In RE the Marriage of Angela Marie Harris and Patric David Harris Upon the Petition of Angela Marie Harris ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 12–1969
Filed September 20, 2013
IN RE THE MARRIAGE OF ANGELA MARIE HARRIS
AND PATRIC DAVID HARRIS
Upon the Petition of
ANGELA MARIE HARRIS,
Appellant,
And Concerning
PATRIC DAVID HARRIS,
Appellee.
Appeal from the Iowa District Court for Polk County, Robert A.
Hutchison, Judge.
Petitioner appeals the district court’s denial of her motion to
continue trial and the district court’s award of joint physical care.
AFFIRMED.
Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines,
for appellant.
Patric D. Harris, pro se.
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PER CURIAM.
The mother of two minor children appeals from a dissolution
decree. She contends the district court erred in failing to grant her
motion for continuance and in ordering joint physical care. We affirm.
I. Background Facts and Proceedings.
Angela and Patric Harris were married on May 17, 1997. Angela
was then twenty years old and Patric was twenty-six. Both had
graduated from high school at the time and both have now completed
some college education. They had two children during the marriage: a
daughter, now eleven, was born in November 2001, and a son, now four,
was born in June 2009.
Both parents were employed fulltime when their daughter was
born. Angela left her job at Sears and worked at home as a daycare
provider. Soon after the daughter reached school age, Angela began
working at Iowa Medicaid Enterprise, where she remains today. Patric
has worked since April 2010 in part- and full-time positions for several
different employers, after having spent about ten years in a sales position
at Gilcrest/Jewett Lumber Company.
The record reveals conflicting testimony as to the quantity and
quality of parenting responsibilities performed by the respective parents
before Angela initiated dissolution proceedings in November 2010.
Angela testified she was the primary caregiver for both children
throughout the marriage. Some of Patric’s relatives reiterated that
testimony, suggesting Patric took a less active role and was uninvolved in
many of the decisions affecting the children, despite having taken an
active role in many other household decisions. Patric’s testimony,
however, suggests the parties shared parenting responsibilities equally
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and were equally involved in schooling and other activities with the
children.
In December 2010, Angela and Patric—both represented by
counsel at that point in the dissolution proceedings—reached a
mediation agreement that effectively provided for joint legal custody and
joint physical care. Under that agreement, the parents rotated in and
out of the marital home every several days to shoulder parenting
responsibilities according to a set schedule while the children remained
in the home. In a second mediation in April 2011, Angela and Patric—
again represented by counsel—reached largely the same arrangement
(the mediation agreement), again effectively providing for joint legal
custody and joint physical care.
In August 2011, Patric sent Angela a proposed dissolution decree
memorializing many of the terms of the mediation agreement. After
further inquiries from Patric seeking Angela’s approval of the proposed
decree, Angela indicated in October she no longer favored joint physical
care and would seek primary physical care. The district court then
entered a scheduling order setting a two-day trial for April 2012 to
resolve issues of legal custody, physical care, child support, marital
property, and attorneys’ fees.
The parties sold the marital home in January 2012 and divided the
proceeds according to the terms of the mediation agreement, in part
because of the parties’ debt concerns. Patric moved into a home in West
Des Moines with his current girlfriend and her two children, where he
continues to reside. Angela moved into a townhome in Johnston owned
by Patric’s stepfather, where she continues to reside. The parties have
continued to exercise joint legal custody and physical care, as the
children split time between the Johnston and West Des Moines homes.
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Both parties have taken active roles in schooling, homework, and
extracurricular activities since the original temporary mediation
agreement was reached in December 2010.
The April 2012 trial was canceled. Angela’s counsel then withdrew
her representation, citing communication and financial issues. In June,
Patric filed a motion seeking enforcement of the parties’ mediation
agreement, which addressed many of the dissolution issues, including
legal custody and physical care. Angela opposed enforcement of the
agreement, and the court set a hearing on the motion for late August.
Soon after Patric filed the motion to enforce the mediation
agreement, and shortly before Father’s Day, Angela filed a domestic
abuse petition alleging Patric had committed verbal abuse and made
threats of physical harm. The court set a hearing on the petition for
June 28 and granted a temporary protective order suspending Patric’s
visitation until the August hearing on Patric’s motion to enforce the
mediation agreement. By stipulation of the parties, the court modified
the protective order on June 28, allowing for resumption of joint custody
and physical care until a final hearing on the protective order could be
held in August. Two weeks later Angela initiated contempt proceedings,
alleging Patric had violated the modified protective order in failing to
grant her certain visitation rights orally agreed upon in forming the
June 28 agreement.
At the August 2012 hearing on the protective order and contempt
matters, the district court found Angela’s filings had been motivated
largely by a desire to gain an upper hand in the dissolution proceedings.
The court thus denied her request for a permanent protective order and
lifted the temporary order. The parties continued thereafter to exercise
joint custody and physical care.
