Daniel Jay Tallman v. Valarie Ann Levy ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1592
Filed May 13, 2020
DANIEL JAY TALLMAN,
Plaintiff-Appellant,
vs.
VALARIE ANN LEVY,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Guthrie County, Richard B. Clogg,
Judge.
A father appeals the district court order establishing child custody, physical
care, and support for his child. AFFIRMED AS MODIFIED AND REMANDED.
Jessica L. Morton of Bruner, Bruner, Reinhart & Morton, LLP, Carroll, for
appellant.
Joseph W. Fernandez of Fernandez Law Firm, West Des Moines, for
appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
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GREER, Judge.
Daniel Tallman appeals provisions of the court order focused on custody
and child support for his and Valarie Levy’s child, E.G.T. He contends their
informal joint physical care schedule should have continued and the child support
award did not account for the dependent social security benefit paid to help support
the child. Finally both parties request appellate attorney fees. We agree with
Daniel’s reasoning, affirm the trial court ruling as modified and remand for further
proceedings consistent with this opinion.
I. Background Facts and Proceedings.
Daniel and Valarie never married; they had E.G.T. in 2009. After the child’s
birth, the parties resided together with the child for about three years in the home
Daniel still owns. When they separated in 2012, they informally agreed to share
physical care of E.G.T. under an alternating care schedule. Living only a block
apart from each other in Guthrie Center helped with the plan. Valarie cared for the
child every Sunday and Monday; Daniel took every Tuesday and Wednesday; and
they alternated every Thursday, Friday, and Saturday.
By way of background, at trial, Valarie was thirty-one years old and Daniel
was forty-one years old. Their child was ten years old. Over eighteen years ago,
after an injury on the job, Daniel applied and received social security disability
payments. It is his primary income source, with annual income of $13,260.00.1
His disability does not limit to his ability to care for his child. Having achieved two
1 Daniel works odd jobs for family members. Because of a car accident, Daniel
had previous payments from an annuity and entitlement to a future lump sum that
is not relevant to this appeal.
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associate degrees (liberal arts and administrative assistant), Valarie worked a
series of temp-to-hire jobs in the past in various industries but, at the time of trial,
operated an in-home daycare arrangement for one seven-year-old child. Valarie
earned $2693.50 in 2018. Based on Daniel’s disability, the government allotted
E.G.T. dependent social security benefit payments of $545.00 each month. When
the parties lived together, each monthly payment went into Valarie’s bank account.
After separating, the dependent social security benefit deposit continued as
previously designated. The parents never established a child support obligation.
As with the care plan, they informally agreed to split the child’s expenses.
By all accounts, the child is healthy, active, and doing well educationally. In
reviewing an exhibit showing text messages over almost four years, the child
experienced activities with each parent, the parents supported each other, they
communicated about various topics related to the child, and they mainly agreed on
parenting. As an additional benefit, Daniel’s nearby family members have strong
relationships with the child. Both parents were involved in the child’s day-to-day
care, but Daniel conceded that Valarie carried primary responsibility over the
child’s medical treatments. And Valarie criticized Daniel’s lack of concern over the
child’s health. Yet the overall picture reflected a complementary arrangement that
allowed the child extended contact with each parent. The district court
characterized each parent as “active” in the care of the child. Noting no mental
health, educational, or other problems, the child appeared to thrive under the long-
standing schedule.
For many years the co-parenting arrangement worked with few disputes.
At trial, Daniel described several conflicts that arose more in relationship to topics
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other than the child. For example, Daniel requested law enforcement help when
Valarie angrily demanded the child during Daniel’s care period because she
mistakenly believed he stopped the deposit of the dependent social security
monthly payment to her account. That dispute resolved with Valarie leaving alone.
Daniel called law enforcement once again to remove Valarie from his property
when she angrily demanded the child return to her upon learning that Daniel’s
girlfriend, Bryann Marsh, had met E.G.T.2 That incident also resolved with Valarie
leaving alone. At trial, Daniel’s relative, Julie Tallman, also confirmed Valarie’s
erratic behavior over the girlfriend issue based on conversations she had with
Valarie.
Valarie testified on her own behalf, arguing there were significant
communication problems between the parents, the child was afraid of Daniel, and
that he called the child derogatory names. Yet other evidence called the
allegations into question. Daniel called an Iowa Department of Human Services
(DHS) child protection worker, Tammy Dorscher, to testify. A 2018 wellness check
came after a report by the child to her school counselor that Valarie shoved Daniel
and had also threatened to kill Daniel, his girlfriend, and the child with a gun. After
the child reported the incident, Valarie became upset and locked her in the home
until the child apologized to Valarie. While the investigation confirmed the child
was safe, the report authored by Dorscher identified the child’s fear of going on
vacation with Valarie because she did not know if her mother would bring her back.
2 Daniel and Valarie informally agreed to not introduce E.G.T. to any potential
suitors until a six-month dating period passed. It had not yet been six months when
Bryann met the child. Valarie expressed that it was “immoral” for Daniel to date
Bryann because she was her “aunt.” But Bryann is only Valarie’s aunt’s friend.
