Matthew B. Johnson v. Misty M. Hirschfield

IN THE COURT OF APPEALS OF IOWA

No. 15-1452
Filed April 27, 2016

MATTHEW B. JOHNSON,
Petitioner-Appellee,

vs.

MISTY M. HIRSCHFIELD,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Sac County, William C. Ostlund,

Judge.

Mother appeals decree establishing paternity, custody, visitation, and

support. AFFIRMED.

Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu, & Badding, P.C.,

Carroll, for appellant.

Jessica Zupp of Zupp & Zupp Law Firm, P.C., Denison, for appellee.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
MCDONALD, Judge.

Matthew Johnson and Misty Hirschfield are the never-married parents of

their daughter A.R.J. (born 2011). The parties cohabited but separated in May

2014, prior to Hirschfield’s deployment to Afghanistan as part of her service in

the National Guard. In November 2014, Johnson filed his petition to establish

paternity, custody, and visitation. In December 2014, Hirschfield returned to the

United States. The district court awarded the parties joint legal custody of A.R.J.,

awarded physical care to Johnson, awarded Hirschfield regular visitation, and

ordered Hirschfield to pay child support. Hirschfield appeals the physical care

determination, requesting she be awarded physical care of the child; in the

alternative, she requests additional visitation time and an adjustment of her child

support obligation. She also requests appellate attorney fees.

I.

Johnson and Hirschfield met in 2009 while in Iraq on active duty service

as part of the National Guard. When the two returned to the United States, they

moved to La Crosse, Wisconsin. Hirschfield became pregnant with A.R.J. at the

end of 2010, and the parties moved in with Hirschfield’s mother in Soldier’s

Grove, Wisconsin. A.R.J. was born in August 2011. At some point between

August 2011 and January 2012, the family moved to Readstown, Wisconsin.

During this time, Johnson was employed full-time. Hirschfield was employed

part-time at a restaurant and attended college. Both parents provided care for

A.R.J.

In June 2013, the parties learned Hirschfield’s National Guard unit would

deploy to Afghanistan in spring 2014, for up to one year. Hirschfield’s service
obligation was set to end in October 2013. She was faced with the decision of

reenlisting or concluding her service with the National Guard. Hirschfield spent

considerable time in making her decision. She made a pros and cons list. She

discussed the choice with her family, Johnson, and Johnson’s family. The

parties disagree on whether Johnson supported Hirschfield reenlisting. She

testified he told her he would support her “one hundred percent of the way.” He

testified, “I told her I would support her decision because that’s what a good

significant other would do.” He also testified that, given the same choice to

make, he would have stayed home to raise their daughter. Hirschfield decided to

reenlist in the National Guard.

In December 2013, the three moved in with Johnson’s parents in Odebolt,

Iowa. Johnson and Hirschfield decided to move to Odebolt so Johnson would

have family resources to assist with the care of A.R.J. while Hirschfield was

deployed. In April 2014, Hirschfield left for pre-deployment training in Wisconsin.

From Wisconsin, she went to Texas for two months of further training. While in

Texas, Hirschfield called Johnson and ended their relationship.

Hirschfield served in Afghanistan from June to December 2014. When

Hirschfield returned to the United States, she immediately moved to Tomahawk,

Wisconsin, with Joe Bergsrud. Hirschfield met Bergsrud in October 2013 while at

National Guard training in Wisconsin. They served in Afghanistan together.

They commenced an intimate relationship at some point, but the record is not

clear as to when.

By the time of Hirschfield’s return, Johnson also had a new paramour,

Kate Olson. Olson was studying pharmacology and experimental neuroscience
at the University of Nebraska Medical Center in Omaha. She intended to either

work for a pharmaceutical company or become a medical science liaison.

Johnson and Olson have known each other since they were children, but they

started dating in August 2014.

The district court issued its ruling on July 31, 2015. The court awarded

physical care of A.R.J. to Johnson, writing, “He has been a constant factor in his

daughter’s life, is acknowledged to be a good father, has significant extended

family assistance, has all the earmarks of stability, and has pledged his

willingness to exist in a continued relationship for A.R.J. with [Hirschfield].”

II.

Our review of cases heard in equity, such as custody proceedings, is de

novo. See Iowa R. App. P. 6.907. We review the entire record and decide anew

the factual and legal issues presented. See In re Marriage of Williams, 589

N.W.2d 759, 761 (Iowa Ct. App. 1998). Prior cases have little precedential value;

the court must make its determination based on the unique facts and

circumstances of each case. See In re Marriage of Kleist, 538 N.W.2d 273, 276

(Iowa 1995); In re Marriage of Snowden, No. 14–1920, 2015 WL 4233449, at *1

(Iowa Ct. App. Jul. 9, 2015) (“All happy families are alike; each unhappy family is

unhappy in its own way.” (quoting Leo Tolstoy, Anna Karenina 1 (1873))). “[W]e

give considerable weight to the sound judgment of the trial court who has had the

benefit of hearing and observing the parties firsthand.” Kleist, 538 N.W.2d at

278.
 III.

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) (2013). In making the physical care determination, we look to the

factors set forth in Iowa Code section 598.41(3) and our case law. See Iowa

Code § 598.41(3); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa

1974). “Each factor, however, does not necessarily impact the decision with

equal force.” In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct. App. 1997).

