Jeremy J. Bowman v. Denyel L. Doughman, a/k/a Denyel L. Jones

IN THE COURT OF APPEALS OF IOWA
No. 22-0464
Filed September 21, 2022
JEREMY J. BOWMAN,
Petitioner-Appellant,
vs.
DENYEL L. DOUGHMAN, a/k/a DENYEL L. JONES,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, James S.
Heckerman, Judge.
The father appeals the physical care determination of the district court.
AFFIRMED AS MODIFIED AND REMANDED FOR FURTHER PROCEEDINGS.
Stephen Babe of Cordell Law, LLP, Des Moines, for appellant.
J. Joseph Narmi and Tricia Scheinost (until withdrawal), Council Bluffs, for
appellee.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2
GREER, Judge.
Primarily because of the mother’s, Denyel Jones, move to Arizona, the
father, Jeremy Bowman, petitioned for joint legal custody and physical care of the
child1 this never-married couple had together. After the district court granted
physical care to Denyel, Jeremy appealed. In addition to his request we reverse
course on the physical-care issue, Jeremy asks for an award of appellate attorney
fees. Denyel requests appellate attorney fees as well. After our de novo review
of the evidence, we modify the district court’s physical-care determination to give
it to Jeremy but decline to order appellate attorney fees to either party.
Factual Background.
When Denyel was pregnant with their child, the parents, who were living
together, separated. While they dispute Jeremy’s involvement with the child in the
early years, both testified Jeremy was involved again in 2010, when the then two-
year-old child was removed by the Iowa Department of Services (DHS) from
Denyel because of her methamphetamine use. And, both agreed Jeremy spent
even more time with the child after the child reached age six, such that in the two
years before the custody trial, Jeremy and the child were together every weekend
and the majority of the summer in 2021.2
Then, in September 2021, Denyel moved to Arizona with her fiancé, who
was previously her husband; his twelve-year-old son; her adult son; and the child
1 Their twelve-year-old child was born in late 2009. Both parents have an adult
child from other relationships—Denyel’s adult son lives with her, and Jeremy’s
adult son lives in the same city as Jeremy.
2 Jeremy testified he had care the majority of the summer of 2020, but Denyel
disputed that characterization.
3
at subject here. The child was not yet enrolled in any Arizona school and, when
the family arrived in Arizona, they lived twenty-five days in two hotel rooms while
waiting for their real estate closing on their home. Denyel did not tell Jeremy about
her planned move until August and did not include him in the decision over what
school the child would attend. Even more concerning, Jeremy was not listed on
the school contact records. To block the move, Jeremy applied for a temporary
restraining order and for temporary legal custody and physical care as neither
parent had ever sought a formal custodial order.3 The district court denied the
injunction request, thus allowing the child to move, and awarded Denyel temporary
physical care.
Even though there was no formal custodial order, the parents had worked
together through the years to co-raise the child with little conflict. Yet the move to
Arizona revealed seams that were straining. For example, as the pandemic hit
and the child navigated online learning, it became apparent to Jeremy that the child
fell behind in school such that it was impacting his overall performance. Likewise,
Jeremy testified he noticed a decline in the hygiene and dental health of the child.
As Jeremy described it, the child rarely showered and often did not brush his teeth
until the child came to his home for the weekend. Without much protest to these
facts, Denyel alluded to the child’s hygiene, testifying, “He—there’s times where
he absolutely refuses to do it at all. But—and I’m like I can’t force him—can’t strip
3An October 2010 order established Jeremy’s paternity along with the child and
medical support he was obligated to pay. The parties never sought any formal
custody, physical care, or visitation award until September 2021.
4
him of his clothes because I’ll get in trouble with that, throwing him in the shower,
because he’s 12 years old.”
Adding to Jeremy’s concern, in July, while he had care of the child, Denyel
called Jeremy intoxicated, crying that she was going to jump off a bridge and the
child would be better with Jeremy. Although she remembers none of the
conversation, Jeremy was concerned enough that he called the police and Denyel
was hospitalized. Part of her anger and distress that day involved a fight she
described having with her fiancé. Denyel told Jeremy the fiancé called her
“worthless” and “unfit.” Jeremy kept the child the remainder of the summer term.
And at trial, Jeremy noted that child protective services handled several other
matters at Denyel’s home. One resulted in a founded child abuse finding—
although unknown against whom—because keys were thrown and hit a child.
Another incident, according to Jeremy, involved the fiancé chasing Denyel with a
rifle, which Denyel testified is, for whatever reason, no longer in the home. Finally,
Jeremy and Denyel discussed a problem with her fiancé’s child, where it was
alleged that children “played inappropriately” with each other and that they could
no longer share a room together. Denyel testified that the situation was handled
so that no inappropriate touching had occurred “since [she] first found out about it.
They’re not even in the same room any more unless they are supervised.” Yet,
they did share a hotel room while the family waited days for access to the Arizona
house.
