Damian Lee Hesseltine v. Drewann Sorensen ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1603
Filed June 19, 2019
DAMIAN LEE HESSELTINE,
Plaintiff-Appellee,
vs.
DREWANN SORENSEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Washington County, Crystal S.
Cronk, Judge.
A mother appeals an order granting the father physical care of their child
and awarding him the associated dependent-tax exemption. AFFIRMED.
Constance Peschang Stannard of Johnston, Stannard, Klesner, Burbidge
& Fitzgerald, PLC, Iowa City, for appellant.
Kathryn J. Salazar of Schlegel & Salazar, LLP, Washington, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Judge.
A mother appeals an order granting the father physical care of their child.
She also challenges the court’s assignment of the dependent-tax exemption to
him.
I. Background Facts and Proceedings
DrewAnn Sorensen and Damian Hesseltine are the unmarried parents of a
child, born in 2016. Sorensen gave birth to the child the summer after she
graduated from high school. A month later, Hesseltine petitioned for joint physical
care. The district court granted Sorenson temporary physical care of the child,
subject to visitation with Hesseltine.
When the child was seven months old, Hesseltine noticed a “soft spot on
the side of her head.” The University of Iowa Children’s Hospital examined the
child for non-accidental trauma. Personnel found a soft tissue swelling but “no
fracture” of her skeleton. A medical consultant who evaluated the child for signs
of physical abuse diagnosed swelling and an underlying skull fracture resulting
from “one single impact” but concluded “[t]he fact that [the child] doesn’t have any
other skeletal, intracranial, or retinal injuries suggest[s] that this constellation of
limited injuries occurred as a result of an accident.” It was later determined the
child fell from a changing table while in the care of her maternal grandmother.
Meanwhile, the department of human services intervened to investigate
Sorenson for allegations of physical abuse and neglect. The allegations were
deemed founded. The State filed a child-in-need-of-assistance petition, and the
juvenile court ordered the child removed from Sorenson’s custody and placed with
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Hesseltine. The district court concomitantly stayed the custody action in light of
the juvenile court proceeding.
The child remained with Hesseltine for five months, after which the juvenile
court placed her with Sorenson on a trial basis. The placement was successful,
and the court ordered the child returned to Sorenson under the department’s
protective supervision. The juvenile court also granted the district court concurrent
jurisdiction to proceed with permanent custody and child support determinations.
The district court, in turn, lifted the stay and Hesseltine’s custody petition
proceeded to trial.
At trial, both parents sought physical care of the child. The district court
granted Hesseltine physical care and the dependent-tax exemption. Sorenson
appealed following the denial of her motion for enlarged findings and conclusions.
II. Physical Care
In deciding who should have physical care of the child, the district court
considered the credibility of each parent:
During the course of two days of trial, the Court was able to
observe the parties and their demeanor and respective testimony.
The Court finds that [Sorensen] was less credible, she minimized her
own shortcomings (such as inability to communicate with
[Hesseltine]) and exaggerated what she felt where her positive
attributes.
On appeal, Sorensen acknowledges we are to give weight to a district court’s
findings concerning the credibility of witnesses. See In re Marriage of Udelhofen,
444 N.W.2d 473, 474 (Iowa 1989) (“[W]hen considering the credibility of witnesses
the court gives weight to the findings of the trial court, but is not bound by them.”).
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However, she contends contradictory statements by Hesseltine and one of his
witnesses detract from the district court’s credibility finding in favor of Hesseltine.
On our de novo review, we agree Hesseltine made bald assertions
unsupported by the record. For example, he adamantly testified the child was with
Sorenson when a vehicle in which she was riding was stopped for alcohol-related
infractions. Sorenson’s attorney impeached Hesseltine by pointing out the vehicle
stop occurred on a weekend when he had the child. Hesseltine also attempted to
relitigate facts underlying the juvenile court action by calling a department
employee to impugn the credibility of the department’s case manager. Sorenson’s
attorney impeached the employee by pointing out she did not monitor cases after
the child abuse investigation ended and she found no evidence to support some
of the allegations Hesseltine made against Sorenson. In short, the record certainly
contains evidence from which the court could have found that Hesseltine and the
department employee lacked credibility.
But “the district court was able to listen to and observe the parties and
witnesses.” McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010). That
unique vantage point is not available to us. See In re Marriage of Vrban, 359
N.W.2d 420, 423 (Iowa 1984) (“We are denied the impression created by the
demeanor of each and every witness as the testimony is presented.”). Sorenson’s
contradictory statements on the extent of her “partying” and other matters lent
support to the court’s adverse credibility findings. We give weight to those findings.
We turn to Sorensen’s assertion that the district court failed to give proper
weight to her role as primary caretaker of the child. By statute, Sorensen had sole
custody of the child until Hesseltine’s paternity was established. See Iowa Code
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§ 600B.40(1) (2016). After Hesseltine filed the custody petition, the district court
granted Sorenson temporary physical care of the child, but her role as primary
caretaker was short-lived. As noted, the juvenile court removed the child from her
custody for five months and Hesseltine served as primary caretaker during that
period. We conclude Sorenson’s slightly greater role as primary caretaker was not
determinative on the question of physical care. See id. § 600B.40(2) (adopting
factors set forth in section 598.41(3) for custody determinations involving
unmarried parents); see also id. § 598.41(3)(d) (considering “[w]hether both
parents have actively cared for the child before and since the separation”); McKee,
785 N.W.2d at 738–39 (affirming child’s placement with father despite mother’s
role as primary caretaker for fifteen years).
Lastly, Sorensen contends the district court did not properly account for
Hesseltine’s failure to support her role as a parent. See Iowa Code § 598.41(3)(e)
(authorizing consideration of “[w]hether each parent can support the other parent’s
relationship with the child”). We find this factor to be in equipoise. Both young
parents found it easy to blame the other for incidents large and small. At the
conclusion of trial, the district court encouraged them to “figure out a way to
communicate” and “give a lot of serious thought to how [they] conduct
[themselves],” in an effort “to make things good for [their] daughter.” We agree
with this sage advice.
III. Tax Exemption
Sorensen contends “the court erred in granting the tax exemption only to
[Hesseltine].” “The ‘general rule’ is that the parent given primary physical care of
the child is entitled to claim the child as a tax exemption.” In re Marriage of Okland,
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699 N.W.2d 260, 269 (Iowa 2005) (citation omitted); Iowa Ct. R. 9.6(5) (“The
custodial parent shall be assigned one additional dependent exemption for each
mutual child of the parents . . . .”).
Hesseltine was designated the custodial parent. In addition, as the district
court found, he would benefit more from the exemption because, at the time of
trial, “he was working and [Sorenson] was not.” See Okland, 699 N.W.2d at 270(noting one parent “would benefit more from the exemptions than” the other).
Under these circumstances, “[e]quity supports” the district court’s assignment of
the tax exemption. See id.IV. Appellate Attorney Fees
Hesseltine and Sorensen both seek awards of $2500 in appellate attorney
fees. Given the parents’ limited resources, we decline their requests. See In re
Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). Costs on appeal
should be divided evenly between the parties.
AFFIRMED.