Tyler Andrew Swift v. Kabra Grabill ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1926
Filed May 1, 2019
TYLER ANDREW SWIFT,
Plaintiff-Appellee,
vs.
KABRA GRABILL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,
Judge.
The appellant appeals from the child visitation provisions of her decree with
the appellee. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.
Ellen R. Ramsey-Kacena, Cedar Rapids, for appellee.
Considered by Doyle, P.J., Mullins, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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CARR, Senior Judge.
Kabra Grabill appeals from the child visitation provisions of her decree with
Tyler Swift. She asserts the district court should have granted her additional
visitation with their child, K.S. We find the district court should not have granted
Swift discretion to decide visitation with Grabill. Therefore, we reverse that part of
the order and remand for entry of an order for definite visitation with Grabill.
K.S. was born in 2012. The parties have never married. On July 28, 2017,
Swift filed his petition to establish paternity, care, and support for K.S. On
March 23, 2018, the Iowa Department of Human Services removed K.S. and two
half-siblings from Grabill’s care after police found drug paraphernalia in her home.
K.S. was later adjudicated a child in need of assistance (CINA). Meanwhile, the
district court found Grabill in default regarding Swift’s petition after she failed to
appear multiple times. On September 19, the court held a hearing on the default,
in which both parties appeared. At this time, Grabill was allowed one two-hour
supervised visit with K.S. each week for the CINA proceeding. On October 8, the
court issued the decree, which granted joint legal custody; placed physical care of
K.S. with Swift; ordered visitation with Grabill at Swift’s sole discretion upon
dismissal of the CINA proceeding, with Grabill having at least two twenty-minute
phone calls with K.S. each week; and established child support and other matters.
Grabill now appeals the visitation provisions.
We review child visitation orders de novo. Callender v. Skiles, 623 N.W.2d
852, 854 (Iowa 2001); Iowa R. App. P. 6.907. “We need only give weight to the
trial court’s factual findings, but are not bound by them.” Callender, 623 N.W.2d
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at 854; Iowa R. App. P. 6.904(3)(g). Our primary concern is the best interests of
the child. Callender, 623 N.W.2d at 855; Iowa R. App. P. 6.904(3)(o).
As an initial matter, Swift asserts Grabill failed to preserve error on her
argument. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal.”). He
argues that, although she briefly testified, the hearing was on her default and she
never argued for visitation before the district court. Given our de novo standard of
review and because the district court squarely ruled on visitation, we will pass on
the question of error preservation and address the merits of Grabill’s arguments.
See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing error preservation
and proceeding to the merits of the issue raised on appeal). Our decision to
consider the merits also squares with In re Marriage of Huston, 263 N.W.2d 697,
700 (Iowa 1978), which held that a defaulting party to a dissolution proceeding may
have appellate review. De novo review will generally be limited to “(1) scope of
relief granted, and (2) equities of the decree as determined by an examination of
the entire record made at trial.” Huston, 263 N.W.2d at 700.
The district court ordered visitation with Grabill at Swift’s sole discretion
upon dismissal of the CINA proceeding. Our supreme court has long recognized
courts
should not make the right of visitation contingent upon an invitation
from the party having the custody of the child, or require the consent
of one parent for the other to visit the child, . . . thereby leaving the
privilege of visitation entirely to the discretion of the party having the
child in custody.
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Smith v. Smith, 142 N.W.2d 421, 425 (Iowa 1966) (quotation omitted). More
recently, this court said:
It is well established that the district court is the only entity that
can modify a custody or visitation order, subject to the review of the
appellate courts. This obligation to modify a decree cannot be
delegated to any person or entity because that person or entity has
no jurisdiction to render such a decision. The legislature has granted
to the court the responsibility to make an impartial and independent
determination as to what is in the best interests of the child, and this
decision cannot be controlled by the agreement or stipulation of the
parties.
In re Marriage of Stephens, 810 N.W.2d 523, 530–31 (Iowa Ct. App. 2012)
(citations omitted). Considering this precedent, we do not agree with delegating
to Swift the sole discretion to decide visitation with Grabill. We reach this
conclusion while acknowledging the scant record before the trial court, a
circumstance to which Grabill contributed by her inadequate self-representation
and failure to attend court, which resulted in her being adjudged in default. If her
interests were our primary concern, we would be content to affirm the decree.
However, the child’s best interests intervene, and his interests will be served by
continuing contact with his mother. See Lamansky v. Lamansky, 207 N.W.2d 768,
770 (Iowa 1973) (“Custody and visitation are not granted as a reward to one parent
or a punishment of the other.”); see also Iowa R. App. P. 6.904(3)(o) (“In child
custody cases, the first and governing considering of the courts is the best interests
of the child.”); In re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa Ct. App. 1987)
(finding the mother “is more capable of providing the children a stable and suitable
environment,” but “the children’s best interests require that they be afforded liberal
visitation with their father”)
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We share the court’s concern over Grabill’s “use of illegal substances,
criminal charges, and failure to meet her mental health needs.” However, the court
cannot delegate to Swift the authority to decide whether and to what degree these
issues affect her visitation with K.S. Therefore, we reverse the court’s order
regarding visitation and remand for the district court to enter a definite order for
visitation with Grabill, including assigning a visitation supervisor if appropriate. We
affirm the court’s order in all other respects.
Swift requests appellate attorney fees. Appellate attorney fees are within
the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d 643, 646
(Iowa 1996); see also Iowa Code § 600B.26 (2018) (“In a proceeding to determine
custody or visitation, . . . the court may award the prevailing party reasonable
attorney fees.”). “In determining 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
decision of the trial court on appeal.” In re Marriage of Hoffman, 891 N.W.2d 849,
852 (Iowa Ct. App. 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389
(Iowa Ct. App. 1997)). Swift was not successful regarding visitation on appeal,
and we decline to award appellate attorney fees.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.