In Re the Marriage of Linda Elizabeth Rossow and Daniel Michael Rossow Upon the Petition of Linda Elizabeth Rossow, and Concerning Daniel Michael Rossow

• Court: Court of Appeals of Iowa
• Decided: August 16, 2017
• Docket: 16-2101
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-2101 Filed August 16, 2017

IN RE THE MARRIAGE OF LINDA ELIZABETH ROSSOW AND DANIEL MICHAEL ROSSOW

Upon the Petition of LINDA ELIZABETH ROSSOW, Petitioner-Appellant,

And Concerning DANIEL MICHAEL ROSSOW, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, David M. Porter,

Judge.

Linda Rossow appeals the physical-care provisions of the decree

dissolving her marriage to Daniel Rossow. AFFIRMED.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Eric G. Borseth of Borseth Law Office, Altoona, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

MULLINS, Judge.

Linda Rossow appeals the physical-care provisions of the decree

dissolving her marriage to Daniel Rossow, which ordered physical care of the

parties’ children with Daniel. We affirm.

I. Background Facts and Proceedings

Linda, born in 1986, and Daniel, born in 1980, met in 2005 and married in

2007. The parties have three children, born in 2007, 2009, and 2011. It was the

first marriage for both parties. Linda and Daniel began living together in Chicago.

They moved to Des Moines in 2009, moved back to Illinois for about a year, and

then moved permanently to Iowa in 2011. Both parties live, and the children

attend school, in Des Moines.

During the marriage, Linda obtained two bachelor’s degrees and a

master’s degree in “K through 12 school counseling.” Linda works as a ninth

grade teacher at Lincoln Rails Academy, where she earns $57,000 per year.

Daniel obtained an associate of arts degree, and he planned to get a four-year

degree. Daniel was interested in attending medical school after obtaining his

four-year degree. Daniel worked for Goodwin Tucker, Dish Network, and Life

Time Athletic during the marriage. The record reflects most of Daniel’s

employment changes were precipitated because Daniel’s work schedule was not

conducive to the family’s schedule.1 He currently works at Athene Annuities,

Inc., where he earns $30,000 per year.

1 For instance, when Daniel worked at Life Time Athletic, he was scheduled to work on weekends when he “was supposed to be having visitation with the children, so [he] quit there to get a job that better accommodated the visitation schedule.” In addition, Daniel 3

Throughout the marriage, in part due to Linda’s education and

employment endeavors, Daniel was responsible for the majority of the children’s

day-to-day caregiving and household tasks. It is apparent, however, that both

parties were greatly involved in the children’s lives. Daniel’s father, Michael, also

provided care for the children on a regular basis, at least three times each week.

Problems between the parties escalated in December 2015, when Daniel

acknowledged the parties’ relationship was deteriorating and told Linda he

wanted to get divorced. They attended counseling sessions. Linda was angry

and “blindsided”; she filed a petition for dissolution of marriage on January 5,

2016. Two days later, Linda filed a petition for relief from domestic abuse,2

alleging Daniel “threatened to hurt me, take assets, has a handgun, has held me

down with in the past”; Daniel was “displaying erratic behavior,” “screaming” at

her, Daniel had engaged in “past physical abuse,” emotional abuse and distress”;

Daniel did “not value the children’s lives”; and the department of human services

(DHS) “deemed home unsafe because of” Daniel.3 The district court entered a

temporary protective order that same day.

On February 23, 2016, a temporary order was entered upon agreement of

the parties, awarding Linda possession of the marital home and physical care of

the children. Daniel was ordered to not enter the marital home without Linda’s

worked for Dish Network after Goodwin Tucker, until Dish Network cut his hours “to a point where it wasn’t a viable job anymore,” so Daniel went back to Goodwin Tucker. 2 Despite having filed a petition for dissolution of marriage two days prior, Linda answered “No” to the question, “Has there ever been any court case concerning custody of the minor children you have in common with the defendant . . . .” 3 In December 2015, Linda told her therapist Daniel had been abusive toward her; the therapist reported the allegation to DHS, and a child protective services family assessment was initiated. The assessment did not result in any further action taken on behalf of the agency. 4

permission. Daniel was awarded visitation Sunday afternoons and Tuesdays

after school until 8:00 p.m. until he got an apartment, at which time he was

awarded visitation every other weekend and one night during the week. The

temporary order also contained a “mutual order of restraint” between the parties.

As a result of that agreement, the petition for relief from domestic abuse and

temporary order were dismissed.

Trial took place in August 2016. The main issue before the court was

which party would receive physical care of the children. Linda appeared pro se

and testified on her own behalf. She testified at length about her “reputation,”

work history, and her ability to provide for the children. Linda testified she never

wanted to move to Iowa and she only moved because Daniel wanted to. Linda

discussed her numerous family members and friends in Chicago, and she

testified her parents had offered to give her their five-bedroom house in Chicago

to live with the children. Linda stated the house was in “an excellent school

district” in a “fantastic suburb, very diverse.” According to Linda, “pending [she]

can get a job” in Chicago, she was “looking at doubling [her] salary.” Linda

requested the court allow her to move to Chicago with the children at the end of

the 2016–2017 school year. She stated she “will be very fair with visitation.” She

proposed that Daniel move to Chicago and have visitation with the children every

other weekend. In the alternative, if Daniel did not move to Chicago, Linda

proposed she meet him in Davenport with the children “once a month for a whole

weekend.”

