Jacob Emory Tripp v. Mallory Anne Jensen

• Court: Court of Appeals of Iowa
• Decided: December 18, 2024
• Docket: 24-0779
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0779 Filed December 18, 2024

JACOB EMORY TRIPP, Petitioner-Appellant,

vs.

MALLORY ANNE JENSEN, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Rustin

Davenport, Judge.

Jacob Tripp appeals the physical care provisions of the district court’s

custody decree. AFFIRMED.

Jesse Marzen of Marzen Law Office, P.L.L.C., Waverly, for appellant.

William P. Baresel of Walk, Prichard, Baresel & Murphy, PC, Charles City,

for appellee.

Considered by Tabor, C.J., and Chicchelly and Sandy, JJ. 2

SANDY, Judge.

“Unfortunately, child custody disputes are often hotly-contested, bitter

affairs in which the innocent children in issue suffer as confused and unwilling

pawns.” In re Custody of Peal, 290 S.E.2d 664, 645 (N.C. 1982). This case is no

exception.

Jacob Tripp appeals the district court’s custody decree granting Mallory

Jensen physical care of their minor son. Tripp contends the district court erred in

its physical care determination, arguing it is not in the child’s best interests for

Jensen to have physical care.

Upon our de novo review of the record, we affirm.

I. Background Facts and Proceedings

Tripp and Jensen first met in 2015, a time during which both were struggling

with substance-use issues. They both eventually achieved sobriety and have

commendably maintained sobriety for a number of years. In 2018, they began

what Jensen described as a “rocky” romantic relationship. A year later, Jensen

and her minor son from a previous relationship—E.J.—moved into a house in

Mason City with Tripp. Tripp and Jensen were never married.

Shortly after moving in with Tripp, Jensen began to have doubts about the

long-term outlook of their relationship. According to Jensen, her doubts were

fueled by the fact that Tripp and E.J. weren’t getting along well. E.J. has several

significant behavioral and developmental issues that cause him to act aggressively

and violently towards others.1 In Jensen’s words, the early days of living with Tripp

1 Due to E.J.’s behavioral and developmental issues, Jensen consented to her

parents obtaining a guardianship of him. 3

involved “a lot of me having to intervene between Jacob and [E.J.] because [Tripp]

would yell at him or try to physically discipline him, and I would have to be the

buffer in between the two of them.” The record discloses that Tripp once spanked

E.J. to the point of leaving a “raised hand welt” on his back. This led to a confirmed

child abuse report. Tripp denies causing the mark on the child’s back, instead

suggesting the welt was caused by E.J. falling on a toy. Jensen’s initial plan was

to move out of the house once the lease ended.

But Jensen’s plans to move out were upended when she and Tripp

conceived a son. Their son C.T.—the child at issue in this appeal—was born in

the summer of 2020. After C.T.’s birth, Jensen decided to continue living with

Tripp. However, their relationship did not improve. Jensen grew frustrated that

she performed the majority of caretaking duties for C.T. During the time she lived

with Tripp, Jensen worked part time, cared for the children, and attended nursing

school. Tripp was employed and worked during the day. In Jensen’s words, “I did

all the cleaning. I did all the cooking. I did some of the lawn mowing, never the

snow blowing. He did occasionally help fold laundry.”

Tripp has a different recollection of the division of labor. In his view, he and

Jensen split caretaking duties relatively equally. According to him, with “[c]ooking

we took turns; but there was not a whole lot of cooking in the house. It was

normally ordering out. Dishes, we took turns washing dishes, doing dishes. Doing

laundry, Mallory did most of the laundry; but folding laundry, I helped with that.”

But a friend—who lived with Tripp and Jensen from early 2020 to June 2021— 4

confirmed that Jensen was C.T.’s primary caretaker.2 As he put it, “Mallory, she

worked hard. She was going to school. She took care of the kids. She made

dinner. She did all the—pretty much everything.”

Jensen moved out in November 2021. She then moved in with her parents,

taking E.J. and C.T. with her. Jensen explained that she moved out: “I was trying

to go to school, I was trying to take care of an emotionally unstable child, and I was

trying to take care of a home.” She added, “[a]nd you know, I’d had several

conversations with Jacob that if things didn’t improve, that I was going to have to

move in with my parents.” Jensen maintains she primarily lived with her parents

until her relationship with Tripp ended in May 2023. However, she admitted that

she often stayed two nights per week at the home in Mason City with Tripp even

after she moved out. She also admitted to keeping furniture and some of her

personal belongings at the home in Mason City. While Jensen lived with her

parents, Tripp would often visit C.T. on weekends.

