IN THE COURT OF APPEALS OF IOWA
No. 14-2146 Filed September 10, 2015
IN RE THE MARRIAGE OF JOSHUA JAMES COCHRAN AND MELISSA CHRISTINE COCHRAN
Upon the Petition of JOSHUA JAMES COCHRAN, Petitioner-Appellant,
And Concerning MELISSA CHRISTINE COCHRAN, n/k/a MELISSA CHRISTINE MARVEL, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Iowa County, Nancy A.
Baumgartner, Judge.
A father challenges the grant of physical care of their two daughters to his
former wife. AFFIRMED AND REMANDED.
John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for
appellant.
Matthew J. Adam and Rae M. Kinkead of Simmons Perrine Moyer
Bergman, P.L.C., Coralville, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
TABOR, P.J.
In the decree dissolving the marriage of Josh and Melissa Cochran, the
district court granted physical care of their two daughters to Melissa, finding she
had “clearly been a much greater presence in the children’s lives than Josh” had
been during the girls’ early years. On appeal, Josh challenges only the physical
care arrangement. After reviewing the trial record, we find both parents would be
capable custodians, but we agree with the district court’s assessment that
approximation of the caregiving pattern during the marriage tips the balance
toward placing physical care with Melissa.
I. Background Facts and Proceedings
Josh and Melissa were married in August 2004. They have two daughters
together; the girls were nine and seven years old at the time of trial. Josh and
Melissa originally met and lived in Arizona. Melissa was a native of Gilbert,
Arizona, where she started a modeling company. Josh worked in beverage
distribution.
In the spring of 2006, Josh and Melissa moved to Iowa to raise their
family. Josh was an Iowa native; he grew up in Oxford and has many relatives in
that area. Josh and Melissa built a house in Williamsburg. The couple started a
commercial lawn and cattle care business. Melissa did the bulk of the mowing.
Melissa also worked for the University of Iowa from 2010 until 2012. Josh
worked for an asphalt paving company. He worked long hours during the
company’s busiest season—April through November. During the offseason, he
received unemployment and helped with the lawn and cattle business. 3
In early 2013, Josh and Melissa started considering a return to Arizona.
They placed their Williamsburg house on the market and made trips to the
Phoenix area to scout for a new home. Struggling to sell their Williamsburg
house, the family placed items in storage. In July 2013, Melissa and the children
moved in with Melissa’s mother in Arizona; Melissa got a job at Arizona State
University as an administrative assistant. Josh accompanied the family to
Arizona and stayed until after the children’s first day of school to help the family
get settled. The couple made an offer on a house in Arizona, contingent on the
sale of their Iowa property.
Josh then returned to Iowa to finish the paving season, but expressed his
intent to return to Arizona in November. During their fall break from school,
Melissa brought the girls to Iowa to visit Josh and to check on the sale of the
Williamsburg house. During this visit, Josh and Melissa acknowledged problems
in the marriage but agreed to work through them. Melissa’s work required her to
return to Arizona, but the couple agreed the children would stay with Josh until
Christmas.1
Without prior notice to Melissa, Josh filed a petition to dissolve their
marriage on November 1, 2013. He also filed a temporary injunction to prevent
Melissa from moving the children to Arizona. Josh failed to inform the Iowa
district court that the girls had been living in Arizona since July and were enrolled
in school there. In a February 12, 2014, ruling on Melissa’s application for
temporary orders, the court described Josh’s unilateral actions as “blindsiding”
1 Josh and Melissa agreed the children would attend school in Williamsburg while they remained in Iowa. 4
Melissa. The court granted Melissa temporary physical care and the children
returned to Arizona. In the temporary order, the court granted Josh visitation
every other weekend from the end of the school day on Friday until 6:00 p.m. on
Sunday, as well as six weeks of summer visitation, the children’s fall break, and
half of the children’s winter break.2
The court held a contested custody hearing over three days in September
2014. On October 31, 2014, the district court issued a decree dissolving the
marriage. The decree granted Josh and Melissa joint legal custody and granted
Melissa physical care with liberal visitation for Josh. Josh now appeals.
II. Standard of Review
We review dissolution of marriage cases do novo. In re Marriage of
McDermott, 827 N.W.2d 671, 676 (Iowa 2013). Although we decide the issues
raised on appeal anew, we give weight to the factual findings, especially in
regard to witness credibility. Iowa R. App. P. 6.904(3)(g); In re Marriage of
Witten, 672 N.W.2d 768, 773 (Iowa 2003). Courts must resolve physical care
issues based upon what is best for the children, not upon perceived fairness to
the spouses. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). “The
objective of a physical care determination is to place the children in the
environment most likely to bring them to health, both physically and mentally, and
to social maturity.” Id.
2 Josh was responsible for sixty percent of his costs and Melissa was responsible for the remaining forty percent. The court noted Josh did not miss a weekend and the children spent more than six weeks with him over the summer. 5
III. Physical Care
Josh argues the district court erred in granting physical care of their
daughters to Melissa and asks us to place them in his physical care. His primary
focus is on Melissa’s hostility toward him and the availability of his network of
extended family members in Iowa to participate in the children’s lives.
