IN THE COURT OF APPEALS OF IOWA
No. 16-1340
Filed February 8, 2017
TADD MATTHEW BERGAN,
Petitioner-Appellee/Cross-Appellant,
vs.
MIRANDA HALL,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Miranda Hall appeals and Tadd Bergan cross-appeals the district court’s
ruling and order on Bergan’s petition for paternity determination, custody and
support regarding their minor child. AFFIRMED ON APPEAL, MODIFIED IN
PART ON CROSS-APPEAL.
Elizabeth A. Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des
Moines, for appellant.
Nathan M. Legue and Chase Cartee of Cartee & McKenrick, P.C.,
Davenport, for appellee.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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DANILSON, Chief Judge.
Miranda Hall appeals and Tadd Bergan cross-appeals the district court’s
ruling and order on Bergan’s petition for paternity, custody, and support
regarding their minor child, M.B. Hall contends the district court should have
placed physical care of M.B. with Hall. Hall also requests appellate attorney
fees. Bergan asserts the district court improperly awarded Hall eight weeks of
summer visitation, and requests the visitation schedule be amended to divide
summer visitation equally between the parties. We find the district court’s
placement of physical care with Bergan and implementation of a liberal visitation
schedule with Hall is in M.B.’s best interests. We therefore affirm on appeal. On
cross-appeal, we modify in part to reduce Hall’s summer visitation to six weeks in
lieu of the eight weeks awarded by the district court.
I. Background Facts and Proceedings.
Tadd Bergan and Miranda Hall began their relationship in the fall of 2011
when Bergan was a twenty-one-year-old college senior attending Iowa State
University (ISU) and Hall was a seventeen-year-old high school senior living in
Grinnell. A few months after the start of the relationship Hall became pregnant,
and M.B. was born in 2012. Although present for M.B.’s birth, Bergan did not
stay at the hospital with Hall and M.B.
After M.B.’s birth, the parties resided together in an apartment in Grinnell.
Hall served as the primary caregiver for M.B. while Bergan worked and continued
taking classes at ISU. Bergan graduated from ISU in 2013 with a bachelor’s
degree in agricultural systems technology and was hired as a product
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development specialist for John Deere. Despite the pregnancy, Hall also
graduated on time in 2013 with her high school diploma.
Due to Bergan’s job with John Deere, the parties moved to an apartment
in Bettendorf in the summer of 2013. Bergan was required to “pay his dues” and
traveled extensively in the first year of his employment. During this time, Hall
continued acting as M.B.’s primary caregiver while also working part-time and
attending classes at Scott Community College. The parties moved to a two-
bedroom townhouse in Bettendorf in the spring of 2014. By December 2014 the
parties’ relationship had deteriorated. While back in Grinnell for the holidays,
Hall decided she would not return to Bettendorf.
About two weeks later in January 2015, the parties agreed to a shared-
care arrangement, with each party having M.B. every other week. Because he
enjoyed the extra time with M.B., felt it provided more consistency, and wanted to
allow his parents living in Grinnell to have time with M.B., Bergan voluntarily
undertook the responsibility of providing transportation between Bettendorf and
Grinnell each weekend to effectuate the visitation agreement.
After returning to Grinnell, Hall continued to take classes at Marshalltown
Community College. Hall also began working as a certified nursing assistant at a
local nursing home. Hall began a relationship with William Burnham in January
2015. Hall resided with her parents until March 2015, when she moved in with
Burnham and his mother. Burnham is thirty-one and works for a company that
performs hazardous materials tank testing, welding, and transportation.
Burnham previously served eight years in the United States Marine Corps.
Burnham has a conviction for public intoxication occurring in 2012 and three
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operating while intoxicated (OWI) convictions from 2002, 2007, and November
2014. Burnham is required to have a breathalyzer device in his car and has a
restricted license. Hall and Burnham built a two-bedroom home connected to
Burnham’s shop. They moved into the home in January 2016. The interior doors
have not yet been installed in the home.
At the time of trial, Hall was twenty-two years old, continuing to take
classes full time at Marshalltown Community College, and working at the nursing
home part time every other weekend and some week days. Hall’s annual income
is $11,180. When Hall is attending school or working, she takes M.B. to a
daycare or asks her mother or Burnham to provide care. Hall stated she will earn
her licensed practical nurse certificate in May 2017. She then plans to obtain her
registered nurse degree and begin working in the nursing field.
