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CourtListener opinion 8484526

Citation: domestic relations order · Date unknown · US

Extracted case name
IN RE THE MARRIAGE OF HEATHER ANN BANISTER AND SHAUN IVAN BANISTER Upon the Petition of HEATHER ANN
Extracted reporter citation
domestic relations order
Docket / number
22-0221
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
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Machine-draft public headnote: CourtListener opinion 8484526 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to ERISA / defined contribution issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

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Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: ERISA / defined contribution issues

Evidence quotes

retirement benefits

ee- day basis. Turning to the division of property, the court largely rejected Heather's claims that Shaun dissipated marital assets. Her claims focused on the sale of the business for less than its purchase price; Shaun's decision to liquidate a 401(k) retirement account; and $53,860.33 in cash withdrawals and advances, unexplained checks, and excessive spending on Shaun's credit cards since their separation.2 When confronted with these latter expenditures, Shaun argued that most were from his move to Iowa and necessary living expenses. On the sale of the business, the court found Heather presented "no evidence on whe

401(k)

day, three- day basis. Turning to the division of property, the court largely rejected Heather's claims that Shaun dissipated marital assets. Her claims focused on the sale of the business for less than its purchase price; Shaun's decision to liquidate a 401(k) retirement account; and $53,860.33 in cash withdrawals and advances, unexplained checks, and excessive spending on Shaun's credit cards since their separation.2 When confronted with these latter expenditures, Shaun argued that most were from his move to Iowa and necessary living expenses. On the sale of the business, the court found Heather presented

domestic relations order

lties of $7946.26. She complains, absent liquidation, there would have been more in the account to divide. But she never asserted at trial, or on appeal, that she did not want the account to be liquidated and instead transferred to her through a qualified domestic relations order to avoid those penalties. Cf. In re Marriage of Retz, No. 11-0447, 2012 WL 3026786, at *2 (Iowa Ct. App. July 25, 2012) ("A balance transfer avoids tax consequences of withdrawing funds from a retirement account."). Though we do not approve of Shaun's unilateral action in cashing out the account in violation of an asset-preservation order, we find no in

valuation/division

, a former stay-at-home mother of three children, appeals the decree dissolving her marriage to Shaun Banister. At the trial on her petition, Shaun complained that he had not gotten "a sniff of a win since this whole thing started." So to be "fair with the property division and with the kids," he asked for everything to be split "down the middle," children included. The district court went along with Shaun's request and placed the children in the parties' joint legal custody and physical care. On appeal, Heather challenges that decision, along with the court's division of the parties' property and treatment of attorney fee

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reporter: domestic relations order · docket: 22-0221
Generated at
May 14, 2026

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Clean opinion text

IN THE COURT OF APPEALS OF IOWA

 No. 22-0221
 Filed November 17, 2022

IN RE THE MARRIAGE OF HEATHER ANN BANISTER
AND SHAUN IVAN BANISTER

Upon the Petition of
HEATHER ANN BANISTER,
 Petitioner-Appellant,

And Concerning
SHAUN IVAN BANISTER,
 Respondent-Appellee.
________________________________________________________________

 Appeal from the Iowa District Court for Lyon County, Shayne Mayer, Judge.

 Heather Banister appeals a dissolution-of-marriage decree. AFFIRMED

AS MODIFIED AND REMANDED.

 Missy J. Clabaugh, Sioux Center, for appellant.

 Matthew T. E. Early of Matthew Early Law Office, Spirit Lake, for appellee.

 Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.
 2

BADDING, Judge.

 Heather Banister, a former stay-at-home mother of three children, appeals

the decree dissolving her marriage to Shaun Banister. At the trial on her petition,

Shaun complained that he had not gotten "a sniff of a win since this whole thing

started." So to be "fair with the property division and with the kids," he asked for

everything to be split "down the middle," children included. The district court went

along with Shaun's request and placed the children in the parties' joint legal

custody and physical care. On appeal, Heather challenges that decision, along

with the court's division of the parties' property and treatment of attorney fees.

