). There is no preference for mothers over fathers, or vice versa. The preference is to advance gender neutral goals of stability and continuity with an eye toward providing the children with the best environment possible for their continued development and growth.

In summary, we believe that statements in the case law indicating that joint physical care is strongly disfavored are over-broad. Factors often of importance in determining the viability of joint physical care include an overriding interest in stability and continuity, the degree of communication and mutual respect, the degree of discord and conflict prior to dissolution, and the extent to which the parties agree on matters involving routine care. While we believe that in many contested cases, the best interests of the child will not be advanced by joint physical care, the courts must examine each case based on the unique facts and circumstances presented to arrive at the best decision.

5. Best Interests of Children in this Case.

In light of the above principles, and after our de novo review of the entire record, we agree with the court of appeals that joint physical care is not in the best interest of the children under the unique facts presented in this case. For most of the marriage, Delores has been the primary caregiver. The concepts of continuity, stability, and approximation thus cut strongly against joint physical care as a quality alternative least disruptive to the children and most likely to promote their long-term physical and emotional health. Decker, 666 N.W.2d at 178; Walton, 577 N.W.2d at 870; Bevers, 326 N.W.2d at 898.

The record also shows that the parties have significant difficulties in communication. Lyle has strong beliefs, and Delores tends to attempt to avoid conflicts with him by simply acquiescing. Further, the divorce proceedings demonstrated considerable mutual distrust and a high level of conflict between the parties, complete with allegations of sexual improprieties and domestic abuse. It is noteworthy that while Lyle disputed most of the alleged incidents of physical abuse, he admitted that he and Delores engaged in “pushing matches.” Furthermore, there was substantial evidence in the record that Lyle has a controlling personality that could extend into the post-divorce world. In light of this record, there is a distinct danger that flare-ups in the relationship could disrupt the children’s lives in a joint physical care context. Hynick, 727 N.W.2d at 580.

The record also demonstrates differences in parenting styles. Lyle admits to being “overly protective.” Their discipline styles are also different, with Lyle recognizing that there are some things that he would allow, but Delores would not, and vice versa. Additionally, Lyle and Delores have different views on the potential role of counseling in helping the children through the difficulties created by divorce. While the parties were able to handle the logistics of joint physical care pursuant to the district court’s temporary order, this factor is not dispositive. Over the long haul, we believe there is a high potential for conflict if joint physical care were to continue.

The district court recognized the problems in the relationship and attempted to address them in its order. For example, the court found it necessary to decide who would determine the children’s religious affiliation and to include pointed language ensuring that extracurricular choices of each spouse would be honored. These are the kind of decisions that inhere in joint custody, not joint physical care. See Iowa Code § 598.41(5)(6). The fact that the district court found it necessary to include such provisions, and thereby raise the possibility of contempt in the event of violation, does not reflect a high degree of confidence in the ability of the parties to have a smooth, working relationship which is a prerequisite to a successful joint physical care arrangement.

The district court’s order alternating physical custody on six-month intervals may have also been designed to lessen potential friction between the parties. There was no evidence in the record to suggest that the alternate six-month arrangement was designed to accommodate work schedules of the parties or was based on some other logistical factor. Like the court of appeals in this case, a number of appellate courts have invalidated similar arrangements. Ireland v. Ireland, 914 S.W.2d 426, 429 (Mo.Ct.App.1996) (invalidating change of custody every two months); In re Custody of D.M.G., 287 Mont. 120, 951 P.2d 1377, 1387 (1998) (reversing two-year alternating custody order); Reavis v. Reavis, 955 P.2d 428, 432-33 (Wyo.1998) (reversing two-month alternate custody). As noted by the Washington Supreme Court, orders which provide for alternating residence of the child for substantially equal intervals can result when the parties and the courts are searching to avoid underlying disputes. In re Marriage of Littlefield, 133 Wash.2d 39, 940 P.2d 1362, 1369 (1997), superseded by statute, Wash. Rev.Code § 26.09.405-560 (2000); but see Kaloupek v. Burfening, 440 N.W.2d 496, 498-99 (N.D.1989) (affirming trial court order alternating custody on six-month basis); Drewry v. Drewry, 3 ArkApp. 97, 622 S.W.2d 206, 209 (1981) (same).

It is not necessary, however, for us to consider the validity of such an alternating physical care arrangement. Having examined the entire record, we hold that this is not a case where joint physical care is in the best interest of the children in light of the primary caregiving responsibilities of Delores, the communication and respect issues, the contentiousness of the marriage, and the lack of agreement on daily matters. We conclude that the best interest of the children will be advanced by awarding physical care to Delores rather than to award joint physical care.

