Avery Roger Birchard v. April Renee Martin

• Court: Court of Appeals of Iowa
• Decided: May 7, 2025
• Docket: 24-0780
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0780 Filed May 7, 2025

AVERY ROGER BIRCHARD, Plaintiff-Appellant,

vs.

APRIL RENEE MARTIN, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Calhoun County, Amy M. Moore,

Judge.

A father appeals the district court’s ruling granting physical care of the

parties’ minor child to the mother. AFFIRMED AS MODIFIED AND REMANDED.

Dani L. Eisentrager, Eagle Grove, for appellant.

April Renea Martin, Truman, Minnesota, self-represented appellee.

Considered without oral argument by Tabor, C.J., and Ahlers and

Sandy, JJ. 2

AHLERS, Judge.

Avery Birchard and April Martin are the parents of a child born in 2019.

When the parties’ romantic relationship ended, the mother moved to Minnesota—

about one hour and forty-five minutes away from the father. The father filed this

action seeking to establish custody and resolve related issues. The district court

entered a temporary order giving the parents joint legal custody and granting the

father physical care of the child. The mother received supervised visitation.

About nine months after entry of the order on temporary matters, the district

court conducted a trial and then issued a final ruling. The district court ruling

resolved all issues presented. As relevant to this appeal, the court granted the

parents joint legal custody of the child and granted the mother physical care. The

father appeals. He contends he should have been awarded sole legal custody and

physical care of the child. He also asks us to order the mother to pay his appellate

attorney fees.

We review child-custody and physical-care determinations de novo.

Callender v. Skiles, 623 N.W.2d 852, 854 (Iowa 2001); Randall v. Trier, 15 N.W.3d

809, 813 (Iowa Ct. App. 2024). With de novo review, we give weight to the district

court’s fact findings, especially as to witness credibility, but we are not bound by

them. Randall, 15 N.W.3d at 813.

I. Legal Custody

We first address the father’s challenge to the district court granting the

parents joint legal custody. The father challenges this determination, asserting he

should be granted sole legal custody. In determining custody, our “first and

governing consideration” is the best interests of the child. Iowa R. App. 3

P. 6.904(3)(n). In making the legal-custody determination, we look to the non-

exclusive factors listed in Iowa Code section 598.41(3) (2023). See Iowa Code

§ 600B.40(2) (stating that section 598.41 applies to children born to never-married

parents); In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). We also

consider the presumption against joint legal custody when there is a “history of

domestic abuse.” Iowa Code § 600B.40(2); see also id. § 598.41(1)(b). The father

relies heavily on this presumption in challenging the district court’s grant of joint

legal custody.

The district court thoroughly reviewed the statutory factors in arriving at the

decision to grant the parents joint legal custody. Following our de novo review, we

generally agree with the district court’s reasoning and see no significant benefit to

repeating it.

We also agree with the district court’s assessment of the evidence in

rejecting the father’s argument that he should have legal custody based on his

claim of a history of domestic abuse perpetrated by the mother. As a starter, we

note the father’s claim is based primarily on one episode, and one episode of

domestic abuse does not necessarily establish a “history of domestic abuse.” See

In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). And even if there

was more than one minor episode, that also does not automatically constitute a

“history of domestic abuse.” Id. Instead of counting numbers, we look to the

nature, severity, and repetition of the abuse. Id.

Here, while the father obtained a protective order against the mother

pursuant to Iowa Code chapter 236, the district court found that the father utilized

the protections of chapter 236 “as a sword, and not a shield.” In reaching that 4

conclusion, the district court pointed to the fact that the father lived in the same

home with the mother for several months after the episode that formed the basis

for obtaining the protective order and only sought the order long after the parties

separated and the mother moved out of state. The court also noted the father’s

testimony that, by obtaining the protective order, he was “just protecting [his] rights

as the father” to try to gain an advantage in the event the mother filed a custody

action in Minnesota. Finally, the district court found “both parties engaged in

aggressive and assaultive behaviors during their relationship.” After our de novo

review, we agree with these findings by the district court and find there is no history

of domestic abuse that triggers any presumption on legal custody.

