IN THE COURT OF APPEALS OF IOWA
No. 21-1424 Filed September 21, 2022
DUSTIN VIVONE, Petitioner-Appellee,
vs.
KATIE MORRELL, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Thomas P. Murphy,
Judge.
A mother appeals the district court’s decree of paternity establishing
custody, visitation, and support. AFFIRMED.
Mark R. Hinshaw of The Law Offices of Mark R. Hinshaw, West Des Moines,
for appellant.
Todd E. Babich and Sierra Meehan Strassberg of Babich Goldman, PC,
Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ. 2
VAITHESWARAN, Presiding Judge.
Katie Morrell and Dustin Vivone had a child in 2019. Morrell took the child
home but allowed Vivone to visit every day. After about three months, Morrell
started to limit Vivone’s time with the child.
Vivone filed a petition to establish custody, visitation, and support. The
parents stipulated Morrell would remain temporary physical caretaker of the child,
subject to liberal visitation. The district court approved the stipulation.
Following entry of the order, Vivone visited the child twice at Morrell’s home.
Morrell surreptitiously recorded the visits. After the second one, she complained
to police that Vivone sexually abused the child, citing the “video evidence.” Morrell
also took the child for a medical exam at a local hospital. Following an emergency
room assessment, a nurse trained in sex abuse evaluations examined the child
and referred the matter to the department of human services for investigation. The
department issued a “not confirmed” assessment. The county attorney declined
to press charges.
In the interim, Morrell continued to impede contact. Despite being advised
by department staff that Morrell would have to afford Vivone visits during the
investigation, Morrell obstructed a scheduled visit. Police had to intervene to
facilitate it.
Vivone filed an application to have Morrell held in contempt. The parents
ultimately signed a stipulated agreement delineating Vivone’s parenting time and
providing for dismissal of the application. The agreement was approved by the
court. 3
Before the agreement was finalized, Morrell contacted the police again,
citing “new evidence” in the form of recorded phone conversations with Vivone.
She conceded Vivone denied the allegations. She also proffered other recordings,
including one of a conversation with the county attorney as well as an “enhanced”
video of the original surreptitious recordings. The police chief informed her the
“doctored” video could not be considered.
The case proceeded to trial. The district court granted Vivone physical care
of the child, subject to liberal visitation with Morrell. The court reasoned that Vivone
would support the child’s “relationship with [Morrell] more than [Morrell] [would]
with [Vivone].” The court largely denied Morrell’s reconsideration motion.
On appeal, Morrell preliminarily contends her procedural due process rights
were “violated” based on Vivone’s “failure to request an award of primary physical
care in his Petition for Custody.” She failed to preserve error on this contention.
See Arnold v. Arnold, No. 00-1597, 2001 WL 1205284, at *3 (Iowa Ct. App. Oct. 12,
2003) (stating a party “brought none of the due process claims she now wishes to
raise on appeal to the attention of the trial court for a ruling” and “[h]er failure to
complain at the trial court level bars her due process challenge on appeal”).
Morrell’s primary argument is that the district court’s decision was not in the
child’s best interests. See Hensch v. Mysak, 902 N.W.2d 822, 825 (Iowa Ct. App.
2017) (citing best interests standard). She admits “this case hinges on [her]
allegations that Vivone sexually abused” the child. And she “agrees, if she
unreasonably lodged claims of sexual abuse against Vivone . . . that would weigh
against awarding her primary physical care.” See In re Marriage of Jacobson,
No. 17-1040, 2018 WL 1633512, at *4 (Iowa Ct. App. Apr. 4, 2018) (modifying 4
physical care where the mother “falsely accused [the father] of illegal conduct”); In
re Marriage of McCord, No. 03-0497, 2003 WL 23219961, at *7 (Iowa Ct. App.
Nov. 26, 3003) (stating mother engaged “in a course of conduct seeking to remove
[the father’s] presence from [the child’s] life”). But, in her view, her claims were
supported by the nurse who examined the child at the hospital.
