IN THE COURT OF APPEALS OF IOWA
No. 18-0791
Filed May 15, 2019
LINDSAY MOSES,
Petitioner-Appellant,
vs.
ZACHARY RAY ROSOL,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Grundy County, George L. Stigler,
Judge.
Petitioner appeals the award of shared physical care of the parties’ minor
child. AFFIRMED.
Lana L. Luhring and Shanna Chevalier of Laird & Luhring, Waverly, for
appellant.
Heather A. Prendergast of Roberts, Stevens & Prendergast, PLLC,
Waterloo, for appellee.
Considered by Doyle, P.J., Tabor, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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BLANE, Senior Judge.
Lindsay Moses (Lindsay) appeals the district court’s award of shared
physical care of the parties’ one-and-a-half-year-old child, L.R. She contends the
shared physical care decision is not supported by the trial record, asserting
Zachary Rosol (Zach) does not have the means to transport L.R. due to the
suspension of his driver’s license, lacks recognition of L.R.’s special needs, and is
unable to communicate appropriately with Lindsay concerning L.R. Lindsay also
contends that the “best interests of the child” standard should recognize a special-
needs criteria. Finally, Lindsay contends the trial judge did not comply with the
rules of civil procedure when he failed to make factual findings in writing to support
the ruling. Based upon our review, we affirm.
I. Factual background.
At trial, Lindsay was twenty-eight years old and residing in a home she is
purchasing in Dike, Iowa. She obtained a college degree from the University of
Northern Iowa and works at the Cedar Falls Community Credit Union as a loan
officer. She primarily works in an office in Cedar Falls but works in Waverly on
Thursdays. Her hours are typically 9:00 a.m. to 5:00 p.m., but she is also required
to work alternating Saturdays. Lindsay was previously married and has a child,
D.B., who at the time of trial was five years old and attended kindergarten in the
Dike-New Hartford school district. Lindsay has shared physical care of D.B. with
his father on a two day/two day/three day (weekend) rotation.
Zach is also twenty-eight years old. He has a college degree from Upper
Iowa University in criminology where he wrestled collegiately. For the past five
years he has been employed at Union Tank Car in Waterloo. He cleans, repairs,
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and welds rail cars. His work schedule is Monday through Friday from 7:00 a.m.
to 3:30 p.m., with some overtime. He can be required to work weekends. His work
hours can be flexible if he gives timely notice to his foreman. Zach moved into an
apartment in Evansdale, Iowa, a few weeks before the trial, where he is close to
work and L.R.’s daycare.
Lindsay and Zach were in a two-year relationship and resided in Lindsay’s
home in Dike. Near the end of their relationship, Lindsay and Zach had L.R., born
in August 2016, who was approximately one and a half years old at the time of
trial. Shortly after L.R.’s birth, Lindsay and Zach ended their relationship, and Zach
moved out of Lindsay’s home. L.R. was diagnosed as having severe hearing loss.
His pediatrician referred L.R. to the University of Iowa Hospitals and Clinics, and
after testing he underwent bilateral cochlear implant surgeries in the latter part of
2017.
Before L.R. was born, Zach was convicted twice of operating while
intoxicated (OWI). These convictions resulted in suspension of Zach’s driving
privileges until September 22, 2020. He obtained a temporary restricted license
(work permit) that allows him to drive to and from work and L.R.’s day care. He
completed the OWI probations on September 22, 2017. However, a week or so
before discharging his probation, Zach was arrested for driving while barred. That
charge was still pending at the time of the custody trial, and its impact on his future
driving status was unknown. Zach also participated in mixed martial arts fights to
help with his financial obligations but suffered a broken hand and no longer
engages in this sport.
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After Lindsay ended her maternity leave, the parties utilized Zach’s sister-
in-law, Shannon Foote,1 who also lives in Evansdale, for L.R.’s daycare. At trial,
both Lindsay and Zach agreed that Shannon should continue to provide the
daycare because she is “family,” loves L.R., and provides the care for free.
However, it requires Lindsay to drive from Dike to Evansdale to drop him off at
Shannon’s and to drive from her work in either Cedar Falls or Waverly to pick him
up. This childcare arrangement is to continue until L.R. is three years old, when
he is eligible to start a preschool program in the Dike-New Hartford school district.
Zach agrees that L.R. should attend the same school as his half-brother, D.B. in
the Dike-New Hartford district, and Zach intends to move to Dike to facilitate this
arrangement.
