Jessica A. Bohannon v. Dayne Smolik

IN THE COURT OF APPEALS OF IOWA

No. 16-0082
Filed September 28, 2016

JESSICA A. BOHANNON,
Petitioner-Appellee,

vs.

DAYNE SMOLIK,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Mitchell County, Colleen D.

Weiland, Judge.

The father appeals from the child custody decree entered by the district

court after trial, challenging the placement of the minor child in the mother’s

physical care and the amount of parenting time awarded to the father.

AFFIRMED.

Roger L. Sutton of Sutton Law Office, Charles City, for appellant.

Kristy B. Arzberger of Arzberger Law Office, Mason City, for appellee.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

Dayne Smolik appeals from the district court’s custody decree concerning

his child with Jessica Bohannon. Dayne challenges the court’s placement of the

parties’ child in the physical care of Jessica rather than ordering joint physical

care. In the alternative, he asks for additional scheduled parenting time with the

child. Both parties request appellate attorney fees. We affirm.

I. Background Facts and Proceedings.

Dayne and Jessica began a romantic relationship while both attended high

school. Although they never married, they lived together on-and-off for

approximately eleven years. They had one child together, the child whose

interests are affected by this cause of action.

At trial through her own testimony and that of several witnesses, Jessica

presented evidence that Dayne subjected her to physical and emotional abuse

during the course of their eleven-year relationship. Jessica also presented

testimony and photographic evidence of Dayne having destroyed several items

of her personal property. She introduced evidence the child was present during

some of Dayne’s abusive outbursts. A petition for relief from domestic abuse

was filed and later dismissed after Jessica claims she was confused about

questions she was asked relating to the abuse. Dayne denies that he ever

physically or emotionally abused Jessica, although he does admit to mutual

pushing and shoving. Dayne also admits to damaging her personal property

when he was angry with Jessica. He contends that this anger has subsided

since he and Jessica have broken up.
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After the couple parted ways, Jessica and Dayne signed an informal paper

for shared care. Dayne contends Jessica did so voluntarily, while Jessica

maintains she only signed it because Dayne was harassing her about it.

However, this document was never filed. A more formal agreement for joint care

was presented to Jessica for her signature; however, Jessica never signed this

document nor was it ever filed. The parties attempted shared care but have

differing opinions as to its effectiveness.

Each parent has expressed concern for the child’s welfare while in the

other parent’s care, based on people the other parent introduces to the child.

Specifically, Jessica is concerned about certain individuals Dayne brings around

the child who have negative feelings towards the government and one individual

who is a convicted sex offender. Dayne is worried about Jessica’s live-in

boyfriend who has a prior assault conviction. Both parents have also accused

each other of drug use.

Since Jessica and Dayne split up, Jessica and her new boyfriend have

had a child. The two children reside together with Jessica.

The case went to trial on November 19 and 20, 2015 and reconvened on

December 9 and 10, 2015. Jessica sought physical care of the child, while

Dayne requested the court order joint physical custody.

In its findings of fact and conclusions of law, the court awarded the parties

joint legal custody of the child. It awarded Jessica physical care of the child and

set forth an evolving parenting schedule for Dayne for periods during the school

years, holidays, and summer vacation. The parenting schedule includes

provisions for longer periods of parenting time for Dayne as the child progresses
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in age. The court also ordered Dayne to pay child and medical support to

Jessica.

Dayne appeals.

II. Standard of Review

Our review of child custody proceedings is de novo. In re Marriage of

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

the district court, especially to the extent credibility determinations are involved.”

Id.

III. Discussion.

A. Court’s Refusal to Grant Joint Physical Care

When physical care is at issue, our primary consideration is the best

interests of the child. See Iowa R. App. P. 6.904(3)(o). Relevant to our

discussion of the underlying physical-care issue requires application of Iowa

Code section 598.41(5)(a) (2015), which states in pertinent part:

[T]he court may award joint physical care . . . upon the request of
either parent . . . . If the court denies the request for joint physical
care, the determination shall be accompanied by specific findings of
fact and conclusions of law that the awarding of joint physical care
is not in the best interest of the child.

“This passage does not create a presumption in favor of joint physical care.” In

re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). Rather, it is an option

when it is found to be in the best interests of the child. Id.

