Quawim I. Gates v. Shunte N. Johnson ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0932
Filed August 18, 2021
QUAWIM I. GATES,
Plaintiff-Appellee/Cross-Appellant,
vs.
SHUNTE N. JOHNSON,
Defendant-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Wyatt Peterson,
Judge.
A mother appeals a decree awarding physical care of their now-seven-year-
old daughter to the child’s father. AFFIRMED AS MODIFIED ON APPEAL;
AFFIRMED ON CROSS-APPEAL; AND REMANDED WITH DIRECTIONS.
Timothy B. Liechty of Bell, Ort & Liechty, New London, for appellant.
Ryan D. Gerling of Cray Law Firm, PLC, Burlington, for appellee.
Considered by Bower, C.J., and Tabor and Ahlers, JJ.
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TABOR, Judge.
Shunte Johnson appeals the physical-care provision of her decree with
Quawim Gates. Johnson and Gates are the parents of Q.N.I.G., who was born in
2014. In a proceeding under Iowa Code chapter 600B (2018), Johnson and Gates
offered conflicting versions of how their daughter came to live with Gates. The
district court found Johnson more credible than Gates on her efforts to see Q.N.I.G.
and his actions to impede that contact. Yet, despite that credibility finding, the
court granted physical care to Gates and visitation to Johnson. The court then
awarded Johnson attorney fees. Gates cross-appeals that award of attorney fees,
arguing Johnson was not the prevailing party. Johnson contends if we modify the
decree she will be the prevailing party. She also asks for appellate attorney fees.
Because the record shows Gates denied Johnson continuing contact with
Q.N.I.G. without just cause, we find granting Gates physical care was not in the
child’s best interests. See In re Marriage of Shanklin, 484 N.W.2d 618, 619 (Iowa
Ct. App. 1992). We thus modify the decree to place physical care with Johnson.
We affirm the award of trial attorney fees. And we award reasonable appellate
attorney fees to Johnson. Given the modification of physical care, we remand for
the district court to issue a new visitation schedule and recalculate child support.
I. Facts and Prior Proceedings
Johnson and Gates were unmarried when Q.N.I.G. was born in January
2014. Their relationship ended about four months after their daughter’s birth.
During her first two years, Q.N.I.G. lived with Johnson, who encouraged Gates’s
connection with the child. Gates would visit the child at times. After their break-
up, the relationship became somewhat contentious. According to Johnson, when
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Q.N.I.G. was eleven months old, Gates took her for a visitation and did not bring
her back for two weeks. Johnson filed a police report, and Gates returned Q.N.I.G.,
explaining that he was angry Johnson had been seen in a car with a different man.
But the biggest turning point came in March 2016. It was then that Johnson
shared her plans to move with Q.N.I.G. to Gary, Indiana, to be closer to her family.
In a series of text messages in mid-March, Gates demanded that Johnson allow
him to see Q.N.I.G. Johnson agreed “against her better judgment” to let Q.N.I.G.
spend the weekend with Gates. When he did not return the child on Sunday as
they agreed, Johnson tried to call him and stopped by his house. But he would not
respond. When she contacted the police, they told her there “wasn’t really too
much they could do because he was on the birth certificate so they couldn’t force
him to give her to me and that it was pretty much out of their hands.” They
recommended she hire an attorney. Johnson testified she tried to secure
representation through legal aid but the assigned attorney did not help in regaining
custody of Q.N.I.G. She also testified that she could not afford to pay the retainers
requested by the private attorneys she contacted.
When Johnson communicated with Q.N.I.G.’s paternal grandmother on
Facebook, the grandmother said she would try to get her son to return the child to
Johnson. But that did not work. Neither did Johnson’s continued calls and texts
to Gates, which he blocked for months. Also in response to her persistence, in
April 2016 Gates filed a self-represented petition for relief from domestic abuse,
alleging Johnson called him four times in one day and left him voicemails
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threatening to have her brothers “jump” him.1 Gates checked a box on the form
asking for temporary custody of Q.N.I.G. The district court dismissed the petition
as failing to present a prima facie case of domestic abuse.