L.R. is a healthy child other than his hearing deficiency, cochlear implants,
and its impact on his language and speech development. He is receiving services
from Area Education Agency, the University of Iowa, and speech therapy. It is
anticipated an Individualized Education Plan will be implemented when he begins
attending school. Lindsay has taken classes to learn sign language. L.R. is also
learning sign language, and this is one manner in which they communicate. L.R.
is being gradually retrained to hear and identify sounds so that he can also learn
to talk. The speech therapist instructs L.R.'s caregivers how to teach him to
associate sounds and words so that they have meaning and lead to an ability to
talk.
Other specific facts related to the issues will be set out below.
1
Shannon is married to Zach’s brother, Denver Foote.
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II. Procedural background.
On September 16, 2016, approximately one month after L.R. was born, and
while still living with Zach, Lindsay filed her petition to establish paternity, custody,
visitation and child support. She requested physical care of L.R. Zach filed his
answer and requested shared physical care of L.R. Simultaneously with his
answer, Zach filed an application for hearing on temporary matters requesting that
the court enter temporary orders in regard to placement and visitation while also
requesting shared physical care. On January 4, 2017, the court entered a
temporary order placing L.R.’s physical care with Lindsay and awarding Zach
visitation. Lindsay was also authorized to select alternative day care if she desired.
On April 3, 2018, the parties filed the required pretrial stipulation with the
court, agreeing on joint legal custody but not agreeing on physical care. Trial was
held on April 4 and 5. Following the close of evidence, the trial judge dictated his
findings into the record with the parties and counsel present. The court made
certain credibility findings, including that Zach had made significant changes in his
life since L.R.’s birth and that Lindsay possessed a great deal of animosity towards
Zach related to their failed relationship and may benefit from counseling. But, the
court found the parties were able to communicate when it came to L.R.’s care and
determined shared physical care was in L.R.’s best interest. The court then
directed Zach’s counsel to prepare the order since the court had determined that
the shared care order should provide that Lindsay’s care of L.R. correspond with
her care of D.B. The proposed order was submitted for review to Lindsay’s
counsel. On April 11, Lindsay filed an “Objection to Proposed Decree” with the
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court. On April 13, the court filed the order placing L.R.in the shared physical care
of the parties among other rulings. Lindsay then filed a timely appeal of the order.
III. Discussion.
A. Failure by trial court to make written findings pursuant to Iowa Rule
of Civil Procedure 1.904(1).
Lindsay points out that the trial judge’s dictated findings of fact into the
record does not comply with Iowa Rule of Civil Procedure 1.904(1), which requires,
“The court trying an issue of fact without a jury, whether by equitable or ordinary
proceedings, shall find the facts in writing, separately stating its conclusions of law,
and direct an appropriate judgment.” Zach points out, on April 11, Lindsay filed a
document entitled “Objection to Proposed Decree.”2 The document is not a motion
to enlarge or amend findings as provided in Iowa Rule of Civil Procedure 1.904(2).
Our court has previously addressed a similar situation:
We are hampered in our review of this case because the district court
made no findings of fact from which its spousal support order is
presumably based. Under Iowa Rule of Civil Procedure 1.904(1) the
district court was required to find the facts in writing and separately
state its conclusions of law. However, [respondent] did not address
this deficiency nor did he preserve error by filing a rule 1.904(2)
motion asking the district court to enlarge its findings. Nevertheless,
we review orders granting temporary spousal support in dissolution
of marriage cases de novo. Therefore, we have a duty to examine
the record in its entirety and adjudicate the rights and issues
presented by the parties based on that record.
In re Marriage of Allebach, No. 04-1850, 2005 WL 1965967, at *1 (Iowa Ct. App.
Aug. 17, 2005) (internal citations omitted). Even though Lindsay did not preserve
this error for appeal, we are to review the record de novo, which included the orally
2
It stated: “COMES NOW Petitioner, Lindsay Moses, and in response to the proposed
Decree states that she objects to the Proposed Decree as it is unsupported by evidence
presented at Trial and contrary to the requested relief of either party.”
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dictated findings by the trial court. As rule 1.904(1) further states: “No request for
findings is necessary for purposes of review.” Although we encourage trial courts
to follow the rule, failure to do so does not prevent our de novo review, which
follows below.
B. Whether shared physical care was in the best interest of L.R.
An action for custody and placement is tried in equity and review is de novo.
Iowa R. App. P. 6.907. The appellate court is to give weight to the district court’s
findings of fact, especially with regard to witness credibility, but we are not bound
by those findings. Iowa R. App. P. 6.904(3)(g); In re A.M., 843 N.W.2d 100, 110
(Iowa 2014).