Considering the entire record de novo, we reach the same conclusion as

the district court that the parties should have joint legal custody of the child. We

affirm on this issue.

II. Physical Care

Iowa Code section 598.1(7) defines “physical care” as “the right and

responsibility to maintain a home for the minor child and provide for the routine

care of the child.” The district court granted that right and responsibility to the

mother. The father challenges that decision.

We start our analysis of the father’s challenge by noting that neither parent

asked for joint physical care. Besides the lack of a request, we agree with the

district court that the distance between the parents makes joint physical care

unworkable even if a parent had requested it. So, we must decide which parent

should be granted physical care. Physical-care decisions are made by looking at

the factors set forth in section 598.41(3) and addressed in our case law. See 5

Hansen, 733 N.W.2d at 696–700; In re Marriage of Winter, 223 N.W.2d 165, 166–

67 (Iowa 1974). The factors do not receive equal weight, and the weight ultimately

assigned to any factor depends on the particular facts of the case. In re Marriage

of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). In assessing the factors,

the ”ultimate objective . . . is to place the child in the environment most likely to

bring [the child] to healthy mental, physical, and social maturity.” McKee v. Dicus,

785 N.W.2d 733, 737 (Iowa Ct. App. 2010).

While we agree with much of the district court’s analysis of the factors for

making the physical-care determination, on our de novo review, we weigh some of

those factors differently, consider other factors, and ultimately come to a different

conclusion. We agree with the district court that both parents are suitable

caregivers for the child and both have actively cared for the child throughout the

child’s life. While the mother primarily shouldered this load when the parents were

together, the father still carried a fair share of it. And since the temporary order

was issued granting him physical care, he has demonstrated the clear ability to

shoulder the load the mother previously carried.

We also agree that both parents, like all parents, have their shortcomings.

Here, both parents have struggled with abusing legal and illegal substances. Both

have used physical aggression toward the other when disputes arise. In our view,

these shortcomings offset such that neither parent gains ground on the physical-

care determination because of them.

We also agree with the district court that the parents co-parented well when

they first separated. And we agree that such cooperation largely stopped when

the mother moved to Minnesota, not necessarily because of the move, but 6

because the father engaged in a scorched-earth tactic of taking the child, refusing

to return the child to the mother, and getting a chapter 236 protective order for the

primary purpose of gaining the upper hand in the ensuing custody battle. Like the

district court, we condemn this behavior by the father, as it reflects poorly on his

ability to support the mother’s relationship with the child—one of the factors in

determining physical care. See Iowa Code § 598.41(3)(e). But we conclude that

other factors outweigh this concerning conduct from the father.

If we only considered the above factors and weighed them about the same

as the district court, we would affirm the decision to grant physical care to the

mother. But we find other factors—either those not considered by the district court

or, if considered, not given the weight we find they deserve—dictate a different

outcome. Of particular concern is the mother’s sudden move to Minnesota and

her enigmatic relationship with her current husband.

The mother moved out of the family home in Iowa in March 2023 and moved

in with her mother, who lives near the family home. Within a few weeks, the mother

met a man through an online dating site. She met him in person for the first time

on April 29, and then “on a whim,” as she described it, moved to Minnesota to live

with him shortly thereafter. They married on June 9. The fast progression of the

relationship is not what causes concern. What causes us concern is that the

mother seeks to bring her young child into a home with this man about whom she

seems to know little. And the information she does know is alarming. When asked

how many children her husband has, she responded, “Three, I believe.” She went

on to testify that her husband only sees two of those children, and none of those

visits take place at the home of the mother and her husband. In fact, the mother 7

has never even met her husband’s children. While there may be innocent

explanations as to why her husband never has his children with him in his own

home, there may be not so innocent reasons as well. We simply don’t know, and

it is concerning that the mother didn’t provide any explanation. When pressed for

details, she repeatedly avoided the questions by saying she doesn’t get involved

in her husband’s life with his children or questioned why it was relevant. Of course,

when the mother seeks to have a young child placed with her to live in a house

with her husband, details about the husband are a relevant and significant factor.