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The court held a separate August 2012 hearing on Patric’s motion
to enforce the mediation agreement and concluded the agreement should
be enforced. The court ordered the provisions of the agreement
incorporated in the final decree of dissolution. Because the agreement
was silent regarding child support, insurance costs, and unpaid medical
bills, the court scheduled trial for September 27 to address those issues.
In early September, Angela moved for reconsideration of the court’s
decision to enforce the mediation agreement. She argued the court had
failed to consider whether the agreement was unfair or contrary to law
and whether it was in the best interests of the children. Patric opposed
the motion, contending Angela had had ample opportunity to make these
claims at the hearing held the previous month on enforcement of the
agreement.
On September 21, a week before trial, the court entered an order
reconsidering its ruling on enforcement of the mediation agreement. The
court’s order ruled that all issues—including legal custody and physical
care—would be tried on September 27. Angela moved to continue the
trial, citing the concern that six days was insufficient time to prepare her
case on legal custody and physical care—issues she had not yet prepared
as she had operated under the assumption the trial would be limited to
certain financial issues. She also raised the concern that her current
attorney, making a limited appearance to argue for the requested
continuance, could not practically or ethically prepare for a trial in six
days, and that therefore, if a continuance were denied, Angela would
likely be forced to try the case on her own behalf. The court denied
Angela’s request, observing she had already enlisted five different
attorneys during the pendency of the case, bringing “lawyers in to just do
patchwork on a case of significance for both her and [her family].” The
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court added that she had retained, separately, two of those five attorneys
in the previous month, and yet she had retained neither for
representation at trial. Given that history, the court concluded a
continuance would be unfair to Patric and the children. In rejecting
Angela’s request for a continuance, the court noted this case had been
pending far longer than was preferable or necessary for family disputes
and observed that Angela had had multiple previous opportunities to
present her case on legal custody and physical care issues.
At trial, the parties contested issues of physical care and child
support. Angela, appearing pro se, requested joint legal custody but
primary physical care. Patric sought joint legal custody and joint
physical care, but added an alternative request for primary physical care
should the court reject his request for joint care. The court, after
considering the factors informing the best-interests-of-the-children
inquiry detailed in Iowa Code section 598.41(3), entered a dissolution
decree awarding the parties joint legal custody and joint physical care.1
Angela appealed, arguing the district court abused its discretion in
denying her motion to continue and erred in concluding joint physical
care is in the best interests of the children.
II. Standard of Review.
We review denial of a motion to continue for clear abuse of
discretion. See Dep’t of Gen. Servs. v. R.M. Boggs Co., 336 N.W.2d 408,
410 (Iowa 1983). We review dissolution rulings de novo. In re Marriage
of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). We give weight to the
1We have previously explained that while Iowa Code section 598.41(3) explicitly
establishes a nonexclusive list of factors to be considered in custody determinations,
the factors enumerated there also guide the best-interests inquiry for physical care
determinations. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
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factual findings of the district court, particularly where credibility
determinations are involved. Id.
III. Analysis.
A. Motion to Continue. Angela contends the district court erred
in denying her motion to continue. Additional preparation time and the
guidance of competent trial counsel, Angela maintains, would have
enhanced the presentation of her case for primary physical care. A more
polished presentation, she insists, may have helped the court reach a
different result.
As we have already noted, the district court denied the
continuance, finding Angela had already caused substantial delays in the
proceedings, had long been aware of the need for—and on multiple
occasions been encouraged to retain—counsel, and had herself, more
than a month before trial, asked that the court consider legal custody
and physical care at trial. Further delay, the court suggested, would
leave the parties and children in a state of unnecessary and undesirable
unrest. Citing concerns of fairness to Patric, the necessity of expedient
resolution for the children, Angela’s contributing conduct, and the
parties’ extensive familiarity with the issues eventually litigated, the
district court concluded a continuance would have been unjust and cruel
to the family.
Iowa Rule of Civil Procedure 1.911 provides that the district court
may allow a continuance “for any cause not growing out of the fault or
negligence of the movant, which satisfies the court that substantial
justice will be more nearly obtained.” Iowa R. Civ. P. 1.911(1). We give
the district court broad discretion in ruling on continuances and we will
not interfere absent clear abuse. Michael v. Harrison Cnty. Rural Elec.
Coop., 292 N.W.2d 417, 419 (Iowa 1980).
