In re the Marriage of Hight

IN THE COURT OF APPEALS OF IOWA

No. 20-0367
Filed January 21, 2021

IN RE THE MARRIAGE OF MARY HIGHT
AND JUSTIN HIGHT

Upon the Petition of
MARY HIGHT,
Petitioner-Appellee,

And Concerning
JUSTIN HIGHT,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.

A husband appeals from a dissolution decree and challenges the district

court’s award of physical care and visitation concerning the parties’ three children.

AFFIRMED.

Robert S. Gallagher and Peter G. Gierut of Gallagher, Millage & Gallagher,

P.L.C., Bettendorf, for appellant.

Arthur Buzzell, Bettendorf, for appellee.

Considered by Mullins, P.J., and May and Schumacher, JJ.
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SCHUMACHER, Judge.

I. Background Facts & Prior Proceedings.

Justin and Mary Hight were married in May 2014. They have three young

daughters, born in 2014, 2016, and 2017. At the beginning of their marriage, the

couple lived in a home purchased by Mary’s father and grandmother in the Quad

Cities. Justin worked full-time as a security guard and Mary worked various part-

time jobs. However, Mary primarily stayed home to raise the parties’ three

children. She was the primary caregiver of the children until August 2, 2017, the

date of the parties’ separation.

On August 2, an argument ensued between Justin and Mary concerning

Justin selling a computer tablet without Mary’s consent. Both parties testified to

the events of that day at trial and gave varying versions. In the dissolution

proceedings, the trial court found Mary to be credible in determining the following

facts. Justin chased after Mary, grabbed her, and slammed her to the ground,

causing her to hit the side of her arm and the back of her head on the sidewalk.

Justin got on top of Mary, put his hands around her neck, and began choking her.

Mary clawed and scratched Justin to get him to stop choking her. Unable to

breathe, Mary stopped scratching and Justin relented. Justin walked away from

the scene. Both parties called the police to report what occurred.

On his initial call to the police, Justin stated he was calling to report himself.

He admitted he was at fault and had held Mary down by the throat. However, when

police arrived, Justin told responding officers that Mary was the aggressor and he

displayed the scratches Mary caused on his arms. Mary did not have any visible
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injuries and admitted to scratching Justin but explained it was to stop him from

choking her.

Mary was charged with domestic abuse assault and a criminal no-contact

order in Justin’s favor was entered against Mary. 1 Mary’s criminal charge and the

related no contact order were later dismissed by the State without disposition. On

August 7, Justin filed a petition for relief from domestic abuse against Mary, and

the court entered a civil order of protection.2 On August 16, 2017, Mary filed a

petition for dissolution of marriage. On August 29, the court held a contested

hearing on the petition for relief from domestic abuse. Justin, as well as the

couple’s then-roommate, testified at trial. On the advice of her attorney, Mary did

not testify. The court found Mary had committed a domestic assault against Justin

and granted Justin temporary custody of the children.3

The parties’ relationship continued to deteriorate. Both parties point to

specific actions of the other during this time to support their claims for physical

care of the children. The additional facts relevant to our analysis are set out below.

On January 19, 2018, the parties entered a stipulated temporary custody and

visitation agreement wherein Justin would have temporary physical placement of

the children subject to Mary’s visitation rights every other weekend and during the

1 In the dissolution proceeding, the district court found Mary more credible in her
testimony related to the August incident and characterized the events as
“questionable, at best, charges of domestic violence.” The district court noted that
in responding to domestic abuse incidents, law enforcement officers often charge
the party who does not show signs of injury and was convinced this was the case
here.
2 Justin does not raise an issue of res judicata on appeal, and as such, we do not

consider the same.
3 The civil protective order expired on August 29, 2018.
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times Justin was at work. In February, a custody evaluation commenced; however,

it was never completed, as Mary was unable to make some of the final payments.

Over two years after the hearing on the petition for relief from domestic

abuse, final trial on the dissolution petition was held on December 17 and 18, 2019.