We find both Josh and Melissa to be capable parents. They both have
shown a strong commitment to the children, despite showing disdain for one
another while the divorce was pending. After reviewing the trial record anew, we
conclude the district court appropriately balanced the critical factors in deciding to
place physical care with Melissa
In trying to determine the best interest of the children, we consider
numerous factors, including but not limited to the suitability of parents, the
psychological and emotional needs and development of the children, the quality
of parental communication, the previous pattern of caregiving by the parents, and
each parent’s support of the other. See Hansen, 733 N.W.2d at 696; see also
Iowa Code § 598.41(3) (2013).
The district court found Melissa to be the children’s primary caregiver
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 14-2146 Filed September 10, 2015
IN RE THE MARRIAGE OF JOSHUA JAMES COCHRAN AND MELISSA CHRISTINE COCHRAN
Upon the Petition of JOSHUA JAMES COCHRAN, Petitioner-Appellant,
And Concerning MELISSA CHRISTINE COCHRAN, n/k/a MELISSA CHRISTINE MARVEL, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Iowa County, Nancy A.
Baumgartner, Judge.
A father challenges the grant of physical care of their two daughters to his
former wife. AFFIRMED AND REMANDED.
John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for
appellant.
Matthew J. Adam and Rae M. Kinkead of Simmons Perrine Moyer
Bergman, P.L.C., Coralville, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
TABOR, P.J.
In the decree dissolving the marriage of Josh and Melissa Cochran, the
district court granted physical care of their two daughters to Melissa, finding she
had “clearly been a much greater presence in the children’s lives than Josh” had
been during the girls’ early years. On appeal, Josh challenges only the physical
care arrangement. After reviewing the trial record, we find both parents would be
capable custodians, but we agree with the district court’s assessment that
approximation of the caregiving pattern during the marriage tips the balance
toward placing physical care with Melissa.
I. Background Facts and Proceedings
Josh and Melissa were married in August 2004. They have two daughters
together; the girls were nine and seven years old at the time of trial. Josh and
Melissa originally met and lived in Arizona. Melissa was a native of Gilbert,
Arizona, where she started a modeling company. Josh worked in beverage
distribution.
In the spring of 2006, Josh and Melissa moved to Iowa to raise their
family. Josh was an Iowa native; he grew up in Oxford and has many relatives in
that area. Josh and Melissa built a house in Williamsburg. The couple started a
commercial lawn and cattle care business. Melissa did the bulk of the mowing.
Melissa also worked for the University of Iowa from 2010 until 2012. Josh
worked for an asphalt paving company. He worked long hours during the
company’s busiest season—April through November. During the offseason, he
received unemployment and helped with the lawn and cattle business. 3
In early 2013, Josh and Melissa started considering a return to Arizona.
They placed their Williamsburg house on the market and made trips to the
Phoenix area to scout for a new home. Struggling to sell their Williamsburg
house, the family placed items in storage. In July 2013, Melissa and the children
moved in with Melissa’s mother in Arizona; Melissa got a job at Arizona State
University as an administrative assistant. Josh accompanied the family to
Arizona and stayed until after the children’s first day of school to help the family
get settled. The couple made an offer on a house in Arizona, contingent on the
sale of their Iowa property.
Josh then returned to Iowa to finish the paving season, but expressed his
intent to return to Arizona in November. During their fall break from school,
Melissa brought the girls to Iowa to visit Josh and to check on the sale of the
Williamsburg house. During this visit, Josh and Melissa acknowledged problems
in the marriage but agreed to work through them. Melissa’s work required her to
return to Arizona, but the couple agreed the children would stay with Josh until
Christmas.1
Without prior notice to Melissa, Josh filed a petition to dissolve their
marriage on November 1, 2013. He also filed a temporary injunction to prevent
Melissa from moving the children to Arizona. Josh failed to inform the Iowa
district court that the girls had been living in Arizona since July and were enrolled
in school there. In a February 12, 2014, ruling on Melissa’s application for
temporary orders, the court described Josh’s unilateral actions as “blindsiding”
1 Josh and Melissa agreed the children would attend school in Williamsburg while they remained in Iowa. 4
Melissa. The court granted Melissa temporary physical care and the children
returned to Arizona. In the temporary order, the court granted Josh visitation
every other weekend from the end of the school day on Friday until 6:00 p.m. on
Sunday, as well as six weeks of summer visitation, the children’s fall break, and
half of the children’s winter break.2
The court held a contested custody hearing over three days in September
2014. On October 31, 2014, the district court issued a decree dissolving the
marriage. The decree granted Josh and Melissa joint legal custody and granted
Melissa physical care with liberal visitation for Josh. Josh now appeals.
II. Standard of Review
We review dissolution of marriage cases do novo. In re Marriage of
McDermott, 827 N.W.2d 671, 676 (Iowa 2013). Although we decide the issues
raised on appeal anew, we give weight to the factual findings, especially in
regard to witness credibility. Iowa R. App. P. 6.904(3)(g); In re Marriage of
Witten, 672 N.W.2d 768, 773 (Iowa 2003). Courts must resolve physical care
issues based upon what is best for the children, not upon perceived fairness to
the spouses. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). “The
objective of a physical care determination is to place the children in the
environment most likely to bring them to health, both physically and mentally, and
to social maturity.” Id.
