In RE the Marriage of Angela Marie Harris and Patric David Harris Upon the Petition of Angela Marie Harris

• Court: Supreme Court of Iowa
• Decided: September 20, 2013
• Docket: 12–1969
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 12–1969

Filed September 20, 2013

IN RE THE MARRIAGE OF ANGELA MARIE HARRIS AND PATRIC DAVID HARRIS

Upon the Petition of ANGELA MARIE HARRIS,

Appellant,

And Concerning PATRIC DAVID HARRIS,

Appellee.

Appeal from the Iowa District Court for Polk County, Robert A.

Hutchison, Judge.

Petitioner appeals the district court’s denial of her motion to

continue trial and the district court’s award of joint physical care.

AFFIRMED.

Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines,

for appellant.

Patric D. Harris, pro se. 2

PER CURIAM.

The mother of two minor children appeals from a dissolution

decree. She contends the district court erred in failing to grant her

motion for continuance and in ordering joint physical care. We affirm.

I. Background Facts and Proceedings.

Angela and Patric Harris were married on May 17, 1997. Angela

was then twenty years old and Patric was twenty-six. Both had

graduated from high school at the time and both have now completed

some college education. They had two children during the marriage: a daughter, now eleven, was born in November 2001, and a son, now four,

was born in June 2009.

Both parents were employed fulltime when their daughter was

born. Angela left her job at Sears and worked at home as a daycare

provider. Soon after the daughter reached school age, Angela began

working at Iowa Medicaid Enterprise, where she remains today. Patric

has worked since April 2010 in part- and full-time positions for several

different employers, after having spent about ten years in a sales position

at Gilcrest/Jewett Lumber Company.

The record reveals conflicting testimony as to the quantity and

quality of parenting responsibilities performed by the respective parents

before Angela initiated dissolution proceedings in November 2010.

Angela testified she was the primary caregiver for both children

throughout the marriage. Some of Patric’s relatives reiterated that

testimony, suggesting Patric took a less active role and was uninvolved in

many of the decisions affecting the children, despite having taken an

active role in many other household decisions. Patric’s testimony, however, suggests the parties shared parenting responsibilities equally 3

and were equally involved in schooling and other activities with the

children.

In December 2010, Angela and Patric—both represented by

counsel at that point in the dissolution proceedings—reached a

mediation agreement that effectively provided for joint legal custody and

joint physical care. Under that agreement, the parents rotated in and

out of the marital home every several days to shoulder parenting

responsibilities according to a set schedule while the children remained

in the home. In a second mediation in April 2011, Angela and Patric— again represented by counsel—reached largely the same arrangement

(the mediation agreement), again effectively providing for joint legal

custody and joint physical care.

In August 2011, Patric sent Angela a proposed dissolution decree

memorializing many of the terms of the mediation agreement. After

further inquiries from Patric seeking Angela’s approval of the proposed

decree, Angela indicated in October she no longer favored joint physical

care and would seek primary physical care. The district court then

entered a scheduling order setting a two-day trial for April 2012 to

resolve issues of legal custody, physical care, child support, marital

property, and attorneys’ fees.

The parties sold the marital home in January 2012 and divided the

proceeds according to the terms of the mediation agreement, in part

because of the parties’ debt concerns. Patric moved into a home in West

Des Moines with his current girlfriend and her two children, where he

continues to reside. Angela moved into a townhome in Johnston owned

by Patric’s stepfather, where she continues to reside. The parties have continued to exercise joint legal custody and physical care, as the

children split time between the Johnston and West Des Moines homes. 4

Both parties have taken active roles in schooling, homework, and

extracurricular activities since the original temporary mediation

agreement was reached in December 2010.

The April 2012 trial was canceled. Angela’s counsel then withdrew

her representation, citing communication and financial issues. In June,

Patric filed a motion seeking enforcement of the parties’ mediation

agreement, which addressed many of the dissolution issues, including

legal custody and physical care. Angela opposed enforcement of the

agreement, and the court set a hearing on the motion for late August. Soon after Patric filed the motion to enforce the mediation

agreement, and shortly before Father’s Day, Angela filed a domestic

abuse petition alleging Patric had committed verbal abuse and made

threats of physical harm. The court set a hearing on the petition for

June 28 and granted a temporary protective order suspending Patric’s

visitation until the August hearing on Patric’s motion to enforce the

mediation agreement. By stipulation of the parties, the court modified

the protective order on June 28, allowing for resumption of joint custody

and physical care until a final hearing on the protective order could be

held in August. Two weeks later Angela initiated contempt proceedings,

alleging Patric had violated the modified protective order in failing to

grant her certain visitation rights orally agreed upon in forming the

June 28 agreement.

At the August 2012 hearing on the protective order and contempt

matters, the district court found Angela’s filings had been motivated

largely by a desire to gain an upper hand in the dissolution proceedings.

