Deauntre Will Smith v. Jessika Nicole Chesmore ( 2023 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 22-0744
    Filed January 25, 2023
    DEAUNTRE WILL SMITH,
    Petitioner-Appellee,
    vs.
    JESSIKA NICOLE CHESMORE,
    Respondent-Appellant.
    ________________________________________________________________
    Appeal   from     the   Iowa   District   Court   for   Muscatine   County,
    Tamra Roberts, Judge.
    A mother appeals from a district court order granting the father sole legal
    custody and physical care of their daughter. AFFIRMED AS MODIFIED.
    Eric D. Puryear and Eric S. Mail of Puryear Law P.C., Davenport, for
    appellant.
    Jeannette Keller of Bowman, DePree and Murphy, LLC, West Liberty, for
    appellee.
    Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
    2
    BADDING, Judge.
    Six-year-old Z.A.S. was born during what her father, DeAuntre Smith, said
    was a toxic relationship with her mother, Jessika Chesmore.             Though their
    relationship ended, the toxicity continued, leading to the district court’s decision to
    place Z.A.S. in Smith’s sole legal custody and physical care. Chesmore appeals,
    claiming the court should have (1) granted the parties joint legal custody as they
    agreed; (2) adopted the parties’ stipulated visitation schedule; and (3) placed
    Z.A.S. in her physical care. We affirm as modified.
    I.     Background Facts and Proceedings
    Smith and Chesmore’s relationship began in 2015, when Chesmore was
    pregnant with another man’s child. The couple moved in together after about two
    months of dating. Smith said their relationship was good at first but soon soured.
    They started having arguments “out of nowhere,” according to Smith. One of those
    arguments led to Smith being arrested for domestic abuse assault and displaying
    a dangerous weapon. He pled guilty to the weapons charge and spent twenty-five
    days in jail. When Smith was released, he moved back in with Chesmore and her
    older child. Chesmore’s baby was born soon after.
    The next year, Chesmore gave birth to the couple’s child, Z.A.S. They
    continued to live together until the end of March 2018 when Smith moved to
    Minnesota. In the months before his move, Smith said they were arguing more.
    Chesmore was saying insulting things about his older daughter from a different
    relationship, calling her obese and “super fat.” And she called Smith racial slurs.
    The tipping point for Smith was when Chesmore bought two guns and told him
    “that she could easily claim that she was scared of him, shoot him, and then she
    3
    would get away with it because he was a black man.” So Smith said that “[h]e ran”
    to Minnesota where his family lived, leaving Z.A.S. behind. Smith explained that
    he didn’t take Z.A.S. with him because “it would have been more hell to pay . . . .
    [S]he would have put some extra charges on me, said I would have done
    something way different than what was going on.”
    Chesmore sought a civil protective order against Smith after he moved to
    Minnesota. Smith said Chesmore alleged that he and his mother, who has chronic
    obstructive pulmonary disorder, tied her up and tried to take Z.A.S. with them.
    Even though her allegations were not true, Smith did not fight the protective order
    because he felt it was better to just stay away from Chesmore, explaining: “I’m
    scared what else [she was] going to say, you know, when I come to court and
    who’s going to believe you?”
    Smith stayed away for the next three years. During that time, Chesmore
    was the subject of three child abuse reports. The first was in 2018, when Z.A.S.
    tested positive for methamphetamine.         That report was founded against an
    unknown perpetrator because the Iowa Department of Health and Human Services
    could not determine the source of the exposure. In 2019, Chesmore’s boyfriend,
    Jordan, punched out the back window of a car during an argument, showering
    Z.A.S. and her half-sibling with shattered glass.
    Then, in 2020, the department investigated a report that Chesmore was
    “using methamphetamines and/or was selling methamphetamines out of her
    home.” One of Chesmore’s children
    had seen some white substance on a scale, had seen Mom heat up
    something in a pan, and then started to smoke something out of a
    tube. She also had seen purchased baggies that Mom had put some
    4
    white stuff in, and her boyfriend at the time [Jordan] was seen selling
    stuff out of the home.
    Jordan, who has a history of drug-related convictions and assaults, was arrested
    around the same time for a controlled-substance violation.
