Upon the Petition of Brian P. Ostrum, and Concerning Amanda L. Shelley

IN THE COURT OF APPEALS OF IOWA

No. 14-1828
Filed September 10, 2015

UPON THE PETITION OF
BRIAN P. OSTRUM,
Plaintiff-Appellant,

AND CONCERNING
AMANDA L. SHELLEY,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Dennis J. Stovall,

Judge.

Brian Ostrum appeals from a decree establishing custody, visitation, and

support. AFFIRMED IN PART AND REMANDED.

Jason S. Rieper, Des Moines, for appellant.

Amanda L. Shelley, Madrid, appellee pro se.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.

Brian Ostrum appeals from a decree establishing custody, visitation, and

support for the parties’ child. He contends the district court erred in (1) awarding

physical care of the child to the mother, Amanda Shelley, and (2) failing to adjust

his child support for extraordinary visitation and insurance premiums.

I. Background Facts.

Ostrum and Shelley were never married. They have one child together,

P.M.M., who was born in September 2012. Shelley informed Ostrum she was

pregnant and he was the father. Ostrum spent some time with the child before

his paternity was established in August 2013. After he was determined to be the

father, Ostrum had the child in his care every other weekend and overnight one

night each week. He filed this action for custody, visitation, and support in March

2014. The parties agreed to joint legal custody but each sought physical care of

the child. Ostrum and Shelley participated in a mediation session and agreed to

a parenting schedule where Ostrum would have alternating weekends from

Friday at 5 p.m. to Monday at 8 a.m., every Wednesday overnight, and

alternating Thursday overnights following his weekend. The parties operated

under this schedule for several months during which period Ostrum had the child

six nights every fourteen days. The matter proceeded to trial in October 2014.

Following a trial, the district court entered a decree placing the child in

Shelley’s physical care, finding:

It is undisputed that for the majority of the minor child’s life,
[Shelley] has been the primary care provider. By [Ostrum]’s own
admission, once his paternity was established in the fall of 2013,
both parties have participated in the care of their daughter. Both
parents are good parents and each has their own strengths and
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weaknesses. Neither party has shown the kind of stability which
would warrant either one being awarded primary care with both
parties changing residences in a short period of time. However,
together, they have managed to provide their daughter with a
sufficient nurturing environment such that she is a happy and well-
balanced child. The parties had been engaged in a parenting
arrangement which has worked well and that arrangement should
continue. Primary care should continue with [Shelley] since it
appears from the evidence that she will be better at fostering the
minor child’s relationship with the child’s half-siblings, which this
Court considers to be essential. [Ostrum] is awarded reasonable
and liberal visitation. The parenting/visitation schedule set out in
this Order will provide a proper balance of the same for the overall
benefit of the minor child.

The parenting plan entered by the district court provides that, at a

minimum, Ostrum was to have the child alternating weekends (beginning at

Friday at 5:00 p.m. or after school until Monday morning at 8:00 a.m.), overnights

every Thursday (5:00 p.m. or after school until Friday at 8:00 a.m.), and three

weeks of summer visitation exercised in one week nonconsecutive blocks of

time.

The court ordered Ostrum to pay $540 per month in child support and to

maintain the child’s medical/health insurance. The court found, “[Ostrum] is

employed on a full-time basis. His employer provides benefits, including health

insurance coverage. Brian should provide medical insurance for the minor child

through his employer.” Ostrum was granted the right to claim the child as a

dependent on his tax returns. Ostrum appeals.

II. Scope and Standard of Review.

Iowa Code section 600B.40 (2013) provides that proceedings to determine

visitation and custody are equitable proceedings and, therefore, our review is de

novo. Iowa R. App. P. 6.907. We give deference to the district court’s findings,
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especially those involving the credibility of witnesses, but are not bound by them.

Iowa R. App. P. 6.904(3)(g).

Shelley has not filed an appellee brief. The appellant is not entitled to

automatic relief, however, as we “handle the matter in a manner most consonant

with justice and [our] own convenience.” Bowen v. Kaplan, 237 N.W.2d 799, 801

(Iowa 1976); see In re Marriage of Rickels, No. 12-1995, 2013 WL 3458173, at *2

(Iowa Ct. App. July 10, 2013). We will confine our analysis to Ostrum’s

objections to the trial court’s ruling. See State ex re. Buechler v. Vinsand, 318

N.W.2d 208, 209 (Iowa 1982).

