Higdon v. Shafer ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0374
Filed September 27, 2023
KEVIN WILLIAM HIGDON,
Plaintiff-Appellee/Cross-Appellant,
vs.
DAWN MARIE SHAFER,
Defendant-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
A mother appeals from an order placing physical care of her child with the
father and assessing child support. The father cross-appeals the order for joint
legal custody. AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.
Patrick H. Payton of Patrick H. Payton & Assoc., P.C., Des Moines, for
appellant/cross-appellee.
Ryan A. Genest of Simpson, Jensen, Abels, Fischer & Bouslog, P.C., Des
Moines, for appellee/cross-appellant.
Considered by Tabor, P.J., Buller, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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BULLER, Judge.
Dawn Marie Shafer appeals from a ruling placing physical care of her child
with the father, Kevin William Higdon, setting visitation, and assessing child
support. Shafer urges she should have been awarded physical care. Alternatively,
she requests more visitation and contests the child-support calculation. Higdon
cross-appeals, arguing the district court erred in awarding joint legal custody. We
reject the appeal and cross-appeal, affirming the decree in its entirety.
I. Background Facts and Proceedings
Higdon and Shafer started dating around 2015 and never married. They
had a child, S.H., in 2020. The parties broke up a few months after Shafer gave
birth, but they did not enter into an agreement for custody, visitation, or child
support at that time. Shortly after their separation, Shafer filed a petition for relief
from domestic abuse alleging Higdon assaulted her. The district court dismissed
the petition after a full evidentiary hearing.
That November, Higdon filed this paternity, custody, visitation, and support
action. The court entered a temporary order granting Shafer physical care of the
child. The following spring, Shafer began denying Higdon his court-ordered
parenting time, claiming she believed Higdon was abusing the child. Higdon filed
a contempt application, and the court scheduled a hearing for August 2021.
The day before that contempt hearing, police arrested Shafer for assault
because she was throwing glass jars off her balcony and striking passersby.
Based on this incident, Higdon believed Shafer’s mental health was rapidly
deteriorating, and he filed an emergency motion for change in custody seeking
temporary physical care of the child. The district court granted that motion and
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placed physical care with Higdon; the child remained with him through the
contested custody trial. Higdon did not allow Shafer any visits or communication
with the child between the emergency motion and the final ruling.
Shafer has significant mental-health problems and had been taking
prescribed medication for seven years when she started dating Higdon. As the
district court noted, it’s difficult to describe Shafer’s exact mental-health issues
given her “unwillingness or inability to fully report those mental health struggles,”
including some false sworn statements. Regardless of her specific diagnoses,
Shafer’s mental-health problems seemed to be reasonably well-managed while
she took medication, but she stopped taking medication when she became
pregnant.
Shafer’s mental health declined further after her separation from Higdon.
Stemming from the glass-throwing assault and other incidents, the Iowa
Department of Health and Human Service (HHS) issued a founded child abuse
report against Shafer for denial of critical care and failure to provide proper
supervision of the child. In contrast, any reports seemingly made by Shafer against
Higdon were unfounded. In early 2022, officers arrested Shafer for third-degree
arson for setting a dumpster on fire near her apartment. Her landlord sought to
evict her on the basis that she was dangerous, and she pled guilty to misdemeanor
reckless use of fire and moved out of the apartment to avoid eviction.
Shafer’s mother and brother filed a petition to have Shafer involuntarily
committed that September. Their affidavits reported she was not taking her
medication, had cut off contact with her family, and was acting “very paranoid.”
The evaluating psychiatrist diagnosed Shafer with schizoaffective disorder and
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bipolar type disorder, and opined that she likely met the criteria for major
depressive disorder. She was stable and not symptomatic while on her
medications. The commitment petition was dismissed.
Following a late-September hearing on temporary matters, the court
formalized the emergency order placing the child in Higdon’s physical care and
ordered Shafer to complete a comprehensive mental-health evaluation before she
would be allowed visitation. But Shafer did not meaningfully comply with the
required evaluation.
At the time of the custody trial, Higdon worked at a blood center with a salary
roughly equivalent to $24 per hour. Shafer worked part-time for a publishing
company, earning $17.50 per hour. But she previously made between $18 and
$19 per hour working full-time for an insurance company. And, according to
Shafer, she was willing and able to return to full-time work.