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And the child reported not feeling safe at Valarie’s home after this incident as well
as being sad, mad, and disappointed because of how her mother spoke to her.
The family assessment report noted that by the child’s report, Valarie called the
child names and that the child had no concerns at the father’s home. And instead
of complaining about Daniel’s care, in the phone interview with Dorscher, Valarie
admitted that she and Daniel were the “most civil co-parents out there.”
Wanting a formalized custody arrangement, in July 2018 Daniel petitioned
for joint legal custody and physical care of the child or, in the alternative, joint
physical care. Valarie filed a pro se answer requesting sole legal custody and
physical care or in the alternative “primary legal custody.” On June 7, 2019, the
custody case was tried. The district court entered a decree on August 28 and
found the parties should share joint custody but granted Valarie physical care of
the child. The court awarded Valarie child support of $30 per month and Valarie
retained the monthly social security payment for the child’s benefit. Daniel
appeals.
II. Scope of Review and Preservation of Error.
Our review of matters involving child custody and child support is de novo.
Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). “[W]e examine the
entire record and decide anew the issues properly presented.” In re Marriage of
Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). While we are not bound by the fact-
findings of the district court, we give them weight, especially as to credibility
determinations. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct. App.
2002).
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Valarie argues that Daniel failed to preserve error by failing to file a motion
to enlarge the court’s findings to explain the custodial decision. Valarie asserts
that since the district court failed to detail “specific findings of fact and conclusions
of law that the awarding of joint physical care is not in the best interest of the child,”
Daniel failed to preserve error by not asking for those findings. Iowa Code
§ 598.41(5)(a) (2018) (directing that if the court denies the request for joint physical
care, the determination shall be accompanied by specific findings of fact and
conclusions of law that the awarding of joint physical care is not in the best interest
of the child).
We agree that the district court failed to explain the refusal to award joint
physical care, but Daniel did not waive his pursuit of that option. Thus, it is not a
case in which we can review “the court’s resulting reasoning and conclusions
rejecting joint physical care,” so we are left with our de novo review of the record
and what findings the court detailed. In re Marriage of Ellis, 705 N.W.2d 96, 102
(Iowa Ct. App. 2005); see also Evans v. Stanerson, No. 05-1601, 2006 WL
1230023, at *1 (Iowa Ct. App. Apr. 26, 2006) (deciding that even though court
findings and conclusions were not developed to comply with Iowa Code section
598.42(5)(a), the record was adequate for de novo review).
III. Discussion.
A. The Physical-Care Determination. As with any physical-care question,
our primary concern is what is best for the child. Hensch v. Mysak, 902 N.W.2d
822, 824 (Iowa Ct. App. 2017). The same criteria applies whether parents have
never married or if they are dissolving the marriage. Jacobson v. Gradin, 490
N.W.2d 79, 80 (Iowa Ct. App.1992). Daniel requested an award of joint physical
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care. Key factors to determine whether joint physical care is appropriate “include
an overriding interest in stability and continuity, the degree of communication and
mutual respect, the degree of discord and conflict prior to dissolution [or breakup],
and the extent to which the parties agree on matters involving routine care.” In re
Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). We consider these criteria
to determine what arrangement works here to achieve the best interests of this
child.
For over seven years under a shared time schedule, E.G.T. moved
seamlessly between her parents’ homes. Daniel proposed the same schedule
continue. Valarie argued for a change, placing physical care with her and
establishing a more restrictive visitation schedule for Daniel. She desired flexibility
to move with the child, suggesting at the time of trial the new home location might
be in the Des Moines area or possibly in a trailer in Jefferson, Iowa. No concrete
housing or job was in place at the time of trial. Yet Valarie reasoned these options
offered better housing, better paying jobs, and more opportunities for the child.
After observing the parents and hearing from various witnesses, mainly supporting
Daniel, the district court opined, “The parties have communicated well enough to
demonstrate that joint legal custody would be in the best interests of the child.”
(Emphasis added.) Yet, after positively describing each parent, in the next
paragraph the court ruled that “[j]oint physical care is not in the best interests of
the child.” (Emphasis added.) Then the district court awarded physical care to
Valarie with no further explanation, except to note the mother was “the most
consistent parental figure in the child’s life.” The order switched Daniel’s equal
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care time to visits on the first and third weekends of every month, three non-
consecutive weeks in the summer, and alternating holiday visitation.
The district court observed that these parents “demonstrated the ability to
co-parent focusing on the best interest of their child.” Their text communications
over a four-year span reinforce their exceptional co-parenting skills. While not all
communication was positive, overall the text messages focused on the best
interests of their child. Even the court confirmed that their disagreements were
“short-lived and handled civilly.” Here, with no evidence of any negative effect on
the child, the status quo schedule offers stability and a continued environment for
growth and development. See Hansen, 733 N.W.2d at 696 (“[P]ast caretaking
patterns likely are a fairly reliable proxy of the intangible qualities such as parental
abilities and emotional bonds that are so difficult for courts to ascertain.” (citation
omitted)).
