Gage Steven Shellady v. Evangelene Glover

• Court: Court of Appeals of Iowa
• Decided: March 30, 2022
• Docket: 21-0886
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0886 Filed March 30, 2022

GAGE STEVEN SHELLADY, Petitioner-Appellee,

vs.

EVANGELENE GLOVER, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.

The mother appeals the district court’s grant of physical care of the parties’

child to the father. AFFIRMED.

Joseph C. Pavelich of Spies & Pavelich, Iowa City, for appellant.

Constance Peschang Stannard of Johnston, Stannard, Klesner, Burbidge

& Fitzgerald, PLC, Iowa City, for appellee.

Considered by Schumacher, P.J., Ahlers, J. and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022). 2

AHLERS, Judge.

The parties are the mother and father of a child born in 2015. This is an

appeal from the district court’s grant of physical care of the child to the father.1 Our

review of physical-care determinations is de novo, which means we can decide the

issue anew without being bound by the district court’s fact findings, though we do

give those findings weight, especially as to witness credibility.2

I. Factual & Procedural Background

To provide context to the issue on appeal, we start with some details about

the parties and their history. The district court provided this accurate introductory

description:

The parties’ history is one of chaos and instability. They started dating toward the end of 2012 and moved in together in 2014 when [the mother] was pregnant. They broke up in 2017. They were approximately [nineteen to twenty] years old when their child was conceived and obviously not ready to be parents. [The father] worked long hours at [a local restaurant] and drank too much. [Trial exhibits] detail [the father’s] alcohol/substance related convictions from 2012 [to] 2016. [The mother] also has convictions for public intoxication [ ], trespass[,] and [operating while intoxicated] during 2013 [to] 2015. [The father] contends that alcohol was a part of the daily routine for both of them.

After the child’s birth, the father continued working long hours at the

restaurant and the mother stayed home with the child, providing financial

contributions from a trust fund of which she was the beneficiary. While the parties

continued to reside together with the child, they fought frequently. On several

1 See Iowa Code § 598.1(7) (2018) (defining “physical care” as “the right and responsibility to maintain a home for the minor child and provide for the routine care of the child”). 2 Iowa R. App. P. 6.907 (providing for de novo review in equity cases); Thorpe v.

Hostetler, 949 N.W.2d 1, 4–5 (Iowa Ct. App. 2020). 3

occasions, the father punched holes in the walls and doors of their apartment and

destroyed their own property as well. On one occasion, neighbors called the police

in response to hearing the ruckus in the parties’ apartment caused by the father

throwing a trash can partially filled with glass.

The parties’ relationship began to sour more completely by the end of 2017.

The mother frequently took the child to Illinois to visit the mother’s parents, often

for weeks at a time. By early 2018, the mother had left with the child for good,

staying with her parents. After it became clear that the mother and child would not

be returning, the parties worked together to arrange times for the father to visit

regularly with the child, which he did. In July 2018, the father started this action by

filing a petition seeking to establish his paternity and to have the child placed in his

physical care. He sent money to the mother on a monthly basis to help support

the child.

While this case was pending, no temporary orders were entered relating to

physical care or custody of the child or for child support. By informal agreement,

starting in approximately April 2019 and continuing through the summer, the child

began spending more time with the father, eventually getting to the point that the

father had care of the child more than the mother during the summer.

Shortly before he was scheduled to return the child at the end of the

summer, the father informed the mother that he had enrolled the child in school

near his new home in Iowa and the child would not be returned to the mother.

Though the mother did not agree to this change, she did not take any steps to

challenge it, despite being represented by counsel in this pending action. In fact,

she asked for continuances of a temporary matters hearing so repeatedly the 4

hearing was canceled. By forgoing a temporary hearing, the mother allowed the

new status quo of the child living primarily with the father to continue until trial in

March 2021. During the time from August 2019 to trial, the mother was given time

with the child whenever the mother wanted. The routine developed largely into an

every-other-weekend-plus-holidays arrangement. In addition to in-person time

with the child, the mother had largely unfettered phone and video chat access to

the child when the child was with the father and vice versa.

Following trial, the district court granted physical care of the child to the

father and ordered the mother to pay child support. The mother appeals. She

seeks physical care of the child with a corresponding change in the child support

obligation. The father does not cross-appeal, but he seeks to require the mother

to pay his appellate attorney fees.

