IN THE COURT OF APPEALS OF IOWA
No. 20-0597
Filed March 17, 2021
ABBIGALE JO COUREY,
Plaintiff-Appellee,
vs.
TRAELIUS ANTHONY ROBINSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Tod Deck, Judge.
A father appeals the district court order placing legal custody and physical
care of his minor child with the child’s mother. AFFIRMED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
Nick E. Wingert of Mayne, Hindman, Daane, Parry & Wingert, P.C., Sioux
City, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.
The parties to this proceeding are the mother and father of A.R., a minor
child. In this dispute between the mother and father, the district court placed legal
custody and physical care of A.R. with the mother. The father appeals, arguing
the district court erred by (1) failing to grant the parties joint legal custody; (2) failing
to grant the parties joint physical care; and (3) failing to grant the father a right of
first refusal to care for A.R. at times when the mother is unable to care for the child
during the mother’s parenting time. The father further argues that, in the event we
uphold the current legal custody and physical care arrangements, he should
receive more visitation time with A.R. Finally, the mother requests appellate
attorney fees.
I. Background
A.R., was born in 2018. At the time of trial, the mother and father were both
twenty years old. The parents were never married and lived together for a time
after the child’s birth. After ending their cohabitation, the parents went through an
“on again, off again” relationship that generally ended about ten months prior to
trial, although the district court found the two had made attempts to reconcile since
then. The mother eventually moved into a guest house on her parents’ property
and the father moved into his grandmother’s house in South Dakota.
The mother filed a petition seeking a legal custody determination and
requesting physical care of A.R. (the custody case). While the custody case was
pending, the mother filed a petition seeking relief from domestic abuse against the
father (the domestic abuse case). The domestic abuse petition alleged the father
threatened to harm and kill her and her family multiple times. Following a hearing,
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the district court entered a final protective order finding the father had committed
domestic assault and represented a credible threat to the mother. The order
granted the parties “joint or shared care” of the child. In doing so, however, the
district court1 specifically acknowledged the pending custody case and noted that
its custody determination in the domestic abuse case “should be given limited if
any precedential value or preclusive effect as to the long-term best interests of the
child.”
The custody case proceeded to trial approximately six months after the
entry of the final protective order in the domestic abuse case. The hearing was
combined with a contempt action the father filed in the domestic abuse case
related to the mother refusing to give him the child during his first scheduled time
with the child after the entry of the final protective order. Following trial, the district
court issued an order in the custody case granting the mother legal custody and
physical care of the child. Regarding the contempt claim in the domestic abuse
case, the district court found the mother in contempt for improperly withholding the
child from the father during his parenting time. The father appeals.
II. Standard of Review
We review child custody decisions de novo. In re Marriage of Hansen, 733
N.W.2d 683, 690 (Iowa 2007). “Although we give weight to the factual findings of
the district court, we are not bound by them.” In re Marriage of Mauer, 874 N.W.2d
103,106 (Iowa 2016).
1The district court judge who entered the final protective order in the domestic
abuse case was a different judge than the judge who issued the final order in the
custody case that is the subject of this appeal.
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III. Legal Custody
The father first argues the district court erred by awarding legal custody of
A.R. to the mother rather than awarding the parents joint legal custody. Under a
joint legal custody arrangement, both parents have the right and responsibility to
make “decision[s] making affecting the child's legal status, medical care,
education, extracurricular activities, and religious instruction.” Iowa Code
§ 598.1(3) (2020). When making a custody determination, our primary
consideration is the child’s best interest. Id. § 598.41. Joint legal custody is
strongly preferred to awarding one parent custody, and, if joint legal custody is
requested, the district court must award it unless clear and convincing evidence
shows joint legal custody is unreasonable. Id. § 598.41(2)(b). In determining
whether joint custody is appropriate, we consider the factors listed in Iowa Code
section 598.41(3). Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988) (holding the
legal analysis used in determining the custody of a child born out of wedlock is the
same as the analysis used in making such determination with a child born to a
married couple); see also Iowa Code § 600B.40 (providing section 598.41 shall
apply in determining custody and visitation arrangements of a child born out of
wedlock). One factor is whether a history of domestic abuse exists between the
parents. Id. § 598.41(3)(j). If there is a history of domestic abuse between the
parents, that factor “outweigh[s] consideration of any other factor . . . in the
determination of the awarding of custody” under section 598.41. Id. § 598.41(2)(c).