    During its investigation, the department asked Chesmore to drug test, but
    she would not cooperate. As a result, the report was founded and a child-in-need-
    of-assistance petition was filed. Chesmore’s oldest child was removed from her
    care and placed with that child’s father, while her two youngest children remained
    in her care. This was conditioned on Chesmore not allowing any contact between
    Jordan and the children and providing negative drug screens.
    The caseworker assigned to the family said Chesmore “was very resistive
    to services,” describing her as “belligerent, argument[ta]tive, and disrespectful,”
    though she did comply with drug testing. Chesmore “took no accountability for any
    of her actions and spent the majority of time focused” on others. According to the
    caseworker, “[t]here was absolutely no acknowledgment about any potential
    deficits in her parenting or a need to make some positive changes.” She said that
    in her thirty years of experience as a social worker, she had “never worked with
    someone so uncooperative.”
    The caseworker had the opposite experience with Smith, who came back
    into Z.A.S.’s life after being notified of the juvenile court proceedings.      She
    described Smith as open and honest, stating “he would acknowledge his flaws, he
    took accountability for some of his actions in his past, he was also very open to
    services . . . and wanted to make some changes.” As a result, the department
    recommended that Smith begin supervised visits with Z.A.S. The day after this
    5
    recommendation was made, Smith and his girlfriend had a visit from the
    department’s counterpart in Minnesota. According to Smith, the department “said
    they had a call stating that we were doing methamphetamine, doing cocaine, and
    drinking.” Smith and his girlfriend let the worker into their home and “agreed to
    every test that they wanted us to take.”
    The record is unclear as to whether the recommended visits for Smith ever
    took place during the juvenile court case, which closed in July 2021 because
    Chesmore had been providing negative drug screens for six months. Soon after,
    Smith filed a petition in district court for joint legal custody and joint physical care
    of Z.A.S. Chesmore responded by moving to restrict Smith “from contact with all
    three of my minor children,” Z.A.S. included, because of past domestic violence
    “as well as recent issues of threats of violence.” In a separate proceeding for a
    civil protective order, Chesmore alleged that Smith made “threatening statements
    regarding kidnapping my child, burning our house down, and killing” her. That
    petition was dismissed for insufficient evidence, as was Chesmore’s motion in the
    custody case.
    In October, Smith moved for a temporary order to place the child in the
    parties’ joint legal custody and begin gradual visitation between himself and Z.A.S.
    Chesmore resisted, characterizing Smith as “nothing more than a stranger to my
    daughter.” She asked the court to deny “Smith any visitation or access to the minor
    child.” The court rejected Chesmore’s request after a hearing, placing the child
    into the parties’ joint legal custody and ordering progressive visitation for Smith,
    which was to start in December and continue through January in Iowa. Starting in
    6
    mid-February, the visitation was to move to Smith’s home in Minnesota. Smith
    was to also have video visits with the child twice each week.
    By the time the case proceeded to trial in February 2022, Smith was able to
    have some, but not all, of his temporary visitation with Z.A.S. Chesmore did not
    make Z.A.S. available for Smith’s visitation over the Christmas or New Year’s
    holidays. And she did not bring the child to the exchange location when Smith’s
    visits in Minnesota were to start. Smith said that Chesmore also made his video
    visits with the child difficult.
    At the start of the trial, the parties informed the district court they agreed to
    joint legal custody and “a rough schedule” for visitation they would finalize “before
    we end for the day.” But at the end of the day, Smith’s attorney told the court “we
    still need to get you a stipulation regarding visitation.” No such stipulation was filed
    before the court entered its ruling in April.
    In that ruling, the court found that because the parties had “little to no ability
    to co-parent,” Smith should be awarded sole legal custody. As far as the child’s
    physical care, the court found Smith was better suited to provide for her needs.
    The court reasoned that although the child was with Chesmore
    longer and more continuous, [Chesmore] acted with wanton
    disregard toward her daughter’s safety. There is strong evidence
    that drugs were being used and or sold out of her house, but she
    maintains that she has no knowledge of how one of her children
    could have tested positive for ingesting illegal substances. She has
    also continued to maintain a relationship with a man with a criminal
    history who is still on probation.
    Chesmore appeals.
    7
    II.    Standard of Review
    We review orders establishing child custody de novo.                Thorpe v.
