Adam Duane Haugen v. Niki Greenwood ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1160
Filed April 14, 2021
ADAM DUANE HAUGEN,
Plaintiff-Appellee,
vs.
NIKI GREENWOOD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Tamra Roberts,
Judge.
The mother appeals the district court’s award of joint physical care.
AFFIRMED AS MODIFIED AND REMANDED.
Chase Cartee of Cartee Law Firm, P.C., Davenport, for appellant.
Joshua J. Reicks and Trista M. Beise of Schoenthaler, Bartelt, Kahler &
Reicks, Maquoketa, for appellee.
Considered by May, P.J., and Greer and Schumacher, JJ.
2
GREER, Judge.
After awarding joint physical care of an unmarried couple’s three-year-old
child, the mother, Niki Greenwood, appeals.1 First, Niki claims the district court
erred in awarding joint physical care and argues she should be primary caretaker
of the child. In support of this claim, Niki challenges testimony from a witness,
D.B., arguing the court erred in finding her testimony credible.2 Second, Niki claims
joint physical care is not in the best interest of the child because it would lead to
time apart from the child’s half-sister. Lastly, Niki requests we order the father,
Adam Haugen, to pay her appellate attorney fees. Adam disputes Niki’s claim that
joint physical care is not in the child’s best interests. He maintains D.B.’s testimony
was credible. He also counters Niki’s request for appellate attorney fees with his
own request for appellate attorney fees.
1 The district court ordered the following physical care schedule:
[T]he Court finds that the 3-3-2 rotation should be utilized; one
parent of the child for three days, then the other parent of the child
for three days, then the first parent for two days. The rotation will
then start over with the second parent starting the rotation. This
will give each parent weeknights and weekends with the child.
2 D.B.’s testimony at trial was particularly important considering the district court
said:
Each party presented several witnesses. They were character
witnesses, and each could provide little insight into each person’s
parenting. Some witnesses had only seen the parents both
interact with the child three to four times a year or less. The
witness that provided some of the best insight was [D.B.]. [D.B.]
was previously a friend of Niki and had later supervised the visits
between the child and the father when supervision was required.
Her testimony was not biased, and comparable to what you would
see from a guardian ad litem for a child. She was a voice for the
child. She was credible.
3
I. Facts and Earlier Proceedings.
We begin by summarizing the parent’s relationship history and the events
leading to this appeal. Niki and Adam began dating in late 2015 and moved in
together in 2016. Nikki gave birth to their daughter, K.L.G.H., in September 2017.
Niki and Adam got engaged in spring of 2017, but the engagement was later called
off. Ultimately, Niki and Adam separated in June 2019 due to relationship issues,
and Adam moved out of the family home and in with his parents. Adam did not
see the child for two months after the separation, and the parties dispute whether
Niki prevented contact or if Adam lacked initiative to seek contact. Later on, per
an out-of-court agreement, Adam began supervised visits with the child. Niki
selected a friend, D.B., to supervise visits between the father and child in D.B.’s
home. Only three of these visits occurred under this plan.
Then in July 2019, Adam petitioned the court to establish paternity, custody,
visitation, and support.3 Simultaneously he applied for temporary custody and
support. In his combined filing, Adam requested joint legal custody and physical
care of the child with scheduled visitation for Niki. Niki answered with her own
request for physical care of the child and a request for attorney fees.4 A temporary
hearing took place in September 2019. The court awarded the parents joint legal
custody of the child with temporary physical care in Niki. The order granted Adam
unsupervised overnight visits every other weekend, but required Adam to refrain
from the use of alcohol and secure all firearms while the child was with him.
3 He later amended his petition on August 12, 2019.
4 Niki asked the court to order Adam “to pay temporary and permanent attorney
fees and costs to . . . Niki . . . to defend this action.” The district court never
addressed her request in its ruling.
4
Trial began in July 2020 to determine the permanent care arrangement for
the child. Although Adam requested physical care of the child in his pleadings, at
trial he also supported a joint physical care arrangement. While approving the joint
custody status, Niki maintained she should be the physical caretaker of the child.
After a two-day trial involving testimony from fourteen witnesses, including the
parties, the district court awarded Adam and Niki joint physical care of the child.
