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IN RE THE MARRIAGE OF CHRISTOPHER A. LARSEN and ANGELA S. LARSEN. Upon the Petition of CHRISTOPHER A. LARSEN, Petitioner-Appellee, And Concerning ANGELA S. LARSEN, Respondent-Appellant.

HECHT, J.

Christopher and Angela Larsen were married on September 10, 1991. Four children were born during the marriage, Shea, born January 10, 1992, Trevor, born February 26, 1993, Kaylee, born February 11, 1995, and Dakota, born September 15, 1998. On April 23, 2001, Christopher filed a petition for dissolution of the marriage. Following a trial, the court dissolved the marriage. It granted the parties joint legal custody of the children, but named Christopher their physical caretaker. The court also awarded Christopher the family home subject to all indebtedness, but awarded him no child support. Angela appeals.

Dissolutions of marriage are equitable proceedings and our review is de novo. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). Our review of a custody order is also de novo and our primary consideration is the best interests of the children. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995). In assessing a custody order, we give considerable weight to the judgment of the district court, which has had the benefit of hearing and observing the parties first-hand. Id. at 278. Additionally, we consider other factors when resolving physical care decisions, such as were outlined by our supreme court's decision in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).

The trial court based it decision to grant Christopher the children's physical care largely on Angela's current medical condition, which it noted places substantial limitations on her. On our de novo review of the record, we agree. Angela has been determined to be totally disabled by the Social Security administration based on her migraine headaches. Evidence was presented that she has a history of depression, frequently "sleeps in," and has left the children unattended. We believe her medical condition will affect the level of care and attention she will be able to give the children.

Angela asserts that because she was the primary caretaker during the marriage, the court should have awarded her physical care of the children. Due to Christopher's lengthy workdays and the fact Angela does not work, we agree Angela spent the greater amount of time caring for the children. However, greater primary care experience is one of many factors the court considers but it does not ensure an award of physical care. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa 1995). Christopher is a hard-working, motivated individual who clearly cares for the children. These traits will serve him well as the children's primary caretaker. Accordingly, because we have affirmed the custody order, we also deny Angela's request to grant her child support and award her the house.

Angela requests an award of appellate attorney fees. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). We award no attorney fees in this matter. Costs to be assessed equally.

AFFIRMED.
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IN RE THE MARRIAGE OF LARSEN, 02-0385 (Iowa App. 11-25-2002)
(Nov 25, 2002)