    Hostetler, 
    949 N.W.2d 1
    , 4 (Iowa Ct. App. 2020). We give weight to the court’s
    fact findings, especially on credibility, given its exclusive ability “to listen to and
    observe the parties and witnesses.” McKee v. Dicus, 
    785 N.W.2d 733
    , 736 (Iowa
    Ct. App. 2010).
    III.   Analysis
    A.     Legal Custody
    Chesmore claims the district court disregarded the parties’ agreement to
    place the child in their joint legal custody. As a result, Chesmore argues the court’s
    decision “violates Iowa’s standards for notice pleading and [her] rights to due
    process.”
    “Our court has taken differing paths on this issue.”        In re Marriage of
    Beasley, No. 21-1986, 
    2022 WL 16985437
    , at *5 (Iowa Ct. App. Nov. 17, 2022).
    Down one path, in Bowlin v. Swim, No. 19-1021, 
    2020 WL 2988537
    , at *5–6 (Iowa
    Ct. App. June 3, 2020), we found sole legal custody was properly before the court
    even though the mother’s petition requested joint legal custody. We reasoned the
    father was on notice that legal custody was at issue because the mother’s
    proposed temporary order granted her sole legal custody, her answers to
    interrogatories stated that she was seeking sole legal custody, and she testified at
    trial, without objection from the father, that she wanted sole legal custody.
    Bowlin, 
    2020 WL 2988537
    , at *6. We found similar circumstances persuasive in
    Beasley, 
    2022 WL 16985437
    , at *6, in finding the father was on notice that sole
    legal custody was at issue where the modification petition contained allegations
    8
    touching on legal custody, a pretrial order noted “child custody” was at issue, and
    the mother’s proposed relief requested sole legal custody.
    On the other path, in Roszell v. Richards, No. 09-1560, 
    2010 WL 2757186
    ,
    at *3 (Iowa Ct. App. July 14, 2010), we found sole legal custody was not properly
    before the court where the mother’s answer to the custody petition confirmed her
    agreement to joint legal custody. Similarly, in Moses v. Rosol, No. 21-1091, 
    2022 WL 949749
    , at *3 (Iowa Ct. App. Mar. 30, 2022), we agreed with the father that the
    district court should not have modified legal custody because the mother’s petition
    “made no mention of modifying legal custody. Nor did her pretrial brief.” And in a
    proposed disposition filed before trial, the mother stated the parties agreed to joint
    legal custody. Moses, 
    2022 WL 949749
    , at *3. We concluded that because the
    mother’s “petition only sought a change in physical care, legal custody was not
    properly before the court even by notice-pleading standards.” 
    Id.
    We find this case falls along the Roszell and Moses path. As in Moses,
    Smith’s petition requested joint legal custody of the parties’ child.            More
    importantly, at the start of the trial, the parties informed the court they agreed to
    joint legal custody. See Iowa Code § 600B.40(2) (2021) (noting section 598.41
    shall apply to “determining the visitation or custody arrangements of a child born
    out of wedlock”); see also id. § 598.41(4) (stating the factors in section 598.41(3)
    for determining custody “shall not apply when parents agree to joint custody”);
    Roszell, 
    2010 WL 2757186
    , at *3 (“[S]ection 598.41(4) . . . prioritizes the parents’
    agreement to joint custody. Because the parents agreed to joint legal custody, the
    district court erred in considering the factors in section 598.41(3).”); In re Marriage
    of Daniels, 
    568 N.W.2d 51
    , 58 (Iowa Ct. App. 1997) (Huitink, J., dissenting) (noting
    9
    the statutory scheme to decide whether sole custody is appropriate does not apply
    when parties have agreed to joint custody). For these reasons, we modify the
    grant of sole legal custody to Smith to instead place the child in the parties’ joint
    legal custody.
    B.     Physical Care
    Chesmore next claims that Z.A.S. should have been placed in her physical
    care. “The objective of a physical care determination is to place the child[] in the
    environment most likely to bring [her] to health, both physical and mentally, and to
    social maturity.” In re Marriage of Hansen, 
    733 N.W.2d 683
    , 695 (Iowa 2007). In
    determining the physical-care question, courts are guided by the factors set out in
    section 598.41(3), as well as those listed in In re Marriage of Winter, 
    223 N.W.2d 165
    , 166–67 (Iowa 1974). See Hansen, 
    733 N.W.2d at 698
     (holding the factors
    enumerated in section 598.41(3) are relevant in making a physical-care
    determination). The first and governing consideration of the courts, however, “is
    the best interests of the child.”   Iowa R. App. 6.904(3)(o).      The factors that
    Chesmore highlights are the length of time the child was in her care, Smith’s history
    of abuse, the nature of her home environment, and the child’s bond with her half-
    sibling.