Parents’ Background. Niki is thirty-five years old. Besides her child with
Adam, Niki has an older daughter from a prior relationship. She has an associate’s
degree and is a licensed real estate agent in Iowa and Illinois. Niki is employed by
Keller Williams Realty. The district court computed her annual income at $42,842.
She describes her schedule as very flexible and works mostly from home but attends
real estate showings or closings once or twice weekly. Due in part to her flexible
work schedule, Niki has been the primary caregiver of the child since birth.
Adam is thirty-two years old. His only child is his daughter with Niki. Adam
works at ADM Construction in Clinton, Iowa as a supervisor and has remained
employed with ADM Construction for almost fourteen years. He works forty hours
a week on average, 6:00 a.m. to 4:30 p.m., Monday through Thursday.5 Adam
works occasional overtime, but less so since the outbreak of the COVID-19
pandemic. Adam’s annual income is $88,000.
Relationship Issues and Parenting Concerns. Nikki and Adam began
experiencing relationship issues during the summer of 2017. Their primary
5 Some evidence suggested Adam worked most Fridays, leaving home at 5:20
a.m. and returning home from work at 3:00 p.m. His earnings from years before
the pandemic exceeded $100,000. Adam earns $36.43 per hour.
5
disagreements centered on Niki’s disapproval of Adam’s drinking habits, his
anger, and his lack of involvement with the family. Concerning the drinking,
Adam admitted he had a drinking problem in his early twenties, resulting in two
convictions for operating while intoxicated by age twenty-three, but he
maintained he no longer has a drinking problem. Addressing her assertions,
Adam claims Niki did not want him to drink any alcohol and that she exaggerates
his drinking. He testified he would have a couple of drinks at times after work
but has no dependency on alcohol. Several witnesses gave testimony about
Adam’s drinking habits. The paternal grandmother testified that Adam would
have a beer or two after work twice a week and described his drinking as
responsible. She also confirmed Adam’s testimony that he had not drank in two
and a half months at the time of trial. A mutual friend of Adam and Niki testified
he had “occasionally” seen Adam abuse alcohol but never saw him drink in the
presence of the child. Other witnesses testified they believed Adam had a
drinking problem, but this was based mostly on conversations with Niki rather
than firsthand knowledge. But one witness observed Adam drinking whiskey at
Niki’s baby shower and another heard him tell a story of how he drank so much
on a fishing trip he did not know where he was. Adam downplayed the reports
he made to his doctor about drinking and the doctor’s note of alcohol abuse.
Niki also points to Adam’s anger and abusive behavior as contributing to
the decline of their relationship. She said Adam struggled with anger and
depression after the birth of their child, and she described angry outbursts where
Adam would throw items and kick things, including the family dog. Niki said
some of these incidents took place in front of their child, and she believed it
6
terrified the child. There was a confirmed incident shortly after the child’s birth
where Adam threw a box of DVDs and speakers down the basement stairs, and
another where he threw a box of dishes.6 Adam acknowledges he experienced
anger and mental-health issues during the relationship, and he confirmed
threatening Niki with physical harm in the past. He denies ever threatening his
child or Niki’s older child. Adam also confirmed threatening his own life during
arguments with Niki. The parties did attend relationship counseling, and Adam
participated in individual therapy.
Communication issues were also a persistent theme in the relationship
from the summer of 2017 onward. For instance, Niki claimed Adam left the home
for days or weeks at a time without warning and would not communicate with
her during his absences. A daycare provider and friend of the family confirmed
Adam was not home often late in the relationship. Niki also described tension
with Adam’s family. She claimed Adam did not invite her to his family functions,
including two Thanksgiving gatherings he attended while leaving her home with
the child. Adam agrees that his relationship with his parents caused problems in
his and Niki’s relationship. When asked to elaborate, Adam said, “I don’t think
Niki liked how close my mom and I were. My mom was helping out with a lot of
my finances when I was younger, and [Niki] didn’t agree with that once her and I
moved into the household together. So I think that was some tension.”
Despite their issues, the parent’s relationship improved somewhat in early
2019. At this point they mutually decided to work on their relationship and began
6Niki claims Adam threw the boxes at her both times; he admits to both incidents
but maintains he did not throw anything in Niki’s direction.