I. Background Facts and Proceedings

 Shaun is a native of New Mexico, while Heather grew up in Iowa, where her

family still lives. The parties met in August 2014 when Shaun was working on the

road in Sanborn, Iowa on a wind turbine project. They began living together about

three months later, soon after Heather found out she was pregnant with the

couple's first child. When the parties met, Shaun's employment in the wind turbine

industry required him to work long hours. Heather had a teaching degree, but

because she could not find full-time employment in that field, she supplemented

her substitute teaching jobs with work in flooring sales. The parties' relationship

from there is a tale of travels, with frequent moves driven by Shaun's work. From

the fall of 2014 through the spring of 2015, the parties lived together in Texas,

where Shaun went for turbine work during the offseason in Iowa.

 The parties moved back to Sanborn in March 2015 and remained there until

November 2016. After the parties' first child was born in June 2015, Heather
 3

stayed home to care for him, while Shaun continued to work long hours away from

home. The parties married in February 2016.

 After their marriage, the parties moved to Carlsbad, New Mexico for the

winter months between November 2016 and March 2017. While there, Shaun

worked odd jobs for his uncle Melvin, and Heather stayed home with the child.

According to Heather, even though Shaun's work schedule during this time was

much less demanding than when he worked with wind turbines, their parenting

roles did not change. Heather continued to provide most of the care for the parties'

child with little involvement from Shaun.

 The parties returned to Iowa and lived in Ames from April to July 2017. Their

second child was born shortly after the move to Ames. While there, Shaun

returned to his work with wind turbines, which again involved long hours. During

the first month following their return to Iowa, Shaun lived in his boss's camper and

would only visit Heather and the children on weekends.

 In July 2017, the parties moved to Humboldt, where they remained until

April 2019. Though they were back to living together, Shaun was still minimally

involved with the children, preferring to let Heather do most of the caretaking. The

goal, according to Shaun, was for him "to work ungodly hours, save up as much

money as possible, and build a house" in New Mexico. To that end, the parties

bought a lot in New Mexico from Shaun's uncle Melvin. From April through October

2019, Heather and the children lived with Heather's sister in Rock Rapids, Iowa,

while Shaun lived in an RV he used to travel between job sites. He typically visited

Heather and the children every other weekend.
 4

 In October 2019, the parties began renting a house in Rock Rapids. By

then, the marriage was "pretty rocky." The couple's third child was born in January

2020. Just a few months later, they were discussing divorce. Yet in April, Heather

agreed to move back to Carlsbad with Shaun in a final effort to save the marriage.

The impetus for the move was the sale of a heating-and-cooling business in New

Mexico once owned by Shaun's uncle, Melvin. The parties purchased the

business on July 1, though Shaun took over managerial duties of the business

soon after the family moved to Carlsbad. Shaun felt it was the right time to make

this change because the wind turbine business was slowing down. It also

dovetailed with the parties' plan to build a home in New Mexico. Shaun explained:

 [T]he whole point of me going down there was to be with family and
 to get off the road, quit building wind turbines and try to be home a
 little more even though I knew and I told her at the start it's going to
 be tough. It's going to take a little time to get the thing out of the hole
 and I would be busy.

 The purchase price for the business was $100,000.00, with $50,000.00 due

at closing, $25,000.00 by October 1, 2020, and another $25,000.00 by January 1,

2021. The parties borrowed the initial $50,000.00 from Shaun's uncle. They then

deposited $75,000.00 from their personal account into the business account to get

the business going, which took considerable work on Shaun's part. To pull the

business "out of the gutter," Shaun was working from "sun up until sun down." He

was "trying to bid jobs, sell jobs, run the crane, run the crews, order equipment, do

inventory, keep the lights on, pay the bills." In the midst of this scramble, Heather
 5

and the children left Carlsbad on July 7 and returned to Rock Rapids,1 where they

began living with Heather's parents. Heather told Shaun she was just taking the

children to Iowa for a visit, but within a day or two of her arrival there, she filed for

divorce. She then obtained a job at a dentist's office, where she works thirty-two

hours per week, and enrolled the children in daycare and school.