See In re Marriage of Thraen, No. 08-0924, 2009 WL 249696, *3 (Iowa Ct. App.

Feb. 4, 2009) (“When a parent seeks to establish a home with another adult, that

adult’s background and his or her relationship with the children becomes a

significant factor in a custody dispute.”). The mother’s failure or refusal to provide

any details about her husband’s background or relationship with the mother’s child

is a significant factor weighing against granting her physical care of the child.

In addition to providing no meaningful information about her husband, the

mother also presented no information about a plan for taking care of the child in

terms of his schooling or medical treatment. While this is important in all cases, it

is particularly important here, as the child has educational and medical challenges

related to his speech that are being addressed in Iowa when the child is with the

father. The child’s preschool teacher testified to the improvement the child had

made in his speech when he started the school year in the fall of 2023 after being

in the father’s care over the summer and to the improvement he made over the

course of the school year (the teacher testified at the trial conducted in April 2024).

The teacher’s testimony was important in establishing that the father has met the 8

child’s needs while in his care, but it was important in another way. The teacher

testified that both parents and extended family were involved in getting the child to

and from school the prior school year, but she had not seen or heard from the

mother the following school year. This evidence suggests the mother has

prioritized her new life in Minnesota over taking an active role in the child’s life,

further supporting granting the father physical care.

Another important factor in this case is the presence of extended family near

the father. The child’s maternal grandmother and paternal great-grandmother live

near the father’s home in Manson. Both are and have been actively involved in

caring for the child by providing daycare, picking up from or dropping off at school,

et cetera. The mother presented no evidence of any support system in Minnesota.

While a support system is not required to care for a child, it adds value to the child’s

life when present. This is another factor in favor of granting the father physical

care.

Finally, we note that the mother has failed to pay ordered child support. She

offered no evidence establishing that she was not able to pay. The evidence

establishing the mother’s failure to pay child support is additional evidence

suggesting the mother’s priorities have shifted from the child to other things.

After considering the relevant factors on our de novo review, we weigh

some of the factors differently than the district court and consider some the district

court did not address. After doing so, we conclude it is in the child’s best interests

to grant physical care to the father rather than the mother.

We affirm the district court’s ruling granting the parties joint legal custody,

but we modify it to grant the father physical care of the child and strike the provision 9

requiring the father to pay child support. We remand to the district court to

establish the mother’s visitation schedule, her child-support obligation, obligations

for medical support, and tax dependency exemptions. The district court has the

discretion to make these determinations on the existing record or conduct a

hearing to take additional evidence, as the court deems appropriate with or without

input from the parties.

III. Appellate Attorney Fees

The father requests that we order the mother to pay his appellate attorney

fees. Iowa Code section 600B.26 permits such an award to the prevailing party in

an action to determine custody or visitation under chapter 600B. Awarding

appellate attorney fees to the prevailing party is permitted at our discretion but not

as a matter of right. Hensch v. Mysak, 902 N.W.2d 822, 827 (Iowa Ct. App. 2017).

In determining whether to award appellate attorney fees, we weigh the needs of

the prevailing party, the other party’s ability to pay, and whether the party was

obligated to defend the district court’s decision on appeal. Id. As the prevailing

party, the father is eligible for an appellate attorney fees award. But weighing his

needs against the mother’s ability to pay, we do not find an award of appellate

attorney fees to be equitable. Accordingly, we deny the father’s request for

appellate attorney fees.

AFFIRMED AS MODIFIED AND REMANDED.