7
attending couple’s counseling. Adam sought professional help for emotional
issues and began taking medication for treatment. Still, the relationship ended
when Adam moved out of the family residence and in with his parents in June 2019.
At the time of trial, Niki resided in the family home and Adam continued his residence
in his parents’ home.7
After the parents separated, Adam did not see the child for two months,
although this was partially attributable to Niki. Niki admits she did not ask Adam to
care for their daughter during her showings and closings following the separation.
She did not want Adam to see the child at the time because of his behaviors. To
help with their communication, Niki gave Adam pamphlets about co-parenting
education, but as to his participation, Adam noted during cross-examination
Q. All right. So would it be fair to say that Niki, after your
separation, wanted to try and improve the level of communication
between the two of you? A. Yeah.
Q. She gave you resources to help improve those
communications? A. Yep.
Q. And you chose not to look into it, correct? A. Sure.
7 During the trial, there was a passing reference to a partition action filed by Adam
involving the family home and real estate. In the ruling, the district court
commented that relocation of either party “will not be classified as a substantial
change in circumstances for purposes of modification of this order. It was well
within the contemplation of this Court that the parties may live an hour apart or so.”
While that question is not before us now, we note the district court’s position is in
direct conflict with our holdings in other cases. See Thorpe v. Hostetler, 949
N.W.2d 1, 6-7 (Iowa Ct. App. 2020) (holding hour-long drive between homes made
shared-care arrangement unworkable and was not in the best interests of the
child); Teggatz v. Ellingson, No. 19-1816, 2020 WL 2065944, at *2 (Iowa Ct. App.
Apr. 29, 2020) (holding the one-hour distance between parties’ homes was a
“major obstacle” to a joint physical care plan); In re Marriage of Scurr, No. 11-1905,
2012 WL 2122306, at *1 (Iowa Ct. App. June 13, 2012) (declining to award joint
physical care because a forty-five minute commute was not in the best interests of
the child).
8
Another point of contention between the two parents was the presence of firearms
around the family home. Niki did not approve of the many firearms Adam owns,
which she said he often kept unsecured around the house.
Adam contends that Niki is controlling and works to deprive him of contact
with their child. To support his position, he draws our attention to what he saw as
her efforts to keep him off the birth certificate8 and to change the child’s last name
without his knowledge or permission. Adam also argues Niki restricted his time with
the child by initially requiring supervised visitation and not allowing him overnight
visitation at his parents’ home. Niki asserts she restricted visitation to protect the
child due to her concerns with Adam’s drinking, his mental health, and the access
to loaded guns.
II. Standard of Review and Error Preservation.
Cases involving physical-care arrangements are tried in equity, thus our
standard of review is de novo. In re Marriage of Hansen, 733 N.W.2d 683, 690
(Iowa 2007). In the context of dissolution cases where physical care is contested,
“[p]rior cases have little precedential value, except to provide a framework for
analysis, and we must base our decision on the particular facts and circumstances
before us.” In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992) (citing In re
Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983)). “Although we give
weight to the factual findings of the district court, we are not bound by them.” In re
Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). “We will disturb the district
court’s ruling ‘only when there has been a failure to do equity.’” Thomas v. Stotts,
8Each party blamed the other for the fact Adam’s name does not appear on the
child’s birth certificate.
9
No. 20-0659, 2021 WL 210985 at *1 (Iowa Ct. App. Jan. 21, 2021) (quoting In re
Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005)).
Adam argues Niki did not address error preservation in her appellate brief
in violation of Iowa Rule of Appellate Procedure 6.903(2)(g), which requires
appellate briefs to include “[a] statement addressing how [each] issue was
preserved for appellate review.” Adam asks that we dismiss Niki’s appeal for
failure to comply with the appellate rules. Niki contends there are numerous
citations to the record showing how each issue was preserved on the question of
physical care. While her brief is not a model of clarity as to error preservation, we
agree the central physical-care issue was raised and considered in the district
court, thus we decline to dismiss Niki’s appeal. See In re Estate of DeTar, 572
N.W.2d 178, 181 (Iowa Ct. App. 1997) (providing the failure to comply with the
Iowa Rules of Appellate Procedure can lead to summary dismissal of an appeal,
but the court may still determine an appeal “as a matter of grace” if we believe we
can do so without assuming the role of an advocate).