2 Josh was responsible for sixty percent of his costs and Melissa was responsible for the remaining forty percent. The court noted Josh did not miss a weekend and the children spent more than six weeks with him over the summer. 5
III. Physical Care
Josh argues the district court erred in granting physical care of their
daughters to Melissa and asks us to place them in his physical care. His primary
focus is on Melissa’s hostility toward him and the availability of his network of
extended family members in Iowa to participate in the children’s lives.
We find both Josh and Melissa to be capable parents. They both have
shown a strong commitment to the children, despite showing disdain for one
another while the divorce was pending. After reviewing the trial record anew, we
conclude the district court appropriately balanced the critical factors in deciding to
place physical care with Melissa
In trying to determine the best interest of the children, we consider
numerous factors, including but not limited to the suitability of parents, the
psychological and emotional needs and development of the children, the quality
of parental communication, the previous pattern of caregiving by the parents, and
each parent’s support of the other. See Hansen, 733 N.W.2d at 696; see also
Iowa Code § 598.41(3) (2013).
The district court found Melissa to be the children’s primary caregiver
throughout the marriage, with the exception of the fall of 2013 when they stayed
in Iowa with Josh. Josh does not argue to the contrary. Instead, he claims
Melissa’s hostile behavior entitles him to an award of physical care.3
3 Josh compares his situation to In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996) (finding mother’s “contentious disposition and hostile temperament incompatible” with an award of physical care). We do not believe Melissa’s conduct toward the children can be aptly compared to the mother in Kunkel. Moreover, it is important to remember in custody determinations, “[p]rior cases have little precedential 6
It is true that, at points during the divorce case, Melissa has acted poorly.
Her texts and telephone calls to Josh have been demeaning and profanity laced.
In December 2013, Melissa appeared unannounced at the home of Josh’s
parents, demanding to take the children back to Arizona with her. The Johnson
County Sheriff’s Department had to be called to defuse the situation. When she
regained care of the children, she was ungenerous with visitation time. Under
the temporary decree, Josh flew to Arizona every other weekend to visit the
children. His flight always left Monday morning, but on all but one occasion,
Melissa refused to allow him to spend time with the children on Sunday evening
after the visitation was officially over.
But neither has Josh covered himself with glory during the separation and
divorce case. Josh filed for divorce without any forewarning to Melissa, when
she believed he was planning to rejoin her in Arizona. And in doing so he
engaged in a scheme to remove the children from Melissa’s care. His secretive
behavior signals he would not be supportive of the children’s relationship with
Melissa nor would he communicate effectively with her regarding joint parenting
decisions. See Iowa Code § 598.41 (providing that when deciding custody
issues, court is to consider “[w]hether each parent can support the other parent's
relationship with the child”). Josh also showed a lack of cooperation when he
transported the girls to Arizona following entry of the temporary decree and failed
value, and we must base our decision primarily on the particular circumstances of the parties presently before us.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004). 7
to cover their belongings, allowing them to become soaked and filthy from the
drive.
While neither parent has been a saint, the hostility between them is not
beyond the “usual acrimony that accompanies a divorce.” See In re Marriage of
Gensley, 777 N.W.2d 705, 715 (Iowa Ct. App. 2009). We do not find that
Melissa’s outlook or conduct since the initial separation disqualifies her from
providing quality physical care. As the district court emphasized, Melissa has
been the children’s primary caregiver for most of their lives. Approximating that
pattern of care will enhance the children’s stability after their parents’ divorce.
See Hansen, 733 N.W.2d at 696–97.
Josh also points to his large extended family in Iowa as a consideration in
deciding physical care. The district court addressed this claim: “I am not
unmindful of the fact that Josh has a loving and extended family. However, I do
not find that Josh’s extended family or Melissa’s lack of extended family in
Phoenix should be the deciding factor in deciding primary physical care.” We
agree with the district court’s assessment. While strong family support is
undeniably important, it is not dispositive of our analysis. We are confident
Melissa can fulfill the role of the physical-care parent and the children will have
the opportunity to interact with Josh’s extended family members during visitation
times. 8
IV. Appellate Attorney Fees
Melissa asks for appellate attorney fees. Appellate attorney fees are not a
right, but instead rest in our discretion. In re Marriage of Okland, 699 N.W.2d
260, 270 (Iowa 2005). “Specifically, 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 trial court’s decision on appeal.” In re
Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Because Melissa was
obligated to defend the physical care arrangement on appeal and, based on their
relative annual incomes, has less ability to pay than does Josh, we opt to award
her attorney fees. But Melissa has not provided an affidavit of attorney fees with
documentation to support her request. Therefore, we remand to the district court
to enter judgment against Josh in a reasonable amount. See Markey v. Carney,
705 N.W.2d 13, 26 (Iowa 2005) (allowing amount of appellate attorney fees to be
determined in the first instance in the district court because of the necessity for
making a record).
We order Josh to pay the costs of the appeal.
AFFIRMED AND REMANDED.