Miguel Alvarez v. Norma A. Rivera

IN THE COURT OF APPEALS OF IOWA

No. 16-0615
Filed December 21, 2016

MIGUEL ALVAREZ,
Plaintiff-Appellee,

vs.

NORMA A. RIVERA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott,

Judge.

A mother appeals the district court’s grant of physical care to the child’s

father. AFFIRMED.

John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.

Kendra M. Olson, Sioux City, for appellee.

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

Miguel Alvarez and Norma Rivera are the unmarried parents of M.E.A.

Norma appeals the district court’s grant of physical care to Miguel. Like the

district court, we find M.E.A.’s best interests are served by placing responsibility

for his daily routines with his father. Accordingly, we affirm.

M.E.A. was born in 2009 in Grand Island, Nebraska, where he lived with

both parents and two half-siblings. When M.E.A. was two years old, Norma

moved with her older children to her mother’s home in Denison, Iowa. Miguel’s

mother, Martha, and his sister moved in to help care for M.E.A. Norma testified

she left M.E.A. with Miguel because she knew Martha would provide good care.

During the year Norma lived with her mother in Iowa, she saw M.E.A. monthly.

When M.E.A. turned three, Norma moved to Boston to work for Herbalife. During

the four or five months she lived in Massachusetts, Norma spoke to M.E.A. on

the telephone.

When Miguel filed for temporary custody of M.E.A. in Nebraska, Norma

returned for the hearing and decided to stay in Nebraska. The court granted

Miguel temporary custody. Norma had her own residence, the parties’

relationship improved, and Norma helped with M.E.A.’s transportation and other

activities. In November 2012, Norma’s son from a different relationship was

born. Miguel’s Nebraska case was dismissed.

In early 2013, Miguel and M.E.A. moved to Sioux City for Miguel’s

employment. Norma moved to Oklahoma. In November 2013, Norma moved to

Sioux City and lived with Miguel and M.E.A. That living arrangement lasted for

seven months. In June 2014, Norma moved to California, and Miguel’s mother
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and sister again cared for M.E.A. for one year until June 2015, when Daisy,

Miguel’s girlfriend, and her three children (ages nine, seven, and three) moved in.

The court found “Daisy provides care for M.E.A. while [Miguel] works, just as

Miguel’s mother used to [do] prior to moving out.”

Norma testified she moved to California in June 2014 for a new job and to

be closer to the families of her other children. At the time of trial, Norma was

living with her children who were ages fifteen, fourteen, and three. She worked

from 8:00 a.m. to 5:00 p.m. and contacted M.E.A. though telephone calls and

video chats. When Norma left Sioux City, the parties orally agreed Miguel would

have physical care during the school year and M.E.A. would spend his summers

in California. At trial, Norma claimed they also agreed Miguel’s mother would

care for M.E.A.

On July 11, 2015, Norma arrived at Miguel’s residence, telling him she

wanted to flip the custody arrangement. Norma planned to enroll M.E.A. in a

California school, and Miguel would have summer visitation. Norma felt justified

in unilaterally changing the agreement because Miguel did not hold up his end of

the bargain when he allowed Daisy to replace his mother, Martha, as M.E.A.’s

babysitter. On July 13, Miguel filed a petition in Iowa seeking legal custody and

physical care of M.E.A.

While Norma was in Iowa, the parties and their attorneys arranged for her

to spend time with M.E.A. in Sioux City. Ignoring the arrangement, Norma

immediately flew with M.E.A. to California. Miguel filed a motion for an

emergency ex parte custody order, and the court directed Norma to return M.E.A.
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to Iowa and granted custody to Miguel pending a temporary hearing in August

2015. Norma complied and returned M.E.A. to Iowa.

After the August 2015 hearing on temporary matters, the preliminary order

entered the same day required M.E.A. to stay with Miguel in Sioux City until the

court’s ruling. Norma returned to California and contacted M.E.A. by telephone.

On November 20, 2015, the court entered its order on temporary matters,

granting Miguel custody of M.E.A. during the pendency of the action. Noting

Norma wanted to see M.E.A. at Christmas, the court set visitation with a caveat:

“[S]aid visitation shall be exercised in [Iowa], and [Norma] shall not remove the

child from [Iowa] without prior permission of the court.” Noting Norma’s prior trip

to California with M.E.A. without authority, the court added: “It is ordered that the

child shall not be removed from the jurisdiction of this court again without prior

court approval.”

Despite the prohibitions in the November order, the next month during her

2015 Christmas visitation, Norma once again left Iowa with M.E.A.—throwing the

GPS watch–phone Miguel had given M.E.A. for Christmas out the window in

South Sioux City, Nebraska and taking M.E.A. to Grand Island. During this

visitation, Norma took M.E.A. to the dentist, who found several cavities.