Finally, the parties’ dueling requests for appellate attorney fees is left in our
discretion. See Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005).
III. Analysis.
A. Joint Physical Care.
The sole question is whether the district court’s award of joint physical care
is appropriate. Both parties agree that joint legal custody is appropriate,9 but Niki
9 Joint legal custody means:
[A]n award of legal custody of a minor child to both parents jointly
under which both parents have legal custodial rights and
responsibilities toward the child and under which neither parent has
10
contends she should have physical care of the child. Adam finds the court-ordered
plan acceptable. Joint physical care means:
[A]n award of physical care of a minor child to both joint legal
custodial parents under which both parents have rights and
responsibilities toward the child including but not limited to shared
parenting time with the child, maintaining homes for the child,
providing routine care for the child and under which neither parent
has physical care rights superior to those of the other parent.
Iowa Code § 598.1(4) (2019). When awarding physical care, our overriding
concern is the best interests of the child. Weidner, 338 N.W.2d at 356. Our
determination is not based on “perceived fairness to the [parents], but primarily
upon what is best for the child. The objective of a physical care determination is
to place the child[ ] in the environment most likely to bring [her] to health, both
physically and mentally, and to social maturity.” Hansen, 733 N.W.2d. at 695
(citations omitted). Our analysis is guided by a non-exclusive list of factors
enumerated in Iowa Code section 598.41(3).10 Our supreme court’s decision in
legal custodial rights superior to those of the other parent. Rights
and responsibilities of joint legal custody include but are not limited
to equal participation in decisions affecting the child's legal status,
medical care, education, extracurricular activities, and religious
instruction.
Iowa Code §598.1(3).
10 Section 598.41(3) provides:
In considering what custody arrangement . . . is in the best
interest of the minor child, the court shall consider the following
factors:
a. Whether each parent would be a suitable custodian for the
child.
b. Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with
and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child’s needs.
d. Whether both parents have actively cared for the child
before and since the separation.
11
Hansen also provides four non-exclusive factors to consider when making
physical-care determinations:
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.
Hansen, 733 N.W.2d at 700. We consider these factors in turn.
As for the first consideration, “[s]tability and continuity factors tend to favor
a spouse who, prior to [separation], was primarily responsible for physical care.”
Id. at 696. By all accounts, Niki has been primarily responsible for physical care
of the child. Even Adam does not dispute this point. Hansen teaches 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.” Id.
at 698. The district court noted physical care of the child has not been equal, “[i]f
each parent’s caretaking were placed on a scale, Niki’s side would surely outweigh
the other” but thought “it is balanced enough that the child would flourish under
either parent’s care.” And Adam wants to be in the child’s life as much as possible.
e. Whether each parent can support the other parent’s
relationship with the child.
....
g. Whether one or both parents agree or are opposed to joint
custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other
parent will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation.
12
Adam’s mother, with whom Adam resides, testified she observed his parenting every
weekend he has the child. She painted a picture of an attentive, caring father.
Q. Who provides the care for [the child] at your house? Is it
Adam, is it you, is it a combination? A. I would say the majority is
Adam. He gets up, he gets her breakfast, gets her clothes changed.
You know, he does take care of her daily needs. I might help if Adam
needs to be in the shower, you know, something like that, where we
don’t want her wandering the house by herself, and so I do that while
he’s showering. But the rest of it, he’s taking care of her, from the
very first day she came to our house.
But Adam’s mother also noted his struggles with balancing work and childcare
duties before he moved in with her.
Q. Okay. How did you feel—or what did you observe? What did you
think about how Adam was adjusting to his role as a new dad? A. I
felt like he was doing okay with it, probably a little tired, a little
stressed from lack of sleep, trying to work his 10- or 12-hour shifts
sometimes. But the problem was 10-hour shifts and then a waking
baby.