During her direct testimony, Linda did not testify as to specific examples of

the “abuse” she alleged Daniel had perpetrated (“I would be reliving the trauma”), 5

but she stated she had spent the last eight months in therapy “to try to get over

that trauma.” On cross-examination, Linda stated Daniel threw a dish at her

when she was pregnant with their youngest child and he had held her down with

a gun five or six years prior. Linda acknowledged she never called the police to

report the incidents. Linda acknowledged she told the DHS service provider she

did not believe Daniel “would do anything to hurt the children.”

Linda also made references to pornography she found on Daniel’s

computer and stated she was concerned Daniel had sexually abused the

children, but when she was questioned further by the court, Linda retracted,

stating, “I’m not making any allegations.” Linda acknowledged she had taken the

parties’ two daughters to therapy at two different centers (without notifying

Daniel)4 to explore her concerns of sexual abuse by Daniel, but she had “stopped

taking them.” During the trial, Linda was found in contempt of court due to her

repeated inability to follow the court’s directions regarding trial procedure; she

refused to allow the witnesses to answer her questions and did not allow Daniel’s

attorney to complete his questions.

Daniel testified, and he presented testimony from his father, Michael, and

the children’s elementary-school crossing guard. Daniel denied having engaged

in any kind of abuse toward Linda or the children. According to Daniel, the only

thing he had threatened Linda with was legal action. Daniel testified, “[T]he last

eight months have been literally the most difficult time in my entire life” and, “I

can’t even imagine what it’s like [for the children].” Daniel believed the children

4 Daniel testified he “wouldn’t have had any objection” to the children going to a counselor, but he was upset he had not been included. 6

should stay in the family home and continue attending their current school in Des

Moines because they had established “friendships there, a life there.” Daniel

testified his father had a “very strong” relationship with the children and had been

“integral in helping [he and Linda] take care of the kids since they were born.” In

contrast to Linda’s testimony, Daniel stated Linda did not have a close

relationship with her family, and that during the parties’ marriage, Linda’s parents

had visited the family “once.” Daniel testified he had recently resurrected a

relationship with his mother, from whom he had become estranged during the

parties’ marriage due to a dispute between his mother and Linda, after which

Linda had “made it pretty clear [she] didn’t want [Daniel’s] mother in [their] lives.”

Daniel believed it would place a “big challenge” on his relationship with the

children if the children moved to a different state and that such a move would

have a “very negative effect” on the children. With regard to his relationship with

Linda, Daniel testified he “can work with her” to co-parent, and that he was able

to create a stable environment for the children.

In November 2016, the district court entered its decree, ordering joint legal

custody of the children and physical care to Daniel with liberal visitation to Linda

(as the parties agreed or, if unable to agree, every other weekend and one

weeknight per week). The court ordered Linda to pay child support in the amount

of $958.25 per month. The court distributed the marital assets5 and declined to

award either party attorney fees. Linda appeals, seeking physical care of the

5 In part, the court awarded Daniel the marital home and ordered him to make an equalization payment to Linda in the amount of $5000—a setoff of Daniel’s share of Linda’s IPERS account from Linda’s share of the net equity in the home. 7

children. Daniel resists, and both parties seek an award of appellate attorney

fees.

II. Scope and Standard of Review

We review dissolution cases, which are tried in equity, de novo. Iowa R.

App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483–84 (Iowa

2012). While we give weight to the factual findings of the district court, especially

when considering the credibility of witnesses, we are not bound by them. Iowa

R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must

depend on the facts of the particular case.” In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007) (citation omitted).

III. Physical Care

Linda appeals the district court’s decision placing the children in Daniel’s

physical care. At trial, both parents requested physical care, and neither

requested shared physical care in the alternative.6 “Physical care” involves “the

right and responsibility to maintain a home for the minor child and provide for the

routine care of the child.” Iowa Code § 598.1(7). We consider a number of

factors in determining which parent should have physical care of a child. See id.

§ 598.41(3); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). The

fundamental goal in determining physical care of a child in an action for

dissolution of marriage is to place the child in the care of the parent who will likely

accommodate the long-range best interests of the child. Winter, 223 N.W.2d at

6 The court must consider joint physical care if requested by either party, see Iowa Code § 598.41(5)(a) (2015). Here it was not. Although in his answer Daniel requested shared physical care, or in the alternative, physical care with him, he abandoned the request for shared physical care at trial. 8

167. “[T]he basic framework for determining the best interest of the child” is well

established. In re Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007); see

Iowa Code § 598.41. Generally, stability and continuity of caregiving are

important considerations. Hansen, 733 N.W.2d at 696. Finally, “[t]he 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. at 695.