In child custody cases, the best interest of the child is the first governing
consideration. Iowa R. App. P. 6.904(3)(o); In re Marriage of Vrban, 359 N.W.2d
420 (Iowa 1984). Iowa Code § 598.1(4) (2016) defines joint physical care as:
an award of physical care of a minor child to both joint legal custodial
parents under which both parents have rights and responsibilities
toward the child, including but not limited to shared parenting time
with the child, maintaining homes for the child, providing routine care
of the child and under which neither parent has physical care rights
superior to those of the other parent.
Iowa Code § 598.41(3) enumerates the factors the court must consider when
determining custody. See Iowa Code § 600B.40(2); In re Marriage of Weidner,
338 N.W.2d 351 (Iowa 1983); In re Marriage of Winter, 223 N.W.2d 165 (Iowa
1974).
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The enumerated statutory factors are:
a. Whether each parent would be a suitable custodian for the
child.
b. Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with
and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child’s needs.
d. Whether both parents have actively cared for the child
before and since the separation.
e. Whether each parent can support the other parent’s
relationship with the child.
f. Whether the custody arrangement is in accord with the
child’s wishes or whether the child has strong opposition, taking into
consideration the child’s age and maturity.
g. Whether one or both the parents agree or are opposed to
joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other
parent will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation.
j. Whether a history of domestic abuse, as defined in section
236.2, exist.
Iowa Code § 598.41(3).
While the language of section 548.41(3) applies these factors to custody
determinations, our supreme court has determined that those factors are also
relevant in determining which physical care arrangement is in the best interest of
the child. See In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007). Further,
Iowa courts have consistently considered a non-exclusive set of criteria, as
articulated in the Winter case:
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.
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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.
223 N.W.2d at 166-167. When determining whether joint physical care is
appropriate, “our case law requires a multi-factored test where no one criterion is
determinative.” In re Marriage of Meierotto, No. 15-0047, 2015 WL 5968895, at *2
(Iowa Ct. App. Oct. 14, 2015) (citing Hansen, 733 N.W.2d at 697). Physical care
decisions rely on the same criteria regardless of whether the case involves a
dissolution of marriage or unwed parties. Jacobson v. Gradin, 490 N.W.2d 79, 80
(Iowa Ct. App. 1992).
In applying these legal principles, we determine joint or shared physical care
is appropriate for these parties and in L.R.’s best interest. Although Lindsay
contends Zach is not a suitable custodian for the child, upon our review of the
record, we agree with the district court that both parties are suitable custodians.
Both are physically and mentally capable of providing for L.R.’s psychological and
emotional needs. Zach has matured and provides suitable care when L.R. is with
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him. We agree L.R.’s best interests are met by spending the maximum amount of
time with both parents.
Lindsay contends that she and Zach are not able to communicate with each
other regarding L.R.’s needs. We do not find this supported by the evidence. The
parties primarily communicate by texting. A substantial amount of these texts were
admitted as an exhibit at trial. The primary conflict between these parties involved
the breakdown of their personal relationship.. The sheer volume of texts belies the
claim that they cannot communicate. Although many of these communications
related to their failed relationship, when required to discuss care arrangements for
L.R., we discern no significant difficulty communicating in a cooperative and
respectful manner.
Our review also refutes Lindsay’s claim that Zach is disrespectful to her and
intimidating. We agree with the district court that as the parties move on from the
frustration of their failed relationship and focus on parenting L.R., their
communication will improve. One or two “cherry picked” examples by Lindsay of
troubled texting from the volume of texts between them does not outweigh what
we discern from our overall view of the text messages. As it is, the parties appear
currently capable of communicating satisfactorily with each other when it comes to
L.R.
We further find that both parents have actively cared for L.R. since his birth.
Although Lindsay is opposed to joint physical care, each can support the other’s
relationship with L.R. The evidence does not show any concern in this case about
the parties’ physical safety from the other. Lindsay voices concern for L.R.’s safety
when with Zach due to his prior OWI convictions and license suspension, but the
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recent incident of driving while barred did not involve L.R. Testimony supports that
Zach is a loving and care-providing father to L.R. There is no evidence that L.R.’s
safety is at risk when with either parent. We agree with the district court that Zach
has been able to put his OWI issues behind him and make good decisions for L.R.;
the lingering licensing issues do not, in our view, overcome L.R.’s interest in
maintaining his relationship with his father.3 Zach has a limited license that allows
him to drive to and from work and daycare. For other excursions, Zach testified
he utilizes the help of family and friends. He also testified he intends to move to
Dike when L.R. starts preschool, which will alleviate some of these concerns.