We agree with the Hansen proposition that “where one spouse has been the
primary caregiver, the likelihood that joint physical care may be disruptive on the
emotional development of the [child] increases.” 733 N.W.2d at 698. To be fair,
Adam loves his child. But the role of caretaker requires more. Throughout the
trial, witnesses contrasted Niki’s past involvement with Adam’s. We rely on the
principle that, “in family law matters, past performance is a strong indicator of what
is yet to come.” Hensch v. Mysak, 902 N.W.2d 822, 825 (Iowa Ct. App. 2017).
Since the child’s birth, Niki handled the day-to-day routine, including preparing
meals, staying with the child when sick, scheduling and attending the child’s doctor
appointments, reading books and planning activities with the child, arranging
playdates, bathing the child, and putting her to bed. Witnesses observed Adam
being less involved. Before the parties separated, the daycare provider, who was
13
in the home several times each week, testified that Adam was often on the couch
with his phone, not engaging with the child. While he did pick up the child from
daycare routinely, there were no other parental functions identified. Adam
mentioned attending doctor appointments, but the record reflected he attended
only one doctor appointment and was unable to name the child’s pediatrician.
When the child was scheduled for a MRI scan, Adam did not believe it was
necessary and said he was unable to go because of his work.11 And Adam’s ability
to provide physical care without support from others is unproven. Adam, a thirty-
three year old man, has lived with his parents since June 2019, and at times he
relied upon his mother to wake him for work and manage his finances. 12
Finally, we note Niki’s flexible work schedule allows for more continuity in
care. Adam leaves for work at 5:20 a.m. at least four days each week, returning
home after a twelve-hour shift. In contrast, Niki can be anywhere at any time to
handle the care of the child. There was no evidence presented at trial to address
who would care for the child around Adam’s work schedule. Overall, the proven
continuity and stability offered by Niki provides the best environment for the child’s
continued development and growth. “[T]he factors of continuity, stability, and
approximation are entitled to considerable weight.” Hansen, 733 N.W.2d at 700.
So this factor weighs heavily in Niki’s favor.
Under the next factor, we consider “the ability of spouses to communicate
and show mutual respect.” Id. at 698. Both parents testified communication was
11
The child had been stumbling so a scan was ordered.
This behavior occurred during the time Adam lived with Niki. Niki asked Adam’s
12
mother to quit enabling Adam by handling his finances.
14
a major issue in their relationship that progressively worsened leading up to the
separation. They disagree on whether their ability to communicate and effectively
co-parent can improve going forward. Adam acknowledges past and present
communication issues, but he is optimistic that things have improved and will
continue to do so. Niki remains highly skeptical based on history with Adam.
Turning to events post-separation, Niki noted continuing issues
communicating with or even reaching Adam. She testified they had no
communication for “two or three months” until two weeks before the trial date.
Adam’s mother explained that Adam had no cell phone in April, May, and June
2020 because he could not afford one even though Adam is living with his parents
and making almost ninety thousand dollars annually. Niki alleged Adam ignored
“probably twenty” of her text messages about the child since the separation.
Again, Adam blamed the lack of communication on his inability to afford a phone.
At trial, Adam confirmed he is open to “whatever means it might take . . . to
effectively communicate with [Niki].” But his past conduct does not support this
claim. Adam stated to Niki in 2017 that “he needed to get his shit together and
grow up” now that he had a child. Yet during the relationship Adam would leave,
disengage from the family, and avoid Niki when frustrated. Not prioritizing the need
for a cell phone to allow for communication with the mother of your child when your
goal is to split parenting duties evenly mitigates against Adam’s promise to do
whatever it might take to effectively communicate with Niki.
In our analysis of the first and second Hansen factors, we find joint physical
care is not in the best interest of the child. And under the third factor, the degree
15
of conflict between the parents, we observe that conflict now is low given the lack
of communication between the parties. Id. at 700. The Hansen court noted:
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.
Id. at 698. Yet, we note the degree of conflict was previously high, and included
aggressive behaviors by Adam due to “anger issues.”13 While there is no indication
in the record that the parents are still fighting at that intensity, they speak
infrequently. Thus, we have no assurance the parties have effectively addressed
conflicts that might impede a shared-care schedule.