 Shaun remained in Carlsbad until December 2020, when he moved to

Larchwood, Iowa to be closer to the children. He began renting a house and

obtained employment with a local heating-and-cooling company. In Shaun's

absence, his uncle Melvin agreed to run the business in New Mexico until it could

be sold. Melvin looked for buyers before eventually agreeing to purchase the

business himself for $75,000.00. The sale was completed at the end of December

2020, with Melvin forgiving the $50,000.00 he had loaned the parties and paying

Shaun $25,000.00. Although not specified in the purchase agreement, Melvin said

he also waived $62,500.00 due to him in lease payments for the building housing

the business. Shaun testified that selling to Melvin was pretty much his only option.

Melvin agreed, testifying: "If I hadn't stepped in, there would be no business,

period." But within days after Melvin bought the business, he turned around and

sold it to a company from Roswell, New Mexico for $125,000.00.

 Following a hearing on temporary matters in mid-December, the court

placed the parties' children in their joint legal custody, with physical care to

Heather. Given her role as the historic "primary caregiver" of the children, the court

1 The district court denied Shaun's motion to dismiss the dissolution petition for
lack of jurisdiction after crediting Heather's testimony that she moved to New
Mexico on a conditional basis and returned to Iowa within five months.
 6

concluded that "[a] shared care arrangement would be too much of a change for

the children's mental, emotional and physical health." Shaun had the children in

his care every other weekend from Friday evening to Sunday evening and every

Wednesday overnight. With this parenting schedule, and his less demanding job,

Shaun became a more involved father. He testified this was an "eye-opening"

experience for him: "[I]t's gotten a lot better now. I never had to do—it's kind of

like if you didn't know how to ride a bike. You're not just going to jump on and ride

a bike. You've got to crash a few times." Heather agreed "Shaun has definitely

taken on a different role as father of the children since he . . . relocated back to

Iowa."

 The case proceeded to trial over three days in April and May 2021. The

primary issues were the parties' competing requests on physical care—with

Heather wanting physical care and Shaun seeking joint physical care—and

distribution of the marital estate. Heather's case for physical care focused on her

role as primary caregiver of the children, Shaun's claimed overbearing personality,

and communication problems between the parties. For his part, Shaun

acknowledged Heather was the primary caregiver during the marriage, but he

contended that since their separation, "everything is totally different. . . . She's

working as well. I mean, basically the daycare is raising the little ones and the

school is raising" the oldest.

 In its decree, the district court acknowledged that during the marriage,

Heather was the primary caregiver, with Shaun working long hours, often away

from home. But the court found that since Shaun's return to Iowa in December

2020, he
 7

 has been an involved parent who loves his children. He has
 exercised all the visitation awarded to him as well as any additional
 time offered by Heather, has become involved in the children's
 activities such as dance, and has pursued a job that allows him to be
 present for his children.

The court also found each party's home was appropriate; the children are bonded

to both of them; and each can "provide for the emotional, social, moral, material

and educational needs of the children." As to Heather's allegations of conflict and

inability to communicate, the court found the parties' communications to be nothing

more than "indicative of a couple going through a divorce." So the court granted

Shaun's request for joint physical care on an alternating two-day, two-day, three-

day basis.

 Turning to the division of property, the court largely rejected Heather's

claims that Shaun dissipated marital assets. Her claims focused on the sale of the

business for less than its purchase price; Shaun's decision to liquidate a 401(k)

retirement account; and $53,860.33 in cash withdrawals and advances,

unexplained checks, and excessive spending on Shaun's credit cards since their

separation.2 When confronted with these latter expenditures, Shaun argued that

most were from his move to Iowa and necessary living expenses.

 On the sale of the business, the court found Heather presented "no

evidence on whether or not there would have been a better purchase price" when

it was sold. For the $7946.26 in penalties incurred when Shaun cashed in his

401(k) retirement account, the court found it fair that Heather should share in that

2 Heather also complained about $2991.15 that Shaun spent on "unreasonable
cost insurance despite being informed the children already had Medicaid/Title 19
at no cost," bringing her dissipation total to $56,851.48. But she does not include
the claimed unnecessary health insurance cost in her arguments on appeal.
 8

liability since she got one-half of the proceeds.3 The court agreed with Heather

that Shaun had dissipated $6000.00 in money he gambled at a casino. As for the

rest of the money Heather claimed Shaun squandered, the court only specifically

addressed Shaun's purchase of new furniture for his residence in Iowa, which it

concluded was not dissipation because he "will be paying for those assets" by

"taking on as debt, the credit card that was used" for the purchase. The court then

awarded each of the parties any personal property in their possession, but

assigned values only for their vehicles, guns, Heather's camera, Shaun's tools,

and personal property located in New Mexico to be split by the parties. Finally, the

court declined to include a $10,772.70 loan from Heather's father for her attorney

fees as a debt to her, although the court did include $10,000.00 in attorney fees

that Shaun charged to his credit card shortly before trial. Each party was then

ordered to pay their own attorney fees.