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On our review, we find the district court’s analysis persuasive. As
the court explained, Angela had been aware of the issues of significance
to her for far longer than the six days immediately preceding trial. She
had in August 2012 asked the court—twice—to consider legal custody
and physical care issues at trial. In July, she had resisted Patric’s
motion to enforce the mediation agreement, explaining she could no
longer agree to joint physical care. Communications between the parties
and their attorneys revealed the dispute over physical care may have
existed for as long as the lawsuit itself. Indeed, Angela had requested
primary physical care in the original petition for dissolution, filed two
years before the September 2012 trial. Further, as the district court
noted, Angela had been represented by five separate attorneys during the
pendency of the proceedings.2 Despite the court’s August 2012
admonition that she retain representation for the trial as soon as
practicable, she failed to do so until six days before trial. Finally, as the
district court explained, the case was nearly two years old, the financial
and emotional strain of the litigation was taking its toll on both the
parties and their children, and all involved had much to gain from an
expedient resolution. Given these circumstances, we find, as the district
court did, that Angela was largely responsible for any lack of preparation
and any ineffectiveness in the presentation of her case. Accordingly, we
find no abuse of discretion in the district court’s denial of a continuance
under the circumstances presented here.
B. Physical Care. Angela argues the district court erred in
awarding joint physical care, given the parties’ historic apportionment of
2The reasons for the breakdown of the relationships between Angela and the
series of lawyers who represented her in this case are not clearly developed in the
record.
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caregiving responsibilities, the extent of the parties’ communication
problems, and the contentiousness of the marriage. The district court
disagreed, finding joint physical care was in the best interests of the
children for several reasons: (1) the children had thrived under the joint
physical care arrangement of the previous two years, (2) the daughter
was doing well in school, (3) the son was developing well for his age, (4)
both children benefited from frequent contact with both parents, and (5)
both parents had been actively involved in caring for the children and
their activities.
The fundamental concern in making a primary physical care
determination is placement of the children in the care of that parent who
will best minister to the long-range best interests of the children. See In
re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974). As noted above,
Iowa Code section 598.41(3) establishes a nonexhaustive list of factors
guiding legal custody determinations. See Iowa Code § 598.41(3). We
have explained those factors, along with other facts and circumstances,
are also instructive in determining whether joint physical care is in the
best interests of the children. Hansen, 733 N.W.2d at 696. Our basic
framework for the best-interests physical care inquiry is well established,
and stability and continuity of caregiving have been primary
considerations. See id. Past caregiving patterns are instructive, as the
patterns are often reliable proxies for intangible qualities such as
parental ability and emotional connection that courts are not typically
well positioned to discern. See id. The degree of conflict between the
parties, the level of agreement regarding daily activities, and the ability to
communicate and show mutual respect are also significant factors in
making the best-interests determination. Id. at 698–99. Ultimately,
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however, “the total setting presented by each unique case” must be
considered. Id. at 699.
Our de novo review of the record reveals conflicting evidence
regarding several of these principles. Angela suggested the degree of
conflict between the parents was so great as to negatively affect the
children. Patric posited that the parties had been able to work through
various conflicts—and the district court agreed. We think it noteworthy,
as did the district court, that much of the evidence of parenting discord
described conflicts arising after the separation. We find the parties’
preseparation cooperation suggests a resolution in the dissolution
proceeding may alleviate much of the conflict. The temporary protective
order tells us little about the prospect of the parents’ prospects for
cooperation in child-rearing, given the eventual modification and
subsequent dismissal of the order, and the district court’s finding that
Angela lacked credibility and may have been engaging in strategic
behavior in requesting the order.
The record is also less than definitive as to the allocation of pre-
and postseparation caregiving responsibilities. Angela testified that prior
to the separation she had been the primary caregiver for the children;
Patric testified parenting responsibilities had been shared equally. We
find the record is clear, however, that both parties had significant
household responsibilities and both parties were actively involved in
raising the children before the separation. Angela testified that Patric
became largely uninvolved in parenting after the separation and left such
responsibilities to his live-in significant other. Patric’s testimony
suggested, however, that he remained as actively involved as ever.
Regardless, postseparation communications between the parties
documented in the record and the terms of the mediation agreements
support our finding that both parents have had regular and significant
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parental interaction with the children since the dissolution proceeding
began and both have been extensively involved in activities and decision
making for the children. Accordingly, the past caregiving patterns of the
parties do not augur in favor of Angela’s primary care claim or against
Patric’s request for joint physical care.
Having examined the record de novo, we give weight to the
credibility findings of the district court. That court had distinct
advantages in assessing credibility, having observed the parties firsthand
and having drawn upon senses unavailable to us on appeal. See In re
Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). We are guided by
the district court’s finding that Angela’s allegations regarding parental
conflict and conduct lacked credibility. We also adopt as our own the
district court’s finding that the children have thrived under the already-
existing joint physical care arrangement and are likely to continue to do
so. Given the historical involvement of both parents in child-rearing, the
benefits derived by the children from the parties’ mutually-agreed-upon
joint physical care arrangement during the last two years, and the
importance to the children of continuity, stability, and parental contact,
we believe this is a case in which joint physical care as ordered in the
district court’s decree is in the best interests of the children. We
therefore affirm.
IV. Conclusion.
We conclude the district court did not err in denying the requested
continuance. We find joint legal custody and joint physical care is in the
best interests of the children and therefore affirm the decision of the
district court.
AFFIRMED.
This opinion shall not be published.