Molly Kaye Hurlbert v. Scott Eugene Harris ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0421
Filed January 11, 2017
MOLLY KAYE HURLBERT,
Plaintiff-Appellee,
vs.
SCOTT EUGENE HARRIS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Union County, Richard B. Clogg,
Judge.
A father appeals the court’s denial of joint physical care. AFFIRMED.
Scott D. Fisher of Fisher Law Firm, P.L.C., West Des Moines, for
appellant.
Andrew J. Zimmerman of Nielsen & Zimmerman, P.L.C., Corning, for
appellee.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
2
TABOR, Judge.
Scott Harris and Molly Hurlbert are the parents of now seven-year-old
O.H. In an action under Iowa Code chapter 600B (2015), the district court
granted the parents joint legal custody of their daughter and placed physical care
with Molly. On appeal, Scott asks for joint physical care. While the cordial and
constructive relationship between Scott and Molly does suggest the feasibility of
joint physical care, we ultimately agree with the district court’s assessment that
the parents’ historic pattern of caregiving tips the scale slightly toward Molly as
the physical-care provider.
O.H. was born in 2009. Scott and Molly moved in together in 2010 and
raised their daughter under the same roof until November 2014, when they
amicably separated. Scott and Molly both remained in Creston, residing less
than two miles apart. Scott lived with his girlfriend Kristina and her three
children. Scott also had visitation with his three biological children from an earlier
marriage. Molly lived alone with O.H.
Early in the separation, Scott did not exercise regular visitation, but Molly
and Scott soon formalized a parenting schedule, without court intervention, in
December 2014. The schedule included visitation for Scott on alternating
weekends, every Wednesday overnight, and a few additional hours the Monday
evening following Molly’s weekend parenting time.1
1
Scott’s time with O.H. coincided with his visitation with his other children, which Molly
believed was important: “She deserves to be around her siblings.” Molly also confirmed
that when Kristina’s children were factored in, Scott would have seven children in his
household when O.H. had her overnights with him. Molly testified she believed they had
enough room to accommodate everyone.
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In January 2015, Molly filed a petition to establish paternity, custody,
visitation, and support. In his answer, Scott admitted paternity and requested
joint physical care (often referred to as shared physical care). Molly asked for
physical care of O.H. to be placed with her. In December 2015, the district court
heard testimony and issued a decree awarding physical care to Molly. Following
Scott’s motion for amended findings and conclusions under Iowa Rule of Civil
Procedure 1.904(2), the court issued an amended decree confirming it was not in
O.H.’s best interest “that Molly and Scott have shared physical care.” The court
explained its physical-care ruling as follows:
[O.H.] has lived with Molly since the parties’ breakup until the time
of trial. [O.H.] is a happy child and does well in school. Molly and
Scott have a history of good communication and acting in the best
interests of their child. The parties have no fundamental
disagreements regarding child rearing, disciplinary matters, and
schooling. Molly having primary care and Scott having liberal
visitation has gone well in the past. Molly is the one providing the
primary care for the child and is the person best suited to meeting
her needs. Due to the young age of the child it is in her best
interests not to disrupt the status quo. Molly has and can be
expected to promote and encourage the relationship between Scott
and the child.
Scott appeals the district court’s denial of joint physical care. We review
the custody decision de novo. See Iowa R. App. P. 6.907; Lambert v. Everist,
418 N.W.2d 40, 42 (Iowa 1988) (explaining we employ the same legal analysis in
resolving questions concerning custody of a child born to unmarried parents as
we do in the case of divorcing parents). Despite our de novo review, “we give
considerable weight to the sound judgment of the trial court who has had the
benefit of hearing and observing the parties firsthand.” In re Marriage of Kleist,
538 N.W.2d 273, 278 (Iowa 1995).
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This case presents a refreshing scenario where both parents are
respectful of one another and encourage their daughter to have a positive
relationship with the other parent.2 O.H. is lucky to have two loving parents who
hold her best interests in such high regard. But the civility between Molly and
Scott makes the decision regarding joint physical care a close call.
Scott argues joint physical care would be in O.H.’s best interests under the
factors identified in In re Marriage of Hansen, 733 N.W.2d 683, 696–99 (Iowa
2007). To assess the viability of shared care, the Hansen court zeroed in on four
factors: (1) the stability and continuity of care-giving, (2) the ability of the parents
to communicate and show mutual respect, (3) the degree of conflict between the
parents, and (4) the degree to which the parents generally agree about their
approach to daily child-rearing matters. 733 N.W.2d at 696–99. As already
discussed, factors two, three, and four point to the viability of joint physical care.
But the remaining factor—stability and continuity of care-giving—was the guiding
light for the district court’s decision. The court emphasized the success of the
parties’ voluntary parenting schedule, in place for the year leading up to the trial,
under which O.H. lived with Molly and had liberal visitation with Scott. Noting
O.H. was happy and doing well in school, the district court declined to disrupt
“the status quo.”
After reviewing the record anew, we reach the same conclusion as the
district court. Molly testified she believed it served O.H.’s best interests to remain
on the established schedule, telling the court: “I think it’s really important to keep
2
Scott even offered an exhibit showing polite text messages between him and Molly to
illustrate their ability to effectively communicate.
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things the same for [O.H.]” because “she’s young. It just gives her a steady
environment.” While not critical of the busy household maintained by Scott, Molly
testified: “I feel like with me it’s one on one more. I’m able to meet her needs.”
Molly testified Scott did not normally seek more time in deviation from their
set schedule, but she had occasionally asked him to take O.H. for an additional
overnight when Molly needed to study for a test, and he generally agreed. Molly
also told the court she would be flexible if Scott ever wanted more time with O.H.
Scott testified O.H. was doing well on her current schedule.
In Hansen, the court reiterated: “[S]tability and continuity of caregiving are
important factors that must be considered in custody and care decisions.” Id. at
696 (quoting a scholar for proposition that “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”). On the issue of
emotional bonds, O.H.’s maternal grandmother testified O.H. confided in her
several times that “she loves her dad very much and she wants to see him but
that she would rather live with her mother.”
The record supports continuing the routine for O.H. as established
voluntarily by the parents. Hansen advised: “[W]here one spouse has been the
primary caregiver, the likelihood that joint physical care may be disruptive on the
emotional development of the children increases.” Id. at 698; see also In re
Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974) (listing as a factor “the
effect on the child of continuing or disrupting an existing custodial status”). Molly
was the primary caregiver in the year before the trial. Like the district court, we
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find switching to shared care at this juncture would not be in O.H.’s best
interests.
In her brief, Molly asks for appellate attorney fees in the amount of $2040.
Under Iowa Code section 600B.26, we may award the prevailing party
reasonable attorney fees. An award of appellate attorney fees rests within our
discretion. See Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005). In
determining whether to award fees, we consider “the needs of the party making
the request, the ability of the other party to pay, and whether the party making
the request was obligated to defend the trial court’s decision on appeal.” See id.(citation omitted). Having considered these factors, we determine Scott shall pay
$1000 of Molly’s appellate attorney fees. Costs shall be assessed equally
between the parties.
AFFIRMED.