Upon the Petition of Cory Wane Fees, and Concerning Amanda Leigh Cook ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-2192
Filed October 26, 2016
Upon the Petition of
CORY WANE FEES,
Petitioner-Appellee,
And Concerning
AMANDA LEIGH COOK,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,
Judge.
Amanda Cook appeals the physical-care provisions of the district court’s
order establishing custody, visitation, and support for her children with Cory
Fees. AFFIRMED AS MODIFIED.
Alexandra D. Frazier of R.J. Hudson Law Firm, P.C., West Des Moines,
for appellant.
Kodi A. Brotherson of Becker & Brotherson Law Offices, Sac City, and
Todd E. Babich of Babich Goldman, P.C., Des Moines, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
Amanda Cook appeals the physical-care provisions of the district court’s
order establishing custody, visitation, and support for her two minor children with
Cory Fees. Amanda contends she should have been granted physical care of
the parties’ minor children. She also argues the district court abused its
discretion by admitting a journal Cory submitted that contained information
regarding Amanda’s attendance at her appointments with mental-health
providers. Alternatively, she argues if we affirm the court’s grant of physical care
to Cory, the court incorrectly ordered her to split the costs of the children’s
extracurricular activities; Cory concedes this point. Cory requests an award of
appellate attorney fees. Upon our de novo review of the record, we affirm as
modified.
I. Background Facts and Proceedings
Amanda and Cory are the unmarried parents of two children: C.F. and
K.F. At the time of trial, Cory was thirty-four years old, and Amanda was twenty-
eight. Cory holds a bachelor’s degree in electrical engineering. At the time of
trial in November 2015, Cory had been employed as a senior controls engineer
with the same company since 2012. Cory owns the home where he and Amanda
lived with the children since late 2010. Amanda has a bachelor’s degree in
nursing. At the time of trial, she had been employed as a registered nurse in a
pediatric intensive care unit since 2013.
Cory and Amanda met in July 2007. They dated off and on until
December 2009, when Amanda learned she was pregnant with their first child.
In February 2010, Cory introduced Amanda to his friends as a “friend” rather than
3
his girlfriend. Amanda became upset and refused to communicate with Cory for
several months.
After the parties reconciled in May 2010, Cory attended birthing classes
with Amanda as well as her prenatal medical appointments. Cory was present
for C.F.’s birth in July 2010. After C.F.’s birth, Amanda and C.F. lived with
Amanda’s parents. Soon after her release from the hospital, Amanda developed
complications and was admitted to the hospital for surgery. Cory took two weeks
off of work to care for C.F. with assistance from Amanda’s parents. After
Amanda recovered, she and Cory shared in the responsibilities of caring for C.F.
and transporting him to daycare with the help of both parties’ parents. At the
time, Amanda was attending nursing school full time and working at a grocery
store. Cory continued to provide care for C.F. in the evenings after he returned
to work and often stayed at Amanda’s parents’ home to assist in providing
overnight care for C.F. until Amanda and C.F. moved into his home in December
2010.
In May 2011, Amanda obtained employment as a registered nurse. She
had a sporadic schedule, working twelve-hour shifts that often extended past her
scheduled shift end, rotating days and nights, and working every third weekend.
Amanda also often picked up extra shifts. The parties kept track of her random
schedule by entering the days she worked into a shared online calendar.
Amanda cared for C.F. on the days she was not working, and Cory provided care
for C.F. in the early mornings, evenings, and on weekends. In November 2012,
Cory obtained new employment and began providing most of the transportation
to and from daycare.
4
In February 2013, the parties learned they were pregnant with their
second child. That same month, Cory proposed marriage to Amanda. In April,
Cory started keeping an online journal describing incidents in which Amanda
threatened to take the children away from him.1 In September, the parties’
second child, K.F., was born. Cory attended all prenatal appointments for K.F.
and again took time off from work to care for the new baby with Amanda.
Cory and Amanda’s relationship started to deteriorate soon after. In early
2014, the parties split, and Amanda moved back in with her parents. The parties
shared parenting time with the children and agreed to attend couples counseling.
