In re the Marriage of Heiar

IN THE COURT OF APPEALS OF IOWA

No. 20-0313
Filed October 21, 2020

IN RE THE MARRIAGE OF JOANNA D. HEIAR
AND AARON M. HEIAR

Upon the Petition of
JOANNA D. HEIAR,
Petitioner-Appellee,

And Concerning
AARON M. HEIAR,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Hardin County, John J. Haney,

Judge.

A father appeals the denial of his request for joint physical care or, in the

alternative, additional visitation. He also appeals provisions of the decree

allocating child expenses. After the parties’ counselor failed to testify, the father

asserts the district court interfered with his presentation of evidence. AFFIRMED

AS MODIFIED AND REMANDED.

Dorothy L. Dakin of Kruse & Dakin, L.L.P., Boone, for appellant.

Stephen B. Jackson, Sr. of Shuttleworth & Ingersoll, Cedar Rapids, for

appellee.

Considered by Doyle, P.J., and Mullins and Greer, JJ.
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GREER, Judge.

Aaron Heiar appeals several components of the decree dissolving his and

Joanna Heiar’s marriage. He asserts he should have been awarded joint physical

care or, in the alternative, he should have additional visitation. Aaron disputes the

allocation of expenses for the children as well. As for the trial issues, he contends

the district court abused its discretion by interfering with the testimony of the

couple’s therapist, who then refused to testify, and that the district court afforded

Joanna and her witnesses more creditability than they deserved. Joanna requests

an award of appellate attorney fees.

Background Facts and Proceedings.

Aaron and Joanna met in March 2000, and they married in May 2004. After

Aaron graduated from medical school in 2003, they moved to Ankeny for Aaron’s

residency where Joanna, who has a bachelor’s degree in education,1 worked as

an elementary school teacher. At the end of Aaron’s residency, the two moved to

Iowa Falls. Together, they have three minor children: C.J.H., born in 2010, and

twins, R.J.H. and W.M.H., born in 2012. In 2010, while the couple was expecting

their first child, Joanna left her paid employment to be a stay-at-home mom while

Aaron continued his work as a doctor of osteopathic medicine. In 2016, Joanna

reentered the workforce and continued her previous occupation as an elementary

school teacher in Iowa Falls. From the time the children were born, Joanna

provided for the majority of their physical, educational, and developmental needs

1 Joanna graduated from Iowa State University with a degree in education in 2004.
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and handled most of the household duties. By all accounts all three children are

healthy, happy, and well-adjusted and they do well in school.

The couple separated, and Joanna petitioned for dissolution in October

2018, requesting the court award joint legal custody of the children, grant her

physical care, and determine appropriate child support. That same month, Aaron

filed an application for reconciliation counseling. In response, the court ordered

counseling with Elizabeth Herrington, a licensed mental-health therapist, at

Christian Counseling. Aaron and Joanna met with Herrington together seven times

for counseling. Herrington met with the children four times with both parents

present. Joanna met with Herrington alone once; Joanna claims Herrington

diagnosed her with post-traumatic stress disorder during that meeting. After a

hearing on temporary matters in November 2018, the parties were awarded

temporary joint legal custody and Joanna was temporarily granted physical care.

On January 9, 2019, Joanna signed an authorization to release for

Herrington’s records. This release stated in relevant part,

I understand the information is being disclosed and may be used only
for legal and/or litigation purposes relating to claims and/or suit
against Aaron Heiar and arising out of incidents. . . . I also
understand that if I revoke, the revocation will take effect on the day
it is received by the entity from whom disclosure is sought in writing.

Aaron called Herrington as a witness at the dissolution trial. During Herrington’s

testimony at trial, Joanna revoked her consent orally. Herrington, concerned with

the appropriateness of her testimony after this oral revocation, hesitated to

continue. When asked by the court if her hesitation meant she wished to consult

an attorney on whether she should continue testifying, Herrington answered yes

and did not finish her testimony.
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Trial took place over four days in October and November of 2019 at which

point Joanna was forty years old and Aaron was forty-two. Both parties are

healthy, though Aaron has impaired hearing which requires the use of hearing aids.