Although Tripp and Jensen lived apart for nearly two years, their relationship

did not end until May 2023. On May 5, Tripp was under the impression he was

going to attend a family counseling session with Jensen and E.J. Due to E.J.’s

behavioral issues, Tripp and Jensen regularly attended family counseling sessions

with him. According to Tripp, he showed up at E.J.’s counseling center, but Jensen

and E.J. weren’t there. Tripp called and texted Jensen several times but did not

receive a response. Eventually, Tripp decided to leave the counseling center and

2 Tripp was the friend’s Alcoholics Anonymous sponsor and invited him to move

into the home. However, Tripp eventually kicked the friend out of the house after the friend disclosed that he developed feelings for Jensen. 5

drive back to his house. As he was leaving the parking lot, he saw Jensen driving

toward him in her minivan. Tripp pulled over on the side of the road and got out of

his vehicle. He then alleged, “[s]o I stopped in the road, got out, and was waiting

for her. And when she hit the gas, she never stopped. She hit me and kept on

going.” Jensen denies hitting Tripp with her vehicle. Instead, she asserted Tripp

flung himself into her vehicle.3

Regardless of what really happened, the police were called to the scene.

After they arrived, they spoke briefly with both parties. No charges were filed

following this incident.4 An Iowa Department of Health and Human Services (HHS)

report documenting the incident notes no charges were filed because the police

did not find Tripp’s allegations believable. After speaking with Tripp and Jensen,

the police escorted both to Tripp’s home in Mason City. Jensen, with the police

supervising, grabbed her remaining personal items in the home and left. Both

parties agreed that their relationship ended on this day.

On May 8, Tripp filed a petition for custody, visitation, and child support. In

his petition, Tripp requested that he be granted sole legal custody and physical

care of C.T. In her answer, Jensen requested she be granted sole legal custody

and physical care of C.T. The district court subsequently entered a temporary

order addressing custody. In its order, the district court provided the parties would

have joint legal custody and joint physical care of C.T. The parties were given the

option to create their own schedule for exercising physical care. But in the event

3 The record reveals C.T. was in Jensen’s vehicle when it struck Tripp. 4 After this incident, Jensen filed a petition for relief from domestic abuse. This petition was later dismissed. 6

the parties could not come to an agreement, Tripp and Jensen were to rotate

physical care on a weekly basis.

Prior to the custody trial, Tripp and Jensen utilized the parenting schedule

set by the district court in its temporary order. The record indicates C.T. did well

under the care of both parties. When C.T. was in Tripp’s care, Tripp would

frequently involve C.T. in activities he organized within the substance-use-

recovery community. Tripp is very active within this community and takes his

sobriety seriously. He frequently organizes events such as cookouts. These

events provided excellent opportunities for C.T. to socialize because other children

would often be present. The record reveals Tripp does an excellent job of meeting

C.T.’s basic needs and that the two have a close bond.

The record also demonstrates Jensen is a good mother to C.T. As even

Tripp admits, Jensen is capable of providing for C.T.’s needs. Jensen is currently

working full-time as a registered nurse. In July 2023, Jensen moved out of her

parents’ house and into a home in Mason City. Around this same time, Jensen

began a relationship with Paul Gonzalez. Gonzalez subsequently moved in with

Jensen in September 2023. They are currently dating and are expecting a child

together. Jensen’s relationship with Gonzalez has caused friction in her

coparenting relationship with Tripp. But the record indicates C.T. has a close bond

with Jensen and Gonzalez.

While C.T. was well cared for under the temporary physical care

arrangement, drama was not lacking between Tripp and Jensen. Tripp alleges

that when C.T. returns from Jensen’s care that he is “not his normal self.” Tripp

added C.T. has “a big behavioral problem when he comes back.” Tripp also 7

introduced several audio and video recordings into evidence at the custody trial,

which indicate C.T. is unhappy living with Jensen and Gonzalez. In one clip, C.T.

is heard saying Gonzalez “fights with me and my mom.” In a later audio recording,

C.T. says to Tripp that Gonzalez “is being naughty” because “he’s in trouble.”

Additionally, Tripp alleges that Gonzalez has been aggressive with him during child

drop offs. Gonzalez denies ever becoming aggressive with Tripp.

