In re the Marriage of Grillo ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0564
Filed February 17, 2021
IN RE THE MARRIAGE OF JACOB L. GRILLO
AND KESHIA N. GRILLO
Upon the Petition of
JACOB L. GRILLO,
Petitioner-Appellant,
And Concerning
KESHIA N. GRILLO,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport,
Judge.
Jacob L. Grillo appeals the district court’s order splitting physical care of the
parties’ children. AFFIRMED.
William P. Baresel of Prichard Law Office, PC, Charles City, for appellant.
Danielle M. Ellingson of Eggert, Erb, & Ellingson, P.L.C., Charles City, for
appellee.
Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
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VAITHESWARAN, Judge.
Jacob L. and Keshia Grillo married in 1997 and divorced in 2020. The
couple has eight children, five of whom were minors at the time of trial. The district
court granted Jacob temporary physical care of all five children but, following trial,
ordered a split arrangement, with Jacob receiving physical care of the older two
children and Keshia physical care of the youngest three. On appeal, Jacob
contends the court should have granted him physical care of all five children.
“Split physical care occurs when each parent has physical care of at least
one child.” In re Marriage of Will, 489 N.W. 2d 394, 397 (Iowa 1992). “[S]plit
physical care is generally opposed because it deprives children of the benefit of
constant association with one another.” Id. at 398. However, “[t]he rule is not
ironclad” and in some cases “separation may better promote the long-range
interests of children.” Id. (citing In re Marriage of Jones, 309 N.W.2d 457, 461
(Iowa 1981)). In determining whether separation is in the best interests of the
children, courts are to consider: the caretaking ability of the parents, the age
difference between the children, whether the children would have been together if
split physical care was not ordered, the relationships between the children, and the
likelihood that one of the parents or children would turn the other children against
a parent. See id.Following a fraught trial that included testimony from four of the older
children, the district court determined, “This case is an extreme exceptional
circumstance where split physical care is necessary.” Our review of the court’s
findings is de novo but, in assessing the court’s determination, we consider “[t]he
trial court[‘s] . . . added advantage of being able to personally watch and listen to
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the parties and the other witnesses.” Jones, 309 N.W.2d at 462. In light of the
court’s unique perspective, we give weight to its findings. Will, 489 N.W.2d at 397.
The court found, “It is not disputed that prior to 2018 Keshia was the parent
who provided the primary care to all of the children.” The record supports the
finding. Approximately seventeen years before the dissolution trial, Jacob
sustained an employment-related closed-head injury that rendered him disabled.
He testified he began experiencing migraine headaches, “couldn’t stand the
sunlight”, and “pretty much—had to be in a dark room almost the whole time.”
Jacob settled into the basement of the family home. Keshia testified “he pretty
much stayed in the dark in the back, and we very seldom ever saw him.” Jacob
agreed he “should have been more involved” with the children.
The district court acknowledged that, in 2012, the department of human
services issued a founded child abuse report against Keshia for striking one of the
children with a stick. But the court found the family was offered and received
services, the case was closed in 2013, and “following the 2012 founded abuse
report, there is no evidence that Keshia has otherwise abused the children.” These
findings are supported by a department social worker’s testimony as well as the
testimony of an in-home services provider who worked with the family for about
eighteen months beginning in June 2016. The provider characterized Keshia as
the main caregiver, testified the children in the home never seemed scared around
her, and said she did not see any signs of physical abuse of the children by the
parents. Another service provider who worked with the family to provide “early
intervention and preschool services and typically met with Keshia and the children
twice a month, similarly stated she “never saw any interactions that concerned
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[her] or anything within the home that concerned” her. She testified the children in
the home appeared connected and comfortable with Keshia. In her view, Keshia
seemed loving and caring and she had no concerns about her parenting. Notably,
Jacob conceded he had not observed any physical spanking of the children since
the department’s involvement in 2012.
The district court also acknowledged Jacob had been caring for all five
children since 2018, pursuant to the temporary custody order. But the court found
he had “to rely upon the older children to assist him in parenting.” Jacob conceded
as much. He testified two of the older children mowed the lawn and another child
helped with dishes and laundry. The district court did not find that Jacob’s need
for assistance with household chores prevented him from exercising physical care
of all five children. The court instead focused on Jacob’s decision to enlist the
older children’s help in alienating the younger ones from their mother. See id. at
399 (stating the court must also “consider the denial of one parent of the child’s
opportunity to have meaningful contact with the other parent”). The court made
the following pertinent findings:
[Jacob] has demonstrated his willingness to involve the older
children to place influence on the younger children and to involve the
children in adult matters. It appears he has actively tried to influence
and adversely affect Keshia’s relationship with the children. This
relationship grows worse the more time the children spend in Jake’s
care. His efforts have carried over to the older children, who also
negatively impact on Keshia’s relationship with the younger children.
