In re the Marriage of Black

IN THE COURT OF APPEALS OF IOWA

No. 21-0801
Filed April 13, 2022

IN RE THE MARRIAGE OF DAVID CHARLES BLACK
AND ALANNA MARIE BLACK

Upon the Petition of
DAVID CHARLES BLACK,
Petitioner-Appellee,

And Concerning
ALANNA MARIE BLACK,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Hamilton County, Kurt L. Wilke,

Judge.

Alanna Black appeals the physical-care provisions of the decree dissolving

her marriage to David Black. AFFIRMED.

Mark R. Hinshaw of The Law Offices of Mark R. Hinshaw, West Des Moines,

for appellant.

Michael L. Lewis of Lewis Law Firm. P.C., Cambridge, for appellee.

Considered by Vaitheswaran, P.J., Greer, J., and Mullins, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
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MULLINS, Senior Judge.

Alanna Black appeals the decree dissolving her marriage to David Black,

challenging the district court’s award of physical care of the parties’ two children to

David. Alternatively, she requests expanded visitation.

I. Background

The parties met in 2009. Alanna, and her two children from a prior

relationship, moved in with David a few months later. The children in interest were

born in 2010 and 2012. The parties agreed Alanna would stay home with the

children until they both reached school age. Early on, David’s employment was

out of town, and he worked a lot of overtime. In or about 2018, however, David

switched jobs and was able to be home more often. Since then, he has been more

involved with overseeing the children’s day-to-day care.

Even before the parties married in 2014, their relationship had substantial

problems, including domestic altercations. As the district court concluded, “To say

that these parties have had a volatile relationship would be a gross

understatement.” Both parties essentially agreed with this assessment in their

testimony. Following one incident in 2013, both parties were arrested for domestic

abuse assault. For her part in this incident, Alanna threatened David with both a

knife and firearm. As a result, the children were removed from the parents’ care

for about six months. At one point, both parties quit drinking alcohol. But,

according to David, Alanna started “closet drinking” thereafter. Alanna essentially

agreed this was true. It appears Alanna’s alcohol use and mental-health issues

have fueled the marital strife and other issues in the family home since. Over the
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years, Alanna has lodged several false reports with law enforcement against

David.

Everything came to a head in March 2019, when Alanna assaulted the older

child following an argument with David during which she threatened to kill him.

Alanna called the police when David tried to leave with the children, and she

reported he was intoxicated. Police arrived and determined David had not been

drinking. Alanna was arrested. David petitioned for relief from domestic abuse

shortly thereafter, and a temporary protective order was entered that effectively

required Alanna to move out of the family home, after which she was essentially

homeless. The Iowa Department of Human Services also became involved and

ultimately recommended that Alanna participate in services, which she declined.

A final protective order was entered in April, which found Alanna engaged in

domestic abuse against David and awarded David temporary physical care of the

children. The children have been in David’s physical care ever since, subject to

Alanna’s right to visitation.

Shortly after the entry of the final protective order, David petitioned for

dissolution of the parties’ marriage, requesting sole legal custody and physical care

of the children. In her answer, Alanna requested joint legal custody and primary

physical care. Following a temporary-matters hearing, the court awarded the

parties temporary joint legal custody with physical care to David and visitation to

Alanna. Until Alanna secured appropriate housing, she would be entitled to

visitation every other Friday, Saturday, and Sunday from 8:00 a.m. until 6:00 p.m.

and every Wednesday from 8:00 a.m. until 6:00 p.m. After she secured

appropriate housing, her visitation would encompass every other weekend from
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Friday evening to Monday morning and every Wednesday morning through

Thursday morning.

Effective communication between the parties was basically nonexistent

through the time of trial in April 2021. By that point, David was thirty-five years old.

He continued to live in the family home, which he purchased prior to his relationship

with Alanna. He is employed in the heating-and-cooling field and works forty hours

per week, earning $31.15 per hour. Alanna was forty-seven years old at the time

of trial. She resides in a two-bedroom apartment and works forty hours per week

as a cashier at a truck stop, a job she began in November 2019, earning $13.80

per hour. She testified she continued consuming alcohol regularly for a number of

months following the parties’ separation, but she quit in August 2019. Alanna

agreed the children have been doing well in David’s physical care for the last two

years. However, she felt David was trying to alienate her from the children’s lives.

