In re the Marriage of Johnson ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0169
Filed November 3, 2021
IN RE THE MARRIAGE OF BRADLEY WAYNE JOHNSON
AND KAYLA JAN JOHNSON
Upon the Petition of
BRADLEY WAYNE JOHNSON,
Petitioner-Appellee,
And Concerning
KAYLA JAN JOHNSON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.
Kayla Johnson appeals the decree dissolving her marriage to Bradley
Johnson. AFFIRMED AS MODIFIED AND REMANDED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
Shanna Chevalier of Laird & Luhring, Waverly, for appellee.
Considered by Mullins, P.J., and May and Ahlers, JJ.
2
MULLINS, Presiding Judge.
Kayla Johnson appeals the decree dissolving her marriage to Bradley
Johnson (Brad). She argues the court erred in placing their three children in Brad’s
physical care instead of in the parties’ shared care. In the alternative, she argues
the amount of visitation she was awarded is inadequate. Brad requests an award
of appellate attorney fees.
I. Background Facts and Proceedings
While these parents’ generally agree that each is a good parent to their
three children, their accounts of their share of the parenting and conduct before
and after their separation is nothing less than contradictory. Each paints
themselves as a model parent who fosters the children’s relationships with the
other. Each also paints the other as a parent who does not foster the children’s
relationships with the other parent. Based on Kayla’s dishonesty, deceit, and her
denial of wrongdoing in relation to losing her employment, the district court
recognized Kayla’s willingness to shade the truth and found Brad to be more
credible. Giving deference to this credibility determination, we make the following
factual findings based on the evidence we find credible.1
1 Based on our complete review of the record, we find Brad’s testimony generally
credible because, in his testimony, he was willing to concede to the existence of
facts that were detrimental to his position in the case.
We find the testimony of the children’s psychiatric nurse practitioner highly
credible because she was a neutral and unbiased witness.
We assign little evidentiary value to the testimony of Brad’s mother and
Kayla’s parents given their understandable favor for their respective children.
We find generally not credible the testimony of Kayla and her significant
other, Rick. In their testimony, when faced with facts adverse to Kayla’s case, they
either denied such facts outright or attempted to bend them in Kayla’s favor, even
when such facts were supported by other evidence and the testimony of the
witnesses we find credible.
3
The parties married in 2009. The marriage produced three children, born
in 2010, 2012, and 2015. Early on in the marriage, Brad worked and Kayla was a
stay-at-home mom. In time, Kayla furthered her education and became a nurse.
She began working more and progressed to full-time employment in 2016. Brad
has always been an involved parent, but his involvement steadily increased over
the years. According to Brad, the parties have shared parenting duties. On a
typical day, Kayla would get the children ready and transport them to school and
daycare, and Brad would pick them up from school and daycare, make supper,
and organize the home. Normally, Brad would get the children ready for bed, and
then both parties would lay down with them. According to Brad, in the few years
leading up to the parties’ separation, Kayla’s involvement in the children’s daily
routine decreased due to her taking a new job with longer hours and going on more
business trips. She also began going out with friends quite often, leaving Brad to
care for the children. According to Kayla, the parties shared parenting duties, but
she was primarily responsible for organizing and attending to their medical needs.
The parties separated in or about April 2019, when Brad learned Kayla was
having an affair.2 The parties apparently participated in marital counseling, but
Kayla continued her relationship with her new boyfriend, Rick, and she even
introduced him to the children by May.3 On the first day of school in August, the
2 We expressly disavow any indication of fault against Kayla for her extramarital
affair or other alleged affairs—Iowa is a no-fault dissolution-of-marriage state. See
In re Marriage of Fennelly, 737 N.W.2d 97, 103 (Iowa 2007). “[W]e only consider
a party’s indiscretions if [a] child was harmed by the behavior.” In re Marriage of
Rothfus, No. 13-1745, 2014 WL 2885340, at *4 (Iowa Ct. App. June 25, 2014).
3 At the time, Rick was still married to Andrea, who, in time, became Brad’s
girlfriend. By the time of trial, Brad had yet to introduce the children to Andrea.
4
oldest child drew an “all about me” picture of her family. It depicted her on one
side of the photo surrounded by “mom,” “my sis,” “my bro,” and “my mom’s
boyfriend.” “My dad” was located on the opposite end of the drawing standing next
to one of the child’s friends.