 Heather moved to reconsider, enlarge, or amend. Among other things, she

complained about the court's handling of the parties' debts for their attorney fees.

She also complained that the court did not include "all of the household and

personal property Shaun acquired following separation" as assets to Shaun even

though it included debts for those assets on Shaun's side of the balance sheet.

The court denied Heather's motion as to each of these items.

 Heather appeals, claiming (1) the court should have placed the children in

her physical care rather than in the parties' joint physical care; (2) the division of

3The account was valued at $31,250.84 with a surrender value of $23,838.81.
After Shaun cashed it out, he cut Heather a check for one-half of the surrender
value.
 9

marital assets was inequitable because it did not properly account for (a) Shaun's

sale of the business for below fair market value, (b) "dissipation of other assets,"

including Shaun's unexplained and unnecessary cash withdrawals, credit card

charges, and the penalties incurred from Shaun's liquidation of his 401(k), (c) the

value of property Shaun purchased when he moved to Iowa, and (d) debt

associated with attorney fees; and (3) the court abused its discretion in denying

her request for an award of attorney fees.

II. Standard of Review

 Our review of dissolution proceedings is de novo. Iowa R. App. P. 6.907;

see also In re Marriage of Pazhoor, 971 N.W.2d 530, 537 (Iowa 2022). While we

give weight to the factual findings of the district court, especially when considering

the credibility of witnesses, we are not bound by them. Iowa R. App. P. 6.904(3)(g);

In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007).

III. Analysis

 A. Physical Care

 We begin with Heather's claim that the district court should have placed the

children in her physical care. She emphasizes her role as the historical caregiver

of the children and submits the parties' inability to effectively communicate, the

degree of conflict between them, and their "inability to see eye-to-eye on child

related issues" weigh against joint physical care.

 Where, as here, "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." Iowa Code § 598.41(5)(a) (2020). "The objective of a physical care

determination is to place the children in the environment most likely to bring them
 10

to health, both physically and mentally, and to social maturity." In re Marriage of

Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Generally, courts consider the factors

in Iowa Code section 598.41(3) and In re Marriage of Winter, 233 N.W.2d 165,

166–67 (Iowa 1974), when reaching physical care decisions.4 Courts consider the

following nonexclusive factors in determining whether a joint-physical-care

arrangement is in the best interests of children:

 (1) "approximation"—what has been the historical care giving
 arrangement for the child[ren] between the two parties; (2) the ability
 of the spouses to communicate and show mutual respect; (3) the
 degree of conflict between the parents; and (4) "the degree to which
 the parents are in general agreement about their approach to daily
 matters."

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

Hansen, 733 N.W.2d at 697–99). "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." Hansen, 733 N.W.2d at 695.

 The first factor clearly weighs in Heather's favor. Before the parties

separated in July 2020, Shaun had little involvement with the children. For several

extended periods when he was working out of town, Shaun's contact with the

children was limited to visits every other weekend. And even when he wasn't

working, Shaun agreed his parenting consisted of "wrestling with [the children] on

the floor, playing with them." He explained, "When they're tiny, I mean, how many

4 "The factors the court considers in awarding custody are enumerated in Iowa
Code section 598.41(3)." In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.
App. 1996). "Although Iowa Code section 598.41(3) does not directly apply to
physical care decisions, . . . the factors listed here as well as other facts and
circumstances are relevant in determining" physical care. Hansen, 733 N.W.2d at
696. While the statutory factors are relevant considerations, Heather focuses her
argument on the Hansen factors.
 11

men do you see just, oh, holding them all day?" In an affidavit submitted to the

court for the temporary hearing,5 Shaun said, "There were times that I felt I needed

to be left alone, and I felt Heather was intentionally pushing the children on me."

