In re the Marriage of Mertz , 919 N.W.2d 635 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0769
Filed May 2, 2018
IN RE THE MARRIAGE OF JAMES BENJAMIN MERTZ
AND COLLEEN SHERREE HASSLER
Upon the Petition of
JAMES BENJAMIN MERTZ,
Petitioner-Appellee,
And Concerning
COLLEEN SHERREE HASSLER,
Respondent-Appellant.
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Appeal from the Iowa District Court for Kossuth County, Don E. Courtney,
Judge.
A mother appeals the provision of a dissolution of marriage decree granting
the father physical care of their child. AFFIRMED.
Tammy Westhoff Gentry and Gina Messamer of Parrish Kruidenier Dunn
Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.
Matthew G. Sease of Kemp & Sease, Des Moines, for appellee.
Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.
A mother appeals the provision of a dissolution of marriage decree granting
the father physical care of their child.
I. Background Facts and Proceedings
Colleen Hassler and James Mertz had a child in 2012 and married the
following year. The child lived in Ankeny with Hassler for the first six months of
her life. Then, Hassler and her twin children from an earlier marriage moved into
Mertz’s home in Algona. The arrangement was short-lived.
In 2014, Mertz petitioned for a dissolution of the marriage. The proceedings
dragged on for two-and-a-half years.
Initially, Mertz obtained an order restraining Hassler from moving from
Algona. The order was later lifted, and Hassler moved to Ankeny to be closer to
her family and to take advantage of the broader employment market. The district
court granted her temporary physical care of the child, subject to visitation with
Mertz.
Several months later, Mertz moved to Ankeny to be closer to his child. In
light of the move, he asked the court to modify the temporary order and grant the
parents joint physical care of the child. The district court denied the request but
afforded him a midweek visit in addition to the previously scheduled alternate
weekend plan. Mertz participated in the visits and took advantage of unscheduled
visitation time afforded by Hassler.
At trial, both parents sought physical care of the child. Mertz alternatively
asked for joint physical care, a request he later withdrew. Following trial, Mertz
filed motions to reopen the record, based on various circumstances. The district
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court granted certain motions and considered the evidence in making the physical
care decision.
In a detailed ruling, the district court began by finding that both Hassler and
Mertz “actively cared for the child before and since the separation” and “contributed
to” the child’s development into “a healthy, happy, and friendly child.” The court
also commended Hassler’s “generous allowance” of additional summer visitation
to Mertz and her facilitation of FaceTime contact with Mertz. But the court
expressed concern with “the failure of the parties to communicate, show each other
mutual respect, and the degree of conflict between them.” The court cited the
parents’ dueling complaints to the department of human services, complaints that
proved unfounded. Ultimately, the court was more troubled by Hassler’s negative
behaviors, “often in the presence of the child[],” than by Mertz’s conduct. The court
stated:
Of particular concern to the court is how a young child is led to
believe that her father did not want her for Christmas or how the
young child learned to refer to her father as a loser. This and the
constant accusations of infidelity and the use of obscenity around the
child are contrary to the principle that the relationship with James
should be supported.
The court concluded Mertz would “better support the relationship” with the other
parent and granted him physical care of the child. Hassler appealed.
II. Physical Care
“Physical care” involves “the right and responsibility to maintain a home for
the minor child and provide for the routine care of the child.” Iowa Code § 598.1(7)
(2014). One of the factors for consideration is whether “each parent can support
the other parent’s relationship with the child.” See id. § 598.41(3)(e); In re Marriage
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of Hansen, 733 N.W.2d 683, 696 (Iowa 2007) (conceding “Iowa Code section
598.41(3) does not directly apply to physical care decisions” but stating factors
were relevant to determining joint physical care).
Hassler contends, “The objective evidence shows [she] went above and
beyond to promote E.M.’s relationship with her father.” We agree. Hassler
fostered the child’s relationship with Mertz by granting unscheduled visitation time
and by facilitating electronic contact. But she also disparaged Mertz in front of the
child, interjected criticisms of Mertz during FaceTime conversations between Mertz
and the child, and referred to Mertz by his first name in speaking to the child. As
the district court stated, these behaviors did not go unnoticed by the child, who
began using terminology beyond her ken.
The district court credited Mertz’s testimony on this issue. We give weight
to the credibility determination, in light of our inability to see and hear the
witnesses. See In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). On
our de novo review, we conclude the district court acted equitably in granting Mertz
physical care of the child.
In reaching this conclusion, we have considered Mertz’s allusions to
Hassler’s mental health, which Hassler argues were beyond the pale. We agree.
At his attorney’s behest, and without medical evidence, Mertz used incendiary
language to describe Hassler’s emotional state. His inappropriate and
unsupported characterizations carry no weight in our review of the physical care
decision.
We also have considered the bond the child shared with her fifteen-year-
old half-siblings. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa
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1993). We do not doubt the existence of a bond among the siblings. But a parent’s
refusal to support the relationship of the child with the other parent can override
the sibling bond in a physical care determination. See id. (concluding custodial
parent’s interference with noncustodial parent’s visitation rights provided adequate
ground for change of custody, notwithstanding separation from half-sibling). In any
event, Hassler coordinated her weekend visitation schedules to facilitate contact
among the siblings, mitigating concerns that the bond would be weakened.
Finally, and most critically, we have considered Hassler’s role as primary
caretaker. Hansen, 733 N.W.2d at 700 (“In making [a physical care] decision, the
factors of continuity, stability, and approximation are entitled to considerable
weight.”). The court acknowledged this role but concluded “there would be little
effect on the child of disrupting the existing custodial status because of the liberal
visitation allowed the non-custodial parent and the geographical location of the
parties.” We concur in this assessment.1
III. Appellate Attorney Fees
Hassler seeks an award of appellate attorney fees. Because she did not
prevail, we decline her request. See In re Marriage of Okland, 699 N.W.2d 260,
270 (Iowa 2005).
AFFIRMED.
Bower, J., concurs; Danilson, C.J., dissents.
1
Hassler makes a fleeting reference to increased visitation. The court afforded her liberal
visitation, including alternating weeks during the summer. Equity does not demand an
even more liberal visitation plan.
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DANILSON, Chief Judge (dissenting)
I respectfully dissent. I do not believe physical care should be determined
by weighing which parent was more critical of the other. Neither parent’s conduct
towards the other was above reproach. In fact, Mertz’s trial testimony was highly
critical of Hassler. It is not unusual for the stress of the separation to impact the
parties and their ordinary demeanor. The district court concluded both parents
were suitable parents, Hassler was very generous with visitation with Mertz, and
the child was thriving in the care of Hassler. I agree. Additionally, the parties’
child, E.M., has a strong relationship with Hassler’s twin daughters from a prior
relationship, one of which resides with Hassler. The presumption that siblings,
even half-siblings, should not be separated provides further support to award
physical care to Hassler. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476,
480 (Iowa 1993). I would reverse and award physical care and appellate attorney
fees to Hassler.