Ultimately, in August, Brad petitioned for dissolution of the parties’ marriage.
Up to this point and thereafter, the parties were sharing care of the children. Then,
in September, there was a domestic altercation between the parties during a
custody exchange. According to the ensuing police report, Kayla pushed and
scratched Brad. Kayla admitted to the officer that she pushed Brad. Kayla testified
she was also injured by Brad during this incident. That allegation was not
contained in the police report. Kayla was arrested on a charge of domestic abuse
assault, which was still pending at the time of the dissolution trial. A no-contact
order was entered between the parties, which continued to be in place at the time
of the dissolution trial. The no-contact order was later modified to allow text
messaging between the parties concerning the children and allow them to meet in
a public place for exchanges. An assessment by the Iowa Department of Human
Services (DHS) was conducted because the children were present, during which
one of the children reported dislike for Rick due to his temper. The middle child
has reported Rick has spanked him. Kayla testified she intends to move in with
Rick following dissolution and would like to marry him.
Later in September, Kayla was terminated from her employment as a nurse
for HIPAA violations, one involving her accessing Rick’s then wife’s (Andrea)
medical records, and another involving her accessing records of another person
Brad started dating for a short period of time after petitioning for dissolution. At
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trial, Kayla continued to deny the allegations. Based on the evidence, we, like the
district court, find her “denial of fault or culpability . . . unbelievable.” She now
works part time for Rick’s farming operation.
Following the assault incident, Brad moved for a temporary-matters hearing
and requested he be awarded temporary physical care. A hearing was scheduled
for early November. Before the hearing occurred, Kayla’s father4 reported to DHS
that Brad leaves the children home alone and he allowed them to go to the park
unsupervised. DHS investigated and found the allegation unsubstantiated.
Brad continues to live in Janesville, the town where the family lived before
the separation. His house has four bedrooms, and each child has their own room.
His home is four minutes away from the children’s school. He works for an
implement manufacturer, and his hours are 7:00 a.m. to 3:30 p.m. Currently, he
leaves for work at 6:30 a.m., and Brad’s mother gets the children ready and off to
school.
After the marital home was sold, Kayla began renting a home outside of
Shell Rock. According to Brad, the children reported to him that, when with Kayla,
they only go to the mother’s residence to sleep and spend most of their time at
Rick’s home. The rest of the evidence confirms this testimony. Rick’s home is
thirty-five minutes from the children’s school, and Kayla’s residence is twenty-three
minutes away from the school. According to Brad, the children have reported to
Brad that Rick has a temper and yells at them. Kayla claims Rick is nice to the
children and Rick just has a loud voice.
4 Brad used to be extremely close with Kayla’s parents. Those relationships have
since soured.
6
Both parties have claimed that the other says negative things about one
another and their significant others around the children. While the record is clear
that Brad said some negative things about Kayla and Rick to Kayla’s parents early
on and he still harbors some animosity and distrust for Kayla, we find Kayla’s
claims he would subject the children to such statements lacking in credibility given
her above-stated willingness to shade the truth. Given Kayla and Rick’s behavioral
indicators, personalities, manipulative tendencies, and relationship dynamics, we
have no doubt that they have said negative things about Brad in front of the
children. The evidence shows Kayla and Rick have manipulative tendencies to
further their goals in their separate dissolution proceedings.
There have been occasions when Kayla has requested to have the children
in her care while Brad is at work, which Brad has largely denied because he
believes the children are not comfortable around Rick, with whom Kayla spends
the bulk of her time, and Brad wants to have the children under a consistent
schedule. That said, he has allowed Kayla extra visitation time during the summer
months. He has also exchanged time for Kayla to take the children to family
events. Kayla claims Brad had every other week off from work during the COVID-
19 pandemic and he still had a babysitter watch the children during those weeks
so he could spend time with his girlfriend, Andrea. Brad replied he was working
extra jobs to pay bills during his weeks off because Kayla refused to pay for some
of the familial bills she agreed to pay for during the separation.
At trial, Kayla attempted to paint Brad as mentally unstable. True, Brad
struggled with his mental health following his discovery of Kayla’s infidelity, there
were signs of suicidal thoughts on his part, and, by the time of trial, he had
7
discontinued taking his prescribed mental-health medication. But Kayla agrees he
is a stable and capable parent, and we conclude the foregoing mental afflictions
were episodic results of Brad learning of Kayla’s infidelity and the parties’ ensuing
separation.