At the same time, Lyle has an important role to play in his children’s lives. No one questions his devotion to them and their need for his guidance and support. A responsible, committed, nonresident parent, with good parenting skills, has the potential to engage in a high-quality relationship with his or her child and to positively impact the child’s adjustment. Gilmore, 20 Int’l J.L. & Pol’y & Fam. at 352.

Because the district court ordered the parties to share joint legal custody, Lyle will continue to be involved in major deci-sionmaking for his children. In order to promote the desirable level of physical contact, on remand, the district court should establish liberal visitation for Lyle, which includes visitation every other weekend, commencing at 6:00 p.m. on Friday night and concluding at 6:00 p.m. Sunday evening and every Wednesday night commencing at 6:00 p.m. and ending at 8:00 a.m. Thursday morning. Lyle shall have visitation on his birthday and Father’s Day every year. Delores, conversely, shall have physical custody of the children on her birthday and Mother’s Day each year. In addition, Lyle shall have visitation on every other holiday including New Year’s Day, Easter, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Eve, Christmas, New Year’s Eve. Holiday visitation shall be from 9:00 a.m. to 9:00 p.m. Lyle shall have visitation on the children’s birthdays on odd numbered years, while Delores shall have even numbered years. In addition, Lyle shall have visitation of the children in the summer for a total of four weeks at two two-week intervals. These two-week intervals shall be separated by at least one week. Lyle shall give Delores written notice no later than April 15 of each year of the times at which he wishes to exercise these vacation periods. During one of those two-week intervals, Lyle shall have uninterrupted visitation. Delores is also entitled to exercise one two-week period of visitation exclusive of Lyle’s rights each summer. Delores shall provide Lyle written notice no later than April 30 of each year of the weeks she has selected. Each party is further entitled to uninterrupted visitation during alternating spring breaks. Delores shall have visitation in even numbered years and Lyle shall have visitation in odd numbered years. Finally, the parties shall alternate visitation during Christmas break. In odd numbered years, Delores shall have visitation the first half and Lyle the second. The reverse is true in even numbered years. Lyle is further entitled to any additional visitation that can be agreed upon by the parties.

We expect Delores to support Lyle’s relationship with the children as required by Iowa Code section 598.41(5)(6). Through liberal visitation and the exercise of joint legal custody, the children can realize the benefits of Lyle’s continued involvement in their lives.

B. Property and Alimony Issues.

1. Legal Framework for Property and Alimony Issues.

In dissolution-of-marriage cases, marital property is to be divided equitably, considering the factors outlined in Iowa Code section 598.21(1). Equitable distribution depends upon the circumstances of each case. In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). An equitable division is not necessarily an equal division. In re Marriage of Anliker, 694 N.W.2d 535, 542 (Iowa 2005).

Alimony may also be awarded to a spouse in addition to the distribution of property. “Alimony ‘is a stipend to a spouse in lieu of the other spouse’s legal obligation for support.’ ” In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (quoting In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989)). Whether alimony is awarded depends on the particular circumstances of each case. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). Factors to be considered in awarding alimony are set forth in Iowa Code section 598.21A(1).

2. Value of Marital Residence.

Ordinarily, a trial court’s valuation will not be disturbed when it is within the range of permissible evidence. In re Marriage of Wiedemann, 402 N.W.2d 744, 748 (Iowa 1987). In ascertaining the value of property, its owner is a competent witness to testify to its market value. Holcomb v. Hoffschneider, 297 N.W.2d 210, 213 (Iowa 1980). Although our review is de novo, we ordinarily defer to the trial court when valuations are accompanied by supporting credibility findings or corroborating evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App.1999).

In this case, the district court accepted the valuation of $130,000 offered by Delores in her financial affidavit and in trial testimony. She testified that the figure was based upon an appraisal by a real estate agent. Lyle testified that the marital residence was worth $112,000 based upon a December 31, 2001 valuation performed by a certified appraiser.

While the court of appeals held that the district court erred in valuating the house at $130,000, we find that the district court’s valuation of the marital residence was within the range of the evidence and, as a result, should not be disturbed.

3. Distribution of Marital Assets and Debts.

The second property issue is whether the trial court properly distributed marital assets and debts. The court of appeals found that the district court made a scrivener’s error in its distribution table when it erroneously entered the figure $9,237 for Lyle’s total liabilities and $7,952 for Lyle’s net assets under the distribution plan. In fact, the numbers were transposed: the figure of $9,237 should have been entered as Lyle’s net assets and $7,952 as Lyle’s total liabilities. We agree with the court of appeals that this error should be corrected. When this error is corrected, the payment required by Delores to equalize the distribution of assets is reduced from $23,186 to $22,543.