Bergan was twenty-six at the time of trial, still residing in Bettendorf, and
working for John Deere. Bergan’s annual income is $87,256. Bergan testified
his required travel for work decreased significantly, and he will now be required
to travel about three to four weeks each year. Bergan met and began dating
Megan Zimmer in April 2015. The two are now engaged, although a wedding
date is not set. Zimmer testified she and M.B. have a close relationship. Zimmer
lives with Bergan and helps care for M.B. When M.B. is in Bergan’s care,
Zimmer feeds M.B. breakfast, gets M.B. ready for the day, and takes M.B. to
daycare every day around 8:00 a.m. Bergan picks M.B. up around 2:30 p.m.
After trial held July 13 and 14, 2016, the district court entered its ruling and
order on July 29. The court placed physical care with Bergan and ordered liberal
visitation with Hall. Pursuant to the court’s order, Hall is
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entitled to visitation with [M.B.] during the first three weekends of
each month beginning at 5:00 p.m. on Thursday until 6:00 p.m. on
the following Sunday, while the child is enrolled in preschool.
When the child begins kindergarten, [Hall] shall be entitled to
visitation with [M.B.] every other weekend beginning at 5:00 p.m. on
Friday and ending at 6:00 p.m. on the following Sunday.
....
[Hall] shall also be entitled to eight weeks of summer
visitation, which may be exercised in one uninterrupted period if
[Bergan] so chooses.
Hall was also given visitation during the week of M.B.’s spring break each year
once M.B. begins school.
Hall now appeals the physical-care determination. Bergan cross-appeals
the visitation schedule.
II. Standard of Review.
We review physical care and support determinations under Iowa Code
600B.40 (2015) de novo. Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa
1995). We give weight to the fact findings of the district court, especially its
determinations of witness credibility, but are not bound by them. In re Marriage
of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). “Our primary concern, of course, is
the best interests of the child. Our objective is to place [the child] in the
environment most likely to bring [the child] to healthy physical, mental, and social
maturity.” Phillips, 541 N.W.2d at 847.
III. Analysis.
A. Physical Care. Hall disputes the district court’s determination that
M.B.’s best interests are served by placement of physical care with Bergan.
“The criteria governing custody decisions is the same regardless of
whether the parties are dissolving their marriage or are unwed.” In re Purscell,
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544 N.W.2d 466, 468 (Iowa Ct. App. 1995); see also Iowa Code § 600B.40
(providing that custody and visitation arrangements between parents who were
never married are determined by the principles established in Iowa Code section
598.41). Iowa Code section 598.41 provides a list of nonexclusive factors we are
to consider when determining what custody arrangement is in the best interests
of the child. In re Marriage of Hansen, 733 N.W.2d 683, 697 (Iowa 2007). Such
factors include: whether each parent is a suitable custodian; whether the child
will suffer due to lack of contact with both parents; the parents’ ability to
communicate regarding the child’s care; whether both parents have actively
cared for the child before and during separation; each parent’s ability to support
the child’s relationship with the other parent; the geographic proximity of the
parents; and the safety of the child. Iowa Code § 598.41(3).
Due to the distance between their residences—Bergan lives in Bettendorf
and Hall lives in Grinnell—the shared-care arrangement will be impossible once
M.B. begins school. Both parents are competent and loving parents and have
actively been involved in M.B.’s care from the start of the alternating weekly
visitation schedule. However, both parents also have shortcomings.
The record reflects both parties did not communicate appropriately with
each other. Although Hall did request the pick-up location to be changed to
Burnham’s mother’s home in March 2015, she did not expressly inform Bergan of
her move. Hall also did not include Bergan as an emergency contact with her
daycare provider, listing Burnham instead.
During a week when M.B. was staying with Bergan’s parents while Bergan
was traveling for work, Bergan’s parents utilized the services of a daycare
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provider in Grinnell. In a conversation with the daycare provider, Bergan
requested she “not pass around” the news that M.B. would be in her care to
intentionally keep the information from Hall and Hall’s parents. At trial, Bergan
acknowledged it would have been proper to inform Hall who was caring for M.B.
and to offer Hall the opportunity to care for M.B. during the times Bergan’s
parents placed M.B. in daycare. Bergan also did not inform Hall that he made an
appointment for M.B. with a mental health counselor until about thirty minutes
before the appointment began. Although Hall was upset about this and asked to
be included in medical decisions, Bergan made a second appointment with the
mental health counselor and did not give Hall proper notice.
