IN THE COURT OF APPEALS OF IOWA
No. 20-1211 Filed April 14, 2021
DAVID A. McCULLOUGH, Petitioner-Appellee,
vs.
MORGAN L. CORNETTE, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
The mother of a minor child appeals the decision of the district court
granting the child’s father physical care and setting the mother’s visitation rights.
AFFIRMED AS MODIFIED.
Lynne C. Jasper, Bettendorf, for appellant.
Paul A. Aitken of Aitken, Aitken & Sharpe, P.C., Bettendorf, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
In this custody dispute between the never-married parents of a seven-year-
old child, the mother’s methamphetamine abuse prompted an investigation by the
Iowa Department of Human Services (DHS).1 After the investigation began, the
DHS was on the verge of removing the child from the mother’s (Morgan Cornette’s)
care. The situation was saved when Morgan identified David McCullough as the
father after deceiving him into believing the child was not his for the first six years
of the child’s life.
After David was notified he was the father, he immediately moved from
Wisconsin to Iowa to look after the child. He began as a visitation supervisor but
quickly became the sole caretaker for the child. As Morgan continued to struggle
to comply with recommended drug treatment, any contact she had with the child
had to be supervised by David. Eventually, David filed the petition that started this
case. He sought to establish paternity and joint legal custody and also sought
physical care of the child subject to Morgan’s visitation.
The DHS continued to supervise the family and intended to remove the child
if the child was placed in Morgan’s care in this proceeding. Once it became clear
the child would not be placed in Morgan’s care, the DHS closed its case. In spite
of the fact the sole reason the DHS case was closed was the child was in David’s
care, Morgan challenged the physical care determination in this proceeding. After
the district court granted physical care to David, Morgan appealed. She claims
1 The investigation started because the mother and her other child, the younger half-sibling of the child involved in this proceeding, tested positive for methamphetamine. Care and custody of the younger half-sibling is not an issue in this case. 3
she should have been granted physical care of the child or, in the alternative, joint
physical care should have been granted. As an additional alternative argument,
she argues that if the child remains in David’s care, she should be granted
additional visitation. Finally, both parties request an award of appellate attorney
fees from the other party.
I. Legal Standards.
Proceedings involving questions of custody and physical care of a child are
in equity, so our review is de novo. Phillips v. Davis-Spurling, 541 N.W.2d 846,
847 (Iowa 1995). We give weight to the fact findings of the district court, especially
in considering credibility of witnesses, but we are not bound by them. Iowa R. App.
P. 6.904(3)(g). “[W]e will disturb a district court determination only when there has
been a failure to do equity.” In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa
2016).
Of course, our primary concern on our review is the best interests of the
child. Phillips, 541 N.W.2d at 847; Iowa R. App. P. 6.904(3)(o). Our goal is to
place the child in the environment most likely to bring the child to “healthy physical,
mental, and social maturity.” Phillips, 541 N.W.2d at 847. We look to the same
factors in custody or physical care determinations of a child born to parents who
were never married as we do to a child of married parents, including the factors
enumerated in Iowa Code section 598.41(3) (2019) and In re Marriage of Winter,
223 N.W.2d 165, 166–67 (Iowa 1974). See Lambert v. Everist, 418 N.W.2d 40,
42 (Iowa 1988); see also Iowa Code § 600B.40.
II. Analysis of the Issues.
We address each of Morgan’s arguments in turn. 4
A. Physical Care to David.
After our independent review of the record, we agree with the district court
that physical care of the child was properly placed with David. Morgan put the
child in harm’s way by abusing methamphetamine. See In re A.B., 815 N.W.2d
764, 776 (Iowa 2012) (acknowledging the risk methamphetamine use poses to a
child placed in the methamphetamine user’s care); see also State v. Petithory, 702
N.W.2d 854, 859 (Iowa 2005) (“No parent should leave his small children in the
care of a meth addict—the hazards are too great.”). While Morgan strenuously
asserts that she has overcome her methamphetamine addiction, her assertions
are not supported by the record. After her drug use was discovered and the DHS
became involved, Morgan entered treatment. She was kicked out for continuing
to test positive for methamphetamine. To her credit, she then attended and
completed a twenty-eight day inpatient treatment program. Notably, however, her
aftercare program required intensive outpatient services, but she did not follow
through with those services and was once again kicked out of the outpatient
program. Although it is unclear from the record whether she was discharged
unsuccessfully this second time because of a positive drug test or lack of
attendance, the fact remains she did not successfully complete her treatment. To
compound that problem, she systematically dodged drug testing by the DHS.