At trial, both Aaron and Joanna alleged defects in the other’s character and

parenting skills. Aaron claimed Joanna had a cohort of her friends and family spy

on him and report his every movement back to her. Aaron also expressed fear

Joanna intended to take the children away and move out of state or out of the

country with another man, whom Aaron claimed was Joanna’s paramour. Joanna

asserted Aaron was irrationally angry before and after work to the extent he would

yell and punish the children for little or no reason, seethe if food was not prepared

by Joanna on time, and spend only twenty minutes or less with the children at

night, preferring to sit downstairs watching television on headphones without

disruption. Joanna also alleged Aaron financially abused her, claiming she was

given only $27.00 a month to spend at her own discretion.

In January 2020, the district court granted the parties joint legal custody and

Joanna was awarded physical care. In addition, Aaron was ordered to pay

$2434.45 monthly and half the children’s expenses for child support and $1000.00

per month for thirty-six months as alimony. Aaron’s visitation schedule set out by

the trial court was as follows:

(a) Weekends: From the time school is dismissed or 3:30 p.m.
if school is not in session until 5:00 p.m. on Sundays on alternating
weekends.
(b) Weekdays: From the time school is dismissed or 3:30 p.m.
if school is not in session until 7:30 p.m. on each Tuesday.
(c) The regular schedule shall continue on the alternating
weekend schedule that has been followed since entry of the
Temporary Order entered November 12, 2018.
....
 5

(g) The parties shall alternate summer vacation with the
children on a weekly basis. If the parties are unable to otherwise
agree, said alternating summer visitation shall begin for Aaron on the
first Friday following dismissal of school for the summer at 6:00 p.m.
with the parties alternating parenting time weekly thereafter until one
week prior to the start of school . . . .
....
(i) Aaron may have such additional visitation as the parties
may otherwise agree.

Aaron filed a motion to enlarge, amend, and modify on February 4, 2020.

Aaron asked the court to reconsider granting Joanna physical care and grant joint

physical care instead. In the alternative, he requested the court modify the

visitation schedule to grant him more time with the children and to limit his financial

obligations solely to the child support amount without responsibility for any shared

expenses. The court summarily denied the motion. Aaron appeals.

Standard of Review.

“Marriage dissolution proceedings are equitable proceedings.” In re

Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). “Thus, the standard of

review is de novo.” Id.; accord Iowa R. App. P. 6.907. “Although we give weight

to the factual findings of the district court, we are not bound by them.” Mauer, 874

N.W.2d at 106; accord Iowa R. App. P. 6.904(3)(g). “But we will disturb a district

court determination only when there has been a failure to do equity.” Mauer, 874

N.W.2d at 106.

The trial court has the advantage of listening to and observing the parties

and witnesses and is in a better position to weigh the credibility of witnesses than

the appellate court, which is limited to a written record. See In re Marriage of

Zebecki, 389 N.W.2d 396, 398 (Iowa 1986).
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We review evidentiary rulings and other “matters relating to the course and

conduct of a trial, not regulated by statute,” for abuse of discretion. In re Marriage

of Ihle, 577 N.W.2d 64, 67 (Iowa Ct. App. 1998); accord In re Marriage of Abkes,

460 N.W.2d 184, 186 (Iowa Ct. App. 1990) (considering whether the trial court

abused its discretion in preventing child from testifying in dissolution proceedings).

“An abuse of discretion occurs when the district court exercises its discretion ‘on

grounds or for reasons that are clearly untenable or to an extent clearly

unreasonable.’” In re Marriage of Schenkelberg, 824 N.W.2d 481, 484 (Iowa 2012)

(citation omitted).

Evidentiary Issues regarding Mental-Health Therapist.

We first consider the evidentiary issues raised by Aaron. He argues the

district court abused its discretion by making statements that resulted in the parties’

counselor, Herrington, fearing testifying. Joanna argues Aaron did not sufficiently

preserve the error claimed on appeal. After some discussion between the court

and the counselor, the counselor requested the opportunity to consult with legal

counsel about disclosing client confidences once Joanna revoked her consent. No

party attempted to recall her or ask that the record remain open for her testimony.

Additionally, the only reference to Herrington in the motion to enlarge was “Why

did Joanna object to [Harrington] testifying? What was Joanna trying to cover up?”