Under this record, we are left without the benefit of the district court’s
reasoning for the denial of joint physical care. And if we defer to the district court’s
credibility determinations, Valarie fares poorly. See Clinton v. Morrow, No. 09-
0268, 2009 WL 3064200, at *1–2 (Iowa Ct. App. Sept. 17, 2009) (noting that with
a “close case,” deference was given district court’s “very strong credibility
findings”). Here the court found Valarie’s testimony not credible. The district court
listed specific inconsistencies balanced against credible evidence. First, even with
years of respectful parent-focused text communications, Valarie characterized the
co-parent relationship as not healthy. Next, she asserted that Daniel failed to
inform her adequately about the child, again in spite of the detailed text messages
about activities, health, and events. Then, unlike her testimony that Daniel was
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mentally and physically abusive to her and the child and abused substances, the
testimony of the DHS worker confirmed that as recently as 2018, Valarie reported
no concerns about Daniel or his parenting to the DHS worker in a phone interview.3
Communication difficulties and tension are expected during litigation over
the custody and physical care of a child, but the continuity of care before the stress
of litigation reveals more about the future. See Ellis, 705 N.W.2d at 102–03
(emphasizing the successful ten month shared physical care arrangement, the
court favored a joint physical care award despite some failure to communicate
during dissolution process); Hensch, 902 N.W.2d at 825 (concluding the long-
standing care arrangement mitigated in favor of joint physical care where personal
conflict did not interfere with their child-rearing). And where the subject of the
current communication disputes centered on Daniel’s new girlfriend, it is doubtful
that tension will exist long term. The reported communication difficulties failed to
rise to the level to impact joint physical care. See In re Marriage of Ertmann, 376
N.W.2d 918, 920 (Iowa Ct. App. 1985) (denial of joint physical care not warranted
where parties communicated for the child’s sake even with some conflict). Even
more than the testimony, the text messages confirm this conclusion.
Based on key factors to consider, joint physical care is preferred here.
When we examine the “interest in stability and continuity,” a shared physical care
schedule approximates the parties’ prior equal care arrangement under which the
child has thrived. See Hansen, 733 N.W.2d at 690. When discussing subjects
related to the care and health of this child, the parents historically have
3Likewise, Valarie made no calls or reports to any authority reporting domestic
abuse at the hands of Daniel.
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communicated and shown mutual respect. And the conflicts described at trial
appear to be more short-term confrontations associated with tensions unrelated to
the general upbringing of the child. Under the Hansen criteria, the continuity of
continuing a joint physical care arrangement is in the best interests of this child.
See id. at 697–99. For these reasons, we reverse the district court and award the
parents joint physical care of E.G.T., consistent with the schedule proposed by
Daniel.
B. The Child Support Determination. Daniel maintains that his social
security disability benefits are income to him. He argues that the trial court erred
by calculating a child support obligation that allowed Valarie to retain the child’s
benefit payment and without providing a credit against his support. Daniel relies
on In re Marriage of Hilmo to require a revamp of the support obligation. 623
N.W.2d 809, 811–813 (Iowa 2001) (considering child’s social security benefit as
income to disabled parent for child support purposes but applying it as a credit
against the obligation).
The district court calculated a $30 child support obligation after considering
Daniel’s monthly disability payment of $1363.50 and attributing monthly earnings
of $1017.00 to Valarie (less than the minimum wage calculation suggested by
Daniel). The order also allowed Valarie to retain the $545.00 dependent social
security payment, which was not factored into the child support calculation. Given
our ruling on joint physical care, on remand, the district court shall recalculate the
appropriate child support obligation and follow the direction of Hilmo. Id. at 813.
Daniel shall receive a credit for any dependent disability benefit retained by
Valarie, and the benefit should be factored into Daniel’s gross income when
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calculating each party’s respective child support obligation under the child support
guidelines. See In re Marriage of Hansen, 465 N.W.2d 906, 910 (Iowa Ct. App.
1990), abrogated on other grounds by In re Marriage of Dawson, No. 01-1088,
2002 WL 531532, at *1–2 (Iowa Ct. App. March 27, 2002).
C. The Appellate Attorney Fee Request. “In a proceeding to determine
custody or visitation, or to modify a paternity, custody, or visitation order under this
chapter, the court may award the prevailing party reasonable attorney fees.” Iowa
Code § 600B.26. After reviewing the relative ability of the parties to pay and the
merits of the appeal, we decline to award appellate attorney fees.
IV. Conclusion.
Based on the long-standing and historical shared care arrangement used
over seven years, we find that an award of joint physical care meets the best
interests of E.G.T. We modify to award joint physical care and remand for further
proceedings to determine the physical care schedule, with consideration of the
previous arrangement, and to establish the child support obligations.
AFFIRMED AS MODIFIED AND REMANDED.