In deciding whether joint physical care is appropriate in a given case,

“[t]he critical question is . . . whether the parties can communicate effectively on

the myriad of issues that arise daily in the routine care of a child.” In re Marriage

of Hynick, 727 N.W.2d 575, 580 (Iowa 2007). In determining what custodial
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arrangement is in the best interests of the child here, we consider the

nonexclusive factors outlined in Iowa Code section 598.41(3) and Hansen. See

Hansen, 733 N.W.2d at 696. The factors we consider include (1) continuity,

stability, and approximation; (2) “the ability of the [parents] to communicate and

show mutual respect”; (3) “the degree of conflict between parents”; (4) “the

degree to which the parents are in general agreement about their approach to

daily manners.” Id. at 696–99. Not all factors are given equal consideration, and

the weight of each factor depends on the specific facts and circumstances

surrounding each case. See In re Marriage of Williams, 589 N.W.2d 759, 769

(Iowa Ct. App. 1998). The most important issue we must determine is “which

parent will do a better job raising the child; gender is irrelevant, and neither

parent should have a greater burden than the other in attempting to gain custody

in an original custody proceeding.” In re Marriage of Decker, 666 N.W.2d

175,177 (Iowa Ct. App. 2003). Moreover, child custody decisions are not

rewards for a parent’s good behavior nor are they punishments for a parent’s bad

behavior. See In re Marriage of Kleist, 538 N.W.2d 273, 277 (Iowa 1995).

Dayne argues the district court should have granted joint physical custody.

He bases this argument on the fact that prior to trial, he and Jessica had an

informal joint physical custody arrangement that worked well, in his opinion, and

continuing the arrangement is in the best interest of their child.

He further contends he and Jessica both engaged in “misbehaviors”

during their romantic relationship but were able to set their differences aside to

benefit their child. He asserts this consideration alone justifies coparenting and
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should make Dayne and Jessica an ideal couple to exercise joint physical care of

their child.

The district court found joint physical custody was not in the child’s best

interests and the child did not thrive during the period of informal joint care. As is

evident from the following excerpt from the thoughtful and extensive findings in

the decree, the district court carefully considered all relevant factors in making its

specific findings against joint physical care:

None of these [Hansen] factors weigh in favor of joint
physical care by these two parties. Nothing about the parties'
circumstances reveals that they can effectively co-parent their child
in such an arrangement. Despite their ability to maintain some text
message cordiality during the separation, Jes[sica] and Dayne's
romantic and parenting relationship is replete with examples of
discord and hostility. The court is convinced that Dayne regularly
inflicted physical, verbal and emotional abuse on Jes[sica]. In fact,
Dayne's behavior is "textbook abuser," in that he also isolated and
criticized Jes[sica], excessively monitored her routines and
whereabouts, and aggressively retaliated based on
disproportionate jealousy and perceived slights. I certainly do not
mean to indicate that Jes[sica] has always acted reasonably
towards or in regard to Dayne, but her manner of coping and
functioning is generally much healthier than that of Dayne.
Although I have some hesitation about her current choice of
romantic partner, it is clear to me that Jes[sica] is better situated to
tend to the child's physical and emotional needs.
There are additional factors weighing against joint physical
care. The child has not thrived in joint physical care during the
separation. I am further convinced that Jes[sica] was the primary
caretaker of the child until the parties' separation. And while the
child and Dayne have clearly established a bond, I question
whether Dayne has the patience or skills to function as a primary
parent, especially in circumstances that will require anger control.
Finally, the child now has a sibling in Jes[sica]'s house. For all of
these reasons, Dayne's request for joint physical care is denied,
and an award of physical care is made to Jes[sica].

We agree with the district court’s award of physical care to Jessica.

Jessica presented evidence from multiple witnesses that she has been the
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primary caretaker of the child. The evidence indicated she was the primary

person ensuring the child was fed, clothed, bathed, and transported to and from

daycare on a daily basis.

The district court also found a history of domestic abuse. In making the

determination of what a “history of domestic abuse” is as used in Iowa Code

section 598.41, our supreme court has held that a “history” is not necessarily

established by a single incident nor by multiple minor incidents. See In re

Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). However, a finding of a

history of domestic abuse creates a rebuttable presumption against an award of

custody. See In re Marriage of Ford, 563 N.W.2d 629, 632 (Iowa 1997).

“Because domestic abuse reflects the ability of the parties to listen to one

another and respect one another’s opinions and feelings, the existence of

domestic abuse is a significant factor in determining whether joint physical care is

appropriate.” Hynick, 727 N.W.2d at 579. The history of Dayne abusing Jessica

and his violent actions damaging her personal property in the presence of the

child makes awarding joint physical care inappropriate.