Jensen also reports behavioral problems with C.T. after he returns from

Tripp’s care. She alleges C.T. frequently says concerning things when he returns

to her house. As she put it, C.T. will often say:

That Daddy tells him to be naughty at Mommy’s house or he’ll get in trouble. Most recently he told [his therapist] that he was supposed to start biting at our house. He has told him that Mommy’s a bad mommy. [C.T.] has recently said that his dad told him that he’s taking him to a school far away.

Jensen’s allegations on this issue were confirmed by her and C.T.’s therapist—

Steve Kaduce. Kaduce has been seeing C.T. and Jensen for family therapy for

roughly a year and a half. According to Kaduce, C.T. would often say negative

things about Jensen during therapy sessions. He would also hit her. Kaduce

added:

We would talk in therapy about [C.T.] hitting his mother when he came back from visits with his father. And there would a two-, three- day period where he would say mean things to his mother and hit her; and then we would talk about it in session, [C.T.] say, “My Mommy is bad” and that “Daddy would like to me say bad things about my mom” and that “her boyfriend, Paul is a bad man” and that “Paul threw my daddy down and stomped on his head” and that “someday my daddy’s going to get custody of me, and just my daddy and I are going to live together. We don’t have to see Mommy anymore.” 8

Kaduce testified that during numerous sessions C.T. would hit and say mean

things to Jensen. However, a few minutes later, C.T. would be very affectionate

toward her. Additionally, Kaduce testified C.T. admitted he does not like being

caught in the middle of Tripp’s and Jensen’s fighting. C.T. also told Kaduce that

he does not like hearing Tripp say negative things about Jensen. Additionally, C.T.

told Kaduce that Tripp encourages him to say negative things about Gonzalez. In

Kaduce’s opinion, Tripp was coaching C.T. to misbehave when he was in Jensen’s

care.

Additionally, Jensen introduced into evidence several audio recordings of

phone conversations between she and Tripp. During one phone call, C.T. can be

heard in the background asking Jensen if she wants to live with Tripp. Jensen

responded that she did not. Tripp then proceeded to say—in front of C.T.—that

the reason Jensen does not live with them is because she no longer loves him and

instead loves Gonzalez. Jensen immediately asked Tripp to stop saying these

things because C.T. could hear their conversation.

The district court held a two-day custody trial in January 2024. As the

district court thoroughly explained in its custody decree, it determined that Tripp

and Jensen would have joint legal custody of C.T. As for physical care, the district

court expressed reservations about granting it to either party. As the district court

put it, “[b]oth parties also come with notable downsides to choosing them for

primary placement.” However, the district court granted Jensen physical care of

C.T. because it found she had historically performed the primary caretaker

functions and was more capable of fostering a positive relationship between the

child and the other parent. 9

Tripp now appeals.

II. Standard of Review

Our standard of review in child custody matters is de novo. In re Marriage

of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). “We give weight to the findings of

the trial court, which had an opportunity to view the demeanor of the witnesses

when testifying.” Id. But we are not bound by the district court’s findings. In re

Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).

III. Analysis

When making physical care determinations, our primary concern is the best

interests of the child. In re Marriage of Weidner, 338 N.W.2d 351, 355 (Iowa 1983).

“The objective of a physical care determination is to place the child[] in the

environment most likely to bring them to health, both physically and mentally, and

to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Because the parents never married, this action is governed by Iowa Code

chapter 600B (2023). However, when determining custody and physical care, we

still consider the nonexclusive factors set forth in section 598.41(3) to determine

the physical care arrangement that will be in the best interests of the child. See

Iowa Code § 600B.40(2); Hensch v. Mysak, 902 N.W.2d 822, 825 (Iowa Ct. App.

2017). When joint physical care is not appropriate, “the factors of continuity,

stability, and approximation are entitled to considerable weight.” Hansen, 733

N.W.2d at 700.

With these principles in my mind, we turn to Tripp’s argument on appeal.

Tripp contends the district court erred in determining it was in C.T.’s best interests

to grant Jensen physical care. He asserts the evidence demonstrates he can offer 10

C.T. more stability because he lives in the “same home the child has always

known.” Additionally, he points out that he has worked with the same employer for

a significant period of time. He argues Jensen cannot offer C.T. the stability he

needs to flourish because she moved out of the child’s initial home and started a

new relationship with another man. He also asserts the district court improperly

relied on the fact that Jensen was historically the primary caretaker in reaching its

determination. He contends Jensen was only the primary caretaker because of

her lack of employment when C.T. was born. We disagree and find granting

Jensen physical care is in the child’s best interest.