The initial emergency room exam disclosed “[m]ild perianal erythema,” with
“[n]o labial or vaginal erythema noted.”1 The admitting notes stated, “Exam is
unremarkable with the exception of some very mild perianal erythema.” The nurse
who evaluated the child for sex abuse found a “laceration [at] 6 [o’clock] posterior
fourchette and erythema [at] 12 [o’clock]” in addition to “[d]iaper rash.”2 She found
“possible” digital penetration. She also found “[s]welling.” Contrary to Morrell’s
assertion, the nurse did not “wholly corroborate[]” the “sexual abuse allegations.”
The department of human services, to whom the matter was referred,
reported that the “abrasions” detected by the nurse “could have occurred
accidentally with a fingernail by [the child] herself or others with fingernails.” The
agency concluded “it [c]ould not be determined the abrasions were caused
intentionally, for sexual reasons or by her father.”
Notwithstanding professional non-confirmation of the allegations, Morrell
persisted in her assertion that Vivone sexually abused the child. At trial, she was
asked, “And you still keep saying that Dustin Vivone has committed sex abuse on
1 “Erythema” is defined as “abnormal redness of the skin or mucous membranes due to capillary congestion (as in inflammation).” Erythema, Merriam-Webster, www.merriam-webster.com/dictionary/erythema (last visited Aug. 31, 2022). 2 “Fourchette” means “a small fold of membrane connecting the labia minora in the
posterior part of the vulva.” Fourchette, Merriam-Webster, www.merriam- webster.com/dictionary/fourchette (last visited Aug. 31, 2022). 5
your daughter; correct?” She responded, “Correct.” When asked if “seeing
[Vivone] consistently take [the child]” had “helped at all build [a] level of trust,” she
responded, “No.” See Jacobson, 2018 WL 1633512, at *3 (citing the mother’s
“misguided mistrust” of the father). Vivone, in contrast, testified he would
“[a]bsolutely” support Morrell’s relationship with the child.
We are cognizant of Morrell’s assertion that she had an obligation to
“safeguard the[] child.” We do not quarrel with that assertion. See McCord, 2003
WL 23219961 at *5, 7 (stating “a parent who has evidence another parent has
committed abuse or allowed abuse to occur in his or her home has an obligation
to report the abuse to the Department of Human Services” and “[w]e will not hold
the fact a parent makes a report of alleged child abuse to the Department of Human
Services based on some credible evidence against the reporting parent, even if it
is returned as unfounded”). But the indefinite evidence did not allow her to
circumvent the court orders.
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IN THE COURT OF APPEALS OF IOWA
No. 21-1424 Filed September 21, 2022
DUSTIN VIVONE, Petitioner-Appellee,
vs.
KATIE MORRELL, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Thomas P. Murphy,
Judge.
A mother appeals the district court’s decree of paternity establishing
custody, visitation, and support. AFFIRMED.
Mark R. Hinshaw of The Law Offices of Mark R. Hinshaw, West Des Moines,
for appellant.
Todd E. Babich and Sierra Meehan Strassberg of Babich Goldman, PC,
Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ. 2
VAITHESWARAN, Presiding Judge.
Katie Morrell and Dustin Vivone had a child in 2019. Morrell took the child
home but allowed Vivone to visit every day. After about three months, Morrell
started to limit Vivone’s time with the child.
Vivone filed a petition to establish custody, visitation, and support. The
parents stipulated Morrell would remain temporary physical caretaker of the child,
subject to liberal visitation. The district court approved the stipulation.
Following entry of the order, Vivone visited the child twice at Morrell’s home.
Morrell surreptitiously recorded the visits. After the second one, she complained
to police that Vivone sexually abused the child, citing the “video evidence.” Morrell
also took the child for a medical exam at a local hospital. Following an emergency
room assessment, a nurse trained in sex abuse evaluations examined the child
and referred the matter to the department of human services for investigation. The
department issued a “not confirmed” assessment. The county attorney declined
to press charges.
In the interim, Morrell continued to impede contact. Despite being advised
by department staff that Morrell would have to afford Vivone visits during the
investigation, Morrell obstructed a scheduled visit. Police had to intervene to
facilitate it.
Vivone filed an application to have Morrell held in contempt. The parents
ultimately signed a stipulated agreement delineating Vivone’s parenting time and
providing for dismissal of the application. The agreement was approved by the
court. 3
Before the agreement was finalized, Morrell contacted the police again,
citing “new evidence” in the form of recorded phone conversations with Vivone.
