In re the Marriage of Vanrenan ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1384
Filed April 14, 2021
IN RE THE MARRIAGE OF AMBER LOU VANRENAN
AND DUSTY JAY VANRENAN
Upon the Petition of
AMBER LOU VANRENAN,
Petitioner-Appellee,
And Concerning
DUSTY JAY VANRENAN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fremont County, Michael Hooper,
Judge.
Dusty VanRenan appeals the child-custody provision of the dissolution
decree. AFFIRMED AND REMANDED.
Amanda Heims, Council Bluffs, for appellant.
Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellee.
Considered by Bower, C.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
Dusty VanRenan appeals the child-custody provision of the decree
dissolving his marriage to Amber VanRenan. He argues the district court should
have either enforced the mediated parenting plan or awarded the parties shared
physical care of their two children. Amber argues the district court properly
awarded her physical care.
Dusty and Amber married in 2015. They had one child at that time, born in
2014. Over the course of the marriage, the parties had one more child, born in
2017. Dusty also has one child from a prior relationship and, at the time of the
dissolution trial, had a younger child. During the marriage, Dusty worked outside
the home and Amber generally stayed home to care for the children. The parties
separated in September 2017. Amber has since relocated to a town in Nebraska.
The parties participated in court-ordered mediation in April 2018. The
parties were able to reach an agreement for joint legal custody and shared physical
care of the parties’ two children. In September, Amber asked the court to set aside
the parenting plan. The district court reserved ruling until the dissolution trial,
originally scheduled for that same month. Trial was continued multiple times.
Dusty consistently asked the district court to enforce the mediated parenting plan.
The first day of trial was in March 2020, but the second day was not held until
August due to the COVID-19 pandemic. The district court awarded the parties joint
legal custody and found “a shared care arrangement [was] not in the children’s
best interests.” Amber was awarded physical care of the children and Dusty was
awarded liberal visitation.
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“The standard of review is de novo. We give weight to the findings of the
district court, especially to the extent credibility determinations are involved.” In re
Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007).
The parties’ agreement regarding joint legal custody of the children is not in
dispute on appeal. The issue before this court is physical care. “‘Physical care’
means the right and responsibility to maintain a home for the minor child[ren] and
provide for the routine care of the child[ren].” Iowa Code § 598.1(7) (2017). “The
parent awarded physical care maintains the primary residence and has the right to
determine the myriad of details associated with routine living, including such things
as what clothes the children wear, when they go to bed, with whom they associate
or date, etc.” Hansen, 733 N.W.2d at 694. While considering the best interests of
children, “the objective of a physical care determination is to place the children in
the environment most likely to bring them to health, both physically and mentally,
and to social maturity.” Id. at 695. Courts examine the factors listed in section
598.41(3) and In re Marriage of Winter, 223, N.W.2d 165, 166–67 (Iowa 1974)
when making physical care determinations. Hansen, 733 N.W.2d at 696.
However, Iowa courts have “recognized the validity of agreements resolving
issues in domestic relations cases.” In re Marriage of Briddle, 756 N.W.2d 35, 40
(Iowa 2008). These stipulations are given the status of “a contract between the
parties.” Id. (quoting In re Marriage of Jones, 653 N.W.2d 589, 593 (Iowa 2002)).
Neither party may rescind, but courts “retain the power to reject the parties’
stipulation if it is unfair or contrary to law.” Id. But, “once the court enters a decree,
the stipulation, as a practical matter, has no further effect. The decree, not the
stipulation, determines what rights the parties have.” Jones, 653 N.W.2d at 594.
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In the case at bar, the district court entered a decree and found shared care was
not in the best interests of the children. Thus, our review will examine whether the
district court erred in awarding physical care to Amber, not whether it should have
enforced the mediated parenting plan. See id. Our review will examine “the intent
of the district court . . . not the intent of the parties.” Id.The district court was aware of the parties’ stipulated parenting plan and
stated: “Since February of 2018, the parties have been sharing care under a
temporary order but that arrangement is not workable long term.” The district court
specifically invoked the factors and statutory framework regarding physical care
determinations described above. It found shared physical care was not in the
children’s best interests. The district court described the testimony of multiple
witnesses who described “the difficulty the parties had with making simple
exchanges of the children and differences on potty training techniques.” It
commented on the parties’ inability to maintain a peaceful relationship. Each
parent alleged the other was inapt. The district court also discussed Amber’s
extensive history as the primary caregiver for the children due to Dutsy’s extensive
work hours. It ultimately made the following finding.
After considering each witnesses[’] testimony and observing their
appearance, their conduct, weighing their bias, and making
determinations as to what was reasonable and consistent with other
evidence the Court found believable, the Court finds that awarding
Amber primary physical care of [the] children is in their best interest.
Amber has historically been the long-term primary care giver and will
provide the children with the most stability and continuity in their life.
The Court finds that primary care with Amber will most likely bring
the children to healthy physical, mental, and social maturity and is in
the children’s best interest. Dusty, no doubt, should and shall have
a liberal visitation and holiday schedule.
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Our de novo review of the record, giving weight to the district court’s findings
regarding witness credibility, reveals the parties have engaged in constant conflict
for several years. See Hansen, 733 N.W.2d at 690. We agree with the district
court that shared physical care is not in the best interest of the children. Amber’s
history as the primary care giver for the children will promote their long-term
“health, both physically and mentally,” and encourage development “to social
maturity.” Id. at 695. Because shared physical care is not in the children’s best
interest, we agree with the district court that deviation from the mediated parenting
plan was warranted. See Briddle, 756 N.W.2d at 40; Jones, 653 N.W.2d at 594.
The children are most likely to fulfill the statutory and common-law goals of health,
physically and mentally, and social maturity in Amber’s care. Accordingly, we
agree with the district court’s order awarding Amber physical care of the children.1
Amber requested an award of $4000.00 in appellate attorney fees.
“Appellate attorney fees are awarded upon our discretion and are not a matter of
right. When considering whether to exercise our discretion, ‘we consider 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 Heiar, 954 N.W.2d 464, 473 (Iowa Ct. App.
2020) (quoting In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013)).
Amber failed to file an affidavit of her attorney fees on appeal. Without an affidavit
“we are unable to determine a reasonable award without more specific details of
1Dusty’s brief makes a limited complaint of “severely restricted” visitation. On our
examination of the visitation schedule, we disagree. He was awarded every other
weekend through Monday morning, every Wednesday overnight, alternating
holidays, and a minimum of fourteen days uninterrupted vacation. Dusty offered
no specific visitation argument or request for our consideration.
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how the fees were incurred for this appeal.” Id. “We remand the issue of appellate
attorney fees to the district court to determine a reasonable award.” Id. at 473–74.
AFFIRMED AND REMANDED.