Amanda also started attending individual counseling. Eventually, the parties
reconciled and Amanda moved back in with Cory; however, their relationship
continued to decline. Disagreements between the parties would often end with
Amanda putting the children in the car and driving away, threatening Cory he
would never see their children again.
In late November 2014, the parties had a disagreement that again resulted
in Amanda moving out of Cory’s home. On December 4, Cory filed a petition for
custody, visitation, and child support. On December 16, Amanda served Cory
with a temporary no-contact order, prohibiting contact between the parties and
between Cory and the children.2 On December 31, the parties agreed to the
1
The journal also contained information regarding Amanda’s scheduled appointments
with mental-health providers, the parties’ scheduled couples counseling sessions, when
and where the children stayed overnight or traveled, descriptions of incidents that
occurred between the parties, and a schedule of various court dates set for the paternity
action.
2
The temporary no-contact order was in place for twenty-one days. Cory testified at trial
he saw the children once during that time on December 26 to celebrate the holiday.
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entry of a protective order by consent. The district court did not expressly find
that either party had committed a domestic abuse assault.3
On February 16, 2015, the district court entered a temporary custody
order granting joint legal custody and joint physical care and incorporating the
no-contact order.4 The parties continued to struggle with communication issues
regarding the children and their activities. The matter came on for trial on
November 17–19, 2015.
Cory testified that throughout the parties’ relationship he was responsible
for maintaining the home, including preparing meals for the children; cleaning;
and doing laundry, yard work, and other household tasks. He testified he also
paid the couple’s shared bills, except the daycare expenses, for which Amanda
agreed to pay.5 Cory testified he had a stable home in a good neighborhood and
a job that allowed him flexibility to care for the children. He also testified he did
not believe Amanda would support his relationship with their children.
3
At trial, Amanda testified Cory had verbally and physically abused her on several
occasions. She testified Cory shut doors on her, pushed her into walls, dragged her
across the room by her arm, yelled and screamed at her, and called her names. Cory
denied Amanda’s allegations. Cory testified Amanda slapped him on the face on two
separate occasions; Amanda denied she slapped Cory on one occasion but admitted
she slapped Cory during a second incident.
Cory testified at trial he consented to the protective order because he believed it
was a mutual no-contact order that would provide him relief as well and include a
schedule allowing him visitation time with the children. He testified that, otherwise, he
was not guaranteed to see the children until late the next month, when a hearing on the
temporary no-contact order was scheduled. Cory testified he obtained new counsel as a
result of him being misinformed of the consequences of the entry of the protective order
by consent.
4
On March 24, 2015, the court entered an order dismissing the previous no-contact
order.
5
Following entry of the temporary custody order in February 2015, the parties split the
children’s daycare expenses.
6
Amanda testified she was the primary caregiver for the children. She
testified she was in charge of coordinating schedules and figuring out who was
picking up the children from daycare. She also testified she was in charge of
making the children’s medical appointments and taking them to well- and sick-
child appointments; however, she also acknowledged Cory attended the
children’s well-child checkups and specialty doctor appointments. At the time of
trial, Amanda had switched her schedule at the hospital to only overnight shifts
and shifts on every other weekend in order to maximize her time spent with the
children.
The children’s daycare provider volunteered to serve as the intermediary
for the parties’ physical care exchanges. Both parties testified they were
satisfied with the provider’s care of their children and believed she provided high-
quality care for them. The provider testified at trial Cory was “a great dad,” who
always put the children first and tried to make the exchanges easy for them. In
contrast, she testified Amanda sought confrontation with Cory, showing up late to
the exchanges, dragging out her goodbyes with the children, and making
inappropriate comments about Cory to the children, including “Your daddy has
you dressed inappropriately,” “Daddy was wrong. We are going to the police
station now. He is in violation of the order,” and “I see your daddy has you
dressed in the same filthy clothes I brought you in.” She also testified Amanda
became upset if she thought Cory parked too close to the provider’s house and
once yelled to the provider with the children in the car to “tell him to get the hell
out of here before I drop these kids off.” She further testified Amanda often
yelled in front of the children and would leave the exchanges upset, saying she
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was going to contact her lawyer. The provider described this type of behavior as
typical for Amanda if Cory was present when she was picking up or dropping the
children off at daycare.