As a stay-at-home mom, Heather handled pretty much every aspect of the

children's care. She testified that "even on the weekends when [Shaun] was home,

he had the ability to turn that parent[ing] on or off . . . when he felt like it," while she

"never shut it on and off." Shaun's involvement only increased during the few

months between his return to Iowa in December 2020 and trial in April and May

2021.

 So the question is, how heavily should the approximation factor weigh in

Heather's favor? "In considering whether to award joint physical care where there

are two suitable parents," as we have here, "stability and continuity of caregiving

have traditionally been primary factors." Id. Those factors, which are expressed

in terms of the approximation rule, "tend to favor a spouse who, prior to divorce,

was primarily responsible for physical care." Id. This is because "successful

caregiving by one spouse in the past is a strong predictor that future care of the

children will be of the same quality." Id. at 697. Past caretaking patterns are also

"a fairly reliable proxy of the intangible qualities such as parental abilities and

emotional bonds that are so difficult for courts to ascertain." Id. at 696 (citation

omitted). "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." Id. at 696–97.

5 The parties asked the court to take judicial notice of the entire file, specifically
including the affidavits they submitted for the temporary hearing.
 12

 Our supreme court in Hansen recognized there may be circumstances that

"outweigh considerations of stability, continuity, and approximation," like where "a

primary caregiver has abandoned responsibilities or had not been adequately

performing his or her responsibilities because of alcohol or substance abuse." Id.

at 697. There are no such circumstances present here. Indeed, even when Shaun

became more involved with the children after moving to Iowa, he still left certain

caretaking duties to Heather. For instance, when asked about his oldest child's

education, Shaun testified, "I know [Heather] loves going through [homework]. . . .

That's kind of her thing. Just like scheduling birthday parties or whatever." As for

other caretaking duties, like disciplining the children or implementing their nap

schedule, Shaun said that he was still "learning" and trying to follow Heather's lead.

 While that's good, we are not concerned with whether Shaun can learn

these parenting skills but whether the children should be placed in a caretaking

arrangement that is significantly different from what they are used to. See In re

Marriage of Arnold, No. 08-1103, 2009 WL 779041, at *3 (Iowa Ct. App. Mar. 26,

2009) ("[T]he factors of stability and continuity of caregiving focus on the caretaking

arrangement prior to the parties' separation." (emphasis added)). Our cases tell

us they should not, all other things being equal. See Hansen, 733 N.W.2d at 697

("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."). And here, all other

things were not equal.

 Much of the evidence at trial focused on what Heather argued was the

parties' inability to communicate and show mutual respect, as well as the degree
 13

of conflict between them. Id. at 698. In support of this argument, Heather relies

on text messages and emails between the parties that she says show their

"struggles with communication, lack of trust, and lack of respect." There are a few

text messages and emails that show communication problems, but they are not

pervasive. On the whole, the parties' written communication with one another was

mostly respectful and showed an ability to set aside their differences for the

children. But conflict remained in their personal interactions, with Shaun testifying:

"[M]e and her don't get along. We never have really from the start. We don't see

eye-to-eye on a lot of decisions." See id. ("[T]he degree of conflict between parents

is an important factor in determining whether joint physical care is appropriate.").

 Heather described Shaun's behavior as "explosive" at times. There were

several occasions when Shaun got upset and threw things, one time a backpack

that hit the parties' oldest child in the hand. Shaun also had an encounter with the

owner of the children's daycare that almost led to him being banned from the

premises. On another occasion, about six months into their separation, Shaun

saw Heather's truck in the parking lot of a bar early one morning on his way home

from Kansas City. He tracked down the bar's manager, asking her questions about

who Heather had been with and wanting to see footage from the bar's security

cameras. Heather was upset by this, as well as by Shaun visiting her work

unannounced on a couple of occasions. She described Shaun as controlling.