Brad agrees the communications between him and Kayla have been
respectful and the conflict between the parties will hopefully abate once their
marriage is dissolved. The parties generally agree on most child-rearing issues—
where the children will go to school, what they should eat, when they should go to
bed, and the activities in which they participate.
After receiving temporary physical care, Brad did plan to change the
children’s doctor and therapist, for which Kayla faults him. Brad explained he did
set up an appointment with a new doctor because he was too embarrassed to
show his face at the clinic that fired Kayla, and he assumed Kayla would be as
well. And he felt the therapist favored Kayla and was biased against him. The
therapist previously warned she would not be involved with the dissolution
litigation, and when Brad asked for information from the therapist that had been
provided to Kayla but not him, the therapist declined to see the children anymore.
Brad testified the middle child, after being with Kayla and Rick on Memorial
Day in May 2020, reported that Rick yelled at him so much that he urinated in his
pants, after which Rick yelled at him for doing so, to an extent that the child vomited
on himself. Kayla denied this occurred, testifying to a different version of events.
A psychiatric nurse practitioner who saw the child in July 2020 testified the middle
child reported Rick “squeezes us and carries us and screams at us, Mommy tells
him to stop hurting us, and he doesn’t listen.” The child also reported Rick carries
8
him to his room and holds the door closed so he cannot get out and sometimes
the child locks his door so Rick cannot get in. Rick also carries the child out of the
house when his children are sleeping so they do not get woken up. The child told
the nurse practitioner of the Memorial Day incident, stating Rick put him in timeout
in the shower because he was being too noisy in the house, and Rick held the door
closed so he could not get out. The child had to go to the bathroom, but Rick would
not let him out to do so. So the child accidently wet himself, after which Rick yelled
at him until he slobbered or vomited on himself. The child also reported that Rick
and Kayla fight. The nurse practitioner also met with the oldest child in August.
That child reported she does not like being at Rick’s house. Both children indicated
being fearful of Rick, and the nurse practitioner opined the children spending time
at his home could be detrimental to their mental health.5 As noted, the evidence
shows Kayla spends essentially all of her time with the children at Rick’s home.
Evidence was presented that Rick has a history of domestic violence. When
asked about her experience during the last few years of their marriage, Andrea
testified: “Black eyes. He choked me up against a wall. Held me against a dresser.
Held me in a room. Split my lip open. Shoved me around the basement where he
thought he broke my elbow. Drug me out of my car by my hair.” Andrea also
testified Rick abused their children. When asked about the alleged abuse at trial,
Rick denied it.6 He denied pretty much every other allegation of his aggression
toward the parties’ children.
5 The nurse practitioner testified, based on her professional experience, neither of
the children were coached to make these statements.
6 In response to a request for admissions during the dissolution proceedings for
Rick and Andrea’s marriage as to whether he abused Andrea, Rick pled the Fifth.
9
Ultimately, a dissolution trial was held in August of 2020. Essentially the
only issue before the court was whether to grant Brad’s request for physical care
with visitation to Kayla or Kayla’s request for shared physical care. The court found
shared care would be contrary to the children’s best interests. The court
highlighted the strained and unhealthy relationship between the parties and Kayla
putting her relationship with Rick before the emotional and psychological well-
being of the children. The court found the children’s best interests mandated
awarding Brad physical care. The court awarded Kayla visitation as can be agreed
to by the parties or, if unable to agree, every other Wednesday from after school
or 4:00 p.m. until 8:00 p.m. and every other weekend from Friday after school or
4:00 p.m. until the start of school or 8:00 a.m. on Monday, six weeks in the summer,
half of winter break, alternating holidays, and every other spring break.
Kayla appeals.
II. Standard of Review
Appellate review of dissolution proceedings is de novo. Iowa R. App. 6.907;
In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). While we give weight
to the factual findings of the district court, especially when considering the
credibility of witnesses, we are not bound by them. Iowa R. App. P. 6.904(3)(g);
Fennelly, 737 N.W.2d at 100. Because the court bases its decision on the unique
facts of each case, precedent is of little value. In re Marriage of Brown, 776 N.W.2d
644, 647 (Iowa 2009). As to child custody, our principal consideration is the best
At the trial precipitating this appeal, he pled the Fifth as to several other questions
asked of him about Andrea.