To preserve an issue for appellate review, it must be raised and then

decided at the trial level. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It

is a fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”

(citing Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998))). “When a district
 7

court fails to rule on an issue properly raised by a party, the party who raised the

issue must file a motion requesting a ruling in order to preserve error for appeal.”

Id. (citing Benavides v. J.C. Penny Life Ins. Co., 539 N.W.2d 352, 356 (Iowa

1995)).

But even on the merits, it would not matter after all. After Herrington took

the stand, Joanna orally revoked her consent to the release of her medical records

and to Herrington’s testimony, previously supplied by a written and signed waiver.

Once the issue of confidentiality was raised, Herrington became concerned with

the appropriateness of her testimony, as did the trial judge:

THE COURT: I had a concern that I shared with your
attorneys about a licensed social worker testifying when there’s been
a revocation of a consent that has been previously made as well as
reasserted today. And I shared with your attorneys that I was—I was
a little uncomfortable with that.
....
HERRINGTON: I’m not sure if I want to continue if this could
somehow be inappropriate. So I’m asking you, Judge.
....
THE COURT: All right. And so, Ms. Herrington, are you telling
me with the revocation of the consent that you’ve just been made
aware of that you’re not comfortable testifying regarding any work
you may or may not have done with these folks? Is that what you’re
telling me?
HERRINGTON: I’m uncomfortable, due to your words, sir—
THE COURT: What—
HERRINGTON: —Judge.
THE COURT: What do you mean?
HERRINGTON: Am I doing anything that would be
inappropriate?
THE COURT: Are you wishing to seek counsel in terms of
whether you should testify? Is that what you’re saying to me?
HERRINGTON: Yes. I don’t understand.

The judge allowed Herrington the opportunity to seek legal advice and stated the

record could be kept open if either party wished the court to do so to allow

Herrington to be recalled to give testimony after she spoke with legal counsel.
 8

Neither party asked the court to keep the record open, and Herrington was never

recalled to testify—though her records were admitted subject to objections. “[E]rror

preservation rules require parties to alert the district court ‘to an issue at a time

when corrective action can be taken.’” Estate of Poll v. Poll, No. 18-0254, 2019

WL 2374391, at *5 (Iowa Ct. App. June 5, 2019) (quoting Top of Iowa Co-op. v.

Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000)). When the court asked for

his position on Herrington stepping down to consult counsel on the matter, Aaron’s

counsel answered, “I guess if [Herrington] wants.” Aaron failed to adequately alert

the court to the issue by not objecting to the court’s questioning or statements.

Therefore, we find no error was preserved and in any event, we find the district

court did not abuse its discretion in questioning the witness given the revocation

of the release. See Iowa R. of Evid. 5.614(b) (“When necessary, the court may

examine a witness regardless of who calls the witness.”)

Credibility of Joanna and Her Witnesses.

Aaron faults the district court for failing to see through the motivations of

Joanna and her witnesses to demean his character and bolster her character. We

review the record with fresh eyes but still give weight to the district court’s credibility

findings. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (“[The district

court] is greatly helped in making a wise decision about the parties by listening to

them and watching them in person. In contrast, appellate courts must rely on the

printed record in evaluating the evidence. We are denied the impression created

by the demeanor of each and every witness as the testimony is presented.”). And

after our review, we appreciate the interplay that occurs during a trial to cast

aspersions on each side. With that in mind, while we may have made other
 9

findings if in the district court’s seat, we were not there and we find nothing that

impacts a change in the custody conclusions as detailed by the court.

Child Custody Issues.

The district court made detailed findings—the full decree is fifty-three pages.

With such detailed and supported findings, our comfort in the result is enhanced

because we give deference to the district court’s ability to see and hear the

witnesses. See McKee v. Dicus, 785 N.W.2d 733, 739 (Iowa Ct. App. 2010). After

our de novo review, we affirm the district court’s physical-care determination.

At the onset, these parties agreed they should share joint legal custody but

both sought physical care and, in the alternative, Aaron suggested they share joint

physical care. “Where both parents are suitable caregivers,” though, the propriety

of joint physical care will usually turn on “four key considerations: (1) stability and

continuity of caregiving; (2) the ability of [the parents] to communicate and show

mutual respect; (3) the degree of conflict between the parents; and (4) the degree

to which parents are in general agreement about their approach to daily matters.”