Shaun did not necessarily disagree with that description, testifying he could be

"overbearing" and "pretty particular about stuff." See id. ("Evidence of controlling

behavior by a spouse may be an indicator of potential problems.").
 14

 Though these are not the most severe instances of conflict we have seen

in custody cases, they are enough to tip the scales toward physical care with

Heather when combined with her role as the children's primary caretaker during

the marriage. See, e.g., In re Marriage of Thompson, No. 17-0481, 2017

WL 6026727, at *2 (Iowa Ct. App. Nov. 22, 2017) (finding joint care not in children's

best interest where "[a]pproximation heavily favors awarding [one parent] physical

care"); In re Marriage of Garcia Lopez, No. 16-0915, 2016 WL 6269895, at *2 (Iowa

Ct. App. Oct. 26, 2016) (same); O'Brien v. Wygle, No. 13-1210, 2014 WL 1714956,

at *3 (Iowa Ct. App. Apr. 20, 2014) (same). We have also considered Shaun's

testimony about why he was seeking joint physical care, which focused on himself

rather than the children. When asked, "Do you believe it's in the best interests of

your children as well as in their long-range interests for you and Heather to be

awarded joint physical care," Shaun responded: "I think it should be fair down the

middle." But physical care decisions "are not to be resolved based upon perceived

fairness to the spouses, but primarily upon what is best for the child." Id. at 695.

So while joint physical care might fulfill Shaun's wish for fairness between him and

Heather, we do not believe it's in the children's best interest given the caretaking

arrangement in place during the marriage.

 We accordingly modify the decree to place the children in Heather's

physical care and remand for the district court to establish Shaun's parenting

schedule and child-support obligation.

 B. Property Division

 Heather next challenges the district court's property division, focusing on

the court's failure to account for Shaun's claimed dissipation of assets. Dissipation
 15

of assets is a proper consideration when attempting to achieve an equitable

division of property. See Fennelly, 737 N.W.2d at 104. "The dissipation doctrine

applies when a spouse's conduct during the period of separation results in the loss

or disposal of property otherwise subject to division at the time of divorce." In re

Marriage of Kimbro, 826 N.W.2d 696, 700–01 (Iowa 2013) (citation omitted). "If

improper loss occurs, the asset is included in the marital estate and awarded to

the spouse who wasted the asset." Id. (citation omitted). But the doctrine "does

not apply if the spending spouse used the monies for legitimate household and

business expenses." Id. (citation omitted). With this framework in mind, and the

goal of achieving an equitable distribution, see Fennelly, 737 N.W.2d at 102, we

turn to Heather's specific dissipation claims.

 1. Business Asset

 Heather first argues the district court's division of the marital estate "failed

to account for the value added to the business and Shaun's . . . below-fair-market-

value-sale of business to his uncle." The parties purchased the business shortly

before their separation in July 2020 for $100,000.00. Heather complains Shaun

unilaterally sold the business at the end of December for only $75,000.00, and

Melvin's sale of the business just a few days later for $125,000.00 shows Shaun

sold it for below market value, thus resulting in a loss to the marital estate of

$50,000.00. So she thinks Shaun should be attributed that amount as an asset.

 What Heather ignores is that Shaun's decision to sell the business to Melvin

led to Melvin waiving the parties' liability for twenty-five months' worth of rent under

the shop lease, totaling $62,500.00. As a result, the transaction was more

beneficial to the marital estate than it would have been had the business been sold
 16

for the price Heather submits it should have been. We find no inequity to Heather

on this point and affirm. See In re Marriage of Hansen, 886 N.W.2d 868, 871 (Iowa

Ct. App. 2016) ("We will disturb the district court's ruling only when there has been

a failure to do equity.").

 2. Other Alleged Dissipation

 Heather next argues Shaun engaged in unnecessary and unexplained

spending after the parties' separation. She points to her exhibit 57, and argues

Shaun dissipated the marital estate with $7730.13 in "[c]ash withdrawals/

advances"6 and $40,130.20 in "[l]arge unexplained checks/charges."7

 A two-prong test is used to assess a dissipation claim. Kimbro, 826 N.W.2d

at 701. First, the "court must decide whether the alleged purpose of the

expenditure is supported by the evidence. Id. (citation and internal quotation

marks omitted).

 When a spouse claims the other party dissipated assets and can
 identify the assets allegedly dissipated, the burden shifts to the
 spending spouse to show how the funds were spent or the property
 disposed of by testifying or producing receipts or similar evidence. It
 is not enough for a spouse to merely show the incurrence of
 expenditures during the period of separation. The spouse also must
 show a nexus between the payment of the expenses and the use of
 the marital assets at issue.