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interests of the children. Iowa R. App. P. 6.904(3)(o); see In re Marriage of
Weidner, 338 N.W.2d 351, 356 (Iowa 1983).
III. Analysis
A. Physical Care
Kayla7 challenges the district court’s decision to place the children in Brad’s
physical care rather than in the parties’ shared care. Where, as here, “joint legal
custody is awarded to both parents, the court may award joint physical care to both
joint custodial parents upon the request of either parent.” Iowa Code
§ 598.41(5)(a) (2019). “‘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].” Id. § 598.1(7). Under a joint-physical-care arrangement, “both parents
have rights and responsibilities toward the child[ren] including but not limited to
shared parenting time with the child[ren], maintaining homes for the child[ren],
providing routine care for the child[ren] and under which neither parent has
physical care rights superior to those of the other parent.” Id. § 598.1(4). Physical-
care determinations are based on the best interests of children, not “upon
perceived fairness to the spouses.” In re Marriage of Hansen, 733 N.W.2d 683,
695 (Iowa 2007). “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.7 In the introduction to her argument, Kayla argues Brad plagued the proceedings
with irrelevant evidence concerning the dissolution of Rick and Andrea’s marriage.
But both sides focused on the other’s significant other. Both sides did that, so she
has no cause to complain. In any event, we have no control over how the parties
tried their case, and the record before us is what it is.
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We consider the following nonexclusive factors in determining whether a
joint-physical-care arrangement is in the best interests of children:
(1) “approximation”—what has been the historical care giving
arrangement for the child[ren] between the two parties; (2) the ability
of the spouses to communicate and show mutual respect; (3) the
degree of conflict between the parents; and (4) “the degree to which
the parents are in general agreement about their approach to daily
matters.”
In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (quoting
Hansen, 733 N.W.2d at 697–99).
We first consider approximation. The district court expressly concluded
each parent would be a suitable physical custodian for the children. We agree.
Under such a circumstance, stability and continuity of caregiving are primary
factors in considering whether joint physical care should be ordered. Hansen, 733
N.W.2d at 696. The evidence is clear that the parties’ parenting of the children
has been a team effort. “[L]ong term, successful, joint care is a significant factor
in considering the viability of joint physical care after” dissolution. Id. at 697. This
factor weighs in favor of a shared-care arrangement.
We turn to the parties’ ability to communicate and show mutual respect and
the degree of conflict between them. Id. at 698. While there has been a high
degree of conflict and mistrust between the parties, Brad agreed in his testimony
that the communications between him and Kayla have been respectful and he
hopes the conflict between the parties will abate once their marriage is dissolved.
But our review discloses Kayla and Rick do not show respect for Brad in their home
when the children are present. This is an impediment to the viability of a shared-
care arrangement. Further, we do not believe the distrust between the parties,
12
which has been exacerbated by their choices of significant others, will end any
time soon. This “lack of trust poses a significant impediment to effective co-
parenting.” Id. And “[j]oint physical care requires substantial and regular
interaction between divorced parents on a myriad of issues.” Id. The parties’
relationship since their separation has been plagued with charge and
countercharge, and reality suggests the possibility that spouses may be able to
settle their differences is low. See id. At the end of the day, a rocky dissolution
“presents a significant risk factor that must be considered in determining whether
joint physical care is in the best interest of the children.” Id.As to the final factor, “the degree to which the parents are in general
agreement about their approach to daily matters,” id. at 699, the parties generally
agree on most child-rearing issues—where the children will go to school, what they
should eat, when they should go to bed, and the activities in which they participate,
although there is a clear divergence as to how the children are disciplined while in
each parent’s care.
So the only meaningful impediment to a shared-care arrangement is the
conflict and distrust between the parties. But the foregoing factors are not
exclusive and always determinative. Id. at 699. We have to look at the total setting
to determine what is in the best interests of the children. Id. Upon our de novo
review of the record and consideration of the Hansen factors and other relevant
matters,8 we conclude an award of joint physical care would be contrary to the
8“The factors the court considers in awarding custody are enumerated in Iowa
Code section 598.41(3).” In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.
App. 1996). “Although Iowa Code section 598.41(3) does not directly apply to
physical care decisions, . . . the factors listed here as well as other facts and
13
children’s best interests. See Iowa Code § 598.41(5)(a). Kayla and the children
spend essentially all of their time with Rick when the children are in Kayla’s care.