Dayne also contends “it is incredible” the district court found compelling

the fact that the child here has a six-month-old half-sibling and used that as a

reason to not grant joint physical care. While we agree the district court did not

expound on its reasoning here, it did provide substantial reasons for the other

factors it applied. While joint physical care may be appropriate in some
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situations involving half-siblings,1 the physical-care determination is still based on

the best interests of the child. See Hansen, 733 N.W.2d at 692.

As our supreme court held in Hansen, “the objective of a physical care

determination is to place the children in the environment most likely to bring them

to health, both physically and mentally, and to social maturity.” Id. at 698

(citations omitted). Having considered the evidence before us, we find it is in the

best interests of the child for Jessica to have physical care.

We affirm the district court’s award of physical care to Jessica.

B. Extension of Substantial Contact

Alternatively, Dayne argues the parenting time awarded to him by the

district court does not provide substantial contact between him and the child.

Dayne claims the parenting-time schedule is contrary to Iowa Code section

598.41(1)(a) in that it is not in the best interests of the child and it does not

promote continuing physical and emotional contact with both parents. He claims

the district court’s order for liberal visitation is a “sham.”

As to the parenting schedule, Dayne has requested this Court grant him

three days of parenting time every other weekend and one overnight weeknight

every week when he does not have scheduled weekend parenting time.

Pursuant to the decree, during the 2015-2016 and 2016-2017 school

years, Dayne has scheduled parenting time with the child every other weekend

from Friday after school (or 3:00 p.m. if there is no school) until 5:00 p.m. on

Sunday. Dayne also has scheduled parenting time with the child every

1
See, e.g., Collett v. Vogt, No. 14-0530, 2014 WL 5862144, at *4 (Iowa Ct. App. Nov.
13, 2014) (holding a joint physical custody arrangement does not impede a child’s ability
to spend half of its time with its half-siblings).
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Wednesday evening from after school (or 3:00 p.m. if there is no school) until

7:00 p.m. Then, beginning with the 2017-2018 school year and all subsequent

school years, Dayne’s scheduled parenting time will be every other weekend,

beginning on Thursday after school (or 3:00 p.m. if there is no school) until 5:00

p.m. on Sunday. He will also have scheduled parenting time every other

Thursday after school (or 3:00 p.m. if there is no school) until Friday morning at

school (or 10:00 a.m. if there is no school).

We decline to expand the school year parenting schedule; the district

court provided a thoughtful schedule that already includes additional parenting

time, which evolves as the child ages.

Additionally, Dayne argues his summer parenting schedule should be

amended to provide him alternating weeks of parenting time, so he can enjoy

vacation time and summertime activities with the child. See, e.g., In re Marriage

of Kingrey, No. 15-0384, 2016 WL 1681091, at *5 (Iowa Ct. App. Apr. 27, 2016).

For the 2016 and 2017 summers, Dayne has scheduled parenting time

every other weekend, beginning on Fridays at 3:00 p.m. and ending on Sundays

at 5:00 p.m. He also has scheduled parenting time every Wednesday for an

overnight visit, beginning at 3:00 p.m. until Thursday at 10:00 a.m. The schedule

then increases in 2018 and every subsequent summer to every other

Wednesday at 3:00 p.m. until Monday at 10:00 p.m.

Like his parenting schedule during the school year that will increase as the

child ages, so too will his scheduled parenting time during the summer. We find

the district court provided a well-reasoned schedule and we decline to expand his

summer parenting schedule. See id.
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Dayne additionally argues “at Christmas time holidays be alternated on a

weekly basis during the school holidays or equally split.” Insofar as we

understand his position, the current parenting-time schedule already provides for

alternating holidays between Jessica and Dayne. We decline to modify the

current schedule.

Dayne further contends the language in the decree as it pertains to e-mail

and telephonic contact with the child while the child is in the other parent’s care

should be more specific.2 He argues each party should have regular e-mail and

telephonic contact at appropriate times and for reasonable durations. While such

specific language may be helpful in this case, we decline to address this issue on

appeal as Dayne did not preserve the issue by filing a motion to enlarge the

findings under Iowa Rule of Civil Procedure 1.904(2).

We affirm the parenting schedule as set forth in the decree.

C. Attorney Fees

Both parties ask the court to award them appellate attorney fees.

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

discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). In

determining whether to award attorney fees, we consider “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). Under

these circumstances, we decline to award either party appellate attorney fees.

2
Page six of the decree provides, “Each party shall arrange, allow and encourage
reasonable telephone and/or electronic contact between the child(ren) and the other
parent.”
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Each party bears the cost of its own attorney and any costs incurred.

AFFIRMED.