6 The exhibit covers $13,730.13 for these items, but Heather agrees the court
attributed $6000.00 of this amount as an asset to Shaun for gambling losses.
7 Heather also notes in her appellate brief that Shaun wrote himself a check for

$30,000.00 from the business account for his "investment return" and provided
none of those funds to her. On appeal, she requests that this amount be included
as an asset to Shaun. The problem is that she did not raise this issue in district
court, where her dissipation claim was limited to the amounts identified above, plus
the new furniture and appliances Shaun bought when he moved to Iowa. So we
cannot provide her with relief on appeal. See Woods v. Charles Gabus Ford, Inc.,
962 N.W.2d 1, 5 (Iowa 2021) ("It is a fundamental doctrine of appellate review that
issues must ordinarily be both raised and decided by the district court before we
will decide them on appeal." (citation omitted)).
 17

Id. (internal citations and quotation marks omitted). If an evidentiary basis for the

expense is established, then "the court advances to the second prong, which asks

whether that purpose amounts to dissipation under the circumstances." Id.

(citation and internal quotation marks omitted). This second assessment is based

on these factors:

 (1) the proximity of the expenditure to the parties' separation, (2)
 whether the expenditure was typical of expenditures made by the
 parties prior to the breakdown of the marriage, (3) whether the
 expenditure benefited the "joint" marital enterprise or was for the
 benefit of one spouse to the exclusion of the other, and (4) the need
 for, and the amount of, the expenditure.

Id. (citation omitted).

 The court based its property distribution upon "what it believe[d] to be the

most credible evidence in the record." Of the more than $53,000.00 in assets

Heather claimed Shaun dissipated, the court only found $6000.00 in gambling

expenses amounted to dissipation. Heather claimed Shaun's spending since

separation was extravagant when compared to his spending during the marriage,

while Shaun testified his spending was "[n]ot at all different." He added that he

"like[s] to have cash in [his] pocket," and would spend it on "little things," gas, food,

necessities of life, etc.

 The bank records, which show some of Shaun's spending habits before the

parties' separation, support Shaun's testimony. See In re Marriage of Bischof,

No. 12-2005, 2013 WL 4769389, at *5 (Iowa Ct. App. Sept. 5, 2013) (finding

spouse's testimony satisfied the burden to show no dissipation of marital assets

occurred). We also note that many of the expenses and cash withdrawals were

incurred after Shaun relocated to Iowa to be closer to the children. See In re
 18

Marriage of Drenter, No. 17-1548, 2019 WL 478195, at *2 (Iowa Ct. App. Feb. 6,

2019) ("There are transitional expenses associated with a dissolution proceeding

as the parties transition from married life to single life."). While the court did not

specifically say so, it is implicit that the court found Shaun more credible. We defer

to that credibility finding and, like the district court, find these expenditures do not

amount to dissipation. See Fennelly, 737 N.W.2d at 100 (giving weight to "trial

court's factual findings, especially with respect to the credibility of the witnesses"

(citation omitted)).

 In this same category, Heather argues that Shaun's liquidation of his 401(k)

amounts to dissipation because it resulted in early withdrawal penalties of

$7946.26. She complains, absent liquidation, there would have been more in the

account to divide. But she never asserted at trial, or on appeal, that she did not

want the account to be liquidated and instead transferred to her through a qualified

domestic relations order to avoid those penalties. Cf. In re Marriage of Retz,

No. 11-0447, 2012 WL 3026786, at *2 (Iowa Ct. App. July 25, 2012) ("A balance

transfer avoids tax consequences of withdrawing funds from a retirement

account."). Though we do not approve of Shaun's unilateral action in cashing out

the account in violation of an asset-preservation order, we find no inequity to

Heather, especially considering that Shaun was ordered to "pay any remaining

taxes owed to the withdrawal."

 3. Purchased Assets

 This leaves us with the property that Shaun purchased post-separation.