Both the district court and the court of appeals granted Lyle a $541 deduction for an outstanding debt to J.W. McGrath. Mr. McGrath served as Lyle’s initial counsel in these dissolution proceedings. This allowance is illogical considering that Delores was not given reciprocal credit for her litigation expenses. Attorneys’ fees incurred in dissolution proceedings are not marital debt. See Rodvik v. Rodvik, 151 P.3d 338, 346 (Alaska 2006). It was, therefore, error to characterize the debt to J.W. McGrath as marital debt — it is Lyle’s personal liability. The court, however, does have the discretion to make an award of attorneys’ fees when equitable. In re Marriage of Rosenfeld, 668 N.W.2d 840, 849 (Iowa 2003). Such was the case here where Delores was awarded both trial and appellate attorneys’ fees. To then allow Lyle a credit for his fees would thus be inequitable. While this debt is relatively minor it does affect Delores’ equalization payment. The payment required by Delores to equalize the distribution of assets is reduced from $22,543 to $22,263.

With respect to the district court’s distribution of credit card debt, we note that the Capital One credit card finances the Durango which Delores has been awarded. Further, the Discover credit card represents debt accumulated after the parties’ separation. We see no basis for disturbing the trial court’s disposition of these liabilities. While the AT & T credit card debt was marital debt, we believe it is equitable to require Delores to assume this liability as the level of debt was incurred without Lyle’s knowledge and without his consent.

In determining the total assets retained by each party in the property division, both Lyle and Delores received deductions for obligations owed to relatives. The net value of Lyle’s assets was reduced by $7,391 as a result of loans by Lyle’s sister, Leigh A. Wolf, which were incurred after the parties separated. The net value of assets retained by Delores was reduced by $6,500 as a result of a loan obtained during the course of the marriage from Delores’ parents. The loan Lyle obtained from his sister is not documented by a promissory note or other debt instrument. The loan from Delores’ parents is documented, but payments on the loan have not been made over the past several years.

Delores claims that the trial court erred in assigning to Lyle a liability for an undocumented loan that may or may not be enforced. A similar argument, however, can be made with respect to the loan from Delores’ parents. Loans from family members are not the same as indebtedness to disinterested third parties. There is nothing fundamentally unfair with the district court’s treatment of these liabilities, and we decline to disturb it on appeal.

A Alimony.

Under Iowa law, alimony is not a matter of absolute right, but depends upon the circumstances of each particular case. Anliker, 694 N.W.2d at 540. Factors to be considered in awarding alimony are provided in Iowa Code section 598.21A(l). These factors include: (1) the length of the marriage, (2) the age and physical and emotional health of the parties, (3) the property distribution, (4) the educational level of the parties at the time of the marriage and at the time the dissolution action is commenced, (5) the earning capacity of the party seeking alimony, and (6) the feasibility of the party seeking alimony becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. Iowa Code § 598.21A(l)(a )-(f).

Upon our de novo review of the record, we affirm the court of appeals’ alimony award — $500 per month for a period of ten years. Factors which support the increase in amount and duration of alimony include the comparative income of the parties ($46,300 vs. $18,900), the lack of upward mobility for Delores, and the nature of the property division in which Delores assumes most of the marriage’s high interest liabilities. In re Marriage of Friedman, 466 N.W.2d 689, 693 (Iowa 1991) (length of marriage, disparity of earning capacity); In re Marriage of Hitchcock, 309 N.W.2d 432, 436-37 (Iowa 1981) (earning capacity, present standard of living balanced against relative need of other spouse).

5. Child and Medical Support.

The record demonstrates that both child and medical support were improperly calculated in this case. The undisputed facts are that Lyle’s income is $46,300, not the $43,000 used in determining child support payments. As a result, the court of appeals correctly ordered remand to the district court for recalculation of the child support payment. In addition, on remand, the district court shall determine whether the proper level of child support has been impacted by the disposition of the joint physical care and visitation issues in this opinion.

With respect to medical support, the court of appeals correctly ruled that under Iowa Court Rule 9.12, after the first $250 per child is paid by the custodial parent, the remainder of uncovered medical expenses is to be split in proportion to the parents’ incomes. On remand, the district court should correct this error.