Cory’s neighbor also testified at trial. She testified she heard Amanda
yelling at Cory and the children so frequently it became an uncomfortable joke
among her family members and the neighbors. She described observing Cory
playing with the children outdoors and calmly providing them with redirection
when necessary.
In an oral ruling from the bench, the district court noted both parents
clearly loved their children but neither demonstrated the high level of maturity or
ability to communicate to be able to focus on the best interests of the children
and share physical care. The court also noted it was dismayed by the hostility
the parties had exhibited toward each other in front of the children.
The court weighed the credibility of both parties’ witnesses and found
Cory’s neighbor and the children’s daycare provider to be particularly credible
and compelling. The court also noted several witnesses had “testified and
described a pattern of behavior between Cory and Amanda.” The court found
“[d]uring any kind of conflict Amanda would escalate and ultimately threaten Cory
that he would never see his children again. She would then frequently take the
children from the home and withhold contact from Cory.” The court described
two specific incidents demonstrating this type of behavior by Amanda. One
incident involved a disagreement between the parties that escalated until
Amanda took the children upstairs and shut herself and the children into a closet
and refused to let the children out until her mother and brother arrived and were
8
able to eventually coax her out. Another incident occurred when Amanda moved
out for the final time. Amanda brought the two children to Cory’s home but
insisted they remain in their car seats in her vehicle over a period of at least two
hours while she and her parents removed her belongings. 6 The children
witnessed Amanda screaming profanities at Cory and his family and threatening
they would never see the children again. Cory’s parents eventually called the
police to supervise the move. The court also noted that throughout the trial
Amanda exhibited histrionic behavior by audibly whispering or writing furiously to
her attorney, while Cory remained calm throughout the proceeding.
The court also acknowledged Amanda’s desire to move to Kansas City
with the children to be closer to her family and was concerned about the
increased instability such a move would bring to the children’s lives.
The district court awarded the parties joint legal custody of their children
and granted physical care of the children to Cory and reasonable and liberal
visitation to Amanda, including parenting time every Thursday afternoon until
Friday morning and alternating weekends from Friday afternoon until Monday
morning. The court also ordered the parties to split the expenses for the
children’s future extracurricular activities, with Cory being responsible for fifty-
eight percent and Amanda being responsible for forty-two percent of these costs.
6
Prior to Amanda moving out, the parties, along with their respective parents, gathered
at Amanda’s parents’ home to discuss the parties’ relationship and the best interests of
the children, including a shared parenting time schedule. All involved decided it was
best for Cory and Amanda to end their relationship. They scheduled a date for Amanda
to move out of Cory’s home and arranged for Cory’s sister to care for the children during
that time; however, on the scheduled move-out date, Amanda refused to allow the
children to leave with Cory’s sister.
9
On December 9, 2015, the district court entered a written ruling
memorializing the court’s oral custody, visitation, and child-support order.
Amanda appeals.
II. Analysis
A. Physical Care
We employ the same legal analysis in resolving questions concerning the
custody of a child born to unmarried parents as we do in the case of divorcing
parents. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). Issues ancillary to
a determination of paternity, such as custody, visitation, and child support, are
reviewed de novo. See Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005); see
also Iowa R. App. P. 6.907. Although 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). “Precedent is of little value as our
determination must depend upon the facts of the particular case.” In re Marriage
of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007) (citation omitted).
When physical care is at issue in a paternity action, the primary
consideration is the best interests of the children. Iowa R. App. P. 6.904(3)(o).
We look to the factors listed in Iowa Code section 598.41(3) (2013),7 see Iowa
7
Iowa Code section 598.41(3) provides “the court shall consider the following factors” in
making a physical-care determination:
a. Whether each parent would be a suitable custodian for the child.
b. Whether the psychological and emotional needs and development of
the child will suffer due to lack of active contact with and attention
from both parents.
c. Whether the parents can communicate with each other regarding the
child’s needs.
d. Whether both parents have actively cared for the child before and
since the separation.