Despite repeated requests for her to submit to drug testing, Morgan simply ignored
the DHS requests and did not submit to drug testing. Based on these events, we
share the concerns the DHS expressed that Morgan has not adequately addressed
her substance-abuse problem. Given her past struggles with methamphetamine,
her refusal to complete aftercare, and her refusal to submit to drug testing, we are 5
not simply going to take Morgan at her word that she has overcome her problem.
We will not gamble the child’s best interests on her unsubstantiated claims of
sobriety, especially when there is a better alternative available in the form of David.
There are other problems as well. Whether it is caused by drug use or there
is some other cause, Morgan continues to exhibit erratic behavior. For the first five
months or so after David arrived on the scene, including several months after she
completed inpatient treatment, Morgan’s contact with the child was sporadic. She
was released from inpatient treatment a few days before Christmas, so she made
plans to see the child at 10:00 Christmas morning. David accommodated her
request. Without notice, she didn’t show up. She finally called at 1:00 in the
afternoon and reported she had overslept. Apparently, this lack of responsibility
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IN THE COURT OF APPEALS OF IOWA
No. 20-1211 Filed April 14, 2021
DAVID A. McCULLOUGH, Petitioner-Appellee,
vs.
MORGAN L. CORNETTE, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
The mother of a minor child appeals the decision of the district court
granting the child’s father physical care and setting the mother’s visitation rights.
AFFIRMED AS MODIFIED.
Lynne C. Jasper, Bettendorf, for appellant.
Paul A. Aitken of Aitken, Aitken & Sharpe, P.C., Bettendorf, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
In this custody dispute between the never-married parents of a seven-year-
old child, the mother’s methamphetamine abuse prompted an investigation by the
Iowa Department of Human Services (DHS).1 After the investigation began, the
DHS was on the verge of removing the child from the mother’s (Morgan Cornette’s)
care. The situation was saved when Morgan identified David McCullough as the
father after deceiving him into believing the child was not his for the first six years
of the child’s life.
After David was notified he was the father, he immediately moved from
Wisconsin to Iowa to look after the child. He began as a visitation supervisor but
quickly became the sole caretaker for the child. As Morgan continued to struggle
to comply with recommended drug treatment, any contact she had with the child
had to be supervised by David. Eventually, David filed the petition that started this
case. He sought to establish paternity and joint legal custody and also sought
physical care of the child subject to Morgan’s visitation.
The DHS continued to supervise the family and intended to remove the child
if the child was placed in Morgan’s care in this proceeding. Once it became clear
the child would not be placed in Morgan’s care, the DHS closed its case. In spite
of the fact the sole reason the DHS case was closed was the child was in David’s
care, Morgan challenged the physical care determination in this proceeding. After
the district court granted physical care to David, Morgan appealed. She claims
1 The investigation started because the mother and her other child, the younger half-sibling of the child involved in this proceeding, tested positive for methamphetamine. Care and custody of the younger half-sibling is not an issue in this case. 3
she should have been granted physical care of the child or, in the alternative, joint
physical care should have been granted. As an additional alternative argument,
she argues that if the child remains in David’s care, she should be granted
additional visitation. Finally, both parties request an award of appellate attorney
fees from the other party.
I. Legal Standards.
Proceedings involving questions of custody and physical care of a child are
in equity, so our review is de novo. Phillips v. Davis-Spurling, 541 N.W.2d 846,
847 (Iowa 1995). We give weight to the fact findings of the district court, especially
in considering credibility of witnesses, but we are not bound by them. Iowa R. App.
P. 6.904(3)(g). “[W]e will disturb a district court determination only when there has
been a failure to do equity.” In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa
2016).