Norma planned to visit M.E.A. again in February 2016. On January 19,

2016, she sought a modification allowing her to take M.E.A. to Nebraska during

visitations. On February 4, 2016, Miguel filed a motion seeking to have Norma’s

visits either supervised or allowed only on the condition she provide him with

contact information and the location of the visitation. The court’s February 12,

2016 order allowed Norma to take M.E.A. to Omaha for her February visitation,
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advising a failure to comply “would very likely result in a finding of contempt.”

The court denied Miguel’s request for supervised visitation but ordered Norma to

provide contact information.

At the hearing on March 2, 2016, Miguel testified he leaves for work

around 5:30 a.m. and returns around 7:00 p.m. M.E.A. goes to bed around 9:00

to 9:30 p.m. and has his own bedroom at Miguel’s residence. Recently, Miguel

arranged for M.E.A. to see the school counselor after observing M.E.A. was

upset and misbehaving. Miguel also followed up on the dental care suggested

by Norma’s dentist. Miguel expressed concerns about Norma having physical

care—testifying she has been absent for the majority of M.E.A.’s life and her

frequent moves show instability.

Norma testified Miguel currently does not communicate with her—he did

not tell her about the counselor, M.E.A.’s recent baptism in the Catholic Church,

or his mother moving out and Daisy moving in to care for M.E.A. Miguel

responded he did not share that information with Norma because she has not

been actively involved in M.E.A.’s life.

After considering the testimony, the court issued an order on March 10,

2016, granting the parties joint legal custody of M.E.A. with physical care to

Miguel. The court noted M.E.A. was doing well in his current custodial

arrangement, enjoying “stability and structure” in Miguel’s home. M.E.A. also has

extended family and friends in Sioux City. The court found M.E.A.’s recent

behavior problems in school “may be due, at least in part, to Norma beginning to

exercise visitation again.” Recognizing Miguel has been in charge of M.E.A.’s

care for the majority of the last five years, the court found Miguel is involved with
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M.E.A. when he is not working. “On the other hand . . . Norma has had very little

meaningful involvement with the child over this time frame while she moved from

one coast to the other and had another child.” As to M.E.A.’s health, the court

found: “It also appears [M.E.A.] has been well cared for with few medical issues

other than cavities.” The court approved of Miguel taking “the proper steps to

make arrangements for counseling” after M.E.A. acted out. The court observed

M.E.A. has adjusted well to Daisy being involved in his life as a caretaker and

“also appears to have adjusted reasonably well to having his future step-siblings

living with him.”

As to Norma’s request for physical care, the court ruled:

Of significant concern to the court is Norma’s apparent need
to place her needs above the interests of [M.E.A.] She initially took
[him] to California with the intent of him staying there after the
attorneys and parties had agreed she would simply exercise a visit
here in Sioux City for a few days. She likewise disobeyed the
court’s order when she took [M.E.A.] to Nebraska after being told
not to take [him] from Iowa.

The court concluded: “[I]t is clearly in M.E.A.’s best interest that his physical care

remains with Miguel at this time.”

In her appeal, Norma seeks physical care of M.E.A. We review de novo.

In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). While we decide the

appellate issues anew, we give weight to the district court’s findings of fact. Id.

When it comes to witness credibility, “[t]here is good reason for us to pay very

close attention to the trial court’s assessment.” In re Marriage of Vrban, 359

N.W.2d 420, 423 (Iowa 1984). The trial judge “is greatly helped in making a wise

decision about the parties by listening to them and watching them in person.” In

re Marriage of Callahan, 214 N.W.2d 133, 136 (Iowa 1974).
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Physical care involves the parents’ obligation and opportunity to maintain

a home and provide routine care for their child. Iowa Code § 598.1(7) (2015); In

re Marriage of Hansen, 733 N.W.2d 683, 690-91 (Iowa 2007) (explaining

physical-care parent must navigate “the myriad of details” associated with

everyday childrearing). After our de novo review of the record, we agree with the

district court’s insightful observations, especially as to Norma’s unwillingness to

put M.E.A.’s needs first. M.E.A. will experience greater stability and continuity in

the physical care of Miguel with visitation for Norma; this arrangement most

closely approximates the proportion of time spent with each parent during

M.E.A.’s lifetime. See Hansen, 733 N.W.2d at 683 (stating the factors of “stability

and continuity” favor the spouse who “was primarily responsible for physical

care”). We agree M.E.A.’s best interests are served by granting physical care to

Miguel. Considering all the pertinent factors, we affirm.

AFFIRMED.