The children are fearful of Rick and have stated their desire to not spend time
around him. And Kayla’s relationship with Rick fuels the conflict between the
parties. While the parties have both been involved parents and they generally
agree on child-rearing practices, we agree with the district court that the level of
distrust and conflict between the parents renders a shared-care arrangement
unfeasible. Further, being in the care of Kayla and Rick on an equal basis could
be detrimental to the children’s emotional, mental, and perhaps physical well-
being. We affirm the court’s denial of Kayla’s request for joint physical care.
B. Visitation
Kayla argues the amount of visitation she was awarded is inadequate.
“Liberal visitation rights are in the best interests of the children” and children
“should be assured the opportunity for the maximum continuing physical and
emotional contact with both parents.” In re Marriage of Ruden, 509 N.W.2d 494,
496 (Iowa Ct. App. 1993); accord Iowa Code § 598.41(1)(a). “Although liberal
circumstances are relevant in determining” physical care. Hansen, 733 N.W.2d at
696. We note our consideration of whether each parent would be a suitable
custodian, whether the children will suffer due to lack of active contact with and
attention from both parents, whether the parents can effectively communicate
about the children’s needs, whether both parents have actively cared for the
children, whether each parent can support the other’s relationship with the
children, whether one or both parents agree to or oppose shared physical care,
and the geographic proximity of the parents. See Iowa Code § 598.41(3)(a)–(e),
(g), (h). We also note our consideration of the characteristics of the children and
parents, the children’s needs and the parents’ capacity and interests in meeting
the same, the relationships between the parents and children, the effect of
continuing or disrupting an existing physical-care arrangement, the nature of each
proposed environment, and any other relevant matter disclosed by the evidence.
See In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).
14
visitation is the benchmark, our governing consideration in defining visitation rights
is the best interests of the children, not those of the parent seeking visitation.” In
re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App. 1994).
As noted, the court awarded Kayla visitation as can be agreed to by the
parties. If the parties were unable to agree, then visitation would be every other
Wednesday from after school or 4:00 p.m. until 8:00 p.m. and every other weekend
from Friday after school or 4:00 p.m. until the start of school or 8:00 a.m. on
Monday, six weeks in the summer, half of winter break, alternating holidays, and
every other spring break. She requests she be awarded one mid-week overnight
visitation per week. Upon our review, we agree Kayla should be allowed additional
time for regular visitation. We modify the decree to provide Kayla one mid-week
overnight visitation on Wednesday from after school or 4:00 p.m. until the start of
school or 8:00 a.m. on Thursdays. Unless otherwise agreed between the parties,
when school is in session, Kayla shall have the sole responsibility for transporting
the children from school at the beginning of her Wednesday overnight visit and
back to school on Thursday morning and, when school is not in session, Kayla
shall be responsible for transporting the children to and from Brad at the beginning
and end of her visit. We also emphasize the visitation schedule outlined in the
decree and this opinion are minimum guidelines and the parties can certainly
expand beyond the time ordered. In re Marriage of Heiar, 954 N.W.2d 464, 472
(Iowa Ct. App. 2020).
C. Appellate Attorney Fees
Brad requests an award of appellate attorney fees. He argues Kayla is
underemployed, he was required satisfy marital debts during the proceedings
15
leaving him underwater, and he had to defend the district court’s decision on
appeal. Kayla responds the parties’ income disparity shows Brad has sufficient
funds to pay his attorney fees and, based on her income as determined by the
district court, she has a limited ability to pay both her fees and Brad’s.
“Appellate attorney fees are awarded upon our discretion and are not a
matter of right.” Id. at 473. “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.” Id. (altered for readability). Brad
was obligated to defend the physical care decision, which was the central focus of
Kayla’s appeal, yet Kayla scored a minor victory on visitation. Upon our review,
we find Brad is entitled to some appellate attorney fees. Because Brad has not
submitted an attorney-fee affidavit in this appeal, we are unable to determine a
reasonable award, so “we remand the issue of appellate attorney fees to the district
court to determine a reasonable award.” Id.
IV. Conclusion
We affirm the district court’s physical care decision, modify the visitation
schedule, and remand on the issue of an award of appellate attorney fees in favor
of Brad.
AFFIRMED AS MODIFIED AND REMANDED.