The court thus denied her request for a permanent protective order and lifted the temporary order. The parties continued thereafter to exercise

joint custody and physical care. 5

The court held a separate August 2012 hearing on Patric’s motion

to enforce the mediation agreement and concluded the agreement should

be enforced. The court ordered the provisions of the agreement

incorporated in the final decree of dissolution. Because the agreement

was silent regarding child support, insurance costs, and unpaid medical

bills, the court scheduled trial for September 27 to address those issues.

In early September, Angela moved for reconsideration of the court’s

decision to enforce the mediation agreement. She argued the court had

failed to consider whether the agreement was unfair or contrary to law and whether it was in the best interests of the children. Patric opposed

the motion, contending Angela had had ample opportunity to make these

claims at the hearing held the previous month on enforcement of the

agreement.

On September 21, a week before trial, the court entered an order

reconsidering its ruling on enforcement of the mediation agreement. The

court’s order ruled that all issues—including legal custody and physical

care—would be tried on September 27. Angela moved to continue the

trial, citing the concern that six days was insufficient time to prepare her

case on legal custody and physical care—issues she had not yet prepared

as she had operated under the assumption the trial would be limited to

certain financial issues. She also raised the concern that her current

attorney, making a limited appearance to argue for the requested

continuance, could not practically or ethically prepare for a trial in six

days, and that therefore, if a continuance were denied, Angela would

likely be forced to try the case on her own behalf. The court denied

Angela’s request, observing she had already enlisted five different attorneys during the pendency of the case, bringing “lawyers in to just do

patchwork on a case of significance for both her and [her family].” The 6

court added that she had retained, separately, two of those five attorneys

in the previous month, and yet she had retained neither for

representation at trial. Given that history, the court concluded a

continuance would be unfair to Patric and the children. In rejecting

Angela’s request for a continuance, the court noted this case had been

pending far longer than was preferable or necessary for family disputes

and observed that Angela had had multiple previous opportunities to

present her case on legal custody and physical care issues.

At trial, the parties contested issues of physical care and child support. Angela, appearing pro se, requested joint legal custody but

primary physical care. Patric sought joint legal custody and joint

physical care, but added an alternative request for primary physical care

should the court reject his request for joint care. The court, after

considering the factors informing the best-interests-of-the-children

inquiry detailed in Iowa Code section 598.41(3), entered a dissolution

decree awarding the parties joint legal custody and joint physical care.1

Angela appealed, arguing the district court abused its discretion in

denying her motion to continue and erred in concluding joint physical

care is in the best interests of the children.

II. Standard of Review.

We review denial of a motion to continue for clear abuse of

discretion. See Dep’t of Gen. Servs. v. R.M. Boggs Co., 336 N.W.2d 408,

410 (Iowa 1983). We review dissolution rulings de novo. In re Marriage

of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). We give weight to the

1We have previously explained that while Iowa Code section 598.41(3) explicitly

establishes a nonexclusive list of factors to be considered in custody determinations, the factors enumerated there also guide the best-interests inquiry for physical care determinations. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). 7

factual findings of the district court, particularly where credibility

determinations are involved. Id.

III. Analysis.

A. Motion to Continue. Angela contends the district court erred

in denying her motion to continue. Additional preparation time and the

guidance of competent trial counsel, Angela maintains, would have

enhanced the presentation of her case for primary physical care. A more

polished presentation, she insists, may have helped the court reach a

different result. As we have already noted, the district court denied the

continuance, finding Angela had already caused substantial delays in the

proceedings, had long been aware of the need for—and on multiple

occasions been encouraged to retain—counsel, and had herself, more

than a month before trial, asked that the court consider legal custody

and physical care at trial. Further delay, the court suggested, would

leave the parties and children in a state of unnecessary and undesirable

unrest. Citing concerns of fairness to Patric, the necessity of expedient

resolution for the children, Angela’s contributing conduct, and the

parties’ extensive familiarity with the issues eventually litigated, the

district court concluded a continuance would have been unjust and cruel

to the family.

Iowa Rule of Civil Procedure 1.911 provides that the district court

may allow a continuance “for any cause not growing out of the fault or

negligence of the movant, which satisfies the court that substantial

justice will be more nearly obtained.” Iowa R. Civ. P. 1.911(1). We give

the district court broad discretion in ruling on continuances and we will not interfere absent clear abuse. Michael v. Harrison Cnty. Rural Elec.