Of course, our primary concern on our review is the best interests of the
child. Phillips, 541 N.W.2d at 847; Iowa R. App. P. 6.904(3)(o). Our goal is to
place the child in the environment most likely to bring the child to “healthy physical,
mental, and social maturity.” Phillips, 541 N.W.2d at 847. We look to the same
factors in custody or physical care determinations of a child born to parents who
were never married as we do to a child of married parents, including the factors
enumerated in Iowa Code section 598.41(3) (2019) and In re Marriage of Winter,
223 N.W.2d 165, 166–67 (Iowa 1974). See Lambert v. Everist, 418 N.W.2d 40,
42 (Iowa 1988); see also Iowa Code § 600B.40.
II. Analysis of the Issues.
We address each of Morgan’s arguments in turn. 4
A. Physical Care to David.
After our independent review of the record, we agree with the district court
that physical care of the child was properly placed with David. Morgan put the
child in harm’s way by abusing methamphetamine. See In re A.B., 815 N.W.2d
764, 776 (Iowa 2012) (acknowledging the risk methamphetamine use poses to a
child placed in the methamphetamine user’s care); see also State v. Petithory, 702
N.W.2d 854, 859 (Iowa 2005) (“No parent should leave his small children in the
care of a meth addict—the hazards are too great.”). While Morgan strenuously
asserts that she has overcome her methamphetamine addiction, her assertions
are not supported by the record. After her drug use was discovered and the DHS
became involved, Morgan entered treatment. She was kicked out for continuing
to test positive for methamphetamine. To her credit, she then attended and
completed a twenty-eight day inpatient treatment program. Notably, however, her
aftercare program required intensive outpatient services, but she did not follow
through with those services and was once again kicked out of the outpatient
program. Although it is unclear from the record whether she was discharged
unsuccessfully this second time because of a positive drug test or lack of
attendance, the fact remains she did not successfully complete her treatment. To
compound that problem, she systematically dodged drug testing by the DHS.
Despite repeated requests for her to submit to drug testing, Morgan simply ignored
the DHS requests and did not submit to drug testing. Based on these events, we
share the concerns the DHS expressed that Morgan has not adequately addressed
her substance-abuse problem. Given her past struggles with methamphetamine,
her refusal to complete aftercare, and her refusal to submit to drug testing, we are 5
not simply going to take Morgan at her word that she has overcome her problem.
We will not gamble the child’s best interests on her unsubstantiated claims of
sobriety, especially when there is a better alternative available in the form of David.
There are other problems as well. Whether it is caused by drug use or there
is some other cause, Morgan continues to exhibit erratic behavior. For the first five
months or so after David arrived on the scene, including several months after she
completed inpatient treatment, Morgan’s contact with the child was sporadic. She
was released from inpatient treatment a few days before Christmas, so she made
plans to see the child at 10:00 Christmas morning. David accommodated her
request. Without notice, she didn’t show up. She finally called at 1:00 in the
afternoon and reported she had overslept. Apparently, this lack of responsibility
has not been fixed, as, eight months later, Morgan showed up half an hour late for
trial in this case, without explanation, contributing to the district court’s and our
conclusion that Morgan has not achieved stability as she claims.
Morgan has also engaged in other conduct contributing to the conclusion
she should not be granted physical care of the child. As previously noted, Morgan
expressly and intentionally deceived David into believing he was not the child’s
father for six years, depriving the child of the benefits of David’s involvement in his
life. Only when she needed David to save her dire situation did she finally divulge
the truth. Then, after David remarkably uprooted his life and moved to Iowa in a
very short period of time in order to keep the child from being removed and placed
in foster care, Morgan refused to let him have the child’s clothes or toys, requiring
David to buy new ones. In addition, knowing the DHS required David to supervise
all interactions she had with the child, on one occasion, Morgan took the child and 6
absconded with him until law enforcement and the DHS got involved and secured
the return of the child. Morgan also refused to give David the child’s medical card
so he could arrange counseling for the child. Finally, in spite of the fact the child
had been in David’s care exclusively for nearly one year by the time of trial, Morgan
had contributed nothing in the way of financial support.