To address her strengths, Denyel testified she performed as the primary
caretaker for all of the child’s twelve years and that they have a very close
relationship. She believed that the child’s heart would be broken if he was taken
5
away from her. She also pointed out that Jeremy did not attend every school
conference and rarely attended the child’s individualized-education-program (IEP)
sessions at the school.
The parties proceeded to trial in January 2022.4 Without providing any
analysis as to the reasons considered, the district court awarded the parties joint
legal custody with physical care to Denyel.5 The order outlined Jeremy’s visitation
schedule, which essentially gave him most of the child’s summer break from
school6 and some other school breaks and holidays. The court ordered each party
to pay the travel costs to retrieve the child but gave Jeremy a five percent deviation
in the revised child-support obligation in consideration of those additional costs for
transportation for the visits. Jeremy timely appealed.
Physical-Care Determination.
Because custody matters are tried in equity, our review of these
proceedings is de novo.7 Iowa R. App. P. 6.907. “[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). “Although we give weight to the factual findings of
the district court, we are not bound by them.” In re Marriage of Mauer, 874 N.W.2d
4 The record reflects that the district court had a telephonic in camera conference
with the child, but there is no transcribed record of the discussion and no mention
of it in the court’s decision except to note that the court relayed its conversation
with the child to counsel.
5 The parties do not challenge the award of joint legal custody.
6 The parties agreed in mediation that the “parent who does not enjoy primary care
of the child” would have this summer visitation arrangement.
7 When making physical-care determinations under Iowa Code chapter 600B
(2021), which is used to reach paternity, custody, and physical-care determinations
of children whose parents never married, we apply the factors set out in
section 598.41(3), which governs custody and physical-care determinations in
dissolution proceedings. Iowa Code § 600B.40(2).
6
103, 106 (Iowa 2016); see also Iowa R. App. P. 6.904(3)(g). Because we do not
have the benefit of the trial court’s analysis of witness behavior or creditability, we
use our de novo review particularly here to consider the factors that are essential
for successful child-rearing.
But first, there is no question from our de novo review of the record that
these parents both have a close, loving relationship with the child. Denyel has
raised the child in her home for most of the child’s twelve years, except for when
DHS was involved. For the last seven years, Jeremy has exercised visitation with
the child almost every weekend and for extended time in the summers, including
the full summer of 2021. Although he did not start out strong with his connection
with the child, it seems clear that it is now there. In fact, Denyel has used this
close relationship as a punishment by denying the child a visit with his father when
he would not clean the bedroom or do homework. Not only does this discipline
technique show the importance of the relationship with the father and son, but it
works against Denyel’s duty to provide maximum contact between the father and
son. See Bailey v. Rinard, No. 17-1055, 2017 WL 6026469, at *3 (Iowa Ct. App.
Nov. 22, 2017) (“[A] parent’s willingness to encourage contact with the
noncustodial parent is a critical factor in determining custody.” (alteration in
original) (citation omitted)). But the tension here boils up because of the
residences of the parties—Jeremy lives in Iowa, where the child has lived since
birth, and Denyel now lives in Arizona. So, we look to the record to glean their
respective abilities to provide a stable home that will ensure the best environment
for the child.
7
When deciding who should have physical care, we do not resolve the issue
“upon perceived fairness to the [parents], but primarily upon what is best for the
child.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). “The objective
of a physical care determination is to place the child[] in the environment most
likely to bring [the child] to health, both physically and mentally, and to social
maturity.” Id. “When determining who will have physical care of the child, we will
consider ‘stability and continuity with an eye toward providing the [child] with the
best environment possible for [the child’s] continued development and growth.’”
Meller v. Hendrickson, No. 19-1096, 2020 WL 374565, at *2 (Iowa Ct. App. Jan.
23, 2020) (alterations in original) (quoting Hansen, 733 N.W.2d at 700). “[T]he
factors of continuity, stability, and approximation are entitled to considerable
weight.” Id. (alteration in original) (quoting Hansen, 733 N.W.2d at 700).
As to the characteristics of the child, each parent testified about the positive
attributes of the child but also confirmed the struggles with educational focus and
concerns over hygiene. Jeremy detailed a number of activities and interests he
and the child shared, and he testified they do Sunday dinner with his mother most
weekends. He and others testifying on his behalf addressed the close relationship
between Jeremy and the child. In this record, that detail was not available as to
the relationship and interests between Denyel and the child. When asked about
their relationship, Denyel only said “He’s my little buddy and I’m—he’s a mommy’s
boy. There’s times where I dig in or he says if you go down, I go down with you.
No, you have too much to look forward to.” Those statements suggest a
relationship not supportive of a twelve-year-old but one where the child is holding
up the parent.