Coop., 292 N.W.2d 417, 419 (Iowa 1980). 8

On our review, we find the district court’s analysis persuasive. As

the court explained, Angela had been aware of the issues of significance

to her for far longer than the six days immediately preceding trial. She

had in August 2012 asked the court—twice—to consider legal custody

and physical care issues at trial. In July, she had resisted Patric’s

motion to enforce the mediation agreement, explaining she could no

longer agree to joint physical care. Communications between the parties

and their attorneys revealed the dispute over physical care may have

existed for as long as the lawsuit itself. Indeed, Angela had requested primary physical care in the original petition for dissolution, filed two

years before the September 2012 trial. Further, as the district court

noted, Angela had been represented by five separate attorneys during the

pendency of the proceedings.2 Despite the court’s August 2012

admonition that she retain representation for the trial as soon as

practicable, she failed to do so until six days before trial. Finally, as the

district court explained, the case was nearly two years old, the financial

and emotional strain of the litigation was taking its toll on both the

parties and their children, and all involved had much to gain from an

expedient resolution. Given these circumstances, we find, as the district

court did, that Angela was largely responsible for any lack of preparation

and any ineffectiveness in the presentation of her case. Accordingly, we

find no abuse of discretion in the district court’s denial of a continuance

under the circumstances presented here.

B. Physical Care. Angela argues the district court erred in

awarding joint physical care, given the parties’ historic apportionment of

2The reasons for the breakdown of the relationships between Angela and the series of lawyers who represented her in this case are not clearly developed in the record. 9

caregiving responsibilities, the extent of the parties’ communication

problems, and the contentiousness of the marriage. The district court

disagreed, finding joint physical care was in the best interests of the

children for several reasons: (1) the children had thrived under the joint

physical care arrangement of the previous two years, (2) the daughter

was doing well in school, (3) the son was developing well for his age, (4)

both children benefited from frequent contact with both parents, and (5)

both parents had been actively involved in caring for the children and

their activities. The fundamental concern in making a primary physical care

determination is placement of the children in the care of that parent who

will best minister to the long-range best interests of the children. See In

re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974). As noted above,

Iowa Code section 598.41(3) establishes a nonexhaustive list of factors

guiding legal custody determinations. See Iowa Code § 598.41(3). We

have explained those factors, along with other facts and circumstances,

are also instructive in determining whether joint physical care is in the

best interests of the children. Hansen, 733 N.W.2d at 696. Our basic

framework for the best-interests physical care inquiry is well established,

and stability and continuity of caregiving have been primary

considerations. See id. Past caregiving patterns are instructive, as the

patterns are often reliable proxies for intangible qualities such as

parental ability and emotional connection that courts are not typically

well positioned to discern. See id. The degree of conflict between the

parties, the level of agreement regarding daily activities, and the ability to

communicate and show mutual respect are also significant factors in making the best-interests determination. Id. at 698–99. Ultimately, 10

however, “the total setting presented by each unique case” must be

considered. Id. at 699. Our de novo review of the record reveals conflicting evidence regarding several of these principles. Angela suggested the degree of conflict between the parents was so great as to negatively affect the children. Patric posited that the parties had been able to work through various conflicts—and the district court agreed. We think it noteworthy, as did the district court, that much of the evidence of parenting discord described conflicts arising after the separation. We find the parties’ preseparation cooperation suggests a resolution in the dissolution proceeding may alleviate much of the conflict. The temporary protective order tells us little about the prospect of the parents’ prospects for cooperation in child-rearing, given the eventual modification and subsequent dismissal of the order, and the district court’s finding that Angela lacked credibility and may have been engaging in strategic behavior in requesting the order. The record is also less than definitive as to the allocation of pre- and postseparation caregiving responsibilities. Angela testified that prior to the separation she had been the primary caregiver for the children; Patric testified parenting responsibilities had been shared equally. We find the record is clear, however, that both parties had significant household responsibilities and both parties were actively involved in raising the children before the separation. Angela testified that Patric became largely uninvolved in parenting after the separation and left such responsibilities to his live-in significant other. Patric’s testimony suggested, however, that he remained as actively involved as ever. Regardless, postseparation communications between the parties documented in the record and the terms of the mediation agreements support our finding that both parents have had regular and significant 11

parental interaction with the children since the dissolution proceeding began and both have been extensively involved in activities and decision making for the children. Accordingly, the past caregiving patterns of the parties do not augur in favor of Angela’s primary care claim or against Patric’s request for joint physical care. Having examined the record de novo, we give weight to the credibility findings of the district court. That court had distinct advantages in assessing credibility, having observed the parties firsthand and having drawn upon senses unavailable to us on appeal. See In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). We are guided by the district court’s finding that Angela’s allegations regarding parental conflict and conduct lacked credibility. We also adopt as our own the district court’s finding that the children have thrived under the already- existing joint physical care arrangement and are likely to continue to do so. Given the historical involvement of both parents in child-rearing, the benefits derived by the children from the parties’ mutually-agreed-upon joint physical care arrangement during the last two years, and the importance to the children of continuity, stability, and parental contact, we believe this is a case in which joint physical care as ordered in the district court’s decree is in the best interests of the children. We therefore affirm. IV. Conclusion. We conclude the district court did not err in denying the requested continuance. We find joint legal custody and joint physical care is in the best interests of the children and therefore affirm the decision of the district court. AFFIRMED. This opinion shall not be published.