Robyn Brown v. Layne Irwin ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0203
Filed October 10, 2018
ROBYN BROWN,
Plaintiff-Appellant,
vs.
LAYNE IRWIN,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Thomas G.
Reidel, Judge.
Mother appeals from a decree establishing paternity, custody, and support.
AFFIRMED AS MODIFIED AND REMANDED.
Robert S. Gallagher and Peter G. Gierut of Gallagher, Millage & Gallagher,
P.L.C., Bettendorf, for appellant.
Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office,
Davenport, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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McDONALD, Judge.
Robyn Brown appeals from the district court’s ruling on her petition to
establish paternity, custody, visitation, and child support with respect to her child
L.I. In the challenged ruling, the district court established paternity of the child in
Layne Irwin, granted the parties joint legal custody of the child, granted the parties
joint physical care of the child, ordered visitation with the child, and ordered child
support. On appeal, Brown challenges the physical care determination.
Our review is de novo. See Iowa R. App. P. 6.907; In re Marriage of Sullins,
715 N.W.2d 242, 247 (Iowa 2006). “We review the entire record and decide anew
the factual and legal issues preserved and presented for review.” Hensch v.
Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). However, “[w]e give weight to
the findings of the district court, especially to the extent credibility determinations
are involved.” In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007).
The record reflects the following. Brown and Irwin met in 2014 in Kirksville,
Missouri. Brown resided in Kirksville and worked as a bartender. Irwin resided in
Davenport but spent time in Kirksville while working as an electrician on a project.
Irwin frequented the bar where Brown worked when he was in Kirksville. They
met, and they commenced a long-distance romantic relationship.
The parties continued their long-distance relationship until shortly after L.I.’s
birth in July 2015. At that time, the parties decided Brown (and her two older sons
from prior relationships) would move to Iowa and the parties would reside together.
In anticipation of Brown’s move, Irwin purchased a home in Wilton, Iowa. Brown
and her three sons moved from Kirksville to Wilton into Irwin’s home.
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The parties cohabited until May 2017. At that time, Brown filed the petition
at issue in this appeal, seeking physical care of L.I. Brown also filed a motion
seeking permission to move back to Kirksville with L.I. Without waiting for a ruling
on her motion, Brown vacated the family home and moved with all three children
back to Kirksville. Kirksville is approximately 180 miles from Wilton. Irwin sought
a temporary injunction to prohibit the move. The district court entered an order on
temporary matters directing the parties to alternate care of L.I. on a weekly basis
until the matter was resolved. The parties alternated care of the child as ordered
by the district court.
After trial, the district court awarded the parties joint physical care of the
child on an alternating-week basis. However, the district court ordered the child to
attend school in Wilton and ordered Irwin to pay Brown’s relocation expenses. The
relevant portion of the order follows:
[u]nder these circumstances, the Court finds that joint physical care
shall be awarded to the parties. The parties shall continue to
alternate weeks. The minor child shall attend school in Wilton, Iowa
unless otherwise agreed upon by the parties. If Robyn relocates to
the Wilton area, Layne shall provide Robyn $2,000 to assist with the
move and the costs of a new residence. Layne shall provide this
amount to Robyn within 10 days of the request. Robyn does not
have to provide proof to Layne of any costs associated with the move
or the new residence. When the parties live within thirty miles of
each other, the party not exercising a one- week block of parenting
time shall be entitled to a midweek visit from after school (4:00 p.m.
in the summertime) until 7:30 p.m.
In effect, the district court ordered Brown to return to Iowa or to file a modification
petition before L.I. enrolled in school. The district court deemed this the best
resolution because of Wilton’s “excellent educational system,” state-assisted
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daycare programs, Brown’s oldest son’s ability to assist in daycare duties, and the
proximity of the parents to one another.
With that background, we turn to the merits. This is an action to establish
paternity, custody, and care of a minor child between unmarried persons filed
pursuant to Iowa Code chapter 600B (2017). Our analysis with respect to who
should have physical care of the child is the same whether the parents are married
or unmarried. See Iowa Code § 600B.40 (providing the statutory criteria set forth
in section 598.41, for dissolutions of marriage, shall apply the chapter 600B
proceedings); Draeger v. Barrick, No. 15-1442, 2016 WL 1697083, at *3 (Iowa Ct.