At trial, Shafer claimed she had been off her medication without any
problems for more than a year before she became pregnant. And she urged that
her recent erratic behavior was caused by the pressure of “not knowing where [her
child] is and anything about [the child].” She claimed she did not know why her
landlord wanted her evicted after the arson incident. And she denied responsibility
for both the arson and the glass-throwing. Shafer insisted she had no idea why
her mother tried to have her civilly committed, but she also opined that her mother
was likely telling the truth. She denied ever having a psychological or psychiatric
diagnosis for which medication was recommended. And she testified that she had
no interest in taking medication again. When asked by the court why she
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disagreed with the diagnoses rendered by medical professionals, Shafer gave a
minimally responsive answer that focused on how she does not “hear voices.”
Shafer’s mother and two of her brothers testified to concerns about Shafer’s
mental-health struggles and her non-compliance with medication. They agreed
that Shafer “sometimes” acted paranoid and that her mental-health problems could
affect her decision-making or parenting.
Following the custody trial, the district court ordered joint legal custody,
placed physical care with Higdon, and granted Shafer limited supervised visitation.
The district court emphasized Shafer’s unwillingness to acknowledge her mental-
health problems or seek treatment and explained that it was ordering supervised
visitation based on a concern Shafer would not “voluntarily abide by those court
orders with which she disagrees.” The district court also ordered Shafer to pay
child support in the amount of $447.33 per month based on Shafer’s earnings
capacity if she worked full-time at $18.50 per hour.
Shafer appeals, challenging the physical-care determination, visitation
schedule, and child-support provisions. Higdon cross-appeals, challenging the
imposition of joint legal custody.
II. Standard of Review
“Our review of matters involving child custody and child support is de novo.”
Thorpe v. Hostetler, 949 N.W.2d 1, 4 (Iowa Ct. App. 2020). “[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.” Thorpe, 949 N.W.2d at 5.
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III. Discussion1
The issues before us concern Shafer’s challenge to the physical-care and
visitation provisions of the decree, Higdon’s challenge to joint legal custody, and
Shafer’s challenge to the child-support calculation.
A. Physical Care and Visitation
In deciding an issue of child custody and care under chapter 600B (2020),
the controlling consideration is the best interests of the child. Hensch v. Mysak,
902 N.W.2d 822, 824 (Iowa Ct. App. 2017); Iowa R. App. P. 6.904(3)(o); see also
In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct. App. 1994). In
determining physical care, this court considers several factors, including those set
out in Iowa Code section 598.41(3) and In re Marriage of Winter, 223 N.W.2d 165,
166–67 (Iowa 1974). See Iowa Code § 600B.40(2) (providing “section 598.41 shall
apply” to chapter 600B proceedings); Stanley v. Winters, No. 22-1552, 2023 WL
2396539, at *2 (Iowa Ct. App. Mar. 8, 2023). The overall objective in determining
physical care is to promote the child’s physical health, mental health, and social
maturity. In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). “The critical
issue is which parent will do better in raising the child.” In re Marriage of Burkle,
525 N.W.2d 439, 441 (Iowa Ct. App. 1994).
The gist of Shafer’s argument on appeal is that her “mental health [is] being
weaponized against her.” We do not agree. The record abundantly supports that
Shafer’s mental-health problems were reasonably well-controlled before she
1 We note the district court admitted some disputed evidence as a court’s exhibit
“for potential appellate review.” Because neither party raised an evidentiary issue
related to the disputed exhibit, we do not consider it.
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decided to stop taking her medication. Even if we set aside Shafer’s choice to stop
taking medication while pregnant or breast-feeding, her refusal to acknowledge
her mental-health conditions persisted through trial. There is no sign Shafer will
meaningfully address her mental health now or at any time in the near future. This
observation is not a weaponization of mental health; it is a weighing of the child-
custody factors in light of a parent’s unwillingness to address an illness that could
pose a serious danger to the safety and welfare of the child.
Shafer also argues that Higdon “intentionally alienated [Shafer from the
child] under the guise of mental illness.” We do not read the record this way.
Higdon sought sole custody and physical care through the appropriate legal
channels. And his concerns for the child’s safety were reasonable, as evidenced
by the founded HHS child-abuse report against Shafer, as well as her arrest and
prosecution for assault and arson. While we appreciate Higdon’s hope that Shafer
would never intentionally injure the child, we also understand why he is concerned
that her refusal to acknowledge or treat her mental-health condition poses a
danger to the child warranting limited supervised visitation.
