Maryann Ida Cutshall v. Gage Joseph Olson

• Court: Court of Appeals of Iowa
• Decided: August 21, 2024
• Docket: 23-1801
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1801 Filed August 21, 2024

MARYANN IDA CUTSHALL, Plaintiff-Appellee,

vs.

GAGE JOSEPH OLSON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Butler County, Gregg R. Rosenbladt,

Judge.

A father appeals a district court ruling placing the parties’ children in the

mother’s physical care. AFFIRMED.

Elizabeth M. Wayne, Parkersburg, for appellant.

John J. Wood of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C.,

Waterloo, for appellee.

Considered by Badding, P.J., Langholz, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024). 2

BADDING, Presiding Judge.

In its ruling placing the parties’ two minor children in the physical care of

their mother, Maryann Cutshall, the district court noted: “This is a case where the

Court has very much considered granting shared physical care of the children.”

But three concerns tipped the scales for the court: (1) an incident where the father,

Gage Olson, spanked the oldest child and left a bruise; (2) marijuana and drug

paraphernalia found in Gage’s home; and (3) Gage’s less-structured approach to

parenting. Gage appeals, claiming those concerns should not have outweighed

all the other factors that favored his request for joint physical care. Giving “careful

consideration to the district court’s findings” in this close case, we affirm upon our

de novo review of the record. See In re Marriage of Reed, No. 09-0029, 2009

WL 4122884, at *6 (Iowa Ct. App. Nov. 25, 2009).

Gage and Maryann are the parents of two young children—I.O., born in

2018, and D.O., born in 2020. They dated for five years but never married. Soon

after D.O.’s first birthday, Gage and Maryann ended their relationship. They

alternated weeks with the children without court involvement. But in

September 2022, Maryann became concerned about the children’s safety in

Gage’s care and petitioned to establish custody, visitation, and child support.

Maryann’s petition was prompted by two encounters with the Iowa

Department of Health and Human Services. In February, Gage told Maryann that

the parties’ oldest child was not listening to him and being naughty. He got

frustrated and spanked her too hard, leaving a bruise on I.O.’s bottom. The child’s

daycare provider contacted the department. Gage told the department’s child

protective worker investigating the report that he felt terrible about what happened 3

and was not going to use physical discipline anymore. The report was confirmed

but not placed on the child abuse registry.

The department investigated another report at the beginning of

September—this time about an allegation that Gage was using and selling

marijuana. Gage denied the allegation. But a few days after the child protective

worker’s visit, the police executed a search warrant at Gage’s home. He was

arrested and charged with possession of marijuana.1 The police told the

department’s worker that they found several items in the garage with marijuana

residue, along with a vape pen used for smoking marijuana and “a ‘blunt’ style

cigarette containing a leafy substance that tested positive for marijuana.” They

also had a picture of “a large box of marijuana items” that Gage admitted had been

in his garage—although the box was not found during the search. The police told

the worker that Gage admitted on video that he was selling those drug items for

extra income.

This time, the department’s report was founded, and Gage voluntarily

participated in services. He submitted to random drug tests, all of which were

negative. Gage also obtained a substance-use evaluation that did not recommend

any treatment. And he participated in a SafeCare program, which he explained

“helped him a lot” and taught him ways to “teach your kids, guide your kids, how

to parent your kids.”

Yet in January 2023, Gage grabbed the parties’ youngest child, D.O., by the

shirt because the child was not listening to him. D.O. jerked away from Gage and

1 Gage later pled guilty to this charge and received a deferred judgment. 4

hit the floor, leaving him with a fat lip.2 After that, Maryann asked the district court

to temporarily place the children in her physical care, while Gage sought to

continue their informal joint-physical-care arrangement. Following a hearing in

April, the court entered a temporary order placing the children in Maryann’s

physical care with visitation for Gage every other weekend and each Wednesday

evening.

Maryann sought to continue that arrangement at the trial in August. She

testified that since the temporary order, the children had settled into a good routine:

[S]ame time for bed, same time waking up in the morning. We don’t argue about waking up. We don’t argue about going to bed. They just know it’s time. Even with [Gage] having them Wednesday, they still go to bed at 8:30, keep the routine. It’s going well. They don’t argue with me as much about going to their dad’s anymore. They seem a little more excited to see him.

She felt the shorter, but more frequent, times with the children in Gage’s care were

better. When they had been alternating weeks with the children, Maryann testified

that Gage told her he felt overwhelmed.

But Gage testified that Maryann told him the same thing, recalling several

times when she called him “crying that she couldn’t handle it.” Gage was also

concerned about Maryann’s mental health. In October 2022, she was involuntarily

committed after a suicide attempt. The children were not with her when this

happened. Maryann explained that she had not been taking her medication for

her bipolar disorder. She was released after three days in the hospital and now

receives her medication by injection each month. She has regular appointments

2 Gage said this happened before he completed the SafeCare program. 5

with a physician to manage her medication and sees a therapist weekly. Maryann

described her mental health at trial as “[v]ery good” and stable.

Despite these events, each party described the other as a good parent.

They communicate well, with little conflict, and live within ten or fifteen minutes of

one another. Maryann owns a four-bedroom home on an acreage, while Gage

has a three-bedroom home in town. They use the same daycare for the children,

and they agree about where the children should attend school. While Maryann

schedules most of the children’s appointments, she keeps Gage informed about

them and they attend some together.

