Sara L. Swafford F/K/A Sara L. Gerst v. Donald W. Johnson III

IN THE COURT OF APPEALS OF IOWA

No. 14-0731
Filed October 29, 2014

SARA L. SWAFFORD f/k/a SARA L. GERST,
Plaintiff-Appellant,

vs.

DONALD W. JOHNSON III,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Louisa County, Cynthia H.

Danielson, Judge.

Sara Swafford appeals the district court’s grant of primary physical care of

the parties’ minor child to Donald Johnson. AFFIRMED.

Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant.

Stephanie L. Kozowski of Swanson, Gordon, Benne, Clark & Kozlowski,

L.L.L.P., Burlington, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, P.J.

Sara Swafford appeals the district court’s grant of physical care of the

parties’ minor child, K.J., to Donald Johnson. She asserts placing K.J. in her

care would serve the child’s best interest. Faced with a difficult decision, the

district court properly found that, though both parties are “loving, caring and

suitable parents,” the factors weigh in favor of granting physical care to Donald.

We agree and affirm.

K.J. was born in May 2009. Sara and Donald resided together more or

less continuously from 2007 until April 2011, though they were never married.

Donald lives in Carlisle, Iowa, and both parties lived together in Des Moines or

Carlisle until they ended their relationship. Donald’s family also lives in the Des

Moines-Carlisle area.

Prior to K.J.’s birth, the parties were not financially stable and spent a

great deal of time drinking at bars. Due to financial difficulties they were unable

to pay the rent and consequently lost their apartment. Donald was arrested for

public intoxication in 2007, which was a probation violation from a 2005

conviction for criminal mischief. He served nine days in jail, after which he

became very religious and began to attend church regularly. Donald’s decision

to make better choices was also facilitated by the fact Sara discovered she was

pregnant with K.J. Donald has had no convictions following the 2007 arrest.1

1
In June 2013, Donald was charged with child endangerment. He testified he was
babysitting for a neighbor, who then accused him of leaving a bruise on her child. He
denied this occurred, stating the mother was being investigated by the Department of
Human Services. He also testified that Sara did not believe Donald to be capable of
hurting a child and she had offered to testify on his behalf. Donald stated his attorney
informed him he was confident the charge would be dismissed. In its ruling, the district
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Donald found steady employment with the ironworkers union in 2010, which,

according to the district court, “pays well and has good benefits.” His normal

work week is Monday through Friday from 7:00 a.m. to 3:30 p.m., with seasonal

unemployment. Both parties ceased drinking regularly and are now much more

financially stable.

The parties moved in with Donald’s mother during Sara’s pregnancy. In

August 2010, they moved into a mobile home, purchased by Sara’s father with

the title in both her name and her father’s name. Donald currently lives in the

mobile home and is responsible for paying the lot fee, mortgage, and taxes.

Following K.J.’s birth, Sara was his primary caretaker. As the district court

noted:

When [K.J.] was young, Don did not really understand how to deal
with an infant or toddler. He took normal toddler behavior
personally and did not know how to deal with his crying and other
normal infant behavior. As [K.J.] became older and Don a more
experienced parent, this no longer was an issue.

After Donald engaged in inappropriate texting with another woman, Sara

ended the relationship. Originally from Wapello, Iowa—where all of her family

resides—Sara moved back to Wapello in April 2011. She obtained a full-time job

with Hope Haven working with the mentally disabled as a support professional,

earning $11.36 hourly. Her hours are from 8:00 a.m. to 4:00 p.m. Monday

through Friday. In October 2012, she moved in with her boyfriend, Jerry, then

married him in October 2013. She and Jerry live in a three-bedroom house in

rural Wapello. Jerry has two children, ages ten and thirteen at the time of trial.

court made no mention of this charge. Sara received a deferred judgment for operating
while intoxicated in 2006.
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They reside with him every other weekend and he pays child support. 2 Jerry is

employed full time at a steel company near the Quad Cities.

Sara also has an eleven-year-old daughter, who was born in December

2002, when Sara was sixteen and still living at home. The daughter has resided

in Sara’s parents’ home since her birth, although since Sara moved back to

Wapello in 2011, her daughter has spent time at both residences. Sara’s mother

testified she and her husband have been the girl’s legal guardians since she was

approximately three years old; however, the record reveals the letters of

appointment were issued in 2007. Sara’s parents also pay for their

granddaughter’s expenses, cover her insurance, and claim her as a dependent

on their income tax returns.

Additionally, Sara testified her daughter has never had a good relationship

with Donald. She stated that when she moved to Des Moines in 2007 and her

daughter was only five, she “caused a huge strain, because I wanted my

daughter, and I couldn’t have my daughter being with him and their relationship.”

Consequently, Sara’s daughter continued to live with Sara’s parents in Wapello.

In 2011, when Donald and Sara separated, they agreed to and

successfully implemented joint physical care of K.J. However, they understood

that, because K.J. will enter kindergarten soon, and the distance between the two

homes would make shared care in alternating weeks impossible, one parent

2
Jerry has two criminal convictions, one for operating while intoxicated in 2006 and
another for failure to pay child support in 2005 or 2006. Testimony also reflected that he
wrote a bad check and drove while his license was suspended. Additionally, the mother
of his oldest child is currently incarcerated, and the child resides full-time with the
maternal grandmother. The record does not explain why the child does not reside with
Jerry.
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needed to have physical care. Consequently, on December 21, 2012, Sara filed

a petition requesting physical care be placed with her, or alternatively, that the

court order shared physical care. Donald answered that he should have physical

care, or in the alternative, shared physical care of K.J. On March 15, the parties

stipulated to temporary matters, which included a shared care arrangement with

a visitation schedule.