App. Apr. 27, 2016).
The Code defines “physical care” as “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). In making the physical care determination, we look to the factors set
forth in Iowa Code section 598.41(3) and enumerated in our case law. See
Marriage of Hansen, 733 N.W.2d at 696–700; In re Marriage of Winter, 223 N.W.2d
165, 166–67 (Iowa 1974). “Each factor, however, does not necessarily impact the
decision with equal force.” In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.
App.1997). In considering these factors, our “ultimate objective . . . is to place the
child in the environment most likely to bring him to healthy mental, physical, and
social maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). “The
controlling consideration is the best interests of the child.” Stieneke v. Sargent, No.
15–1643, 2016 WL 2745058, at *1 (Iowa Ct. App. May 11, 2016) (citation omitted).
The best interest of the child includes but is not limited to the opportunity for
maximum continuous physical and emotional contact with both parents, unless
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direct physical or significant emotional harm to the child may result from this
contact.
Shared physical care is not a viable option under the circumstances
presented. The parties reside approximately 180 miles—approximately a three-
hour drive—away from each other. While the parties have managed to alternate
care on a weekly basis during the pendency of this proceeding, we question
whether such an arrangement is in the best interest of the child. Regardless, as a
practical matter, the ordered arrangement cannot continue indefinitely. The child
will age, enroll in school, become involved in extracurricular activities, and develop
friendships. The natural progression of things will make alternating residences on
a weekly basis not possible. The district court appeared to recognize as much
when it effectively ordered Brown to move to the Wilton area when the child
reaches school age. In short, the distance between the parties makes an award
of joint physical care impracticable, not in the best interest of the child, and
inappropriate. See, e.g., In re Marriage of Orr, No. 16-1772, 2017 WL 2183891,
at *2 (Iowa Ct. App. May 17, 2017) (stating an award of joint physical care is
“impracticable” when the parties lived two hours from each other); In re Marriage
of Albertsen, No. 16-1644, 2017 WL 4570478, at *3 (Iowa Ct. App. Oct. 11, 2017)
(“The distance, however, made a joint physical care arrangement unfeasible and
required the district court to choose one of two loving parents as a physical
caretaker.”); In re Marriage of Metcalf, No.06-0324, 2006 WL 3018228, at *1 (Iowa
Ct. App. Oct. 25, 2006) (“The current agreement of the parties—alternating
weeks—is unworkable when the parties reside in two different school districts with
approximately an hour drive in-between.”).
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“When joint physical care is not [appropriate], the court must choose one
parent to be the primary caretaker, awarding the other parent visitation rights.” In
re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). We are guided by the
best interest of the child. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa
2015). “The critical issue is determining which parent will do a better job raising
the child; gender is irrelevant, and neither parent should have a greater burden
than the other in attempting to gain custody in an original custody proceeding.” In
re Marriage of Decker; 666 N.W.2d 175, 177 (Iowa Ct. App. 2003). Iowa long ago
abandoned the inference that the best interest a child is served if custody is
awarded to their mother instead of the father. See In re Marriage of Bowen, 219
N.W.2d 683, 688 (Iowa 1974).
On de novo review, we conclude Brown should be awarded physical care
of the child with Irwin awarded liberal visitation. There are several considerations
in support of our conclusion. First, Brown historically has been the primary
caregiver for the child at issue. See Hansen, 733 N.W.2d at 696 (“[S]tability and
continuity of caregiving are important factors that must be considered in custody
and care decisions.”); In re Marriage of Ford, 563 N.W.2d 629, 633 (Iowa 1997)
(considering parent’s status as primary caregiver). After the birth of the child in
Kirksville and prior to Brown’s move, Brown provided the exclusive care of the child
without assistance from Irwin. When Brown moved to Wilton, the parties agreed
Brown would have the caregiving responsibilities while Irwin would continue to
work outside the home. Brown took care of L.I.’s daily needs, including bathing,
diapering, clothing, feeding, and caring for the child. She did household tasks,
including cooking, cleaning, and laundry. She scheduled the child’s medical
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appointments and took the child to the same. See, e.g., In re Marriage of Heitman,
No. 15–0631, 2016 WL 742816, at *5 (Iowa Ct. App. Feb. 24, 2016) (considering
which parent arranges medical and dental appointments as a relevant factor). The
child has thrived under the parties’ arrangement. “[C]ourts . . . typically afford[]
weight to the parent who has acted as the child’s primary caretaker in the past.”