The district court entered its decree on January 21, 2020, and awarded the parties

joint legal custody of the children, found joint physical custody was not appropriate,

and awarded physical care of the children to Mary, subject to visitation rights of

Justin. Justin filed a motion to amend and enlarge that included the arguments he

now raises on appeal. The district court denied the motion in its entirety. On

appeal, Justin takes issue only with the court’s determination of physical care and

the summer visitation schedule. He argues he can provide superior care for the

children. Alternatively, he seeks additional visitation, specifically, that his summer

visitation be increased from three weeks to eight weeks.

II. Discussion.

A. Standard of Review.

We review dissolution appeals de novo. See Iowa R. App. P. 6.907; In re

Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). We give weight to the

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

witnesses, but are not bound by them. In re Marriage of Larsen, 912 N.W.2d 444,

448 (Iowa 2018).

B. Physical Care.

In determining physical care, the overriding concern is always the best

interests of the child. See Iowa Code § 598.41(5)(a) (2019). “The objective of a

physical care determination is to place the children in the environment most likely
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to bring them to health, both physically and mentally, and to social maturity.”

Hansen, 733 N.W.2d at 695–96. In making a physical care determination, we

consider the factors articulated by the legislature in Iowa Code section 598.41(3)4

as well as other facts and circumstances relevant to the best interests of the child.

See id.; In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974) (explaining the

determinative factor for an award of physical care is “which parent can minister

more effectively to the long-range best interests of the children.” (citations

omitted)). “In deciding the custody issue, we seek neither to punish one parent

nor reward the other.” In re Marriage of Sparks, 323 N.W.2d 264, 266 (Iowa Ct.

App. 1982) (citing In re Marriage of Bare, 203 N.W.2d 551, 554 (Iowa 1973)).

“There is no inference favoring one parent as opposed to the other in deciding

which is the more fit custodian except that arising from the particular facts of the

case.” Id. (citing In re Marriage of Bowen, 219 N.W.2d 683, 687–88 (Iowa 1974)).

Justin does not dispute the district court’s finding that joint physical care is

not in the children’s best interests. “When joint physical care is not warranted, the

court must choose one parent to be the primary caretaker, awarding the other

parent visitation rights.” In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa

2007) (citing Iowa Code § 598.41(1)(a), (5)). After considering the evidence and

testimony presented at trial, the district court determined it was in the best interests

of the children to award physical care to Mary. We agree.

4The section 598.41(3) factors include the suitability of the parents, whether the
psychological and emotional needs of the child will suffer from lack of contact with
both parents, parental communication, the previous pattern of caregiving, each
parent’s support of the other, wishes of the child, agreement of the parents,
geographic proximity, and safety.
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There is no doubt that both parents love their three daughters. However,

the record demonstrates that Mary is the more suitable and capable parent to

minister to the long-range best interests of the children. Mary will provide a stable

home for the children and has demonstrated an ability to appropriately care for the

children. She was the primary caregiver of the children until the incident on

August 2. The allegations of domestic abuse by Justin were described by the

district court as “questionable at best.” Additionally, the court, with an opportunity

to observe the witnesses, found Justin’s credibility particularly suspect. Submitted

correspondence between the parties indicate Mary’s desire and willingness to be

involved in the children’s lives. She has stable employment that allows her to be

home with the children during the day. Mary is able to provide a home with ample

living space and has a strong support system of extended family in the area.

The environment Justin could provide the children is less conducive to their

long-term interests. While in Justin’s care, the children contracted head lice on

two occasions and one of the children experienced severe diaper rash. Justin’s

employment requires that the children be in daycare for much of the week. He

rents a home with limited space and all three children share one bedroom that is

very cramped. Justin acknowledges that he suffers from various mental-health

issues, including post-traumatic stress disorder, anxiety, and past suicidal ideation.

He does not have family in the area and lacks the same robust support system

that Mary can offer the children. Justin has one other child from a previous

relationship who has been adopted by family and he has no contact with that child.