A trial was held on December 17 and 18, 2013, and on April 9, 2014, the

district court ordered joint legal custody of K.J., and granted Donald physical

care. The court also established Sara’s visitation rights, her child support

obligation, how the parties would facilitate transportation, when each party would

claim K.J. as a dependent for tax purposes, and how to determine where K.J.

would attend school. The court also denied each party’s request for attorney

fees. Sara appeals the court’s physical care determination.

We review custody determinations de novo. In re Marriage of Winters,

223 N.W.2d 165, 166 (Iowa 1974). Though we give weight to the factual findings

of the district court, we are not bound by them. Id. However, when determining

the credibility of witnesses, we give deference to the court “because the district

court had an opportunity to view, firsthand, the demeanor of the parties and

evaluate them as custodians.” In re Marriage of Walton, 577 N.W.2d 869, 871

(Iowa Ct. App. 1998).

Because the parties have agreed to joint legal custody, the only issue in

this case is who will be the physical care giver. The controlling consideration in

child custody issues is the best interests of the child. In re Marriage of Ford, 563

N.W.2d 629, 631 (Iowa 1997). We determine placement according to which
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parent can minister more effectively to the child’s long-range best interests. In re

Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). The objective

is to place the child in the environment most likely to bring the child to healthy

physical, mental, and social maturity. In re Marriage of Murphy, 592 N.W.2d 681,

683 (Iowa 1999). In a custody case, our legal analysis is the same regardless of

whether or not the parents have ever been married. Lambert v. Everist, 418

N.W.2d 40, 42 (Iowa 1988).

We agree with the district court’s statement that:

The record in this case reflects that Sara and Don have consistently
worked together to foster the relationship between [K.J.] and both
parents. They have promoted maximum contact between [K.J.]
and both parents during the pendency of this action. This is not to
say that there have not been bumps in the road but on the whole
both have proven themselves to be suitable to serve as primary
physical caretaker.

The parties have clearly taken excellent care of K.J., who is in good health,

involved in sports, and is otherwise a happy, well-adjusted child. Both Sara and

Donald testified regarding their commitment in maintaining a strong relationship

between K.J. and the other parent. They have proven this by their past shared

care arrangement and in their ability to communicate with each other regarding

K.J.’s needs and welfare.

The district court, in granting physical care to Donald, noted the joint

physical care arrangement was not practical, due to the distance between

Wapello and Des Moines. The court then stated:

With [the exception of not watching K.J. continuously while at
softball practice], Don has displayed, over the past two and one-
half years an ongoing commitment and stability in his home and life
that Sara still lacks. The Court agrees with her father that she has
improved 100 percent in her parenting since [her daughter’s] birth
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and is hopeful that her current marriage, job, and living situation will
allow her to continue on that path. However, the Court must
determine [K.J.’s] long-range best interest now. Neither Sara nor
Jerry have shown the necessary long-term stability and parenting
skills needed for the Court to conclude that their current situation
will continue unaltered and serve [K.J.’s] best interests. There is no
concern as to [K.J.’s] physical well-being, his loving relationship
and care by his mother and his close ties to his extended family in
Wapello. As the Court noted at the completion of trial, this case
has presented a difficult question of how to act in [K.J.’s] best
interests when faced with two loving, caring and suitable parents.
Ultimately, the Court has reached its decision based upon what it
believes to be the more proven record of stability and concludes
that it is in [K.J.’s] best interests to award primary physical care to
Don.

The record supports the district court’s determination. Both parents would

be well suited to be K.J.’s physical caretaker. However, Sara chose to leave her

then-five-year-old daughter in the care of her parents when she moved to Des

Moines to be with Donald in 2007. Then, after several years and the birth of K.J.,

Sara returned to Wapello; however, she still does not have custody of her

daughter, as she chose to move in—and then marry—Jerry. She did this in spite

of the fact her daughter does not want to be at the house if Jerry is present.

Nonetheless, Sara testified her daughter was “number one” in her life. The

district court clearly had concerns regarding Sara’s instability and her choice to

put her relationships with Donald and now Jerry ahead of her relationship with

her daughter. The past conduct of a parent can be “indicative of the quality of

the future care that parent is capable of providing.” See In re Marriage of

Winnike, 497 N.W.2d 170, 174 (Iowa Ct. App. 1992). While Sara’s parenting

skills have improved considerably since her daughter’s birth, her choices have

not demonstrated sufficient stability for the district court to have confidence in

placing K.J. in her physical care.
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Alternatively, Donald has demonstrated greater maturity and stability in his

life. He also has flexibility with regard to the hours he works if there is an

emergency, as well as a support system in the form of his many family members,

who also reside in the Des Moines-Carlisle area. Consequently, the district court

concluded it is in K.J.’s “long-term best interests” for Donald to be granted

physical care. See In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984).

While we agree either parent could provide for K.J., we defer to the district

court’s in-court assessment of the parties, given the record supports its

conclusion. Therefore, we affirm the order placing K.J. in Donald’s physical care.

AFFIRMED.