Faced with Gates’s obstruction, Johnson asked the Burlington police
several times during the summer and fall of 2016 to do welfare checks on Q.N.I.G.
Officers notified Johnson when they could determine Q.N.I.G. was in no danger at
her father’s residence. But Gates objected to Johnson’s efforts, posting this
Facebook message:
Who ever knows my daughter’s so-called mother shunte johnson . . .
tell the bitch and her bum ass cousins to stop fuckin with me and my
baby stop sending the police to my house trying to catch this invisible
criminal cuz one thing my fb friends real friends and family is going
to tell them bum ass bitches is that im a damn good daddy so please
fb friend and family please tell this bitch to leave us alone and let us
be great.
When Johnson’s lease was up in Iowa, she completed her anticipated move
to Gary, Indiana.2 Johnson has two older children and wanted to be closer to her
family who live in Chicago. Plus the move shortened the distance to the home of
the older children’s father.3 Johnson also secured a job in Indiana working the
front desk at a hotel.4
Meanwhile, Gates stayed in eastern Iowa, living and working for a stint in
Davenport before moving back to Burlington. He married Shatara in November
1 Gates knew that Johnson did not have brothers and testified that he meant to say
“cousins.”
2 Johnson qualified for low-income housing. She testified that after she gave notice
she could not rescind her Section 8 housing transfer.
3 Both older children reside in Indiana.
4 In 2019, Johnson was still at that job, earning ten dollars per hour. She testified
her employer allowed her flexible hours so that she could have weekend visitations
with Q.N.I.G.
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2016. They later had a son together.5 Gates testified that Shatara also played a
“motherly role” to Q.N.I.G. when he denied Johnson contact. When asked at the
custody hearing why he blocked Johnson’s messages, he said: “I told her if you
want to see your daughter, all you have to do is get a lawyer.”6
In 2017, Johnson renewed her efforts to obtain legal assistance, contacting
two different online services about preparing legal papers to challenge custody.
But she testified that she did not follow through because she believed she would
still need to hire an attorney to file the papers.7 Also in 2017, Johnson
communicated with Gates’s brother, who offered to facilitate contact with Q.N.I.G.
But not until January 2018 did Gates allow Q.N.I.G. to have phone calls with
Johnson. When Gates set up a messaging program, Johnson immediately took
the chance to have video chats with her daughter.
In September 2018, through counsel, Johnson petitioned for habeas corpus
on behalf of Q.N.I.G. Her petition alleged that Gates continued to “illegally restrain
Q.N.I.G. and retain physical custody of her and deprive [Johnson] of all contact
with Q.N.I.G.” On the day of the habeas hearing, Gates petitioned for physical
care of Q.N.I.G. The court combined the two actions and accepted submission by
5 Gates also has two school-aged sons who live with their mother in Texas. He
has summer visitation with them.
6 In the spring of 2017, Shatara sent Johnson a social media message saying,
Listen please stop calling my husband leaving messages pay
for . . . a lawyer then have them contact US . . . she my baby now I
take care of her . . . worry about them two other kids because
[Q.N.I.G.] straight you had her now I’m raising her so continue to be
an ass until you lawyer up.
7 One such company quoted Johnson attorney fees of $1075 to complete her
filings.
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affidavits. In December 2018, the court granted Gates temporary physical custody,
and set every-other-weekend visitation for Johnson.
The court held a hearing on the custody matters in August 2019. Both
parents testified and both asked for physical care of Q.N.I.G. In June 2020, the
court issued the decree granting physical care to Gates. The order maintained the
every-other-weekend visitation and added summer and holiday interactions for
Johnson. The court later ordered Gates to pay $7500 of Johnson’s attorney fees.
Johnson appeals, contending the court erred in granting physical care to
Gates. Gates cross-appeals, contesting the award of trial attorney fees.
II. Scope and Standard of Review
These custody proceedings were tried in equity, and we review equitable
proceedings de novo. Iowa R. App. P. 6.907; Phillips v. Davis-Spurling, 541
N.W.2d 846, 847 (Iowa 1995). We examine the entire record and decide anew the
factual and legal issues that the parties preserved and presented for review. See
In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). While our
review is de novo, we defer to the district court’s factual findings and credibility
assessments. In re Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App.