Another factor is whether the parties can communicate with each other regarding
the child’s needs. Id. § 598.41(3)(c).
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The father argues on appeal that the district court improperly relied on
section 598.41(3)(j) to award the mother legal custody of A.R. We disagree. Like
the district court, we conclude the father’s behavior throughout these proceedings
demonstrates a history of domestic abuse sufficient to show joint legal custody is
unworkable and not in the child’s best interests. His conduct also shows that
communication with him to make joint decisions will be nearly impossible.
Throughout these proceedings and at least since A.R. was born, the father has
been physically and emotionally abusive to the mother. The record details
numerous threatening phone calls and text messages in which the father insults
the mother, threatens to hurt or kill the mother if she did not do what he wanted
(including getting back together with him), threatens to hurt or kill any other man
with whom the mother becomes involved, threatens to hurt or kill the mother’s
family, calls the mother vile names, threatens to withhold A.R. and turn A.R.
against the mother, and encourages the mother to commit suicide. The father’s
statements go well beyond the usual level of acrimony found between parents in
such disputes. See In re Marriage of Ertmann, 376 N.W.2d 918, 920 (Iowa Ct.
App. 1985) (noting some acrimony is to be expected and tension alone is not
sufficient to demonstrate joint custody will not work).
Furthermore, the father backed up his grossly inappropriate and alarming
statements with violent actions against the mother and other people on a number
of occasions throughout their relationship and after it ended. During one incident,
the father shoved her to the ground outside a bar. The day A.R. was born, when
the father was not getting his way over what last name to give the child, he
instigated an altercation at the hospital that escalated to the point the father nearly
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got into a fight with a hospital security officer. After he and the mother broke up,
he broke into and vandalized the mother’s residence. Later, he violated the
protective order and was sentenced to serve time in jail. Most recently, the father
was convicted of carrying a dangerous weapon.
Several of the father’s interactions with the mother over the phone were
recorded. Listening to the father’s behavior in those recordings is exhausting.
Besides the near constant stream of threats and name-calling unless the mother
would agree with him, when the mother would try to state even a word of
explanation or disagreement, the father would routinely cut her off immediately,
shout over the top of her, and then continue with threats until the mother would
agree or end the call. The district court concluded the father’s behavior “would not
only make the decision-making necessitated by joint legal custody nearly
impossible, but it would actually make it dangerous to” the mother. We agree. It
would not be in the child’s best interests to be placed in a situation where the
mother would be required to endure the father’s behavior and conduct to make the
decisions needed if joint legal custody was granted. The father’s history of
domestic abuse and his complete inability or unwillingness to communicate in an
acceptable manner rebuts any presumption in favor of joint legal custody and
necessitates granting the mother legal custody.
IV. Physical Care
Having concluded joint legal custody is not in A.R.’s best interest, we next
consider what physical care arrangement is appropriate. The father argues he and
the mother should have received joint physical care.
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Our objective at this step is “to place the children in the environment most
likely to bring them to health, both physically and mentally, and to social maturity.”
In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). We begin our inquiry
by assessing four non-exclusive factors:
The factors are (1) “approximation” – what has been the historical
care giving arrangement for the child between the two parties; (2) the
ability of the spouses to communicate and show mutual respect; (3)
the degree of conflict between the parents; and (4) “the degree to
which the parents are in general agreement about their approach to
daily matters.”
In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (quoting
Hansen, 733 N.W.2d at 697–99). Here, all four factors weigh in favor of placing
physical care with the mother. The mother has been A.R.’s primary caregiver
throughout the child’s life, and cares for A.R. even when she is at work. As
previously detailed, the father cannot communicate adequately with the mother
regarding A.R.’s care and, as evidenced by his many threatening, insulting
messages and statements to the mother, does not respect her as a co-parent of
their child. The mother testified to asking the father at various times about where
A.R. was or why A.R. had been returned to her care with injuries. The father either
ignored the mother’s messages or dismissed her concerns.