Justin has not demonstrated a willingness to reconcile his relationship with

Mary despite the importance of the children having parents who maintain a healthy
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relationship. The district court found this particularly concerning, stating, “The

court has only had a few cases where a parent showed as much animosity towards

the mother of his children as Justin has against Mary.” Justin failed to inform Mary

of the children’s doctor’s visits on multiple occasions and he did not make her

aware of the children’s school activities and conferences. When Mary’s work

obligations conflicted with her scheduled visitations, Justin often was inflexible and

unaccommodating. Justin has restricted Mary’s access to the children and

requested Mary’s visitations be supervised despite Mary posing no threat to the

children. The trial court noted,

The children deserve to have a good, solid and loving relationship
with their mother and their father. Mary has proved to the court she
is willing and will foster a good relationship between the children and
their father. To the contrary, Justin has proved to the court that he
will eventually destroy any attempt at a good relationship between
the children and their mother simply for revenge purposes. That is
not in the children’s best interest and is wholly unfair to the children.

We agree it is in the children’s best interest for Mary to be awarded physical care

of the children.

C. Visitation.

Justin requests if he is not awarded physical care of the children, we modify

the court’s decree and increase his visitation rights. Specifically, Justin requests

that we increase his summer visitation to eight weeks. The district court ordered

Justin to have regular visitation with the children three weekends a month, from

Friday until Sunday. The court also ordered Justin to receive three weeks of
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visitation in the summertime, half of Christmas break, and alternating spring

breaks.5

In establishing visitation rights, the governing principle is, as always, the

best interests of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa

Ct. App. 1992). Liberal visitation rights are in the best interests of the children. Id.

In determining the appropriate amount of visitation, a court should order visitation

that will ensure the opportunity for maximum continuing physical and emotional

contact with both parents. See Iowa Code §§ 598.41(1), .1(1).

At trial, Mary indicated if she received physical care of the children, it would

be appropriate for Justin to receive eight weeks of visitation in the summer. Justin

testified that if he were to receive physical care, the children should reside with him

in the summer, with extra time to be determined between the parties. The court

acknowledged Mary’s “generous” visitation proposal, and adopted such in part.

However, the district court found it important that both parents spend

meaningful time with the children during the summer and set Justin’s summer

visitation at three weeks. See In re Marriage of Salmon, 519 N.W.2d 94, 95 (Iowa

Ct. App. 1994) (recognizing “reasonable discretion of the trial court to determine

visitation rights” and declining to “disturb its decision unless the record fairly shows

it has failed to do equity”). The current schedule maximizes the children’s

5 The decree noted the court had deliberately not determined specific holiday
visitation due to the lack of evidence presented at trial as to what holidays the
parties observe and added it was the court’s intent that the parties equitably split
holiday visitation. The court further instructed the parties to present a holiday
visitation schedule to the court if the parties desired a court-ordered schedule.
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opportunity to enjoy time with both parents.6 In addition to the three weeks of

summer vacation, Justin continues to have the children three weekends a month

during the summer. We see no failure to do equity. We find the summer visitation

set by the district court to be a reasonable allocation of time and in the best

interests of the children, particularly in light of the court’s division of the children’s

weekends.

III. Attorney Fees.

Finally, Mary asks this court to award her attorney fees on appeal.

Appellate attorney fees “are not a matter of right, but rather rest in this court’s

discretion.” In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013). Our

determination is based on “the needs of the party seeking the award, the ability of

the other party to pay, and the relative merits of the appeal.” In re Marriage of Geil,

509 N.W.2d 738, 743 (Iowa 1993). While Mary is the prevailing party on appeal,

both parties have similar incomes and obligations. Justin is not in a financial

position to pay attorney fees. We decline to award appellate attorney fees in this

matter. Costs of the appeal, however, are assessed to Justin.

IV. Conclusion.

It is in the children’s best interest that physical care be placed with the

mother and we decline to disturb the district court’s allocation of summer visitation

rights. We decline to award Mary appellate attorney fees.

AFFIRMED.

6The record is void of the amount of summer vacation available for school-aged
children where Mary now resides.