On that issue, Heather complains the district court's balance sheet did not include

those items of property as assets, even though it did include the debt incurred for
 19

buying at least some of those assets as liabilities. She points out that Shaun spent

$7198.68 on new furniture, $2448.44 on a stove and fridge, and $1580.77 on a

washer and dryer set, none of which was included on his side of the balance sheet

as assets. We agree this was inequitable given that the court awarded each of the

parties the personal property presently in their possession, determining "that

personal property to be of equal value," and there was no evidence Heather bought

any personal property comparable in value to the assets Shaun purchased.

 For relief, Heather requests either addition of the items as assets or removal

of them as debts from Shaun's side of the ledger. Because we have a solid figure

on the remaining debt for the furniture bought on the Wells Fargo card, $6898.68

as shown on the court's ledger, we modify the decree to remove that as a debt to

Shaun. The remaining furniture and appliances are a little trickier because no debt

is linked to those items. Instead, all we have is what was paid for the remaining

furniture and appliances, with no used value. According to our review of the

evidence, Shaun spent $3535.18 on other furniture and $4029.21 on appliances,

for a total of $7564.39. Because these purchases were made close in time to the

dissolution trial, we find it is equitable to attribute those amounts to Shaun as an

additional asset. We note this is also within the range of the parties' own

valuations.8 With these adjustments, Shaun's asset distribution would increase by

$7564.39, and his liability distribution would decrease by $6898.68.

8In their pretrial filing, Shaun valued the "[p]ersonal property [he] purchased for
new residence" at $6500.00, while Heather valued it at $10,000.00.
 20

 4. Attorney Fee Liabilities

 Lastly, Heather challenges the district court's decision to include the

$10,000.00 Shaun charged on his credit card shortly before trial for his attorney

fees but not include the $10,772.20 she borrowed from her father for her attorney

fees. She asks that these debts be treated similarly. We agree that is the equitable

thing to do.

 "Attorneys' fees incurred in dissolution proceedings are not marital debt."

Hansen, 733 N.W.2d at 703. So any outstanding debt of either party should not

have been included as a marital liability and included in the balance sheet. Clearly,

$10,000.00 of the credit card debt assigned to Shaun was a debt stemming from

attorney fees. His debt assignment should therefore be reduced by another

$10,000.00.9 This will result in the parties' outstanding attorney-fee liabilities being

"similarly" treated as personal liabilities outside the marital estate. See id.

 5. Recalculation

 For these reasons, Shaun's assets assignment would be increased by

$7564.39, and his liability assignment would be decreased by a total of

$16,898.68. These adjustments increase Shaun's equalization payment to a final

amount of $12,745.49. We modify the decree accordingly.

 C. Trial Attorney Fees

 Heather relatedly argues the court erred in denying her request for an award

of trial attorney fees of $18,089.70. But her request is conditioned on our court

declining to modify the property distribution to treat the parties' outstanding

9Heather asks that the entirety of that credit card debt be wiped, but it only appears
$10,000.00 was attributable to attorney fees.
 21

attorney fees similarly. Because we are modifying the dissolution decree in that

manner, the condition Heather puts on her request is not triggered. So we affirm

on this point.

 D. Appellate Attorney Fees

 Finally, Heather requests an award of appellate attorney fees of $23,730.00.

An award of appellate attorney fees is not a matter of right but rests within the

appellate court's discretion. Berning, 745 N.W.2d at 94. The court considers "the

needs of the party seeking the award, the ability of the other party to pay, and the

relative merits of the appeal." In re Marriage of Okland, 699 N.W.2d 260, 270

(Iowa 2005) (citation omitted). Both parties have similar incomes, and the costs of

this litigation no doubt ate up most, if not all, of the liquid value of the marital estate.

We accordingly decline Heather's request, even though she was partially

successful on appeal. The costs of the appeal are assessed against Shaun.

IV. Conclusion

 We modify the dissolution decree to place the parties' children in Heather's

physical care and remand to establish Shaun's parenting schedule and child-

support obligation. We also modify the property distribution as detailed above,

increasing Shaun's total equalization payment to $12,745.49. With equitable

treatment of the parties' attorney-fee liabilities, we affirm the denial of trial attorney

fees to Heather. We also deny Heather's request for appellate attorney fees, but

we assess the costs of the appeal against Shaun.

 AFFIRMED AS MODIFIED AND REMANDED.