In Re the Marriage of Brandon Kleve and Daphnie Kleve Upon the Petition of Brandon Kleve, and Concerning Daphnie Kleve

• Court: Court of Appeals of Iowa
• Decided: October 26, 2016
• Docket: 16-0607
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0607 Filed October 26, 2016

IN RE THE MARRIAGE OF BRANDON KLEVE AND DAPHNIE KLEVE

Upon the Petition of BRANDON KLEVE, Petitioner-Appellee,

And Concerning DAPHNIE KLEVE, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Christopher C. Foy,

Judge.

Daphnie Kleve appeals from the custody provisions of the decree

dissolving her marriage to Brandon Kleve. AFFIRMED.

Rebecca A. Feiereisen of Arenson Law Group, P.C., Cedar Rapids, for

appellant.

Judith O'Donohoe of Elwood, O'Donohoe, Braun & White, L.L.P., Charles

City, for appellee.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2

DOYLE, Judge.

This appeal concerns the child custody provisions of the decree dissolving

the marriage of Brandon Kleve and Daphnie Kleve, which grants Brandon

physical care of the parties’ children. Daphnie contests the finding that granting

Brandon physical care is in their children’s best interests. She seeks physical

care of both children or, in the alternative, requests a split physical care

arrangement. Because the children’s best interests are served by placing them

with the same parent and Brandon is better able to minister to their needs, we

affirm.

The facts, briefly stated, are as follows: Daphnie and Brandon met in Utah

in 2012 and married the following year. They moved from Utah to Charles City in

June 2014, shortly after their son was born. After separating in October 2014,

Daphnie—without consulting with or informing Brandon—moved back to Utah

with their son. Brandon obtained a temporary injunction in November 2014 that

required Daphnie to return their son to Iowa, and their son has lived with Brandon

since that time. The parties’ daughter, who was born in April 2015,1 remained

with Daphnie in Utah. Following trial, the district court entered its decree,

granting Brandon physical care of both children.

On appeal, Daphnie first argues “[t]he district court misstated the

undisputed facts of the case such that the decree cannot stand.” However, we

are not bound by the district court’s factual findings. See In re Marriage of

Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). Instead, our de novo review

1 The results of a DNA test show the probability that Brandon is the father of the parties’ daughter is 99.999999%. 3

requires us to examine the entire record and decide any issues properly before

us anew. See id. We do give the district court’s findings weight, and we are

especially deferential with regard to determinations of witness credibility. See In

re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).

With regard to witness credibility here, the district court stated:

The court has no illusions that either party was completely forthcoming when describing what he or she perceived to be the faults or shortcomings of the other party or when responding to the unfavorable allegations made about him or her. Generally speaking, however, the court found the testimony of Daphnie on these matters to be less credible than that of Brandon. The allegations made by Daphnie about being physically and sexually abused by Brandon have no other support in the record and are inconsistent with information she previously gave to certain health care providers. Similarly, testimony Daphnie gave at trial regarding various aspects of her medical and mental health history was contradicted by information contained in her medical records. When presented with conflicting testimony from the parties, the court generally accepted the testimony of Brandon as more accurate and reliable.

Because the district court had the ability to observe the witnesses’ demeanor, we

keep its credibility findings in mind as we turn to the custody question. See id.

We begin with Daphnie’s request for split physical care of the children. In

the event she is not granted physical care of both children, Daphnie requests that

Brandon continue as their son’s physical caretaker while she continues to

provide for their daughter’s physical care. As the district court noted, there is a

presumption in Iowa against such custody arrangements because they deprive

children of the benefit of associating with one another. See In re Marriage of

Will, 489 N.W.2d 394, 398 (Iowa 1992). Although this rule is not without its

exceptions, there must be “[g]ood and compelling reasons” to depart from it. See

id. 4

Daphnie claims that a compelling reason exists here because the children

had no real relationship at the time of the parties’ dissolution. Although the

children had not yet developed a bond at that time, these children are quite

young and will be able to develop a bond. The development of a sibling bond will

benefit the children for the rest of their lives. Placing them together suits their

long-term best interests.

We must then determine in which parent’s care to place both children.

Our fundamental concern is placing the children with the parent who will best

minister to the children’s long-range best interests. See In re Marriage of Winter,

223 N.W.2d 165, 166 (Iowa 1974). In making this determination, we look at the

list of factors set forth in Iowa Code section 598.41(3) (2013), as well as those

articulated in Winter. See In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa

2007).

Upon our de novo review, we agree Brandon is better able to minister to

the children’s long-term needs. We share the district court’s concerns about both

parties’ stability and willingness to support the children’s relationship with the

other parent. However, we agree the scale ultimately tips in Brandon’s favor

given his proximity to family, his less-precarious housing arrangement, and what

the district court described as Daphnie’s “poor judgment” and “lack[ of] insight

regarding her need for mental health treatment.” Accordingly, we affirm the

custody provisions of the decree, which grants Brandon physical care of both

children. See Iowa Ct. R. 21.26(1)(d), (e).

AFFIRMED.