In re Marriage of Geary, No, 10-1964, 2011 WL 2112479, at *2 (Iowa Ct. App.

May 25, 2011) (citing In re Marriage of Hansen, 733 N.W.2d 683, 696–99 (Iowa

2007)). But the ultimate objective of a physical-care determination is to place the

children “in the environment most likely to bring [them] to healthy physical, mental,

and social maturity.” See in re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa

1999) (citation omitted); In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.

App. 1996). The best-interest determination is not based “upon perceived fairness

to the [parents].” Hansen, 733 N.W.2d at 695. If the court denies the request for

joint physical care, the determination shall be accompanied by specific findings of
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fact and conclusions of law that the awarding of joint physical care is not in the

best interest of the children. Iowa Code § 598.41(5)(a) (2018).

As observed by the district court, and we concur, both parents are

exceptional. But the factors tipping the scale involved Joanna’s historical role as

the primary day-to-day caretaker and Aaron’s attitude. First, from birth to the

current proceeding, Joanna served as the primary caretaker. Granted, Aaron

increased his time spent with the children after the separation in October 2018, but

historically, his role has been breadwinner and not caretaker. And over the years

while Joanna provided the majority of caretaking, the children were happy, well-

adjusted, healthy, and thriving. Second, on the question of joint physical care, the

district court found significant “Aaron’s lack of insight into his actions, attitudes and

behavior during the marriage, his unflinching inability to admit even the slightest

mistake or personal flaw at trial, as well as his unyielding posturing during the

course of these proceedings.” So, the district court fashioned the custody

arrangement with the historical roles of the parties in mind and with an

understanding of how Aaron’s inflexibility and behaviors might impact the

arrangement long-term. See Hansen, 733 N.W.2d at 697 (finding the

approximation rule offers an objective factor for the court to consider with the focus

on the historic patterns of caregiving because it ensures the decision is “rooted in

the past practices of the individual family”).

Here, the district court found:

Based upon the record presented, and with full and complete
consideration of the factors outlined above, the court finds that
shared physical custody is not in the long-term best interests of the
parties’ children. This finding is based upon the court’s consideration
of the factors set forth above, including but not limited to the record
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developed herein; the parties respective work schedules; Joanna’s
role as primary caretaker for the children during the marriage and
since the separation; the fact that the children are healthy, happy and
well-adjusted, and having observed the parties respective demeanor
and disposition at trial. The custodial arrangement described below
is the best available for the particular circumstances of this case and
the court believes it will be in the children’s long-term best interests.

Under this record, we agree with the physical-care award fashioned by the district

court.

Additional Visitation.

The district court outlined a minimum visitation schedule for Aaron and the

children. It allowed for every other weekend, a weeknight visitation, typical holiday

visits, and a liberal summer schedule where the summer vacation weeks are

alternated. As a part of the decree, the district court noted: “Aaron may have such

additional visitation as the parties may otherwise agree.” When two good parents

are involved, the physical care parent—with the best interests of the children at the

forefront—knows open, flexible visitation generally benefits the children. We affirm

the visitation schedule in the decree but emphasize that these are minimum

guidelines and parents can certainly agree to expand time beyond what is ordered.

See In re Holub, 584 N.W.2d 731, 733 (Iowa Ct. App. 1998) (noting successful

parenting involves setting aside petty differences to act in the child’s best interest).

Payment of Children’s Expenses.

After awarding child support for the three children in the amount of

$2,434.45 per month based on a three-year average of Aaron’s income,2 the

district court also required him to pay half of these expenses for the minor children:

2Joanna’s income is $43,613.04 annually, and the district court found the three-
year average annual income for Aaron was $243,132.00.
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a. School registration and book fees (through twelfth (12th)
grade;
b. School lunch money;
c. Annual school supplies (book bags, pens, pencils,
notebooks, folders, binders, calculators, protractors and all other
school-related supplies) with a maximum school year per parent of
$100;
d. School pictures and projects; projects $100 per parent per
school year;
e. Clothing and shoes (maximum of $100 per month per
parent)
f. Extracurricular activity enrollment fees and required
supplies (gear, uniforms and shoes ($200 annually per parent).