6. Attorneys’ Fees and Costs.

Delores seeks an award of appellate attorneys’ fees. The court of appeals granted Delores $1,000 in attorneys’ fees, with costs assessed to Lyle. In the exercise of discretion, we affirm the court of appeals, but do not award additional attorneys’ fees and costs as a result of this further review.

y. CONCLUSION.

The decision of the court of appeals is affirmed as modified. The decision of the district court is affirmed in part and reversed in part. The decision of the district court ordering joint physical care is reversed. Physical care of the children shall be awarded to Delores, with liberal visitation awarded to Lyle as described in this opinion. The decision of the district court to require Delores to pay Lyle $23,186 is reduced to $22,263. The district court’s award of alimony at $300 per month for three years is reversed and increased to $500 per month, payable over a period of ten years unless Delores dies or remarries. The decision of the district court regarding child and medical support is reversed and remanded for recalculation consistent with this opinion. No further award of attorneys’ fees is made on this appeal.

DECISION OF THE COURT OF APPEALS AFFIRMED AS MODIFIED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH INSTRUCTIONS.

      . Lyle claims the court of appeals did not make specific findings of fact and conclusions of law as required by Iowa Code section 598.41(5)(a ). The court of appeals, however, did find that Delores was the primary caregiver, had been a good mother, that the children had thrived in her care, and that the best interest of the children would be served by awarding Delores physical care. We find that the court of appeals adequately explained its reasoning to meet the requirement of section 598.41(5)(a).


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    John DOE, Appellant, v. IOWA BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 04-1535.
    Supreme Court of Iowa.
    June 22, 2007.

      Michael A. Dee and Rebecca A. Brom-mel of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Theresa O’Connell Weeg and Heather L. Adams, Assistant Attorneys General, for appellee.
   LARSON, Justice.

John Doe appeals the district court’s ruling on judicial review affirming the Iowa Board of Medical Examiners’ disclosure of complaints pending investigation to the Massachusetts Board of Registration in Medicine upon Doe’s application for a medical license in Massachusetts. Doe contends Iowa Code section 272C.6(4) (1999) does not permit such disclosure. On appeal, we affirm the ruling of the district court.

I. Facts and Prior Proceedings.

John Doe was licensed by the Iowa Board of Medical Examiners (board) to practice medicine in Iowa in 1979 and did so until December 2000, when he relocated to Massachusetts. Prior to his relocation, Doe applied for a license to practice medicine in Massachusetts. The Massachusetts Board of Registration in Medicine (Massachusetts board) denied Doe’s application to practice medicine. This denial was based, at least in part, on the existence of three complaints pending investigation by the board that the board disclosed to the Massachusetts board on its request.

In May 2001, Doe filed a complaint with the Iowa State Appeal Board, alleging the board unlawfully disclosed confidential information to the Massachusetts board. The State Appeal Board denied Doe’s claim. In April 2004, Doe filed a petition for judicial review, alleging his substantial rights had been prejudiced by the board’s disclosure of confidential information. After a hearing, the district court affirmed the State Appeal Board’s denial of Doe’s claim, concluding section 272C.6(4) permits the disclosure of complaints pending investigation to other states’ medical licensing authorities. Prior to the hearing, the district court allowed Doe to amend his petition for judicial review to add claims for damages and attorney fees, concluding that such claims are permissible under Iowa Code section 17A.19(10). The board filed an application for appeal in advance of final judgment to determine whether the district court has the authority under Iowa Code section 17A.19(10) to allow a claim for monetary damages to be included in a petition for judicial review. The application was granted, and that issue has been consolidated with Doe’s appeal.

Doe also filed a petition at law against the State of Iowa, contending the State violated section 272C.6(4) by disclosing confidential information to the Massachusetts board. The district court dismissed Doe’s petition, concluding that section 272C.6(4) does not provide a private cause of action for violation of the statute. Doe appealed, and that appeal is also before us as case No. 04-1349.

II. Standard of Review.

We review agency action for correction of errors at law. Harvey’s Casino v. Isenhour, 724 N.W.2d 705, 706 (Iowa 2006). We apply the standards set forth in the Administrative Procedure Act, Iowa Code ch. 17A, to determine whether our conclusions are the same as those of the district court. Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). “Pursuant to Iowa Code section 17A.19(10), a court must reverse agency action when any one of several enumerated circumstances exists and ‘substantial rights of the person seeking judicial relief have been prejudiced’ as a result.” Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 508 (Iowa 2003) (quoting Iowa Code § 17A.19(10)).