8
But the educational concerns are the tipping point here. See In re Marriage
of Winter, 223 N.W.2d 165, 166 (Iowa 1974) (noting that the capacity of a parent
to meet the child’s educational needs is a factor to consider in best-interests
determinations). On the one hand, Jeremy was not attending all conferences and
IEP meetings at the child’s Iowa school and blamed the school staff, but the
documentation from the schools does not show that Denyel has made the child’s
education a priority. First, during the COVID-19 pandemic, the records from the
school show she did not address and solve the inability of the child to stay
connected with the school, despite the school’s continual requests to try and help
her connect the child. By Jeremy’s and his girlfriend’s accounts, unrefuted by
Denyel, the child was more than thirty assignments behind on his work. Yet,
Denyel did not get him into an educational program in Arizona until October 20,
2020. And, without input from Jeremy, she put the child in an Arizona program
where as a sixth grader, he was expected to do work at an eighth or ninth grade
level. Related to this school decision, Denyel was asked:
Q. He was behind in the fifth grade and remote learning?
A. But he did do his school work because I made him do school work
at home. He was playing catch-up. And when he went to his dad’s,
he was doing school work with his dad and that helped him get
caught up.
Q. So your son was struggling still though in Council Bluffs
schools when he left? A. Yes.
Q. And your position is that it’s in [the child’s] best interests
for a child who is struggling to be enrolled in an advanced curriculum
at a high school level? A. Yes.
Not surprisingly, he was failing most of his classes at the school in Arizona. Finally,
Denyel told Jeremy that the move to Arizona was only going to last for up to a year
9
and not longer, thus if what she said is true, the child might be in yet another school
in another year.
There is also considerable family support in Iowa for the child. Before he
left Iowa, the school noted that the child did better when a strong relationship with
adults was present. In Arizona, those adults are only his mother, Denyel’s fiancé,
and his older brother; whereas in Iowa, he has his father, Jeremy’s long-term
girlfriend, his older brother, and extended family of both parents. Jeremy indicated
his significant other has a close relationship with the child and helps with the child’s
development, having had experience as a fourth-grade teacher.
Finally, Jeremy detailed the stability he provides the child. Stability and
continuity of caregiving are important considerations in a custody decision, thus, a
history of successful caretaking by the parent “is a strong predictor that future care
of the [child] will be of the same quality.” Hansen, 733 N.W.2d at 697. At Jeremy’s
house, the child has chores, is taught manners, works on homework; he is also
required to brush his teeth, shower regularly, and wear clean clothing. Jeremy
pushed for dental health care for the child that he argued Denyel ignored. In sum,
considering the factors that support a custodial arrangement with the best interests
of the child in mind, we find physical care shall be placed in Jeremy. “‘Physical
care’ means the right and responsibility to maintain a home for the minor child and
provide for the routine care of the child.” Iowa Code § 598.1(7). “The parent
awarded physical care maintains the primary residence and has the right to
determine the myriad of details associated with routine living, including such things
as what clothes the children wear, when they go to bed, with whom they associate
or date, etc.” Hansen, 733 N.W.2d at 691. The ultimate objective of a physical-
10
care determination is to place the child in the environment most likely to bring him
to healthy physical, mental, and social maturity. Id. at 695. We find that place to
be Jeremy’s home. Jeremy has actively cared for the child over the last several
years. The child’s developmental needs can be better met by Jeremy, and Jeremy
is more likely to communicate about the child’s needs with Denyel. He also has
supported her relationship with the child and not denied her time with the child as
she has done with Jeremy’s parental time. Because Denyel will now operate under
the visitation schedule established for Jeremy, Denyel will remain responsible for
the transportation costs associated with retrieving the child for her visits. We
remand to the district court to calculate the child-support obligation of Denyel, with
the same deviation applied to Jeremy because of the transportation costs.
Appellate Attorney Fees.
Both parties request appellate attorney fees. “An award of appellate
attorney fees is within the discretion of the appellate court.” Markey v. Carney,
705 N.W.2d 13, 26 (Iowa 2005). When determining if appellate attorney fees
should be awarded the court considers “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. (quoting In re Marriage
of Ask, 551 N.W.2d 643, 646 (Iowa 1996)). Citing her efforts to defend the district
court’s decision, Denyel asserts she should be awarded fees under Iowa Code
section 598.36.8 But because we reversed the district court ruling, we do not award
8While Denyel references the attorney fee language applicable to a dissolution of
marriage proceeding and while the language is nearly identical, Iowa Code
section 600B.26 actually applies here where the parties never married.
Section 600B.6 reads: “In a proceeding to determine custody or visitation, or to
11
Denyel her appellate attorney fees. And while Jeremy prevailed against Denyel,
we find that with the transportation cost expense she now will cover, she does not
have the means to pay fees despite Jeremy’s success on this appeal. See In re
Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013). So, we award no
appellate attorney fees in this case.
Conclusion.
We modify the district court’s ruling to award Jeremy physical care of the
child and give Denyel visitation as established by agreement of the parties and
under the conditions provided in the ruling for Jeremy’s visitation. We order Denyel
to pay all costs of transportation for her visitation. We remand for further
proceedings to determine the child-support award.
AFFIRMED AS MODIFIED AND REMANDED FOR FURTHER
PROCEEDINGS.
modify a paternity, custody, or visitation order under this chapter, the court may
award the prevailing party reasonable attorney fees.”