Ruden v. Peach, 904 N.W.2d 410, 414–15 (Iowa Ct. App. 2017).
Second, the record reflects Brown can minister more effectively to the
needs of the child. Brown has proven to be a good caretaker to her older two
children and to the child at issue. She has a more flexible work schedule to provide
care for the child. She has family support in Kirksville that can provide assistance
in raising the child. See, e.g., In re Marriage of Moyer, No. 11–1695, 2012 WL
2412075, at *4 (Iowa Ct. App. June 27, 2012) (collecting cases discussing
importance of proximity to support networks). There is no credible complaint
regarding her parenting ability.
In contrast, Irwin’s work schedule is not as flexible. In addition, the record
reflects Irwin has a history of alcohol abuse and angry outbursts, which were
causes of the parties’ separation. Brown testified Irwin drank on a nightly basis
and would do so in front of L.I. She testified his temper would manifest itself in
front of the children, including an incident wherein Irwin struck one of Brown’s older
sons. On another occasion, Irwin lost his temper in a restaurant, yelled at the
restaurant staff, gave money to Brown, and left the restaurant. On other
occasions, Irwin would become enraged at the slightest provocations and become
verbally abusive. To calm himself down, he would contact his parents. Brown’s
testimony was corroborated by other evidence. Irwin admitted to drinking every
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night. Irwin was twice convicted of operating while under the influence. He broke
his jaw in a bar fight. On another occasion, he became drunk, wrecked his vehicle,
and had his father pick him up and drive him home to avoid law enforcement. Irwin
admitted to striking Brown’s older son, but he insisted it was an instinctual reaction
to pain when the son struck Irwin’s jaw, which, as previously mentioned, was
broken in a bar fight. In a text message sent to Brown, Irwin acknowledged he
had an anger problem, stating “after last night I’ve come to the point I’m gonna go
to a doctor and get some help with my anger problem.”
Irwin testified he has changed since the separation and has largely
abstained from drinking, doing so on rare occasions, and never when L.I. is under
his physical care. His neighbor corroborated these claims. However, Irwin
admitted he has not sought professional help for his alcohol and anger problems.
While Irwin’s changed behavior, if true, is in the best interest of the child, we cannot
wholly discount his recent past conduct. Irwin’s past conduct is troubling, and it
augurs against awarding him physical care when we are forced to choose between
two parents, as is the case here.
Finally, awarding Brown physical care will allow L.I. to spend the maximum
amount of time with his siblings. Separation of siblings is disfavored. See In re
Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). The presumption of keeping
siblings together applies with equal force to half-siblings, as is the case here. See
In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986) (finding that the court’s
“strong interest in keeping children of broken homes together” applies “in cases of
half siblings . . .”)
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On de novo review, we conclude Brown should be awarded physical care
of the child, Irwin should be awarded liberal visitation, and Brown should be
awarded child support in accord with the child support guidelines. We affirm the
establishment of paternity of L.I. in Irwin and remand this matter to establish an
appropriate visitation schedule considering the distance of the parties from each
other and to recalculate child support in accord with the guidelines. We do not
retain jurisdiction following remand.
We address a final issue. The parties seek appellate attorney’s fees. An
award of appellate attorney’s fees is a matter within this court’s discretion. See
Iowa Code § 600B.26; In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App.
1997). The factors we consider include Brown’s need in making the request,
Irwin’s ability to shoulder the cost, and the merits of the appeal. See In re Marriage
of Maher, 596 N.W.2d 561, 568 (Iowa 1999). The factors here favor an award of
Brown’s attorney’s fees. She prevailed on the merits of her appeal. She has
annual income of $17,800. Irwin has annual income of approximately $80,900.
Brown has two other sons, while Irwin has no other children. Brown has a need
for appellate attorney’s fees, and Irwin has the ability to pay. For these reasons,
we award Brown appellate attorney’s fees in the amount of $5000.
AFFIRMED AS MODIFIED AND REMANDED.