In stark contrast, the record reveals no concerns about David’s parenting
ability. The DHS was in close contact with the family for approximately six months
between David’s arrival and the closing of the DHS case. During that time, they
observed nothing of concern and had nothing but good things to say about David’s
parenting ability and the manner in which he provided for the child’s needs. He is
gainfully employed and maintains a suitable home for the child. He has
encouraged Morgan’s relationship with the child, even when Morgan was
uncommunicative and in the chaos of her failed drug treatments. When weighing
the respective parenting abilities and the contrast in commitments to the child, we
agree it is in the child’s best interests to be placed in David’s physical care.
B. Joint Physical Care Alternative.
Turning to Morgan’s alternative argument that the parents should have been
awarded joint physical care, we find the argument unpersuasive. For the same
reasons explained as to why David should be awarded physical care, we conclude
joint physical care is not the way to go for this child. Morgan highlights the fact the
parties are able to communicate, noting they exchange the child generally without
incident. In response, we first note the record does not support a conclusion of
anything beyond minimal communication between the parties, as there is not even
much in the way of communication when the child is being exchanged between 7
them. There is a big difference between being able to exchange a child without
incident and communicating well enough to have shared care. Second, even if we
concluded the parties communicated well, it would not be enough to overcome our
previously expressed concerns, shared by the DHS, of placing the child in
Morgan’s care for extended periods of time. In short, we decline to grant Morgan’s
alternative request to order joint physical care of the child.
C. Visitation.
We do, however, partially grant Morgan’s request for modification of the
visitation provisions. Via a temporary order issued in this case, part of the visitation
provided to Morgan included every Wednesday from 3:00 p.m. to 8:00 p.m. When
questioned about the every Wednesday visitation, David expressed no objection
to it and, in fact, testified he was in support of it. For reasons unknown, the district
court awarded weekday visitation only every other Wednesday evening. While we
do not modify the district court’s decision on visitation lightly, we also see no equity
in curtailing Wednesday visitation when the parties have been following an every-
Wednesday routine and both parties are in favor of it. Allowing visitation every
Wednesday also has the added benefit of allowing this child to be with Morgan at
the same time she has visitation with her other child. See In re Marriage of Orte,
389 N.W.2d 373, 374 (Iowa 1986) (noting a preference for keeping siblings
together, including half-siblings).
D. Appellate Attorney Fees.
Both parties request an award of appellate attorney fees from the other
party. Iowa Code section 600B.26 permits our court to award reasonable attorney
fees to the prevailing party. The standards applicable to an award of attorney fees 8
under Iowa Code chapter 600B are the same as those that apply to a dissolution
of marriage action pursuant to chapter 598, except they are limited to being
awarded only to the prevailing party. See Markey v. Carney, 705 N.W.2d 13, 25
(Iowa 2005). “Appellate attorney fees are not a matter of right, but rather rest in
this court’s discretion.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa
2005). “In determining whether to award appellate 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 decision of the
trial court on appeal.” In re Marriage of Hoffman, 891 N.W.2d 849, 853 (Iowa Ct.
App. 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App.
1997)).
As to Morgan’s claim for fees, we are hard-pressed to view her as the
prevailing party. Although she successfully obtained a minor modification to the
visitation schedule, she was unsuccessful on the crux of her appeal. Even if we
were to view her technically as a prevailing party, the equities do not warrant an
award of attorney fees.
As to David’s claim for fees, we view David as the primary prevailing party
and acknowledge he was obligated to defend the district court’s decision on
appeal. However, when considering the relative needs of the parties and their
ability to pay, we determine Morgan does not have sufficient means to justify an
award of fees to David.
III. Conclusion.
We affirm the district court’s ruling in its entirety, with the exception that we
modify the provision for weekday visitation to allow Morgan visitation with the child 9
every Wednesday from 3:00 p.m. or when the child’s school day ends, whichever
is later, to 8:00 p.m. Both parties’ claims for appellate attorney fees are denied.
Costs are assessed ninety percent to Morgan and ten percent to David.