At trial, David pursued an award of physical care of the children. Alanna

also requested physical care but testified she would be satisfied if the children were

placed in the parties’ joint physical care. In the event the children were placed in

David’s physical care, she requested that her visitation be expanded. In its decree,

the court found the children were thriving in David’s care and joint physical care

would not work due to the parties’ volatile relationship. As such, the court awarded

David physical care. During the school year, Alanna was awarded visitation every

other weekend from Friday evening to Sunday evening and every Wednesday from

after school until 8:00 p.m. During the summer, the parties would share care on

an alternating weekly schedule.

Alanna appeals.
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II. Standard of Review

Appellate review of dissolution proceedings is de novo. Iowa R. App.

P. 6.907; In re Marriage of Pazhoor, ___ N.W.2d ___, ___, 2022 WL 815293, at *4

(Iowa 2022). While we give weight to the factual findings of the district court,

especially when considering the credibility of witnesses, we are not bound by them.

Iowa R. App. P. 6.904(3)(g); In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa

2007). When considering child custody, our principal consideration is the best

interests of the children. Iowa R. App. P. 6.904(3)(o); see In re Marriage of

Weidner, 338 N.W.2d 351, 356 (Iowa 1983).

III. Analysis

On appeal, Alanna challenges the district court’s physical care decision.

She argues the children should have been placed in her physical care.

Alternatively, she requests the children be placed in the parties’ joint physical care

or, at the very least, her visitation be expanded.

A. Physical Care

On her claims concerning physical care, Alanna argues “the district court

failed to assign proper weight to her role as the primary caregiver to the parties’

children over the course of the marriage” and “the trial court failed to appreciate

David’s failure to support her relationship with the parties’ children.” Where, as

here, “joint legal custody is awarded to both parents, the court may award joint

physical care to both joint custodial parents upon the request of either parent.”

Iowa Code § 598.41(5)(a) (2019). Physical care determinations are based on the

best interests of children, not “upon perceived fairness to the spouses.” In re

Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). “The objective of a
 6

physical care determination is to place the children in the environment most likely

to bring them to health, both physically and mentally, and to social maturity.” Id.

Because Alanna appeared to prefer the imposition of a joint-care

arrangement at trial, we begin with the court’s rejection of that request. We

consider the following nonexclusive factors in determining whether a joint-physical-

care arrangement is in the best interests of children:

(1) “approximation”—what has been the historical care giving
arrangement for the child[ren] 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).

We begin with approximation. It is true that Alanna was a stay-at-home

parent early on, while David worked long hours to provide for the family financially.

However, the dynamic changed in or about 2018, when David was able to be

around more often. David took on more tasks relating to the children, and Alanna

withdrew. Then, in 2019, Alanna’s alcohol abuse, mental-health issues, and

resulting erratic behavior (including assaulting one of the children), resulted in the

children being placed in David’s physical care. Approximation is considered when

evaluating joint care because stability and continuity of caregiving are presumed

to be in children’s best interests. See Hansen, 733 N.W.2d at 696. When parents

generally share care, that dynamic should generally continue as having been

workable in the past. But joint care has never really been the arrangement

between the parties. Instead, it has pretty much been one or the other. The status
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quo and benchmark for continuity of caregiving at this point is David being the

caregiver. We are unable to conclude this factor weighs in favor of a shared-care

arrangement.

We turn to the parties’ ability to communicate and show mutual respect and

the degree of conflict between them. Id. at 698. These factors unquestionably

weigh against awarding the parties joint care. This is because “[j]oint physical care

requires substantial and regular interaction between divorced parents on a myriad

of issues.” Id. And the possibility that these parties may be able to settle their

differences is low. See id. At the end of the day, a rocky divorce “presents a

significant risk factor that must be considered in determining whether joint physical

care is in the best interest of the children.” Id.

There was little evidence presented concerning the final factor, “the degree

to which the parents are in general agreement about their approach to daily

matters.” Id. at 699. What we do know is that the parties disagree about certain

things that go on while the other has the children. There have been issues with

the children completing their homework and attending extracurricular activities

while with Alanna. David also has concerns that Alanna smokes in her home and

subjects the children to second-hand smoke. Alanna clearly despises any

involvement of David’s girlfriend with the children. She has also contacted law

enforcement to do welfare checks on the children during David’s parenting time.