In considering the factors, our ultimate objective “is to place the child in the

environment most likely to bring [her] to healthy mental, physical, and social

maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). The

controlling consideration is the child’s best interest. In re Marriage of Hansen,

733 N.W.2d 683, 695 (Iowa 2007). Physical care issues are not to be resolved

based upon perceived fairness to the parents, but upon what is best for the child.

Id.

Factors to consider include the approximation rule, which attempts to

place the caregiving of parents in the post-separation world in rough

approximation to that of the pre-separation arrangement; the parties’ abilities to

communicate and show mutual respect; the degree of conflict between the

parties; and the parties’ agreement about their approach to daily matters. See id.

at 696-700. Regarding the approximation factor specifically, if both parents took

on the role of primary caregiver, the factor does not favor either. See, e.g.,

Arguello v. Harkins, No. 05-0318, 2006 WL 334238, at *1 (Iowa Ct. App. Feb. 15,

2006) (finding approximation factor favored neither parent where, prior to
separation, mother had first been primary caregiver for a period of years,

followed by father for a period of several months). We also consider:

1. The characteristics of each child, including age, maturity, mental and
physical health.
2. The emotional, social, moral, material, and educational needs of the
child.
3. The characteristics of each parent, including age, character, stability,
mental and physical health.
4. The capacity and interest of each parent to provide for the emotional,
social, moral, material, and educational needs of the child.
5. The interpersonal relationship between the child and each parent.
6. The interpersonal relationship between the child and its siblings.
7. The effect on the child of continuing or disrupting an existing custodial
status.
8. The nature of each proposed environment, including its stability and
wholesomeness.
9. The preference of the child, if the child is of sufficient age and maturity.
10. The report and recommendation of the attorney for the child or other
independent investigator.
11. Available alternatives.
12. Any other relevant matter the evidence in a particular case may
disclose.

Winter, 223 N.W.2d at 166-67.

On de novo review, we consider all of the relevant factors set forth in Iowa

Code section 598.41(5) and Marriage of Winter, and we conclude that awarding

Johnson physical care of A.R.J. and granting Hirschfield liberal visitation is in the

long-term best interests of the child. In the interest of brevity, rather than

reiterating the findings and conclusions of the district court in full herein, we

choose to discuss several items of particular import.

First, this is a close case. Many of the factors relevant to the physical care

decision are in relative equipoise. To the extent that any factor militates in favor

of physical care being placed with one parent over the other, the factor

demonstrates only a weak preference and not a strong one. It is clear both
parents love A.R.J. It is clear either parent could provide for the emotional,

social, moral, material, and educational needs of the child. See Winter, 223

N.W.2d at 166. It is clear each parent will support the other's relationship with

A.R.J. See Iowa Code § 598.41(3)(e). This has been demonstrated by the

parties' successful joint physical care arrangement from the time of Hirschfield’s

return through trial. The current arrangement is unworkable in the long-term

when A.R.J. commences school due to the distance between the parties. We

thus must choose.

Several factors weigh in favor of awarding physical care of A.R.J. to

Johnson. First is the weight placed on the parties’ care arrangement prior to the

time of this action. While Hirschfield’s decision to reenlist is admirable, Johnson

provided sole physical care for the child in her absence. While her absence was

not of great duration, it was significant given the young age of the child. Second,

awarding Johnson physical care minimizes disruption in the child’s life. The child

has resided in Iowa since December 2013 when the parties jointly decided to

move because of Johnson’s family support in the area. Third, Johnson’s family

has built a relationship with the child and can be an ongoing source of stability

and support for the child.

The district court, with its unique ability to assess witness demeanor, was

in the best position to determine which of these two good parents should have

physical care of A.R.J. See In re Marriage of Roberts, 545 N.W.2d 340, 343

(Iowa Ct. App. 1996) (“[I]n the end we determine this to be a close case, for both

parents love their children very much and each is capable of providing for their

long-range best interests. In situations such as this, we note the district court
had the parties before it and was able to observe and evaluate the parties as

custodians.”). We affirm the district court on the issue of physical care of the

child. See, e.g., Crawford v. Rosen, No. 14–1466, 2015 WL 2393689, at *4

(Iowa Ct. App. May 20, 2015) (awarding physical care to father where mother

unilaterally moved to pursue career opportunity and the move would have

uprooted children from their community).

Hirschfield asks us to amend the visitation schedule in this matter to

provide her visitation for the entirety of the child’s Thanksgiving and Christmas

vacations from school. In the current order, those breaks are divided in half, with

each party seeing the child during the break. We decline to adopt this proposal,

and affirm the visitation schedule.

Hirschfield requests an award of appellate attorney’s fees. An award of

appellate fees is not a matter of right but rests in this court’s discretion. See In re

Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). 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. Id. We have considered those factors and decline

to award fees in this matter.

IV.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.