We start our analysis by acknowledging that Tripp is correct that stability of

the child’s home environment is an important consideration in determining a

physical arrangement. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa

Ct. App. 1998) (noting minimal changes in a child’s physical environment promotes

emotional stability). And there is little doubt Tripp can offer a more stable home

environment for C.T. He lives in the home the child initially grew up in. Conversely,

Jensen has moved several times since her relationship ended with Tripp.

However, some of her recent moves were related to her breakup with Tripp. And

from the record, it appears she has lived in the same home since July 2023. Thus,

we are not convinced this factor counsels against the district court’s decision to

grant Jensen physical care. See Willenbring v. Roepcke, No. 05-1261, 2006 WL

624578, at *3 (Iowa Ct. App. Mar. 15, 2006) (noting the district court did not err by 11

granting mother physical care because her recent moves were related to her

separation from the father).5

Tripp is also correct that economic stability is an important consideration in

determining a child’s best interests. See In re Marriage of McDermott, No. 03-

1723, 2004 WL 1853927, at *2 (Iowa Ct. App. July 14, 2004) (noting a child’s

“physical and financial stability are clearly important considerations”). Tripp has a

history of greater economic stability because he has maintained employment at

the same company since C.T.’s birth. In contrast, Jensen has had far less

economic stability. However, this is primarily attributable to the fact she attended

nursing school and cared for two children during her relationship with Tripp.

Jensen has since graduated from nursing school and is employed full-time as a

registered nurse. We find this factor does not cut against the district court’s

decision to grant Jensen physical care. See Willenbring, 2006 WL 624578, at *4

(finding a mother’s unstable employment history did not weigh against granting her

physical care because she was caring for a sick relative and had plans to go back

to school).

Putting aside Tripp’s stability arguments, our law has placed a greater

emphasis on which party has historically served as the child’s primary caretaker.

See Williams, 589 N.W.2d at 762 (“[O]ur case law places greater importance on

the stability of the relationship between the child and the primary caregiver over

5 To the extent Tripp suggests Jensen’s relationship with Gonzalez should prevent

her from being granted physical care, we reject this argument. There is no evidence in the record demonstrating Jensen’s relationship with Gonzalez impairs her ability to care for C.T. See Willenbring, 2006 WL 624578, at *3 (noting a mother’s relationships did not counsel against granting her physical care because there was no evidence those relationships affected her ability to care for the child). 12

the physical setting of the child.”); see also In re Marriage of Fennell, 485 N.W.2d

863, 865 (Iowa Ct. App. 1992) (“[C]onsideration is given in any custody dispute to

allowing the children to remain with a parent who has been a primary caretaker so

as to enable the children to have continuity in their lives.”). The record reflects the

role of primary caretaker was filled by Jensen. She served in this role despite

working part time and attending nursing school. This factor strongly weighs in

favor of the district court’s decision to grant Jensen physical care.

Finally, the district court’s assessment that Tripp has struggled to foster a

positive relationship between C.T. and Jensen is fully supported by the record.

C.T. admitted to his therapist that Tripp encourages him to misbehave when he is

in Jensen’s care. C.T. also told his therapist that Tripp encourages him to say

negative things about Jensen and Gonzalez. Additionally, there is evidence in the

record establishing that Tripp has inappropriately directed negative remarks at

Jensen in front of C.T. In one instance, Tripp essentially blamed Jensen for

breaking up their family. These actions by Tripp are inappropriate, especially given

C.T.’s age. The fact that Tripp cannot set aside his frustrations with Jensen to

promote a healthy relationship between she and C.T. weighs in favor of the district

court’s decision. See Widdel v. Kannegieter, No. 09-0436, 2009 WL 5125774,

at *4 (Iowa Ct. Dec. 30, 2009) (finding the district court properly granted physical

care to the father because the mother could not put aside her anger toward him,

which prevented her from fostering a positive relationship between the child and

him).

Accordingly, we find the district court appropriately granted Jensen physical

care of the child. 13

VI. Conclusion

We affirm the decision of the district court, finding it did not err by placing

the child in the physical care of his mother.

AFFIRMED.