    We typically afford “weight to the parent who has acted as the child’s
    primary caretaker in the past.” Ruden v. Peach, 
    904 N.W.2d 410
    , 414–15 (Iowa
    Ct. App. 2017); accord Hansen, 
    733 N.W.2d at 696
     (“[S]tability and continuity of
    caregiving are important factors that must be considered in custody and care
    decisions.”). But that factor is not dispositive. See Flick v. Stoneburner, No. 15-
    1930, 
    2016 WL 2743449
    , at *2 (Iowa Ct. App. May 11, 2016). A parent’s historic
    10
    role as the child’s primary caregiver can be outweighed where, for example, a
    parent has “not been adequately performing his or her responsibilities because of
    alcohol or substance abuse.” Hansen, 
    733 N.W.2d at 697
    . Although Chesmore
    provided    negative   drug    screens    during    the   child-in-need-of-assistance
    proceedings, Z.A.S. was exposed to methamphetamine while in her care. There
    was also, as the district court found, “strong evidence that drugs were being used
    and or sold out of her house,” with her oldest child witnessing some of that activity.
    We recognize that Smith was absent from Z.A.S.’s life for an extended time,
    but he worked hard to reestablish their relationship, cooperating with the
    department during the juvenile court case and taking advantage of every
    opportunity for contact with Z.A.S. Chesmore worked equally as hard to limit
    Smith’s role in the child’s life by attempting to obtain a protective order prohibiting
    him from contacting Z.A.S., responding to Smith’s motion for temporary visitation
    by asking that he be denied visitation, and then refusing to allow him some of the
    temporary visitation ordered by the court. See 
    Iowa Code § 598.41
    (3)(e) (stating
    in determining what custody arrangement is in the best interest of a child, the court
    must consider whether “each parent can support the other parent’s relationship
    with the child”); In re Marriage of Will, 
    489 N.W.2d 394
    , 399 (Iowa 1992) (“[T]he
    denial of one parent of the child’s opportunity to have meaningful contact with the
    other parent is a significant factor in determining the custody or physical care
    arrangement.”).
    As far as Smith’s “history of abuse,” Chesmore’s brief alleges that in 2015,
    before the parties’ child was born, Smith “was charged criminally as a result of a
    domestic altercation where [her] head was injured.” See 
    Iowa Code § 598.41
    (3)(j).
    11
    The only evidence presented at trial on this issue was Smith’s testimony, which
    Chesmore did not counter.       Smith explained that during an argument with
    Chesmore, he “pushed her somewhere.” And then he remembers “her leaving the
    room and [he] heard a big clash and she has . . . blood all over her head and face.”
    Smith thinks that she hit her head intentionally and then “told some friends of hers
    and the police that [he] was swinging her around, grabbing her by her hair . . . and
    a whole bunch of extra stuff” that Smith says he did not do. When Chesmore came
    back with some of her friends after the argument, Smith said that he grabbed a
    pocketknife and told them to stay away. He pled guilty to a dangerous-weapons
    charge, the domestic abuse assault charge was dismissed, and the couple
    resumed their relationship. Chesmore also points to the default protective order
    she obtained against Smith after he moved to Minnesota, but she presented no
    evidence at trial about the allegations supporting the order. Given the evidence
    presented about these incidents at trial, we do not find them sufficient to establish
    a history of domestic abuse. See In re Marriage of Forbes, 
    570 N.W.2d 757
    , 760
    (Iowa 1997).
    We are more concerned with the nature of Chesmore’s home environment.
    See Winter, 
    223 N.W.2d at 166
     (considering the “nature of each proposed
    environment, including its stability and wholesomeness”).           She has been
    investigated by the department three times for child abuse reports. Two of those
    reports involved methamphetamine, and one involved her boyfriend Jordan
    punching out the back window of a car while Z.A.S. and her half-sibling were in it.