Finally, we address “the degree to which the parents are in general
agreement about their approach to daily matters” in raising the child. Id. at 699.
The Hansen court noted:
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.
Id. at 699. This factor is difficult to gauge given Adam’s limited involvement in the
day-to-day care of the child. We have full confidence the parties can communicate
within the parameters of joint legal custody, but given our analysis above, we are
13In a text-message exchange, Adam’s mother acknowledged to Niki that Adam
had mood swings and anger issues.
16
not convinced a joint physical care plan promotes the child’s long-term physical
and emotional health.
B. Separation of the Siblings.
In considering the best physical-care arrangement for the child, we also
factor in the closeness of the sibling relationship here. Niki points to the child’s
relationship with her older half-sister as cutting against an award of joint physical
care. She argues
[the child’s] relationship with her sister is so close that the loss of part
of that relationship would be very traumatic for [the child]. The court
should grant Niki [physical] care with Adam receiving reasonable
visitation to keep this very close sister relationship intact, as best as
it can be.
We recognize “the presumption that siblings, including half-siblings, should not be
separated.” Armstrong v. Curtis, No. 20-0632, 2021 WL 210965, at *7 (Iowa Ct.
App. Jan. 21, 2021). That said, “[t]he rule is not ironclad . . . and circumstances
may arise which demonstrate that separation may better promote the long-range
interests of the child.” In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981).
The age difference between the two half-sisters is over ten years. Yet there
was evidence the two are very close,14 and testimony revealed Niki’s older
daughter is involved in the child’s life and helps provide care. Even more, some
of the care by the older sister occurred at the direction of Adam during times when
it was his responsibility to provide care for the child. Several witnesses supported
the evidence of the close relationship, and no one rebutted it. In some cases, the
14At trial, it was described that the child wakes her older sister every morning, and
pre-pandemic, waited at the door to see her older sister come home from school.
Likewise, the older sister attended to the needs of the child when Niki was doing
other things in the home.
17
age difference between siblings mitigates the harm of separation in the custodial
decision. See, e.g., In re Marriage of Brauer, 511 N.W.2d 645, 647 (Iowa Ct. App.
1993) (noting the thirteen-year age difference between the half-siblings prevented
them from being play companions and likely meant they would not reside together
for more than four or five years so that relationship would not trump awarding
custody to the primary caregiver). But, we still examine the best long-term interest
of the child and our strong interest in keeping children of broken homes together.
In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986).
Here, the half-sister has been a constant in the child’s short life. We do not
take the potential adverse effects of separating the siblings lightly, but we also lack
the benefit of the district court’s analysis of the relationship because the ruling is
silent on the subject. We cannot say, on this record, that the separation of the
siblings under a joint physical care arrangement will “better promote the long-range
interests of the [child].” See In re Marriage of Kurth, 438 N.W.2d 852, 854 (Iowa
Ct. App. 1989). The status quo over the past three years includes daily contact
between the children, and given our analysis supporting physical care to Niki, we
find the best interest of the child requires strong consideration of this special
relationship. With that in mind, the factors supporting a joint physical care
arrangement are not so strong as to require separating the half-siblings.
Given the sibling relationship and because the factors do not support the
parenting schedule ordered by the district court, we conclude the best interest of
the child will be advanced by giving physical care to Niki rather than awarding joint
physical care. To promote Adam’s role in the child’s life, we order liberal visitation.
Adam shall have visitation every other weekend from Friday at 5:00 p.m. until
18
Sunday at 6:00 p.m. Because Adam does not work on Fridays, he shall have
visitation every Thursday overnight, starting at 5:00 p.m. and continuing until
Friday at 5:00 p.m. on weeks he does not have weekend visitation. The spring
break, holiday, and summer schedule developed by the district court shall remain
in effect.
We remand to the district court to determine the proper level of child support
given the change in physical care and visitation, effective the date procedendo is
issued. On remand, the district court should recalculate the obligation “based on
the present financial circumstances of the parties and the child support guidelines.”
See In re Marriage of Hoffman, 867 N.W.2d 26, 37 (Iowa 2015).