The record also reflects neither party actively fostered a relationship with
M.B. and the other party’s parents.
Bergan’s home is suitable for M.B. Hall’s home will be suitable once
interior doors are installed. However, after living in the home for approximately
six months, Hall and Burnham had still not installed the doors, including doors to
bathrooms and bedrooms, at the time of trial. With a young child in the home,
the lack of doors and privacy is a concern.
The district court noted “it is very evident to the court both parties love
M.B. and care deeply about her welfare.” The court noted Hall was the primary
caregiver for the first part of M.B.’s life, but that both parties acted as shared
caretakers for more than the last year and a half prior to trial. Ultimately, the
court determined Bergan “is better able to provide M.B. with stability,
consistency, and permanency in her life.” We note the district court, “which had
an opportunity to view the demeanor of the witnesses when testifying,” is better-
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positioned to assess the parties’ credibility. See In re Marriage of Forbes, 570
N.W.2d 757, 759 (Iowa 1997). We also acknowledge Hall’s somewhat longer
time period as the child’s primary caretaker but, upon our de novo review, we
agree that placing physical care with Bergan is in M.B.’s best interests.
Bergan and Zimmer provide a structured schedule for M.B., which ensures
stability and consistency in M.B.’s life. Neither party questions Zimmer’s ability to
safely care for M.B. Hall testified she noticed improvements in M.B.’s clothing
and hygiene since Zimmer began helping with M.B.’s care. However, although
Burnham does not drive M.B. in his vehicle, his criminal and substance abuse
history creates concern with Hall’s decision to leave M.B. in Burnham’s care for
extended periods of time.
With the expectation that going forward Bergan actively communicates
with Hall, includes Hall in decision-making regarding M.B.’s care, and fosters a
relationship with Hall and Hall’s parents, we conclude the district court correctly
determined Bergan to be the appropriate physical-care placement.
B. Visitation. On cross-appeal, Bergan contends the summer visitation
arrangement is improper. Bergan asserts he has never been away from M.B. for
more than a week, and proposes summer vacation be divided equally.
“In establishing visitation rights, our governing consideration is, once
again, the best interest of the chil[d]. In this regard, we have stated that,
generally, liberal visitation rights are in the chil[d]’s best interest.” In re Marriage
of Stepp, 485 N.W.2d 846, 849 (Iowa 1992). Iowa Code section 598.41(1)(a)
provides:
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The court, insofar as is reasonable and in the best interest of the
child, shall order the custody award, including liberal visitation
rights where appropriate, which will assure the child the opportunity
for the maximum continuing physical and emotional contact with
both parents after the parents have separated . . . and will
encourage parents to share the rights and responsibilities of raising
the child.
The evidence reflects Hall is an excellent and loving parent to M.B. Hall’s
work to maintain employment and complete her schooling while caring for M.B. is
commendable. While the new custody arrangement will certainly be an
adjustment for both parties, as well as for M.B., liberal summer visitation with Hall
will allow M.B. to spend time with Hall necessary to allow for maximum
continuing contact and to maintain the strong mother-child bond. We agree
however, that eight weeks of visitation usurps nearly all of the child’s summer
vacation. In fact, with eight weeks of visitation, it would be difficult for Bergan to
exercise his two weeks of uninterrupted time with the child. Accordingly, we
reduce Hall’s summer visitation to six weeks under the same terms otherwise
imposed by the district court.
C. Appellate Attorney Fees. Hall also requests appellate attorney fees in
the amount of $5000. “An award of appellate attorney fees is not a matter of
right but rests within our discretion.” In re Marriage of Applegate, 567 N.W.2d
671, 675 (Iowa Ct. App. 1997). “In determining whether to award appellate
attorney fees, 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.’” In re Marriage of
McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (citation omitted). Because Hall is
unsuccessful on appeal and Bergan is partially successful on cross-appeal, we
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conclude an award of appellate attorney fees is not appropriate and deny Hall’s
request.
IV. Conclusion.
We find the district court’s placement of physical care with Bergan and
implementation of a liberal visitation schedule with Hall is in M.B.’s best interests.
However, we modify the summer visitation to permit Hall six weeks of summer
visitation in lieu of the eight weeks granted by the district court. We therefore
affirm on appeal and modify in part on cross appeal.
AFFIRMED ON APPEAL, MODIFIED IN PART ON CROSS-APPEAL.