She conceded Vivone denied the allegations. She also proffered other recordings,
including one of a conversation with the county attorney as well as an “enhanced”
video of the original surreptitious recordings. The police chief informed her the
“doctored” video could not be considered.
The case proceeded to trial. The district court granted Vivone physical care
of the child, subject to liberal visitation with Morrell. The court reasoned that Vivone
would support the child’s “relationship with [Morrell] more than [Morrell] [would]
with [Vivone].” The court largely denied Morrell’s reconsideration motion.
On appeal, Morrell preliminarily contends her procedural due process rights
were “violated” based on Vivone’s “failure to request an award of primary physical
care in his Petition for Custody.” She failed to preserve error on this contention.
See Arnold v. Arnold, No. 00-1597, 2001 WL 1205284, at *3 (Iowa Ct. App. Oct. 12,
2003) (stating a party “brought none of the due process claims she now wishes to
raise on appeal to the attention of the trial court for a ruling” and “[h]er failure to
complain at the trial court level bars her due process challenge on appeal”).
Morrell’s primary argument is that the district court’s decision was not in the
child’s best interests. See Hensch v. Mysak, 902 N.W.2d 822, 825 (Iowa Ct. App.
2017) (citing best interests standard). She admits “this case hinges on [her]
allegations that Vivone sexually abused” the child. And she “agrees, if she
unreasonably lodged claims of sexual abuse against Vivone . . . that would weigh
against awarding her primary physical care.” See In re Marriage of Jacobson,
No. 17-1040, 2018 WL 1633512, at *4 (Iowa Ct. App. Apr. 4, 2018) (modifying 4
physical care where the mother “falsely accused [the father] of illegal conduct”); In
re Marriage of McCord, No. 03-0497, 2003 WL 23219961, at *7 (Iowa Ct. App.
Nov. 26, 3003) (stating mother engaged “in a course of conduct seeking to remove
[the father’s] presence from [the child’s] life”). But, in her view, her claims were
supported by the nurse who examined the child at the hospital.
The initial emergency room exam disclosed “[m]ild perianal erythema,” with
“[n]o labial or vaginal erythema noted.”1 The admitting notes stated, “Exam is
unremarkable with the exception of some very mild perianal erythema.” The nurse
who evaluated the child for sex abuse found a “laceration [at] 6 [o’clock] posterior
fourchette and erythema [at] 12 [o’clock]” in addition to “[d]iaper rash.”2 She found
“possible” digital penetration. She also found “[s]welling.” Contrary to Morrell’s
assertion, the nurse did not “wholly corroborate[]” the “sexual abuse allegations.”
The department of human services, to whom the matter was referred,
reported that the “abrasions” detected by the nurse “could have occurred
accidentally with a fingernail by [the child] herself or others with fingernails.” The
agency concluded “it [c]ould not be determined the abrasions were caused
intentionally, for sexual reasons or by her father.”
Notwithstanding professional non-confirmation of the allegations, Morrell
persisted in her assertion that Vivone sexually abused the child. At trial, she was
asked, “And you still keep saying that Dustin Vivone has committed sex abuse on
1 “Erythema” is defined as “abnormal redness of the skin or mucous membranes due to capillary congestion (as in inflammation).” Erythema, Merriam-Webster, www.merriam-webster.com/dictionary/erythema (last visited Aug. 31, 2022). 2 “Fourchette” means “a small fold of membrane connecting the labia minora in the
posterior part of the vulva.” Fourchette, Merriam-Webster, www.merriam- webster.com/dictionary/fourchette (last visited Aug. 31, 2022). 5
your daughter; correct?” She responded, “Correct.” When asked if “seeing
[Vivone] consistently take [the child]” had “helped at all build [a] level of trust,” she
responded, “No.” See Jacobson, 2018 WL 1633512, at *3 (citing the mother’s
“misguided mistrust” of the father). Vivone, in contrast, testified he would
“[a]bsolutely” support Morrell’s relationship with the child.