“In Iowa, child support is calculated using the child support guidelines.” In re

Marriage of Erpelding, 917 N.W.2d 235, 245 (Iowa 2018); accord Iowa Code

§ 598.21B; Iowa Ct. R. 9.2. The purpose of the child support guidelines is to set

an amount of support that will cover the normal and reasonable costs of supporting

a child. See Iowa Code § 598.21B(2)(a) (stating “the court may order either parent

or both parents to pay an amount reasonable and necessary for supporting the

child”); Iowa Ct. R. 9.3(1) (stating the guidelines “will normally provide reasonable

support”). The amount of support determined by the guidelines is designed to

encompass the normal needs of a child, except for medical support and

postsecondary education expenses. In re Marriage of Okland, 699 N.W.2d 260,

268 (Iowa 2005).

The expenses required by the district court to be split are those types of

financial obligations normally incurred by other children and, thus, have been

factored into the child support guidelines. See id.at 269. These activities and

items are typical child expenses, and there was no evidence that the expenses of

these children would be significantly different than those normally incurred by other

children of similar ages. While some expenses, normally based on choices made
 13

by parents in the best interest of the child, may justify an extraordinary expense

clause, or a deviation from the guidelines, the expenses in this case do not. See

In re Marriage of Fite, 485 N.W.2d 662, 664–65 (Iowa 1992) (holding the child’s

attendance at a private school did not provide a basis for increasing the support

level above the guidelines); In re Marriage of Gordon, 540 N.W.2d 289, 292 (Iowa

Ct. App. 1995) (“[E]xpenses for clothes, school supplies and recreation activities

are considered under the guidelines, and a separate support order covering such

expenses is improper absent a finding that the guidelines amount would be unjust

or inappropriate.”). Here, because we cannot find a deviation from the guidelines

was necessary to avoid injustice to a parent, we reverse the district court ruling

requiring Aaron to pay these expenses in addition to his child support obligation.

See In re Marriage of McDermott, 827 N.W.2d 671, 686 (Iowa 2013) (requiring the

parties to share extracurricular expenses where support was paid under the offset

method and, under the shared physical custody arrangement, each parent had an

obligation to cover the children’s expenses).

Appellate Attorney Fees.

Appellate attorney fees are awarded upon our discretion and are not a

matter of right. Okland, 699 N.W.2d at 270. When considering whether to exercise

our discretion, “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.’” McDermott, 827

N.W.2d at 687 (quoting Okland, 699 N.W.2d at 270). Joanna requested

$12,300.00 for her appellate attorney fees. She was obligated to defend to the

physical-care decision, which was the central focus of Aaron’s appeal. Still, Aaron

scored a victory in the issue of the extracurricular expenses. While we conclude
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Joanna is entitled to some appellate attorney fees, we are unable to determine a

reasonable award without more specific details of how the fees were incurred for

this appeal. Therefore, we remand the issue of appellate attorney fees to the

district court to determine a reasonable award. See, e.g., In re Marriage of

Dunaway, No. 19-1988, 2020 WL 3265028, at *3 (Iowa Ct. App. June 17, 2020)

(remanding issue of appellate attorney fees to district court “for development of the

record and the district court’s determination of [the husband’s] appellate attorney

fee award, if any”); In re Marriage of Pleggenkuhle, No. 19-0030, 2020 WL 376552,

at *3 (Iowa Ct. App. Jan. 23, 2020) (deciding the wife was entitled to appellate

attorney fees but remanding to the district court to determine a reasonable fee

award since she did not file a fee affidavit); In re Marriage of Tribolet, No. 18-1929,

2019 WL 4302130, at *7 (Iowa Ct. App. Sept. 11, 2019) (finding an award of

appellate attorney fees was proper but remanding because the husband “has not

provided an affidavit of attorney fees with documentation to support his request).

Conclusion.

We conclude Aaron did not preserve for review his complaints about the

district court’s discussion with the counselor witness. We affirm the provisions of

the decree awarding physical care to Joanna and setting out the visitation schedule

for Aaron. We deny Aaron’s request to change the decree except that we agree

he should not be ordered to pay one-half of the listed expenses of the children.

Finally, we remand the issue of appellate attorney fees to the district court to

determine a reasonable award.

AFFIRMED AS MODIFIED AND REMANDED.