II. General Legal Principles & Analysis

In resolving physical-care disputes of a child born to parents who were

never married, we look to the same factors as we do in resolving such disputes

between divorcing parents.3 The overriding consideration in resolving such

disputes is the best interests of the child.4 Our goal in determining which parent

should have physical care of a child is to place the child in the environment most

likely to bring the child to physical health, mental health, and social maturity.5

3 McCullough v. Cornette, No. 20-1211, 2021 WL 1399746, at *1 (Iowa Ct. App. Apr. 14, 2021) (citing Iowa Code § 600B.40; Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988)). 4 In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). 5 In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). 5

Physical-care determinations are not based on perceived fairness to the parents,

but on what is best for the child.6 Gender is irrelevant to the decision.7

To decide which parent is to have physical care, we consider the

nonexhaustive list of factors stated in Iowa Code section 598.41(3) and In re

Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).8 We do not repeat the

factors here, trusting the reference to the lists to be sufficient, as the factors are

well-known. The mother focuses on two of the factors: (1) the approximation

principle; and (2) a claimed history of domestic abuse.

A. The Approximation Principle

The approximation principle or rule refers to the desirability of dividing

caregiving responsibilities following the breakup of the parents’ relationship in

roughly the same proportion to how the parties divided the responsibilities before

the relationship’s demise.9 The thought is that following this principle results in

stability and continuity for the child.10

The mother contends the district court misapplied the approximation rule by

looking at the fact that the father had the child primarily in his care for the nineteen-

month period leading up to trial, rather than considering the mother’s role as

primary caregiver before the parties separated. The mother argues the district

court erred because it considered the child’s care after the separation, not prior to

separation, in determining which parent had been the primary caregiver.

6 Hansen, 733 N.W.2d at 695. 7 Hansen, 733 N.W.2d at 700. 8 Fennelly, 737 N.W.2d at 101. 9 Hansen, 733 N.W.2d at 697. 10 Hansen, 733 N.W.2d at 697. 6

We disagree with the mother’s contentions. Iowa has not adopted the

approximation rule in its entirety.11 Instead, our courts consider the approximation

rule as just one factor in a multi-factored test under which no single criterion is

determinative.12 It is true that the mother was the child’s primary caregiver until

the child was roughly three years old. It is also true that, when the parties

separated, the mother took the child and kept the child in her primary care.

However, to the parties’ credit, they worked with each other to maintain the child’s

relationship with both parents, resulting in the father having substantial time with

the child, and eventually resulting in the father having the child primarily in his care.

The pattern of cooperation has continued since the father took over primary

responsibility for the child’s care. The evidence convinces us that both parents

have outgrown their past immaturity and irresponsibility and are capable of

providing good care for the child. They have shown a remarkable and refreshing

ability to put their differences aside and work with each other in caring for the child.

The evidence shows that the child has reaped the benefits of the parents’

cooperative efforts, as she is thriving under the current arrangement. That current

arrangement includes the child being established in school in Iowa, as well as

enjoying the benefits of having grandparents, uncles, aunts, and cousins nearby

and involved in her life. The father communicates regularly with the mother to keep

her apprised of medical appointments and other areas of importance. Although

the mother did not attend school conferences in person, the father placed her on

speaker phone during the conferences so the mother could participate. Leaving

11 Hansen, 733 N.W.2d at 697. 12 Hansen, 733 N.W.2d at 697. 7

the district court’s physical-care determination intact will allow the child to remain

in the same school district, the same home, and near the same extended family

with whom she has developed strong bonds. In short, while the mother’s effort

before the couple’s relationship ended is an important consideration, we do not

believe that single factor outweighs the benefits of leaving the child in her current

placement with the father. It is in the child’s best interests to remain in the

environment in which she has thrived for nearly two years.

As a final point on this topic, the mother contends that by granting the father

physical care, the courts are rewarding his “extrajudicial,” unilateral decision to

keep the child in his care beginning in August 2019. She asserts that she should

not be at a disadvantage simply because she refused to give an additional tug in

what she claims had become a tug-of-war between the parents.

While we commend the mother for not creating or escalating a tug-of-war

over the child, we are not persuaded by the mother’s argument for several reasons.

For one, we note that the mother’s claim ignores the fact that she unilaterally and

“extrajudicially” did the same thing the father did by taking the child to Illinois

against the father’s wishes when the parties first separated. So, to the extent

taking the child without the other parent’s agreement is a negative factor, both

parents’ characters bear that stain in equal measure.