The board’s action in this case constitutes “other agency action,” and as such, we review to determine whether the board committed an error of law, or acted unreasonably, capriciously, or arbitrarily. Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 831 (Iowa 2002) (citing Sindlinger v. Iowa State Bd. of Regents, 503 N.W.2d 387, 390 (Iowa 1993)). Agency action is considered arbitrary or capricious when the decision was made “ ‘without regard to the law or facts.’ ” Greenwood Manor, 641 N.W.2d at 831 (quoting Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 764 (Iowa 1998)). Agency action is unreasonable if the agency acted “ ‘in the face of evidence as to which there is no room for difference of opinion among reasonable minds ... or not based on substantial evidence.’ ” Greenwood Manor, 641 N.W.2d at 831 (quoting Citizens’ Aide/Ombudsman v. Rolfes, 454 N.W.2d 815, 819 (Iowa 1990) (citation omitted)).

Additionally, this case involves the board’s interpretation of section 272C.6(4). Our review of the board’s interpretation of statutory language depends on whether such interpretation has “clearly been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A. 19(10)(c). If such discretion has not been clearly vested in the board, we must reverse the board’s decision if it is based on “an erroneous interpretation” of the law. Id. However, if such discretion has been clearly vested in the board, we will only reverse if the board’s interpretation of the statutory language is “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(£). In making this determination, we have stated:

“[The word ‘clearly’] means that the reviewing court, using its own independent judgment and without any required deference to the agency’s view, must have a firm conviction from reviewing the precise language of the statute, its .context, the purpose of the statute, and the practical considerations involved, that the legislature actually intended (or would have intended had it thought about the question) to delegate to the agency interpretive power with the binding force of law over the elaboration of the provision in question.”

Mosher, 671 N.W.2d at 509 (quoting Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 63 (1998)).

Statutory interpretation is normally a judicial function. Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 613 (Iowa 2002). The statutory provision at issue in this case, section 272C.6(4), involves the confidentiality of information obtained in the course of investigating licensee misconduct. Whether information is confidential is not informed by the expertise of the board, but rather focuses on the interests of the parties. The legislature did not give the board discretion to determine what information is, and is not, confidential. Instead, the legislature attempted to draw a line between confidential and public information in the context of licensee discipline and, in so doing, chose not to give the board discretion to do so. Therefore, we review the board’s interpretation of section 272C.6(4) for correction of errors at law pursuant to section 17A.19(10)(c) and not under the more deferential standard of section 17A.19(10)(J).

III. Discussion.

Iowa Code section 272C.6(4) states, in relevant part:

In order to assure a free flow of information for accomplishing the purposes of this section, ... all complaint files, investigation files, other investigation reports, and other investigative information in the possession of a licensing board ... which relates to licensee discipline are privileged and confidential, and are not subject to discovery, subpoena, or other means of legal compulsion for their release to a person other than the licensee and the boards, their employees and agents involved in licensee discipline, and are not admissible in evidence in a judicial or administrative proceeding other than the proceeding involving licensee discipline. However, investigative information in the possession of a licensing board ... which relates to licensee discipline may be disclosed to appropriate licensing authorities within this state, [or] the appropriate licensing authority in another state ... in which the licensee is licensed or has applied for a license.

(Emphasis added.) Section 272C.6(4) provides that all complaint files and investigative information are confidential, subject to a few exceptions. See Doe v. Iowa State Bd. of Physical Therapy & Occupational Therapy Exam’rs, 320 N.W.2d 557, 559 (Iowa 1982). The exception at issue in the present case allows disclosure of investigative information that relates to licensee discipline to another state’s licensing authority in which the licensee is licensed, or has applied for a license. Doe applied for a license to practice medicine in Massachusetts. The Massachusetts board is the appropriate licensing authority in that state. The issue before us, then, is whether the information disclosed by the board, i.e., complaints pending investigation, constitute investigative information “which relates to licensee discipline.”

Our goal in interpreting a statute is to ascertain legislative intent. Locate.Plus.Com, Inc., 650 N.W.2d at 616. In interpreting statutory language,

[w]e construe words and phrases according to the context and approved usage of the language, giving technical words and phrases their appropriate legal meaning. In doing so, we presume, among other things, that the entire statute is intended to be effective, a just and reasonable result is intended, and the public interest is favored over any private interest.

Iowa State Bd. of Physical Therapy, 320 N.W.2d at 559 (citations omitted).