III. Discussion.

A. Physical care. Ostrum first contends the trial court erred in placing the

child in Shelley’s physical care. “Physical care” is defined as the “right and

responsibility to maintain a home for the minor child and provide for the routine

care of the child.” Iowa Code § 598.1(7). The overriding consideration in

determining which parent shall have physical care of a child is the best interests

of the child. See Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988); see also

Iowa Code § 600B.40 (stating the court is to consider the factors specified in

section 598.41(3) in determining visitation and custody arrangements).

Ostrum argues his “stability and continuity demonstrate he is best

equipped to have the child in his primary care.” He disparages Shelley’s moves

and lack of employment since her discharge from the military. Upon our de novo

review of the record, we agree with the trial court’s finding that “both parties

[have] chang[ed] residences in a short period of time.”
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Both parties were former military reservists and both have been deployed

overseas. Shelley testified she ceased attending her weekend duties upon

learning she was pregnant. She was discharged “under honorable conditions” on

September 26, 2012. Shelley testified she stayed home and cared for her child

and was not otherwise employed until August 2014. She works as a customer

service representative earning $11.55 per hour. Shelley testified that she lived

with her mother after giving birth to the child in September 2012. She has two

older children from a previous marriage; those children are in the physical care of

their father and they stay with Shelley every other weekend and Wednesday

nights. Shelley began a relationship with her current paramour in January 2013. 1

She moved in with him (living in his mother’s house in Slater, Iowa) in March

2014. Shelley testified they had just signed a one-year lease for a three-

bedroom residence in Madrid, Iowa, and would be moving there the following

week.

At the time of trial, Ostrum testified he had a stable and suitable two-

bedroom residence in De Soto, Iowa, having moved there from Des Moines in

May 2014. He stated he had been employed with the same employer for five

years and currently makes $36,005 per year. He testified he had “excellent”

character and Shelley “didn’t have much of one.” Ostrum acknowledged,

however, he had been charged with several traffic violations, pled guilty to

trespass and discharge of a firearm in August 2012, and pled guilty to interfering

with official acts in December 2012. He also acknowledged making negative

1
We give similar weight to Ostrum’s complaints about the paramour’s legal issues as we
do to Ostrum’s own legal issues.
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comments about Shelley to her former husband and asking for his help prior to

the custody trial to “seal the deal and screw her over.”

Both parties obviously love and are capable of caring for their child. Each,

in fact, testified the other was a good parent. Considering all of the factors

relevant to a custody determination, we find no reason to disagree with the trial

court’s placement of the child in Shelley’s physical care as she has been the

historical primary care giver. See In re Marriage of Hansen, 733 N.W.2d 683,

695 (Iowa 2007) (noting stability and continuity in caregiving, including who was

“primarily responsible for physical care,” are primary factors in determining an

award of physical care).

B. Child support. Ostrum asserts he was granted extraordinary visitation,

which qualifies him for a fifteen percent reduction of his child support. It appears

the district court did not consider the extraordinary visitation credit claimed by

Ostrum on his child support worksheet. We remand for recalculation of Ostrum’s

child support obligation.

Ostrum also asserts he was not given proper credit for the amount he

pays for the child’s health insurance premiums. He testified: “Q. Do you know

approximately or exactly what it costs you on a monthly basis just to insure

[P.M.M.]? A. Not just to insure [P.M.M.]. It’s $45 for myself and [P.M.M.] It’s

roughly 29, $30 for just myself. So around $15 a month—or a week, I’m sorry.”

On appeal, Ostrum contends, “when calculating child support in this matter, the

Court failed to properly credit Brian for the $15 per week he pays for health

insurance premiums for P.M.M.’ benefit.” We note, however, that Ostrum’s child

support worksheet filed in March 2014 states the “cost of child(ren)’s health
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insurance premium” as “$0.00.” In contrast, his exhibit 10 (electronically filed as

exhibit 29), is a revised child support guidelines worksheet and lists the “cost of

child(ren)’s health insurance premium” as “$170.00.” In light of Ostrum’s

conflicting claims, we are not inclined to find the court erred in its child support

calculation in this regard.

We affirm the decree except to the extent we remand to the district court

for a consideration of extraordinary visitation credit. See Iowa Ct. R. 9.9.

AFFIRMED IN PART AND REMANDED.