We are cognizant of Morrell’s assertion that she had an obligation to
“safeguard the[] child.” We do not quarrel with that assertion. See McCord, 2003
WL 23219961 at *5, 7 (stating “a parent who has evidence another parent has
committed abuse or allowed abuse to occur in his or her home has an obligation
to report the abuse to the Department of Human Services” and “[w]e will not hold
the fact a parent makes a report of alleged child abuse to the Department of Human
Services based on some credible evidence against the reporting parent, even if it
is returned as unfounded”). But the indefinite evidence did not allow her to
circumvent the court orders. See In re Marriage of Winnike, 497 N.W.2d 170, 172,
174 (Iowa Ct. App. 1992) (modifying dissolution decree to grant father sole custody
based on a finding that the mother was “strongly committed to pursuing her
allegations of sexual abuse” and was “oblivious to any harm her public campaign
against [the father] may have on her daughter” even after a juvenile court found no
evidence of sexual abuse); Adams v. Wilk, No. 08-0004, 2008 WL 5412253, at *3
(Iowa Ct. App. Dec. 31, 2008) (affirming grant of physical care to father where
“[t]he professionals . . . explained that many of the behaviors [the mother]
believe[d] [were] indicative of abuse [were] actually normal behaviors for a child”).
Nothing in the nurse’s notes or the subsequent investigation gave Morrell cause to 6
circumvent the stipulated temporary order affording Vivone visitation and
unilaterally limit his contact with the child.
Morrell also excluded Vivone from other key decisions involving the child.
She failed to consult him when choosing a new daycare and failed to tell him where
the daycare was located.
We recognize Morrell was the child’s historic caregiver. See In re Marriage
of Hansen, 733 N.W.2d 683, 700 (Iowa 2007) (stating the “the factors of continuity,
stability, and approximation are entitled to considerable weight”). But interference
with the other parent’s relationship may overcome that caregiving role. See
Jacobson, 2018 WL 1633512, at *1–2 (modifying physical care from mother to
father notwithstanding mother’s role as primary caretaker where the mother
“persistently, maliciously interfered with [the father’s] visitation and relationship
with [the child]”); In re Marriage of Kress, No. 03-1524, 2004 WL 1160149, *2–3
(Iowa Ct. App. May 26, 2004) (“We note that the parent who has been the primary
caretaker of the children during the marriage will not necessarily be designated by
the court to be primary caretaker at the time of the divorce.”). Here, it did.
As for Morrell’s contention that Vivone’s work hours at the job he held up to
the time of trial should have been grounds for denying him physical care, Vivone
testified he had applied for a new job with a better schedule, had submitted the
final piece of required paperwork, and was simply waiting to meet with the human
resources department. He also spoke to his current employer about changing his
position to accommodate his child’s needs. The employer said he would try to
work with him to get “better hours.” Because Vivone took cognizable steps to 7
adjust his employment hours, his existing employment was not grounds for
denying him physical care.
On our de novo review of the record,3 we conclude the court’s decision to
grant Vivone physical care of the child was in the child’s best interests.
In the alternative, Morrell argues the court should afford her increased
visitation. The district court granted her “reasonable and liberal parenting time”
according to the following visitation schedule:
a. Until A.M. begins kindergarten, [Morrell] is awarded parenting time every other week commencing Sunday, at 7:00 p.m. through Tuesday (the second morning), at 6:00 p.m. b. Until A.M. begins kindergarten, [Morrell] is awarded parenting time every Thursday, from after school or 5:00 p.m. when school is not in session through Friday (the next day) at 8:00 a.m., or the beginning of school or day care when A.M. is enrolled in either.
We see no reason to tinker with this generous schedule.
Finally, Vivone seeks to have Morrell pay $11,585.75 he incurred in
appellate attorney fees. See Iowa Code § 600B.26 (2020) (“In a proceeding to
determine custody or visitation, or to modify a paternity, custody, or visitation order
under this chapter, the court may award the prevailing party reasonable attorney
fees.”). While Morrell’s annual income exceeded Vivone’s by $21,000 and Vivone
was obligated to defend the district court’s decision on appeal, we conclude Vivone
has the wherewithal to pay his own attorney-fee bill. See In re Marriage of Berning,
3 The videos Morrell recorded were offered and admitted but were not initially included in the appeal record. On this court’s request, those videos were provided and reviewed. Suffice it to say they provide scant if any support for Morrell’s allegations. 8
745 N.W.2d 90, 94 (Iowa Ct. App. 2007) (setting forth considerations for
discretionary award).
AFFIRMED.