It is helpful to begin our analysis of the exception at issue with a brief discussion of the history of section 272C.6(4). When it was first enacted in 1977, section 272C.6(4) (then section 258A.6(4)) provided that complaint and investigative information relating to licensee discipline was to be kept confidential and was not to be subject to “discovery, subpoena, or other means of legal compulsion for their release to any person, or be admissible in evidence in any judicial or administrative proceeding.” 1977 Iowa Acts ch. 95, § 6(4). Taken literally, section 258A.6(4) did not allow disclosure of complaint or investigative information, even during a disciplinary proceeding arising from that information. As a result, the legislature, during the next legislative session, adopted a technical amendment to section 258A.6(4) providing that complaint and investigative information could not be disclosed to any person “other than the licensee and the boards ... involved in licensee discipline” and was not admissible in any proceeding “other than the proceeding involving licensee discipline.” See Iowa State Bd. of Physical Therapy, 320 N.W.2d at 560-61. We analyzed this disclosure exception in Physical Therapy. In that case, a licensee sought disclosure of a complainant’s identity after the complaint had been investigated, found unsubstantiated, and closed. In concluding that the disclosure exception did not allow disclosure of the complainant’s identity, we held that “the disclosure exception applies only when a disciplinary proceeding has been initiated.” Id. at 559. This holding reinforced the purpose of the section — to ensure the “free flow of information” for complaint and investigative purposes. Id. at 560. We recognized that disclosure of a complainant’s identity after the complaint had been investigated and closed would “have a chilling effect on the willingness of citizens to make complaints.” Id.

The statute was again amended in 1982 to include two additional disclosure exceptions. The first exception authorized the release of investigative information “which relates to licensee discipline” to other states’ licensing authorities. Iowa Code § 272C.6(4). The second exception mandated the release to law enforcement of information that “indicates a crime has been committed.” Id. It is this first exception that is at issue in the present case.

Doe argues, relying on our holding in Physical Therapy, that section 272C.6(4) only allows disclosure of investigative information to other states’ licensing authorities after formal disciplinary proceedings have been initiated. We do not think the legislature intended such a narrow reading of this exception.

The phrase “relates to licensee discipline” is used twice in section 272C.6(4) — first to describe the information that must be kept confidential (“all complaint files, investigation files, other investigation reports, and other investigative information in the possession of a licensing board ... which relates to licensee discipline are privileged and confidential”), and second to describe the information that may be disclosed to other states’ licensing authorities (“However, investigative information in the possession of a licensing board ... which relates to licensee discipline may be disclosed to ... the appropriate licensing authority in another state ... in which the licensee is licensed or has applied for a license.”). Id. In stating that “all complaint files and investigative data are confidential,” we implicitly concluded that all complaint files and investigative information relate to licensee discipline regardless of whether that information leads to the filing of formal disciplinary charges. Iowa State Bd. of Physical Therapy, 320 N.W.2d at 559. This conclusion is logical given the legislature’s use of the broad phrase “relates to.” Relate, as defined in Black’s Law Dictionary, means “[t]o stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Black’s Law Dictionary 1158 (5th ed.1979); see also State v. Owens, 635 N.W.2d 478, 486 (Iowa 2001) (defining “relate” as “to have a relationship with or a connection”); In re Estate of Bickford, 549 N.W.2d 804, 806 (Iowa 1996) (stating that the Supreme Court broadly defines the term “relates to” in the context of ERISA preemption). Section 272C.6(4) was intended to ensure broad confidentiality of all complaint and investigative information pertaining to licensee discipline. By using the same language to describe the type of information that may be disclosed to other states’ licensing authorities, the legislature indicated its intent to provide broad disclosure to such authorities. We think the disclosure at issue in the present case clearly falls within this broad disclosure.

The board disclosed the existence of complaints pending investigation to the Massachusetts board. When a complaint is filed, the complainant is alleging that the licensee engaged in conduct that “threatens or denies citizens of this state a high standard of professional or occupational care.” See Iowa Code § 272C.1(4) (definition of licensee discipline). The board then investigates those allegations and, if substantiated, files formal charges. Formal disciplinary proceedings begin, after which licensee discipline may be imposed. The complaint is the first step in the process of imposing licensee discipline. It sets forth the factual allegations that may, if substantiated, give rise to the imposition of sanctions. As such, it clearly “relates to licensee discipline.”

This conclusion is consistent with our holding in Physical Therapy that information relating to licensee discipline may only be disclosed to the licensee after formal disciplinary proceedings have been initiated. The legislature limited the disclosure exception at issue in Physical Therapy in the timing of disclosure and to whom disclosure was allowed. By requiring that the licensee be “involved in licensee discipline” and that the information be disclosed only in proceedings “involving li-eensee discipline,” the legislature was protecting the' identity of the complainant and ensuring the free flow of information for complaint and investigative purposes. The legislature did not include similar limiting language in the exception at issue in the present case.