Second, while we believe the mother’s claim that she let the child live

primarily with the father in part to avoid a tug-of-war over the child, the evidence

suggests an additional reason. In August 2019, the mother’s life was in a degree

of tumult. Her relationship with her new boyfriend had become more serious, and

she planned to move to Omaha to live with him. That move involved moving away 8

from her support system to an area where she and the child would have no family

support—support upon which the mother historically relied quite heavily. It also

involved finding a place to live and securing a job. While the mother ultimately did

both things, it was undoubtedly a stressful time that would have been more

stressful with a young child in her care. The plan also involved starting the child in

school in Illinois for a short period of time before moving the child to another state

and starting her at a new school. Under these circumstances, the father keeping

the child after having already done all the tasks needed to start her in school would

have relieved the mother from additional stress and burden during that time. We

question whether the mother opposed the living arrangement that developed as

much as she now claims. We do not say this as a criticism of the mother in any

way. To the contrary, her willingness to leave the child with a fit parent while she

stabilized her life in an effort to become self-sufficient for the first time shows

unselfishness on her part.

Finally, the mother did not have to get into an extrajudicial tug-of-war to try

to get the child back in her care. As noted, she had legal counsel and an open

custody file. Seeking the court’s intervention to try to regain care of the child would

have been a fairly straightforward endeavor. That the mother did not seek the

court’s assistance in regaining the child’s care and caused the court to cancel the

temporary matters hearing that had been scheduled suggests the mother had no

strong opposition to the child living with the father. 9

B. History of Domestic Abuse

The mother claims the father’s history of domestic abuse should preclude

him from receiving physical care of the child.13 To determine whether there is a

history of domestic abuse, courts consider the

commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 664A.7, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A.[14]

These are but some of the considerations for the court.15

The evidence of domestic abuse was contested. The district court

determined that the mother failed to establish a history of domestic abuse. Given

the conflicting evidence presented by the mother and father, the district court’s

finding amounts to a credibility finding in the father’s favor on this point to which

we give considerable weight.16

Following our de novo review of the record and giving proper deference to

the district court’s credibility findings in the father’s favor, we agree with the district

court that the mother has not proved a history of domestic abuse between the

parties. Looking at the statutory factors to determine whether there is a domestic-

13 See Iowa Code § 598.41(3)(j) (making history of domestic abuse a factor in deciding which parent should have custody). 14 Iowa Code § 598.41(3)(j). 15 See Iowa Code § 598.41(3)(j). 16 See Faraj v. Faraj, No. 19-1260, 2020 WL 1887951, at *2 (Iowa Ct. App. Apr. 15,

2020) (noting we give considerable weight to credibility findings of the district court on de novo review). 10

abuse history, we note that the mother never sought law enforcement protection

or a protective order in response to the father’s behavior. While a history of

domestic abuse can be found in the absence of such evidence, such evidence

would be helpful to bolster the mother’s otherwise unsubstantiated claims that did

not convince the district court. We also note that at least one witness testified that

the mother confided in her regarding details of problems she was having with the

father, but, during those conversations, the mother never mentioned any physical

abuse or fears of such abuse by the father.

We also note that much of the mother’s evidence of alleged abuse focused

on events that occurred several years before trial, long before both parties matured

and cleaned up their acts. The father also offered ample evidence regarding his

improved maturity and behavior since the parties’ separation. He significantly

reduced his drinking—a major contributor to his unacceptable behavior. He has a

stable home and job and meaningful support from his extended family. By all

accounts, he has significantly stabilized his life in a manner that has reduced if not

eliminated any explosive tendencies he exhibited when the parties were together.

Accordingly, we find the district court properly concluded that there was not a

history of domestic abuse that precluded granting the father physical care.

III. Appellate Attorney Fees

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

fees. In an action to determine physical care, Iowa Code section 600B.26 permits

an award of appellate attorney fees to the prevailing party.17 An award of appellate

17 McCullough, 2021 WL 1399746, at *3. 11

attorney fees is not a matter of right.18 Instead, it rests in our discretion.19 “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.”20 While the father is the prevailing party and has some need for an

appellate attorney fee award, the mother is of modest means and does not have

the ability to pay. Therefore, we decline to order the mother to pay the father’s

appellate attorney fees.

IV. Conclusion

Following our de novo review, the district court properly granted physical

care of the child to the father, and we affirm. We reject the father’s claim for

AFFIRMED.

18 McCullough, 2021 WL 1399746, at *3. 19 McCullough, 2021 WL 1399746, at *3. 20 McCullough, 2021 WL 1399746, at *3 (quoting In re Marriage of Hoffman, 891

N.W.2d 849, 853 (Iowa Ct. App. 2016)).