Tyler Andrew Swift v. Kabra Grabill

• Court: Court of Appeals of Iowa
• Decided: May 1, 2019
• Docket: 18-1926
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1926 Filed May 1, 2019

TYLER ANDREW SWIFT, Plaintiff-Appellee,

vs.

KABRA GRABILL, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,

Judge.

The appellant appeals from the child visitation provisions of her decree with

the appellee. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

Ellen R. Ramsey-Kacena, Cedar Rapids, for appellee.

Considered by Doyle, P.J., Mullins, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

CARR, Senior Judge.

Kabra Grabill appeals from the child visitation provisions of her decree with

Tyler Swift. She asserts the district court should have granted her additional

visitation with their child, K.S. We find the district court should not have granted

Swift discretion to decide visitation with Grabill. Therefore, we reverse that part of

the order and remand for entry of an order for definite visitation with Grabill.

K.S. was born in 2012. The parties have never married. On July 28, 2017,

Swift filed his petition to establish paternity, care, and support for K.S. On

March 23, 2018, the Iowa Department of Human Services removed K.S. and two

half-siblings from Grabill’s care after police found drug paraphernalia in her home.

K.S. was later adjudicated a child in need of assistance (CINA). Meanwhile, the

district court found Grabill in default regarding Swift’s petition after she failed to

appear multiple times. On September 19, the court held a hearing on the default,

in which both parties appeared. At this time, Grabill was allowed one two-hour

supervised visit with K.S. each week for the CINA proceeding. On October 8, the

court issued the decree, which granted joint legal custody; placed physical care of

K.S. with Swift; ordered visitation with Grabill at Swift’s sole discretion upon

dismissal of the CINA proceeding, with Grabill having at least two twenty-minute

phone calls with K.S. each week; and established child support and other matters.

Grabill now appeals the visitation provisions.

We review child visitation orders de novo. Callender v. Skiles, 623 N.W.2d

852, 854 (Iowa 2001); Iowa R. App. P. 6.907. “We need only give weight to the

trial court’s factual findings, but are not bound by them.” Callender, 623 N.W.2d 3

at 854; Iowa R. App. P. 6.904(3)(g). Our primary concern is the best interests of

the child. Callender, 623 N.W.2d at 855; Iowa R. App. P. 6.904(3)(o).

As an initial matter, Swift asserts Grabill failed to preserve error on her

argument. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be both raised

and decided by the district court before we will decide them on appeal.”). He

argues that, although she briefly testified, the hearing was on her default and she

never argued for visitation before the district court. Given our de novo standard of

review and because the district court squarely ruled on visitation, we will pass on

the question of error preservation and address the merits of Grabill’s arguments.

See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing error preservation

and proceeding to the merits of the issue raised on appeal). Our decision to

consider the merits also squares with In re Marriage of Huston, 263 N.W.2d 697,

700 (Iowa 1978), which held that a defaulting party to a dissolution proceeding may

have appellate review. De novo review will generally be limited to “(1) scope of

relief granted, and (2) equities of the decree as determined by an examination of

the entire record made at trial.” Huston, 263 N.W.2d at 700.

The district court ordered visitation with Grabill at Swift’s sole discretion

upon dismissal of the CINA proceeding. Our supreme court has long recognized

courts

should not make the right of visitation contingent upon an invitation from the party having the custody of the child, or require the consent of one parent for the other to visit the child, . . . thereby leaving the privilege of visitation entirely to the discretion of the party having the child in custody. 4

Smith v. Smith, 142 N.W.2d 421, 425 (Iowa 1966) (quotation omitted). More

recently, this court said:

It is well established that the district court is the only entity that can modify a custody or visitation order, subject to the review of the appellate courts. This obligation to modify a decree cannot be delegated to any person or entity because that person or entity has no jurisdiction to render such a decision. The legislature has granted to the court the responsibility to make an impartial and independent determination as to what is in the best interests of the child, and this decision cannot be controlled by the agreement or stipulation of the parties.

In re Marriage of Stephens, 810 N.W.2d 523, 530–31 (Iowa Ct. App. 2012)

(citations omitted). Considering this precedent, we do not agree with delegating

to Swift the sole discretion to decide visitation with Grabill. We reach this

conclusion while acknowledging the scant record before the trial court, a

circumstance to which Grabill contributed by her inadequate self-representation

and failure to attend court, which resulted in her being adjudged in default. If her

interests were our primary concern, we would be content to affirm the decree.

However, the child’s best interests intervene, and his interests will be served by

continuing contact with his mother. See Lamansky v. Lamansky, 207 N.W.2d 768,

770 (Iowa 1973) (“Custody and visitation are not granted as a reward to one parent

or a punishment of the other.”); see also Iowa R. App. P. 6.904(3)(o) (“In child

custody cases, the first and governing considering of the courts is the best interests

of the child.”); In re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa Ct. App. 1987)

(finding the mother “is more capable of providing the children a stable and suitable

environment,” but “the children’s best interests require that they be afforded liberal

visitation with their father”) 5

We share the court’s concern over Grabill’s “use of illegal substances,

criminal charges, and failure to meet her mental health needs.” However, the court

cannot delegate to Swift the authority to decide whether and to what degree these

issues affect her visitation with K.S. Therefore, we reverse the court’s order

regarding visitation and remand for the district court to enter a definite order for

visitation with Grabill, including assigning a visitation supervisor if appropriate. We

affirm the court’s order in all other respects.

Swift requests appellate attorney fees. Appellate attorney fees are within

the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d 643, 646

(Iowa 1996); see also Iowa Code § 600B.26 (2018) (“In a proceeding to determine

custody or visitation, . . . the court may award the prevailing party reasonable

attorney fees.”). “In determining whether to award appellate 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

decision of the trial court on appeal.” In re Marriage of Hoffman, 891 N.W.2d 849,

852 (Iowa Ct. App. 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389

(Iowa Ct. App. 1997)). Swift was not successful regarding visitation on appeal,

and we decline to award appellate attorney fees.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.