Additionally, the policy concerns at issue in Physical Therapy are not of concern in the present case. Disclosure of the identity of a complainant to the licensee who was the subject of the complaint would certainly have a “chilling effect” on the willingness of citizens to file complaints against medical professionals. Iowa State Bd. of Physical Therapy, 320 N.W.2d at 560. Disclosure of the existence of complaints pending investigation to other states’ licensing authorities does not have a similar “chilling effect.” If anything, such disclosure encourages the filing of complaints because potential complainants are assured that the licensee cannot merely transfer jurisdictions to avoid the allegations in the complaint. In this way, Doe’s interest in obtaining a Massachusetts medical license is not exalted over the public’s interest in ensuring that only competent applicants are issued medical licenses. See id. (“[Disclosure of the complainant’s identity] would thus exalt a private interest over the public interest.”).

It is true, as Doe contends, that section 272C.6(4) was not meant solely to protect the complainant, but also to protect the licensee. Section 272C.6(4) ensures that the general public does not have access to complaint or investigative information unless, and until, a final written decision is published and is, therefore, a public record. However, this does not change our analysis. The existence of complaints pending investigation was not disclosed to the public. Rather, it was disclosed to another state’s licensing authority, which, presumably, keeps this information confidential and uses it solely for purposes of determining whether to issue Doe a medical license. Additionally, this information was not affirmatively disclosed to the Massachusetts board — it was disclosed only after Doe applied for a medical license in Massachusetts and authorized the release of such information. Doe’s reputation among the general public or among his colleagues was not influenced by the board’s disclosure because the information was not made available to anyone other than the Massachusetts board.

We acknowledge Doe’s contention that many of the complaints filed against medical licensees are unsubstantiated and, thus, do not result in licensee discipline. However, that does not change the basic fact that the existence of such complaints, while they are pending investigation, relate to licensee discipline and, therefore, may be disclosed to another state’s licensing authority if the licensee applies for a license to practice medicine in that state. We also acknowledge Doe’s argument that some complaints, such as those at issue here, take years to investigate as a result of their complicated nature and the need to wade through voluminous medical records and information. It may be years before a licensee, such as Doe, could inform another state’s licensing authority whether formal disciplinary proceedings arising out of those complaints will be initiated. Doe contends this substantially interferes with his ability to obtain a license to practice medicine in another jurisdiction. Though we emphasize that other states’ licensing authorities are free to give whatever weight they deem appropriate to information disclosed by the board, we agree that the consideration of such information may lead to the denial of an application for a license to practice medicine, as was the case here. However, this provides further justification for our holding.

Chapter 272C was enacted, in part, to protect the public safety by ensuring competency in the medical profession. The board is given broad discretion and great responsibility to fulfill this goal. By allowing broad disclosure to other states’ licensing authorities, the legislature recognized the reality that many medical professionals seek licensure in multiple jurisdictions. The legislature acknowledged Iowa’s responsibility to share information that may aid other states’ licensing authorities in deciding whether to issue a particular applicant a medical license and, thus, better protect its citizens from potentially incompetent medical professionals. This responsibility is also recognized in section 272C.4(8), in which the legislature requires the board to “[g]ive written notice to another licensing board ... if evidence received by the board either alleges or constitutes reasonable cause to believe the existence of an act or omission which is subject to discipline by that other board or agency.” The affirmative sharing of information contemplated by the legislature in section 272C.4(8) is consistent with the confidentiality provisions of section 272C.6(4), and together, these sections create an important mechanism for protecting the public safety when a medical licensee is licensed, or applies for a license, in multiple jurisdictions.

We conclude that complaints pending investigation relate to licensee discipline, and therefore, the board’s disclosure of such complaints to the Massachusetts board upon Doe’s application for licensure in Massachusetts was proper pursuant to section 272C.6(4) and was not unreasonable, capricious, or arbitrary. Because we conclude the board did not violate section 272C.6(4), it is unnecessary to address the additional claims raised in this appeal, on interlocutory appeal, and on appeal in case No. 04-1349.

AFFIRMED.

All justices concur except TERNUS, C.J., who takes no part.