Lindsay argues that Zach is not as attentive to L.R.’s special needs as she
is and for this reason she is better suited to tend to him and entitled to physical
care. She points out that Zach initially resisted the cochlear implants, delayed his
approval, and has not been engaged with the speech therapist. However, other
testimony shows that Zach researched the proposed surgery of implants, provided
timely approval, was present for both surgeries, has attended over twenty-five of
L.R.’s doctor appointments, and provides appropriate care. Since Zach currently
resides in a school district different than Lindsay, the speech therapist was not
permitted to provide therapy at Zach’s residence and he was required to set that
up through the local school district.
3
Evidence was presented of Zach’s arrest just before trial for driving while barred that was
pending and had not yet been resolved at the time of trial. Under our rules, on appeal we
are restricted to examining the record made at the trial. As much as we would like to know
what has transpired since the trial, and such knowledge could potentially help resolve
issues and move this matter and the parties along more expeditiously to a final resolution,
it is not within our purview. See In re Marriage of Rodasky, No. 16-1312, 2016 WL
7077920, at *1 (Iowa Ct. App. Dec. 2, 2016).
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Lindsay has taken lessons to learn sign language and to help teach L.R.
signing so that he can communicate better. Zach has not done so. Due to L.R.’s
tender age at one and a half, it is unclear the extent to which this is currently useful.
It likely will be more so in the future. In learning sign language, Lindsay has shown
an extra degree of attending to L.R.’s special needs, which is commendable, but
we cannot say this alone tips the scale in her favor so as to override shared
physical care. Zach has shown sufficient concern and attentiveness to L.R. and
his special needs to justify a shared physical care arrangement.
Having reviewed each of Lindsay’s arguments for physical care, we do not
find them adequate to override shared physical care with Zach as being in L.R.’s
best interest.
C. Request for a special needs best interest standard.
Lindsay contends the “best interests'” standard must be applied differently
to children with special needs and should include an assessment of the particular
child’s special needs because they require a higher level of collaboration between
the shared care parents. Lindsay asks us to adopt a “best interest of the special-
needs child” analysis. She argues the criteria to be applied in custody cases
should focus more on the special needs of the child than on the characteristics of
the parents when it involves a child with special needs. For this reason, she urges
us to adopt a standard that places the special needs of a child as the most
important consideration in determining physical placement of the child.
We must decline Lindsay’s invitation for two reasons. First, she cites no
authority in support of such a rule. Under the appellate rules, cases are transferred
to the court of appeals for application of existing legal principles or if they are
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appropriate for summary disposition. Iowa R. App. P. 6.1101(3)(a), (b). As we
have previously found, it is not for our court to change existing legal principles. If
a separate criterion for determining the physical-care arrangement of children with
special needs is to be adopted, we must leave it to the legislature or the supreme
court. See Brooks v. Brooks, No. 03-1217, 2004 WL 240207, at *2 (Iowa Ct. App.
Feb. 11, 2004) (citing State v. Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994) (“We
leave it up to the legislature or our supreme court to establish new causes of action
even when they appear to have merit.”)).
Second, the existing legal principles for determining who should care for a
child, as discussed in the Winter case, although not specific, appear to be
applicable and provide sufficient guidance as to children with special needs. See
In re Marriage of McIntosh, No. 98-1735, 1999 WL 823646 at *2 (Iowa Ct. App.
Oct. 15, 1999) (“In concluding [the father] should be awarded primary physical care
of [the child], we give considerable weight to the importance of his development as
a deaf child. [He] is a child with special needs.”) We are satisfied that the current
law encompasses consideration of the specific needs of a child with special needs.
D. Appellee’s request for appellate attorney fees.
On appeal, Zach requested appellate attorney fees. An award of appellate
attorney fees is within the discretion of the appellate court. Markey v. Carney, 705
N.W.2d 13, 26 (Iowa 2005) (citing In re Marriage of Ask, 551 N.W.2d 643, 646
(Iowa 1996), In re Marriage of Gaer, 476 N.W.2d 324, 326 (Iowa 1991)). Whether
such an award is warranted is determined by considering “the needs of the party
making the request, the ability of the other party to pay, and whether the party
making the request was obligated to defend the trial court's decision on appeal.”
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Ask, 551 N.W.2d at 646. Considering these factors as applied to the facts of this
case, we do not think an award of appellate attorney fees is appropriate.
IV. Conclusion.
Despite the trial court’s failure to comply with Iowa Rule of Civil Procedure
1.904(1) to file written findings, upon our de novo review of the record in this
appeal, we conclude the shared physical care ordered by the district court is in the
child’s best interest and should be affirmed. We are not at liberty to adopt a new
best interests standard in determining physical-care arrangements for children with
special needs, but we are able to make such a determination based upon the best-
interests standards available under existing statutory and case law. We deny the
request for appellate attorney fees.
AFFIRMED.