10
Code § 600B.40, and In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa
1974),8 in making a physical-care determination. Also relevant to this decision
are the factors of continuity, stability, communication, and approximation. See In
re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). Not all factors are
e. Whether each parent can support the other parent’s relationship with
the child.
f. Whether the custody arrangement is in accord with the child’s wishes
or whether the child has strong opposition, taking into consideration
the child’s age and maturity.
g. Whether one or both the parents agree or are opposed to joint
custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or other parent will be
jeopardized by the awarding of joint custody or by unsupervised or
unrestricted visitation.
j. Whether a history of domestic violence, as defined in section 236.2,
exists. . . .
k. Whether a parent has allowed a person custody or control of, or
unsupervised access to a child after knowing the person is required to
register or is on the sex offender registry as a sex offender under
chapter 692A.
8
Additional factors the court should consider include:
(1) The characteristics of each child, including age, maturity,
mental and physical health.
(2) The emotional, social, moral, material, and educational needs
of the child.
(3) The characteristics of each parent, including age, character,
stability, mental and physical health.
(4) The capacity and interest of each parent to provide for the
emotional, social, moral, material, and educational needs of the child.
(5) The interpersonal relationship between the child and each
parent.
(6) The interpersonal relationship between the child and its
siblings.
(7) The effect on the child of continuing or disrupting an existing
custodial status.
(8) The nature of each proposed environment, including its
stability or wholesomeness.
(9) The preference of the child, if the child is of sufficient age and
maturity.
(10) The report and recommendation of the attorney for the child
or other independent investigator.
(11) Available alternatives.
(12) Any other relevant matter the evidence in a particular case
may disclose.
In re Marriage of Winter, 223 N.W.2d at 166–67.
11
given equal consideration, and the weight attributed to each factor depends on
the specific facts and circumstances of each case. See In re Marriage of
Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Our objective is to place
the children in an environment likely to promote a healthy physical, mental, and
social maturity. Hansen, 733 N.W.2d at 695.
Amanda claims the district court improperly weighed various factors in
determining which party should have physical care of the children. Our review of
the record shows both parties actively cared for the children before and after their
relationship ended. On our de novo review, we find no reason not to give
deference to the district court’s credibility determinations and its decision to give
greater weight to the testimony of the children’s daycare provider and Cory’s
neighbor rather than either of the party’s family members or close friends. See
Iowa R. App. P. 6.904(3)(g). Furthermore, in both its oral and written ruling, the
district court noted both parties had exhibited hostility toward one another but
ultimately concluded Cory had shown he was better able to support Amanda’s
relationship with their children.
Amanda also contends the district court failed to consider issues of
domestic abuse in making its physical-care determination.9 The record shows
Amanda has failed to present any evidence other than her own testimony to
show a “history of domestic abuse.” See Iowa Code § 598.41(3)(j); see also In re
Marriage of Forbes, 570 N.W.2d 757, 759–60 (Iowa 1997) (holding “a ‘history’ is
9
The court failed to address Amanda’s allegations of domestic abuse in either its oral or
written rulings. Amanda did not file a motion pursuant to Iowa Rule of Civil Procedure
1.904(2) asking the court to enlarge or amend its findings of fact and conclusions of law.
Due to the serious nature of this factual issue, on our de novo review we nevertheless
address the merits of Amanda’s claim.
12
not necessarily established by a single documented incident . . . [n]or does more
than one minor incident automatically establish a ‘history of domestic abuse.’”).
Amanda failed to produce any documented evidence of even a single incident of
domestic abuse perpetrated against her by Cory other than the protective order
the parties entered into by consent, in which the court did not find Cory had
committed a domestic abuse assault against Amanda. At trial, Cory denied
Amanda’s allegations of domestic abuse. He testified he consented to the
protective order because he believed it would be mutual and provide a specified
visitation schedule that would enable him to see the children. In contrast,
Amanda admitted she slapped Cory during a disagreement with him. Further,
several witnesses testified they had observed Amanda yelling at both Cory and
the children on numerous occasions. Thus, we do not find this factor weighs in
favor of placing the children in Amanda’s physical care.
Upon our de novo review of the record, we find no reason to disagree with
the district court’s decision to award physical care of the parties’ children to Cory.
We believe placement of the children in Cory’s care is in their best interests.