      . Because we conclude the board did not violate section 272C.6(4), we do not address what bearing, if any, Doe’s authorization for release of medical information has on the applicability of section 272C.6(4).


author: /s/Russell A. Anderson Chief Justice

text:
    Shirley BARTZ, Relator, v. MEADOW LANE HEALTHCARE, and Constitution State Services, Respondents.
    No. A07-583.
    Supreme Court of Minnesota.
    June 25, 2007.
    Linda Schoep, Schoep & McCashin, Chtd., Alexandria, MN, for Relator.
    Christine L. Tuft, Arthur Chapman Kettering Smetak & Pikala P.A., Minneapolis, MN, for Respondents.
   AMENDED ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 26, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[s]ummary affirmances have no prece-dential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

BY THE COURT:

/s/Russell A. Anderson Chief Justice


author: /s/ HELEN M. MEYER Associate Justice.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST James Robert BULLIS, a Minnesota Attorney, Registration No. 242317.
    No. A07-1107.
    Supreme Court of Minnesota.
    June 27, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action seeking a 90-day stayed suspension of respondent James Robert Bullís under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR), based on an opinion by the North Dakota Supreme Court suspending respondent for 90 days effective January 1, 2007. The suspension was issued based on respondent’s conflicts of interest in a series of business transactions, which also violated Rules 1.7(a) and (b) and 1.8(a) and (b), Minnesota Rules of Professional Conduct, as those rules read before October 1, 2005.

The Director and respondent have entered into a stipulation in which respondent admits the allegations of the petition for reciprocal discipline, admits his actions violated the above Minnesota Rules of Professional Conduct, and waives his rights under Rule 12(d), RLPR. Because respondent has not practiced law in Minnesota since January 1, 2007, and currently has no Minnesota clients, the parties jointly recommend that the appropriate discipline is a 90-day suspension, stayed conditioned upon payment of costs in the amount of $900 under Rule 24, RLPR, and compliance with Rule 26(e), RLPR (requiring proof of compliance with the provisions of the suspension order).

This court has independently reviewed the file. Although the court deems the recommended discipline of a 90-day suspension appropriate, the court concludes that staying the suspension conditional only upon payment of the $900 in costs required by Rule 24, RLPR, is inappropriate considering the number of transactions in which respondent participated despite conflicts of interest. The court therefore declines to stay the recommended suspension.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent James Robert Bullís is suspended from the practice of law for a period of 90 days, effective upon the filing of this order. Respondent shall pay the sum of $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/ HELEN M. MEYER Associate Justice.


author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Daniel J. MOULTON, a Minnesota attorney, Registration No. 136888.
    No. A05-1865.
    Supreme Court of Minnesota.
    June 27, 2007.
   ORDER

By opinion filed on September 28, 2006, we suspended respondent Daniel J. Moul-ton for a minimum of 90 days for failing to file state and federal employer withholding tax returns and failing to timely pay state and federal employer withholding taxes. In re Moulton, 721 N.W.2d 900, 907 (Minn.

2006). We allowed respondent to apply for reinstatement under Rule 18(f), Rules on Lawyers Professional Responsibility (RLPR), only after he had either made an offer in compromise acceptable to the IRS or had entered into and remained in compliance with a repayment agreement with respect to respondent’s outstanding tax liabilities. Id.

Because of changes in IRS procedures for processing offers in compromise dictated by the Tax Increase Prevention and Reconciliation Act of 2005, P.L. 109-222, 120 Stat. 345 (codified in scattered sections of 26 U.S.C.), respondent moves to amend our September 28, 2006, opinion to allow him to apply for reinstatement before reaching agreement with the IRS as to payment of respondent’s outstanding tax liabilities. See IRC §§ 7122(c)(1)(A), (B) (2007) (describing the procedures for taxpayer submission and IRS evaluation of offers in compromise of federal tax liabilities). The Director of the Office of Lawyers Professional Responsibility opposes respondent’s motion.

We agree that respondent may be reinstated while he continues to negotiate a resolution of his tax obligations.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent’s motion be, and the same is, granted. In addition to the conditions for reinstatement stated in paragraph 2 of our opinion in In re Moulton, 721 N.W.2d at 907, respondent may apply for reinstatement by filing an affidavit with the Clerk of Appellate Courts and the Director attesting that respondent has submitted an offer in compromise to the IRS and has satisfied all conditions for IRS evaluation of the offer. If respondent has not reached agreement with the IRS before he is reinstated, respondent shall report to the Director monthly concerning his progress in reaching an agreement until a written agreement has been signed with the IRS or respondent’s offer in compromise is deemed accepted under federal law.

BY THE COURT:

/s/

Helen M. Meyer Associate Justice