Jake has been rigid regarding Keshia’s time with the children and
has not been supportive. A split physical care arrangement is
appropriate where keeping the minor children together with Jake
would actually be detrimental to the younger children in that they will
be influenced to be hostile towards Keshia. Keshia has not
demonstrated the same negative attitude towards Jake and has
appeared to have acted appropriately with the children and not
involve the children in adult matters.
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The record supports these findings. Jacob admitted it was his choice to
have some of the children testify at trial. He also admitted he had the oldest two
children call Keshia about scheduling visits. While he laid the blame for the
absence of direct communication at Keshia’s doorstep, he acknowledged his
inability to co-parent and he minimized Keshia’s role in the children’s lives.
Jacob’s comments about Keshia’s visits with the children are telling. He
sought professional supervision of the visits despite scant evidence of harm to the
children during those visits and he stated, “In a perfect world I wouldn’t want them
involved in it at all.” He also made key decisions unilaterally, such as returning the
youngest children to public schools following a joint decision to homeschool them.
We recognize Keshia took similar actions that were inimical to the children’s
best interests, such as videotaping them during visits. But she stated she did so
“as much as possible out of protection for [herself] and the kids because of all the
accusations tha[t] [were] been brought against [her] that are not true.” Her
rationale is partially borne out by the trial testimony of one of the older children
who attended visits with the younger ones and leveled charges against Keshia that
the district court found incredible. And it is borne out by the children’s statements
during their most recent visit that their father was going to win the custody case
and Keshia would never see them again. In Keshia’s words, Jacob did
“[e]verything to distance” her from the children and “sabotage the good
relationship” she had with them. We agree with the district court that parental
alienation was the dispositive factor.
The testimony of the seventeen and fifteen-year-old minor children
underscores that assessment. No useful purpose would be served by recounting
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their testimony. See Jones, 309 N.W.2d at 462 (“An extended statement of the
circumstances would be helpful to no one, and very possibly harmful to the
[children].”). Suffice it to say that the district court appropriately honored their
preference to live with Jacob after finding that to do otherwise would prove
“impractical” and “detrimental to [their] welfare.” See In re Marriage of Townsend,
No. 12-0502, 2012 WL 5954590, at *7 (Iowa Ct. App. Nov. 29, 2012) (concluding
given child’s age “difficulties could arise if we were to order him to live with his
mother, contrary to his expressed wishes”); see also In re Marriage of Kalkwarf,
No. 02-1309, 2003 WL 21230413, at *2 (Iowa Ct. App. May 29, 2003) (“When a
child is of sufficient age, intelligence, and discretion to exercise an enlightened
judgment, his or her wishes, though not controlling, may be considered by the
court.”).
The thirteen-year-old child also showed signs of alienation from Keshia. His
counselor noted that, like his older siblings, he expressed a preference to live with
his father. Although the child’s age might auger in favor of honoring the preference,
the counselor’s further testimony that the child was informed of the custody
proceeding, expressed a belief “that Dad will be awarded full custody,” and
“generally talk[ed] about his siblings when he talk[ed] about things like this” gives
us pause. Also troubling are the counselor’s concerns about the child that were
“independent of either parent.” At the end of the day, we are persuaded that
Keshia was better equipped to address those independent concerns. For these
reasons, we agree with the district court’s decision to grant Keshia physical care
of the third minor child.
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We are left with the two youngest children, ages ten and seven. According
to the principal at the school they attended, both missed significant numbers of
school days while in their father’s care. Ultimately, the school reached an
agreement with Jacob to allow the ten-year-old child to go to school for half days.
Jacob did not tell Keshia about this development. That fact, together with the
youngest child’s concededly close relationship with Keshia lead us to agree with
the district court’s decision to grant Keshia physical care of these children.
In approving a split physical care arrangement, we acknowledge that the
older children played a significant role in the younger children’s lives
notwithstanding the age differences. But we believe the negative consequences
flowing from those sibling relationships justified separation. As the district court
stated, it was “not in the best interests” of the youngest three children to be placed
with Jacob, because “through [his] influence and the older children’s influence,”
they would “become hostile and estranged from Keshia.” We affirm the district
court’s split physical care decision.
On a related note, Jacob argues “upon reversal of the court’s [physical care]
order, [he] would like the return of the marital home.”1 Having declined to reverse
the split physical care decision, we need not address this issue further.
AFFIRMED.
1The court stated: “[B]ecause Keshia will have the younger children, she should
be placed in the marital home.”