Upon the Petition of Daniel David Upah, and Concerning Molli Jo Brandt

• Court: Court of Appeals of Iowa
• Decided: April 6, 2016
• Docket: 15-0686
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0686 Filed April 6, 2016

Upon the Petition of DANIEL DAVID UPAH, Petitioner-Appellee,

And Concerning MOLLI JO BRANDT, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Benton County, Christopher L.

Bruns, Judge.

A mother appeals from the district court’s order placing the child in the

father’s physical care. AFFIRMED.

Melissa A. Nine of Nine Law Office, Marshalltown, for appellant.

John G. Daufeldt of Daufeldt Law Firm, P.L.C., Conroy, for appellee.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ. 2

DANILSON, Chief Judge.

Molli Brandt appeals from the district court’s judgment and decree placing

the parties’ minor child, L.D.U., in the physical care of the child’s father, Daniel

Upah. Due to Daniel’s stability and Molli’s criminal history, we find that placing

the child in Daniel’s physical care is in the child’s best interests. Therefore, we

affirm the district court’s ruling.

I. Background Facts and Proceedings.

Molli and Daniel are the parents of L.D.U., born in August 2013. Molli and

Daniel were never married, but resided together for a period of two years, during

which time L.D.U. was born. A dispute arose in late 2013 when Daniel learned

that Molli had taken approximately $17,000 from his checking account and had

modified his bank statements to hide her conduct. Upon discovering the

discrepancy, Daniel contacted the Benton County Attorney and a criminal

prosecution was initiated.

On December 12, 2014, Molli entered an Alford1 plea to a charge of class

“D” felony forgery related to the monies taken from Daniel. At the time she

entered the December 2014 plea, Molli was already on probation for a November

2011 felony-forgery plea. Molli had received a deferred judgment on the prior

charge, but the deferred judgment was revoked as a result of her December

2014 plea. At the time of trial in this custody action, Molli remained on probation

for these convictions, and had been ordered to pay $17,000 in restitution to

Daniel.

1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970). 3

Molli and L.D.U. moved out of Daniel’s residence in December 2013.

After leaving Daniel’s home, Molli lived with her mother in Illinois for one week,

and then moved to her sister’s residence in Toledo, Iowa, for a brief period of

time. Molli subsequently obtained a two-bedroom apartment in Toledo, where

she remained living at the time of trial. Molli works as the manager of a motel on

a part-time basis for five hours per day, three to four days per week, earning

eight dollars an hour. Molli earned $7352 from her employment in 2014, but

expected to earn approximately $15,000 to $16,000 in the following year.

Daniel has worked as a farm laborer for the same employer for ten years.

As part of his employment, Daniel is expected to live in a residence provided by

his employer in Belle Plaine, Iowa. In addition to his work as a farm laborer,

Daniel farms ninety acres and raises cattle with his father. Daniel testified at trial

that he has worked long hours in the past, and at times will work up to seven

days a week. However, Daniel also stated that his employer is supportive of his

family responsibilities and is amenable to having Daniel work typical daily hours

from eight a.m. to five p.m. In 2014 Daniel earned $36,672 from his employment,

and received a net income of $703 from his additional farming endeavors.

Daniel filed a petition for custody on January 3, 2014, after his paternity

was established by testing.2 On March 7, 2014, the district court issued a

temporary order granting Molli and Daniel shared physical custody on an

alternating weekly schedule. Trial was held on the matters of custody, visitation,

2 Although Daniel is listed as the father on L.D.U.’s birth certificate, there was a question as to Daniel’s paternity after Molli told Daniel he was not L.D.U.’s father in late 2013. 4

and child support on April 1, 2015. The district court entered a judgment and

decree on April 2, 2015.

The district court granted Molli and Daniel joint legal custody and placed

physical care with Daniel. Molli was awarded visitation with L.D.U. for two

weekends out of every three; two, two-week non-consecutive blocks during the

summer months; one week during spring break; and alternating holidays. Molli

was also ordered to pay monthly child support in the amount of $120.

Molli now appeals.

II. Standard of Review.

We review physical care determinations under Iowa Code section 600B.40

(2013) de novo. Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995).

We give weight to the fact findings of the district court, especially upon

consideration of witness credibility, but are not bound by them. In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). “Prior cases have little precedential

value, and we must base our decision primarily on the particular circumstances

of the parties presently before us.” In re Marriage of Riddle, 500 N.W.2d 718,

719 (Iowa Ct. App. 1993).

III. Discussion.

In cases involving custody or care determinations, the best interests of the

child is the paramount consideration. Phillips, 541 N.W.2d at 847. Custody and

visitation arrangements between parents who were never married are

determined by the principles established in Iowa Code section 598.41. See Iowa

Code § 600B.40. “The legal analysis employed in resolving a question

concerning the custody of a child born of such a union is the same as that which 5

would have been utilized if the child’s parents had been married and a dissolution

of their marriage had resulted.” Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa

1988).