Beyond Shafer’s overt arguments, we also reject her implicit challenge to
Higdon’s suitability as a caretaker for the child. As a consequence of Shafer’s
erratic and criminal conduct, Higdon has been the sole caregiver for the child since
August 2021. No witness expressed any credible concern regarding Higdon’s
parenting, including Shafer’s mother and brothers. A daycare provider also
testified that the child appears to be doing well. And there was credible evidence
that, before the change in physical care, Shafer had intentionally denied Higdon
access to the child based on her allegations of abuse that two different judges and
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HHS determined were false or otherwise unfounded. See Iowa Code
§ 598.41(1)(c) (“The court shall consider the denial by one parent of the child’s
opportunity for maximum continuing contact with the other parent, without just
cause, a significant factor in determining the proper custody arrangement.”). This
evidence supports the district court’s decision on physical care.
To the extent Shafer argues for more generous visitation under different
conditions than the district court established, we decline to modify the decree.
Given Shafer’s refusal to acknowledge or treat her mental-health problems and
her past refusal to abide by court orders, we cannot disagree with the district
court’s choice to limit Shafer’s parenting time.
We affirm the district court’s placement of physical care with Higdon,
including the provisions regarding limited supervised visitation for Shafer.
B. Joint Legal Custody
In his cross-appeal, Higdon contests the district court’s ruling on joint legal
custody. He argues that Shafer will not work cooperatively with him to further the
best interests of the child. Although the district court’s explanation for awarding
joint legal custody was terse, it provides a sufficient basis for appellate review
given the facts adduced at trial and the district court’s privileged position to observe
the parties and evaluate their credibility:
The court has no doubt that the parties have difficulty in
communicating going forward. Those communications will be further
complicated by respondent’s beliefs, but this record cannot support
the granting of sole legal custody in petitioner’s favor and as such
the court will award the parties joint legal custody.
As with other custody determinations, our review is guided by a flexible
multi-factor statutory analysis. See id. § 598.41(3). While Higdon is correct that
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many of the facts supporting the physical-care award could justify the award of
sole legal custody, we decline to disturb the district court’s ruling on this issue.
First, Higdon has proven somewhat reluctant to meet the custodial parent’s
obligation to support the other parent’s relationship with the child through
maintaining some contact—even in a limited fashion—between Shafer and the
child. Id. § 598.41(1)(c), (3)(e). Next, we, the parties, and the district court all
agree that difficulties in communication are likely. But difficulties in communication
alone are not enough to grant a parent sole legal custody, particularly in light of
Higdon’s testimony that he did not think Shafer would ever intentionally harm the
child. See Hensch, 902 N.W.2d at 826 (“[T]he communication difficulties and
tension must rise above the not atypical acrimony that accompanies litigation in
family-law matters.”). And while Higdon may be correct that his past invocation of
the court’s tie-breaker function to address immunizations forecasts repeat issues
in the future, we cannot say that with certainty on this record.
If Shafer continues to not acknowledge or treat her mental-health
conditions, or her mental health declines further, she may prove unable to exercise
joint legal custody and act in the best interests of the child in the future. But, like
the district court, we are unwilling to grant sole legal custody at this point, and we
find the best interests of the child support joint legal custody based on the present
state of the record.
C. Child Support
Last, Shafer challenges the child-support calculation because she believes
the district court should have computed her income at twenty hours per week,
rather than forty. We reject this argument. It is well-established that, in
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circumstances of voluntary unemployment or underemployment, a “child support
award may be based upon the party’s earning capacity, as opposed to his or her
actual earnings.” In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App.
1996). “We examine the employment history, present earnings, and reasons for
failing to work a regular work week when assessing whether to use the earning
capacity of a parent.” In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997).
As recently as 2021, Shafer had full-time employment at approximately the pay
rate used by the court. Shafer herself testified she was capable of full-time work
and intended to seek out full-time employment. We affirm the child-support
calculation.
IV. Disposition
We affirm the custody decree in its entirety, rejecting the arguments made
in both Shafer’s appeal and Higdon’s cross-appeal. Given the issues raised, we
assess costs two-thirds to Shafer (for her appeal) and one-third to Higdon (for his
cross-appeal).
AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.