In its custody ruling, the district court noted these positive factors supporting

Gage’s request for joint physical care of the children. But, finding Maryann to be

“very credible,” the court highlighted “several concerns which point away from

shared physical care”:

[Maryann] comes across as being very organized and routined. She seems to place the interests of the children in a primary position. She has regular work hours more conducive to dropping off the children in the morning. She has made arrangements to enroll the older child in preschool. While she has had some mental health challenges in the past, it appears that she is very stable now and is involved with medication and ongoing therapy. [Maryann] seems to have a very even and patient approach to parenting and is quite willing to work with and coparent with [Gage]. Importantly, there are no concerns with abuse of the children or with substance abuse on her part. The Court, after observing her testimony, concluded that she was very invested in the children and interested in having a routine for them and was very conscientious about covering their financial needs and appointments and school needs.

While the court found Gage was also a good parent, it was concerned by the

injuries the children received in his care and the marijuana in his home: “[Gage]

was generally credible, but his explanation of the drugs and paraphernalia found 6

in his home and his interactions with the police regarding the same were not

especially credible, and he seemed to be minimizing the incident somewhat.”

Unlike Maryann’s testimony about her mental health, Gage’s testimony

about the marijuana and drug paraphernalia was cagey. He first testified that “[a]ll

the police found was an empty container and a half-smoked joint. That’s all they

found, and I got arrested.” But then he acknowledged they also found “some glass

containers that contained large marijuana cigarettes” in his garage, which he told

law enforcement that he “must have forgotten about.” When asked whether he

tried to hide the marijuana and drug paraphernalia in his garage, Gage responded:

It wasn’t in my house. No, it wasn’t. Q. It wasn’t your house? A. No. Q. Whose house was it? A. It wasn’t anyone’s house. It doesn’t concern you. Q. I’m sorry? A. It got thrown away. I got rid of it. Q. Got rid of what? A. Whatever I had. Q. What did you have? A. The marijuana they found.

And when pressed, “Why did you admit to law enforcement that you were selling

drug items?” Gage answered:

Because I wasn’t. Q. But it says that you admitted to it. A. Okay. Q. What—what did you say to law enforcement? A. I told them I didn’t—I didn’t have it. Q. No. A. They didn’t find anything. They found what they found, and I went to jail. That was the end of that.

Along with its concerns about this testimony, the court found that compared

to Maryann, Gage was “less structured and organized in his approach to

parenting.” The court noted that several of Gage’s witnesses “emphasized that he

liked to ‘hang out’ a lot,” suggesting to the court that he was not as focused on

parenting as Maryann was. While the court found both parties were “good and 7

appropriate young parents overall,” after considering “the children’s best interest

and the stability and parenting of the parties,” the court determined the children

should continue in Maryann’s physical care with visitation for Gage. We agree.

Though our review of child custody rulings is de novo, we give weight to the

district court’s factual findings, especially when considering the credibility of

witnesses. McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. May 26, 2010).

This is because the court, as a “first-hand observer of witnesses, holds a distinct

advantage over an appellate court, which necessarily must rely on a cold

transcript.” In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989); accord

McKee, 785 N.W.2d at 736 (recognizing the “district court was able to listen to and

observe the parties and witnesses”). While we are not bound by the court’s

findings, in this type of close case, “we are particularly sensitive to the limitations

of the written page.” Nelson v. Wieling, No. 04-0135, 2004 WL 2002677, at *1

(Iowa Ct. App. Sept. 9, 2004).

Still, Gage argues that many of the factors we consider in evaluating

whether joint physical care is appropriate weigh in his favor. See In re Marriage of

Hansen, 733 N.W.2d 683, 697–99 (Iowa 2007) (discussing those factors); see also

Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988) (stating that for both married

and unmarried parents, we are guided by the factors set out in Iowa Code

section 598.41(3) (2022) and In re Marriage of Winter, 223 N.W.2d 165, 166–67

(Iowa 1974)); see also Iowa Code § 600B.40(2) (providing that the factors

contained in Iowa Code section 598.41(3) also apply to chapter 600B actions).

But, as Maryann asserts, these factors are not always determinative. Instead, we

“must consider the total setting presented by each unique case.” Hansen, 733 8

N.W.2d at 699. The factors outlined in Hansen “present important considerations,

but no iron clad formula or inflexible system of legal presumptions.” Id. at 700.

The overriding consideration is the best interests of the children, McKee, 785

N.W.2d at 736, and our goal is to place them “in the environment most likely to

bring them to health, both physically and mentally, and to social maturity.” Hansen,

733 N.W.2d at 695.

Deferring to the district court’s credibility findings, we find that environment

is with Maryann for the same reasons discussed by the district court. See In re

Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App. 1996) (“[I]n the end we

determine this to be a close case, for both parents love their children very much

and each is capable of providing for their long-range best interests. In situations

such as this, we note the district court had the parties before it and was able to

observe and evaluate the parties as custodians.”). This does not, however,

diminish Gage’s important role in the children’s lives or his love and devotion to

them. See Hansen, 733 N.W.2d at 705 (“[T]he quality, and not the quantity, of

contacts with the non-custodial parent are the key to the wellbeing of [the]

children.”). We affirm the district court’s decision placing the children in Maryann’s

physical care and encourage the parties to continue their positive co-parenting

relationship.

Although Maryann was successful on appeal, we deny her request for an

award of appellate attorney fees after considering her higher income and Gage’s

ability to pay. See Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005).

AFFIRMED.