2009). We do so because that court has a chance to listen to the parties and watch
them in person. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).
III. Discussion
In determining physical care, our governing consideration is Q.N.I.G.’s best
interests. See Iowa R. App. P. 6.904(3)(o). Because Johnson and Gates were
not married to each other, we operate under Iowa Code chapter 600B, rather than
chapter 598 on dissolutions. But we apply the same legal framework to custody
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and visitation matters involving unmarried parents as we do to those issues arising
between parents who had been married to each other. Iowa Code § 600B.40(2)
(cross referencing Iowa Code section 598.41).
Section 598.41(3) lists factors to consider when determining what care
arrangement is in a child’s best interests. See In re Marriage of Hansen, 733
N.W.2d 683, 696 (Iowa 2007) (paraphrasing those nonexclusive factors as
“suitability of parents, whether psychological and emotional needs and
development of child will suffer from lack of contact with and attention from both
parents, quality of parental communication, the previous pattern of caregiving,
each parent’s support of the other, wishes of the child, agreement of the parents,
geographic proximity, and safety”); see also In re Marriage of Winter, 223 N.W.2d
165, 166–67 (Iowa 1974) (listing similar circumstances to consider).
Most relevant to this proceeding are two competing considerations. The
first is the pattern of caregiving. Our supreme court has recognized that “imposing
a new physical care arrangement on children that significantly contrasts from their
past experience can be unsettling, cause serious emotional harm, and thus not be
in the child’s best interest.” Hansen, 733 N.W.2d at 697. This factor weighed most
heavily for the district court. The court emphasized that “for three and a half of the
five and a half years of the child’s life, the child has lived almost exclusively with
[Gates].” Gates echoes this factor in his brief, claiming he “has historically been
the primary caretaker of the child.”
The second, countervailing, factor is the ability of each parent to promote
the other parent’s relationship with the child. “The parent awarded physical care
is required to support the other parent’s relationship with the child. Id. at 700. And
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a parent’s denial of the child’s opportunity for maximum continuing contact with the
other parent, without just cause, is a significant factor in determining physical care.
See Iowa Code § 598.41(1)(c). Johnson asserts she encouraged Gates’s
relationship with their daughter when Q.N.I.G. was an infant. By contrast, Gates
failed to return the child after an arranged visit and “intentionally interfered and
blocked [her] ability to have any relationship with Q.N.I.G. for over two years.”
Indeed, the district court found Johnson more credible than Gates when
comparing their testimony on her attempts to regain custody of Q.N.I.G. after
March 2016 and his interference with those efforts. On this point, the court made
explicit findings: “The court concludes [Gates] impeded [Johnson] from seeing
Q.N.I.G.” The court continued:
[Johnson] made numerous text messages, phone calls, Facebook
messages, calls for police service, and trips from Gary, Indiana[,] to
Burlington, Iowa[,] all in an effort to see her child. [Gates] thwarted
her efforts, blocked her calls and text messages, and even went so
far to try to get a protective order to keep [Johnson] from contacting
him. The court was not impressed with [Gates] in this regard.
We defer to those fact findings, especially the court’s perception that
Johnson was more believable than Gates. Yet despite those findings, the district
court awarded Gates physical care for the sake of stability. We disagree with the
primacy the court gave to that factor. Granted, stability matters. But it is not in a
child’s best interests for one parent to cut off the other parent’s contact with their
child—for years—and then profess that the continuity of caretaking favors their
request for physical care. Despite the appearance of stability, Gates showed that
he was not the parent most disposed to supporting the other parent’s relationship
with the child. Just the opposite.
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In re Marriage of Will is instructive here. 489 N.W.2d 394 (Iowa 1992). In
that case, the parents separated and the mother moved to California with their two
sons without notice to the father. Id. at 396. He secured a temporary order for
physical care, and she “immediately returned to Iowa.” Id. The father continued
to discourage contact, affection, and information exchanges between the boys and
their mother. Id. at 398–99. But the supreme court did not look kindly upon the
father’s attempt to alienate their sons from their mother. Id. at 399 (upholding
award of physical care to mother because she was more likely to assure the boys’
“opportunity for the maximum continuing physical and emotional contact with both
parents”).