B. Cory’s Journal
We generally review evidentiary rulings for an abuse of discretion. See
Gamerdinger v. Schaefer, 603 N.W.2d 590, 594 (Iowa 1999). In doing so, we
give wide latitude to the district court in ruling on the admissibility of evidence.
Kalvik ex rel. Kalvik v. Seidl, 595 N.W.2d 136, 140 (Iowa Ct. App. 1999). We
refrain from disturbing the district court’s evidentiary rulings “unless there is a
clear and prejudicial abuse of discretion.” Carter v. Wiese Corp., 360 N.W.2d
122, 130–31 (Iowa Ct. App. 1984) (citation omitted). We review the questions of
13
statutory interpretation for correction of errors at law. See Ashenfelter v.
Mulligan, 792 N.W.2d 665, 668–69 (Iowa 2010).
Amanda contends the district court should have excluded Cory’s journal
because the journal (1) contained privileged information, (2) was unnecessarily
duplicative and cumulative when viewed in combination with Cory’s testimony,
(3) contained inadmissible hearsay, and (4) contained inadmissible offers of
compromise or communications in an effort to resolve these proceedings out of
court.
Amanda claims the references Cory made in the journal regarding her
seeking mental-health therapy and the parties’ couples counseling are
confidential and privileged information under Iowa Code section 622.10 because
they constitute medical records. We have reviewed the admitted exhibit and
determine the journal does not contain any mental-health or medical-professional
records or privileged communications; rather it contains Cory’s personal
knowledge of appointments Amanda had scheduled with various mental-health
providers. See Iowa Code § 622.10(1) (providing a “mental health professional
. . . shall not be allowed, in giving testimony, to disclose any confidential
communication properly entrusted to the person in the person’s professional
capacity”); id. § 622.10(6)(e)(1) (defining medical records as “containing a
patient’s health or billing information”); see also McMaster v. Iowa Bd. of
Psychology Exam’rs, 509 N.W.2d 754, 757 (Iowa 1993) (“The privilege in section
622.10 is limited to disclosure of confidential communications by the giving of
testimony.”).
14
Furthermore, we do not find the journal is needlessly cumulative when
viewed in combination with Cory’s testimony such that its admission unfairly
prejudiced Amanda. See Iowa R. Evid. 5.403. We also do not find the
information contained within the journal served to harass or unduly embarrass
Amanda. See Iowa R. Evid. 5.611(a). Additionally, Amanda has failed to show
the district court relied on any alleged inadmissible part of the exhibit in making
its physical-care determination; thus we find no error in admitting it.
Accordingly, we conclude the district did not abuse its discretion in
admitting Cory’s journal.
C. Extracurricular Expenses
Cory concedes the district court should not have ordered Amanda to pay a
portion of the children’s extracurricular activities expenses because he has
physical care of the children. We agree. See Iowa Ct. R. 9.11. Because we
affirm the district court’s grant of physical care of the children to Cory, we modify
the district court’s order as to this issue.
D. Appellate Attorney Fees
Cory requests appellate attorney fees. In a paternity action, “the court
may award the prevailing party reasonable attorney fees.” Iowa Code § 600B.26.
An award of appellate attorney fees rests within this court’s sole discretion.
Markey, 705 N.W.2d at 26. In determining whether to award attorney fees, we
consider “the needs of the party making the request, the ability of the other party
to pay, and whether the party making the request was obligated to defend the
trial court’s decision on appeal.” Id. (citation omitted). Having considered these
15
factors, we determine Amanda shall pay $3000 of Cory’s appellate attorney fees.
Costs shall be assessed eighty percent to Amanda and twenty percent to Cory.
III. Conclusion
Upon our de novo review of the record, we affirm the district court’s grant
of physical care of the parties’ two minor children to Cory. We find the court did
not abuse its discretion in admitting Cory’s journal. Cory concedes the court
should not have ordered Amanda to pay a portion of the children’s extracurricular
activities expenses because Cory has physical care of the children; thus we
modify the court’s decision as to this issue. We award Cory $3000 in appellate
attorney fees. Costs shall be assessed eighty percent to Amanda and twenty
percent to Cory.
AFFIRMED AS MODIFIED.