Further cutting against a joint physical care arrangement is the significant
distance between the parents and the father’s willingness to accept work overseas.
See Thorpe v. Hostetler, 949 N.W.2d 1, 6 (Iowa Ct. App. 2020) (“Because the
parents now reside an hour drive apart, the shared-care arrangement is now
unworkable and not in the best interests of the child.”). The distance from the
mother’s home in Iowa and the father’s home in South Dakota is over one hundred
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miles. Coupled with the parents’ inability to communicate effectively, decisions
regarding A.R.’s routine care are all but impossible to make jointly. Additionally,
as the district court noted in its order, the father has expressed a willingness to
move overseas to play professional basketball, which could take him out of the
United States for months at a time.
We agree with the district court and conclude that placing physical care with
the mother is in A.R.’s best interest.
V. Visitation
Next, the father argues he should be given additional visitation time. The
district court’s order provides the father with visitation every other weekend, every
Wednesday night, and holiday and summer visits. The court’s order provides that
the father may have additional visitation beyond those times if the parents agree.
The father maintains that he should have A.R. for one week every other week.
However, such an arrangement would essentially amount to providing the father
with joint physical care, which we have already determined would not be in A.R.’s
best interest. See, e.g., Petersen v. Nielsen, No. 17-0135, 2017 WL 2876103, at
*3 (Iowa Ct. App. July 6, 2017) (declining to award a father a visitation schedule of
“seven overnight visits over a fourteen-day period” because the father’s “request
for expanded visitation essentially asks to have the children one-half of the time,
which would be a joint physical care arrangement”). As such, we find no reason
to amend the visitation schedule.
VI. Right of First Refusal
The final issue the father raises is whether he should be granted the right
of first refusal, meaning the right to be notified and given the opportunity to have
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the child in his care if the mother is not going to have the child in her care during
her time with the child. The mother received a right of first refusal to care for A.R.
during the father’s time in the event the father is unable to take care of A.R. during
his scheduled time. The father argues he should have received the same right for
when the mother is unable to care for A.R. during her scheduled time. However,
the father did not request a right of first refusal at the district court, and, after the
court ruled, the father did not file a motion pursuant to Iowa Rule of Civil Procedure
1.904(2) asking the court to address the issue.2 Having not raised this issue at the
district court, error is not preserved so as to permit us to address it on appeal.
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.”).
Even if we were to address the issue on the merits, we would not grant the
father a right of first refusal under these circumstances. Granting such a right
would necessarily require the mother to provide information to the father as to her
activities. Given the father’s demonstrated history of controlling, threatening, and
jealous behavior, nothing good could come from providing such information to the
father. The district court did not err in failing to grant the father a right of first
refusal.
2 The father filed a rule 1.904(2) motion after the district court’s ruling, but the
motion did not raise this issue. Furthermore, the father abandoned the motion by
filing notice of appeal before the district court could rule on the motion. See Freer
v. DAC, Inc., 929 N.W.2d 685, 687–88 (Iowa 2019) (“A moving party is deemed to
have waived and abandoned a posttrial motion when that party files a notice of
appeal.”).
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VII. Appellate Attorney Fees
Lastly, the mother requests an award of appellate attorney fees. Iowa Code
section 600B.26 permits the court to award reasonable attorney fees to the
prevailing party. The standards applicable to an award of attorney fees under Iowa
Code chapter 600B are the same as those that apply to a dissolution of marriage
action pursuant to chapter 598, except they are limited to being awarded only to
the prevailing party. See Markey v. Carney, 705 N.W.2d 13, 25 (Iowa 2005).
“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 appellate attorney fees, we consider 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 decision of the trial court on
appeal.” In re Marriage of Hoffman, 891 N.W.2d 849, 853 (Iowa Ct. App. 2016)
(quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997)).
Although the mother is the prevailing party and is thus statutorily eligible for an
award of attorney fees, we decline to order the father to pay the mother’s attorney
fees on appeal due to the father’s meager ability to pay. However, costs of the
appeal are assessed to the father.
AFFIRMED.