Linda contends she should be awarded physical care of the parties’

children. To support her contention, Linda claims: the district court provided “no

findings of fact” supporting its physical-care decision but for its finding that Linda

would potentially deny the children’s opportunity for maximum continuing contact

with Daniel; the court’s conclusion that she would potentially deny the children’s

opportunity for contact with Daniel “is not supported by the record and wrong”;

and placing the children in her physical care is in the children’s best interests,

whereas placing the children in Daniel’s physical care is not in the children’s best

interests. In sum, Linda asserts the record does not support the district court’s

order of physical care to Daniel.

The court set forth the following finding supporting its order of physical

care of the children with Daniel:

Of paramount concern for this court is the potential for denial by Linda of the children’s opportunity for maximum continuing contact with Daniel, without just cause. Accordingly, the court finds this decree provides the children with the best opportunity for the maximum continual physical and emotional contact with both parents, and will encourage the parties to share the rights and responsibilities of raising the minor children.

(Citation omitted.) 9

“The parent awarded physical care is required to support the other

parent’s relationship with the child.” Hansen, 733 N.W.2d at 700 (citing Iowa

Code § 598.41(5)(b) (“The court shall consider the denial by one parent of the

child’s opportunity for maximum continuing contact with the other parent, without

just cause, a significant factor in determining the proper custody arrangement.”)).

“In making this decision, the factors of continuity, stability, and approximation are

entitled to considerable weight.” Id.

On our de novo review, we find the physical care determination is

supported by the parties’ respective past history of caregiving and the desire for

continuity and stability in awarding physical care to Daniel. Daniel was primarily

responsible for the children’s care prior to the parties’ separation. The children

were described as “intelligent” and involved in a number of activities, including

football, dance, soccer, Girl and Boy Scouts, and religious education. The

crossing guard at the school described the children as “very well-mannered” and

“always dressed appropriately for the weather.” She testified Daniel walked the

children across the street “[e]veryday,” the children always stayed right by him,

and he “was always early.” Daniel testified he felt it was important for the

children to remain in the school district “to keep from upsetting what they’ve

established so far as much as possible.” Daniel’s father, Michael, was a key

figure in the children’s lives. Michael supported Daniel as the children’s primary

caretaker and testified he believed Daniel would work with Linda to co-parent the

children effectively. The record shows Daniel has tried to work together with

Linda to resolve issues in the best interests of the children. 10

In contrast, Linda’s testimony and journal entries7 can only support the

conclusion that Linda has no desire to co-parent with Daniel or support Daniel’s

role as the children’s father. For instance, in her journal, Linda wrote she wanted

to get “[a]way from Daniel who tells the kids he is well, but he is not,” and:

I want to win on Tuesday and get away from him. The kids will get away from him. Know that is horrible to say. I shouldn’t talk that way, but given he is a sick person. . . . I really want the kids to love their dad, but I hate him and I will take the kids and get away from him.

At trial, when discussing possible visitation schedules for Daniel upon her

proposed move to Chicago, Linda stated, “[O]ther than [Daniel] moving out

there—which, quite honestly, I don’t see happening—I would be willing to meet

him in Davenport once a month for a whole weekend.” (emphasis added).

Linda’s actions also speak to her intent. When Linda registered the

children for the 2016–2017 school year she did not provide the school with

Daniel’s information as a parent. Linda did not inform Daniel when she took the

children’s daughters to therapy. Linda cancelled Daniel’s cell phone in

December 2015 and his debit card in January 2016. She also removed Daniel

from her health insurance, despite the temporary order directing her to continue

Daniel on her insurance. Linda left with the children for hours on end and

avoided Daniel’s questions regarding their whereabouts when she knew he was

planning on spending time with the children.

We are aware Linda’s behavior during these proceedings was likely more

extreme given the hostility she garnered toward Daniel after he presented her

with the topic of divorce. But the cynical—if not cryptic—nature of her actions

7 Linda submitted her journal entries as evidence at trial. 11

and statements are deeply concerning when considering whether Linda is

capable of separating her personal animosity toward Daniel to act in the best

interests of the children. In contrast, the court clearly found Daniel’s testimony

credible that he tried to remain positive and supportive about Linda in front of the

children.

The overriding concern is the best interests of the children. Iowa R. App.

P. 6.904(3)(o); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). We

conclude it is in the children’s best interests to be placed in the physical care of

Daniel. Upon our de novo review of the record and the nonexclusive factors set

forth in section 598.41 and Iowa law, along with a careful study of the issues

raised by Linda on appeal, we affirm the physical-care decision made by the

district court.

IV. Attorney Fees

Both parties seek attorney fees for this appeal. An award of appellate

attorney fees is not a matter of right but rests within this court’s discretion. In re

Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining

whether to award 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 district court’s decision on appeal. Id. In

consideration of these factors, we decline to award appellate attorney fees to

Linda, and we award appellate attorney fees to Daniel in the amount of $2000.

Costs on appeal are assessed to Linda.

AFFIRMED.