“The critical issue in determining the best interests of the child is which

parent will do better in raising the child.” Riddle, 500 N.W.2d at 719. “The

objective of a physical care determination is to place children 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).

In determining the physical care placement that is in L.D.U.’s best

interests, we consider the factors of Iowa Code section 598.41(3), as well as the

factors provided in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974)

(including, among other factors, the characteristics of each parent; the capacity

of each parent to provide for the emotional, social, moral, material, and

educational needs of the child; and the stability and wholesomeness of each

proposed environment). Additionally, “stability and continuity of caregiving are

important factors that must be considered in custody and care decisions.”

Hansen, 733 N.W.2d at 696. “Some factors are given greater weight than others,

and the weight ultimately assigned to each factor depends on the particular facts

of each case.” In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App.

1998).

Neither Molli nor Daniel requested joint physical care, so we turn to Molli’s

claim for physical care. See Iowa Code § 598.41(5)(a).

Molli asserts that she is the more suitable parent because her working

hours are more flexible than Daniel’s and she is more supportive of Daniel in his 6

involvement as a father to L.D.U. She argues that there is no evidence to

suggest that her financial status or criminal history will negatively affect her ability

to parent L.D.U or result in a lack of stability. She contends that the district court

did not properly consider the best-interests factors when reaching its decision,

and that the court “appear[ed] to essentially ‘take sides’ with Daniel.” In

particular, Molli argues and cites with authority the fact that the economic status

of a parent is not a sound basis for deciding which parent should be awarded

physical care.

The district court found placing physical care of L.D.U. with Daniel would

be in the child’s best interests. With respect to Molli, the court explained:

The court finds that Molli is currently under-employed. She has the capacity to work full-time at a wage close to minimum wage. . . . Because Molli does not currently work full-time, she argues she has more time to spend with L.D.U. Although that is true in a sense, the court finds that Molli should be working full-time. She has not only obligations for support of L.D.U. and herself, but obligations to pay restitution in at least one criminal case. Further, unless Molli works more than 15 to 20 hours per week, even with child support, she would have a very precarious economic situation. . . . The court is not convinced this is an optimal arrangement for a young child because young children generally do best with structure and routine. In evaluating whether joint physical care is appropriate, the court must consider stability and continuity. The court finds that any care arrangement that would leave L.D.U. with Molli for the majority of the time or even for extensive periods of time would lack stability and continuity.

Oppositely, as to Daniel, the district court found:

Dan is a hard working farmhand/farmer. He has already begun the process of familiarizing L.D.U. with the farm and farm animals in an age appropriate way. He has clearly made arrangements to structure his work so that he can maximize his time with L.D.U. while also earning sufficient income to provide L.D.U. with support. He has a stable work history, a stable 7

residence, and ample support from family and even his employer. There was no evidence that he had any criminal record. Dan is and will be an excellent role model for his son, L.D.U. Molli was once someone with a stable work history, but her criminal conduct has made it difficult for her to obtain good employment. She chooses to stay home with L.D.U. because, despite her financial obligations and questionable ability to make ends meet, she would rather not work. Molli is not as good a role model for L.D.U. as Dan.

The district court also determined that Daniel engaged in communication

more frequently and effectively than Molli, and found Daniel to be a more credible

witness.

Upon review of the record, we find no reason to diverge from the ultimate

conclusion reached by the district court. We agree with Molli that her economic

status was not a “sound basis” to determine the child’s best interests or the

award of physical care. See In re Marriage of Jennerjohn, 203 N.W.2d 237, 243

(Iowa 1972). Notwithstanding, the court properly considered a number of

relevant factors and determined that Daniel is better positioned to provide for the

emotional, social, moral, material, and educational needs of the child, and to

provide a stable and wholesome environment, and our de novo review confirms

the same.

Daniel has the capacity to give L.D.U. a stable home and structured

schedule. Daniel also has greater familial support. Molli has a sister who lives

nearby, but there is concern with her sister being left alone with the child due to

past issues with the Iowa Department of Human Services. Additionally, the lack

of geographic proximity between Molli and Daniel will make a shared physical

custody arrangement impractical when L.D.U. reaches school age. The district 8

court granted Molli liberal visitation time, while maintaining a structured schedule

for L.D.U. by placing physical care with Daniel.

We agree with the district court that physical care with Daniel will place

L.D.U. in the environment most likely to bring him to health and social maturity.

We therefore affirm the district court ruling awarding physical care to Daniel.

AFFIRMED.