    The last report involving methamphetamine was founded against Chesmore and
    led to juvenile court involvement. After that case closed, Chesmore resumed her
    12
    relationship with Jordan, who has a history of drug-related convictions and
    assaults. Because she is taking college classes full-time and is not working,
    Chesmore relies on Jordan to support her and her three children.
    In contrast, Smith has been in a committed relationship with his girlfriend
    for the past four years. They live in a spacious two-bedroom townhome near a
    school with their two-year-old child and the girlfriend’s older child, who is autistic.
    Smith’s girlfriend stayed home with the children, while he worked as a direct
    support professional for the Minnesota Department of Human Services. In that
    job, Smith was subject to a background check and drug tests. Smith lost that job
    before trial because of the time he had to spend in Iowa to have visits with Z.A.S.,
    but he expected that he could resume the work once the court proceeding was
    over. As the district court found, “[d]espite this disruption, [Smith] has built a home
    that is safe for children.”
    This leaves us with the bond Z.A.S. shares with her older half-sibling in
    Chesmore’s care. Although there is a preference that siblings not be separated,
    that rule is not ironclad. Will, 
    489 N.W.2d at 398
    . Circumstances, including a
    parent’s willingness to promote meaningful contact between the child and the other
    parent, “may arise which demonstrate that separation may better promote the long-
    range interests of children.” 
    Id.
     (citation omitted). We agree with the district court
    that Smith “recognizes the need for the child to have contact with siblings.” He has
    a good relationship with the father of Chesmore’s oldest child and testified that he
    “would do whatever” he could to promote contact between Chesmore and Z.A.S.
    As a result, we do not find the preference prevails here.
    13
    Having reviewed the record de novo, we agree with the district court that
    although Chesmore “clearly loves her child and has a bond with her, . . . after
    weighing all of the applicable factors, [Smith] is the better caretaker and should be
    awarded primary physical care.” It is in the child’s best interest to be placed in the
    physical care of Smith, who will be more likely to support her other relationships
    and bring her to healthy physical, mental, and social maturity. See Hansen, 
    733 N.W.2d at 695
    .
    C.     Visitation
    Because of the distance between the parties, the district court found that
    visitation between Chesmore and Z.A.S. needed to “be further apart, but for longer
    blocks of time.” To achieve that, the court gave Chesmore eight weeks during the
    summer, as well as all of the child’s fall and spring break, with the Christmas break
    to be evenly divided between the parties.
    Chesmore claims the district court should have adopted the visitation
    agreed to by the parties at trial, which included alternating weekend visitation and
    video calls with the child twice each week. But the parties gave the court only a
    “rough schedule” for visitation, saying they would finalize it later, which they never
    did. See Longnecker v. Raymundo, No. 00-0452, 
    2001 WL 725474
    , at *2 (Iowa
    Ct. App. June 29, 2001) (“The district court clearly did not err in failing to adopt the
    schedule agreed to by the parties because such an agreement did not exist.”).
    Further, while liberal visitation is desired, see In re Marriage of Stepp, 
    485 N.W.2d 846
    , 849 (Iowa App. 1992), that directive is in the context of what “is
    reasonable and in the best interest of the child.” 
    Iowa Code § 598.41
    (1)(a). Given
    that the parties live a state apart, and their struggles with visitation during the
    14
    temporary proceedings, we find the in-person visitation schedule adopted by the
    district court is reasonable and in Z.A.S.’s best interest. See Ryan v. Wright, No.
    17-1375, 
    2018 WL 2246882
    , at *4 (Iowa Ct. App. May 16, 2018) (considering
    geographic distance between parties in fashioning a visitation schedule). But
    because of the length of time between those visits, we conclude the court should
    have afforded the parent who is not exercising parenting time with the child to have
    video calls every Tuesday and Thursday. We accordingly modify the decree to
    provide that the parent who is not exercising parenting time with the child shall
    have a video call with the child every Tuesday and Thursday via Facetime, Skype,
    or other video service from 6:30 p.m. until 7:00 p.m.
    IV.    Conclusion
    We modify the district court’s grant of sole legal custody to Smith to instead
    place the child in the parties’ joint legal custody. The court’s decision to place the
    child in Smith’s physical care is affirmed, as is its in-person visitation schedule,
    although we modify the decree to provide for video calls with the child. Costs on
    appeal shall be split equally between the parties.
    AFFIRMED AS MODIFIED.