In drafting the decree, the district court distinguished Will in two ways, noting
there: (1) the father’s alienation occurred after the court issued a temporary order
and (2) the mother moved back from California to maximize her contact with the
sons. Neither difference is meaningful here. First, the fact that Gates abided by
the temporary court order to allow Johnson visitation does not erase his long-term
interference with her right to co-parent Q.N.I.G. See Jacobs v. Houck, No. 11-
0116, 2011 WL 2556993, at *1 (Iowa Ct. App. June 29, 2011) (finding decision to
grant physical care to father was supported by mother’s denial of father’s visitation
following the couple’s separation, forcing father to seek court intervention).
Second, unlike the mother’s surprise removal of the children to California in
Will, Johnson’s move to Indiana was not “ill-advised” or without notice to Gates. In
fact, the district court did not fault Johnson for leaving Iowa and found she had
“good reason” for relocating. Johnson told Gates she was moving to be closer to
her family who could help her with the children. In turn, the court noted Gates’s
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“efforts to have Q.N.I.G. in his care at this time [March 2016] were prompted largely
because he learned” of Johnson’s intent to move. But Gates’s discontent with
Johnson’s planned move is not “just cause” for denying Q.N.I.G. contact with her
mother. See Iowa Code § 598.41(1)(c).
“The ultimate objective of a physical care determination is to place the child
in the environment most likely to bring [her] to healthy, mental, physical, and social
maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). It is our
job to decide which physical care arrangement will serve Q.N.I.G.’s long-range
best interests. See In re Marriage of Burham, 283 N.W.2d 269, 275 (Iowa 1979).
In doing so, we must consider “the willingness of each party to allow the child[ ]
access to the other party.” Id. at 276. For more than two years, Gates limited
Johnson’s access to Q.N.I.G., cutting off every form of communication both in-
person and remote. He blocked Johnson on his phone, social media, and even
posted a message to friends and family encouraging them to tell Johnson to “leave
us alone.” Gates’s refusal to support Johnson’s relationship with Q.N.I.G. until
required by court order is not reassuring. After due consideration of the district
court’s factual findings and its credibility determinations, in our de novo review we
find Gates’s disregard for Johnson’s relationship with their daughter tips the scales
in favor of placing Q.N.I.G.’s care with Johnson.
Before ending this opinion, we touch on sibling relationships. In most cases,
we presume physical care decisions should not separate siblings. See Will, 489
N.W.2d at 398. That presumption includes half-siblings. In re Marriage of Orte,
389 N.W.2d 373, 374 (Iowa 1986). Q.N.I.G. has half-siblings in both households:
Gates has a son born in 2018, and Johnson has a son, D.P., born in 2002 and a
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daughter, J.P., born in 2010. D.P.—then sixteen—testified at the custody hearing
that Q.N.I.G. has a bond with him and J.P. He described how sad Q.N.I.G. was
on the way back to Iowa from weekend visits. Thus, the presumption against
separating siblings does not detract from our decision to place physical care with
Johnson.
Because we modify the custody order granting Johnson physical care and
making her the prevailing party, we affirm the award of trial attorney fees raised in
Gates’s cross-appeal. See Iowa Code § 600B.26. Johnson also requests
appellate attorney fees. “An award of appellate attorney fees is not a matter of
right, but rests within our discretion.” In re Marriage of Berning, 745 N.W.2d 90,
94 (Iowa Ct. App. 2007). “We consider the needs of the party making the request,
the ability of the other party to pay, and whether the party was required to defend
the district court's decision on appeal.” Id. We also note Johnson is the prevailing
party. After considering these factors, we conclude Gates should pay Johnson’s
appellate attorney fees and remand to the district court for a determination of a
reasonable amount. The remand should also include issuance of a new visitation
schedule and recalculation of child support.
AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-
APPEAL; AND REMANDED WITH DIRECTIONS.