C. Reliance on Testimony of D.B.
Although we reverse the joint physical care decision, we address Niki’s
concerns about a witness at trial. Niki claims the district court erred in relying on
the testimony of D.B., arguing D.B. changed her tune in comparison to an affidavit
she wrote for the temporary custody hearing in September 2019. Niki postures
D.B. testified differently because their friendship soured. But, the district court
relied heavily on D.B’s testimony in making its decision, stating “[h]er testimony
was not biased, and comparable to what you would see from a guardian ad
litem for a child. She was a voice for the child. She was credible.” Although
we are not bound by the district court’s fact findings we give them weight,
especially concerning witness credibility. Thorpe, 949 N.W.2d at 5. Even with
this credibility finding, we are unconvinced the joint physical care arrangement
is appropriate here. First, D.B. confirmed her opinion that Niki was the primary
caretaker of the child:
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Q. In your opinion, who was the primary caregiver while Adam
and Niki were in a relationship? A. Niki was the primary caregiver.
Her job allowed her to be at home more with the kids, so she did a
lot of those things.
Q. Do you think that Adam also provided care for the children?
A. Yes, he did. But he also worked 12-hour shifts, so he wasn’t there
as much. By the time he'd get home, you know, it’s supper, and then
the nightly routine, you know.
D.B. did observe Adam’s visits with the child, and she testified Adam was prepared
and engaged; he brought snacks and toys for the child and generally exhibited good
parenting skills. Still, D.B. only observed three visits. We agree with D.B. that both
Niki and Adam are good parents. But we also note the stark difference between
D.B.’s trial testimony and the opinions she expressed in her affidavit15 for the
15 In her affidavit, D.B. stated:
Since Adam has left their home in June, 2019, I have spent a lot
of time with Niki . . . and [the child]. I have observed a mother
living in fear for the safety of herself and her children. I was
present when Niki received a threatening message from a friend
of Adam’s.
....
To date, I have supervised three visits between Adam
Haugen and [the child]. On all occasions, I took [the child] out of
her car seat and stood her on the ground so she was able to see
Adam in the driveway. I expected [her] to say “daddy” and run to
Adam with her big smile, but that wasn’t the case. [The child] didn’t
move and seemed very hesitant. Adam had to come to her and pick
her up. [ The child] didn’t cry, but was very quiet, which isn’t typical
behavior for her.
During the first two visits, Adam cares for [the child]. He
brought her food and drink, although she wouldn’t sit and eat dinner
on either occasion. [The child] interacted with Adam, but also wasn’t
her normal rambunctious self of an almost 2 year old.
....
To further ensure [the child] was comfortable at my house,
Niki brought her over the day after her first visit with Adam. [The
child] was very hesitant upon arrival and held tight to her big
sister . . . . It took [her] several minutes to begin playing like she
normally would at my home.
The day after the second visit between [the child] and Adam,
I visited Niki and [the child] at their home. I observed [the child] . . .
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temporary custody hearing, before her relationship with Niki soured. In that same
vein, D.B. sent text messages to Niki in September 2019, in which she said she did
not think Adam should be alone with the child. D.B. confirmed saying that, but she
clarified that much of the information she was receiving about Adam’s drinking
habits, mental-health issues, and abusive behavior was one-sided coming from
Niki. So while D.B. offered helpful perceptions about the family, we also weigh the
inconsistencies in her testimony in our de novo review.
D. Attorney Fees.
Both Niki and Adam request an award of appellate attorney fees. Under
Iowa Code section 600B.26(2020), “In a proceeding to determine custody or
visitation, or to modify a paternity, custody, or visitation order . . . the court may
award the prevailing party reasonable attorney fees.” Requests for appellate
attorney fees are within the discretion of this court. Markey, 705 N.W.2d at 26. In
deciding whether to award appellate attorney 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.”
In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996). Because Niki, the
prevailing party, has sufficient income from which to pay attorney fees, we decline
to award her appellate attorney fees.
crying every time Niki walked out of her sight. This behavior is not
typical for [her] when I am there.
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IV. Conclusion.
We modify the district court’s award of joint physical care of the child and
remand for additional proceedings to determine the appropriate child-support
obligation. We decline to award either party appellate attorney fees.
AFFIRMED AS MODIFIED AND REMANDED.