Lastly, she alleges David exposes the children to sexually inappropriate conduct

and material, an allegation we find lacking in credibility.

On our review, we agree with the district court that a joint-care arrangement

is not in the best interests of the children, and we accordingly affirm the district
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court’s denial of Alanna’s request for joint physical care. See Iowa Code

§ 598.41(5)(a).

We next consider Alanna’s claim that the court erred in awarding David

physical care instead of her. Alanna argues she “can best minister to the

immediate and long-term best interests of the children” and “David does not

support the children’s relationship with” her. “The factors the court considers in

awarding custody are enumerated in Iowa Code section 598.41(3).” In re Marriage

of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996). “Although Iowa Code

section 598.41(3) does not directly apply to physical care decisions, . . . the factors

listed here as well as other facts and circumstances are relevant in determining”

physical care. Hansen, 733 N.W.2d at 696. The relevant factors in this case are:

(a) Whether each parent would be a suitable custodian for the
child[ren].
(b) Whether the psychological and emotional needs and
development of the child[ren] 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[ren]’s needs.
(d) Whether both parents have actively cared for the child[ren]
before and since the separation.
(e) Whether each parent can support the other parent’s
relationship with the child[ren].
....
(g) Whether one or both of the parents agree or are opposed
to joint custody.
(h) The geographic proximity of the parents.
....
(j) Whether a history of domestic abuse, as defined in section
236.2, exists.

See Iowa Code § 598.41(3)(a)–(e), (g), (j). We also consider the characteristics

of the children and parents, the children’s needs and the parents’ capacity and

interests in meeting the same, the relationships between the parents and children,
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the effect of continuing or disrupting an existing physical-care arrangement, the

nature of each proposed environment, and any other relevant matter disclosed by

the evidence. See In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).

Regarding the suitability of each parent, see Iowa Code § 598.41(3)(a), we

acknowledge that Alanna served as the primary caretaker for the first several years

of the children’s lives. However, the record shows Alanna was afflicted with

mental-health and alcohol-abuse issues during that period, and such wreaked

havoc on the family environment. We also acknowledge David is not entirely

innocent when it comes to the issue of alcohol use and its results on the home

front. But the evidence shows Alanna’s abuse caused more harm than David’s. It

is true that Alanna has cleaned up her act since the parties separated. But so has

David, and there have been no issues concerning David’s suitability as a custodian

while the children have been in his temporary physical care. We find this factor

weighs in favor of David, although only minimally.

Turning to the effect on the children’s needs and development resulting from

lack of contact or attention from both parents, see id. § 598.41(3)(b), no evidence

was presented that the children are suffering from reduced contact with Alanna or

would suffer from reduced contact with David. As a result, this factor does not

weigh in favor of or against either party. There is no question that the parties are

unable to communicate about the children’s needs. See id. § 598.41(3)(c). While

Alanna faulted David for this, we find it is a result of the actions of both parties.

Both parents have provided active care for the children at different stages. See id.

§ 598.41(3)(d). Alanna was the primary caregiver early on while David worked

and provided financially. After David switched jobs, he took on a more active role,
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which resulted in Alanna withdrawing somewhat from some duties. David’s role

expanded further after Alanna assaulted the older child and engaged in domestic

abuse against David, which resulted in Alanna being legally barred from the family

home and the children being placed in David’s temporary care. Based on the

importance of stability and continuity of caregiving, we find this factor weighs in

favor of David.

A significant factor in this case is “[w]hether each parent can support the

other parent’s relationship with the child[ren].” See id. § 598.41(3)(e). It is true

that David has taken actions that would cause one to assume he is trying to limit

Alanna’s involvement in the children’s lives. But that has not been a one-way street

and, given the disdain between the parties, we have no reason to assume Alanna

would not have engaged in the same type of behavior had she had the upper hand

with temporary physical care. She attempted to stir the pot on several occasions

during the proceedings by making allegations of sexual impropriety and sending

law enforcement on welfare checks of the children during David’s parenting time.

We are unable to find this factor meaningfully weighs in favor of either parent. But

we expressly advise the parties this does not need to be a race to the bottom.

Downplaying one another’s status as the children’s parent is not in the children’s

best interests and may result in long-lasting effects the parents do not anticipate

now and never intended. We admonish each parent to foster the other’s

relationship with the children for the sake of the children’s best interests, which

should be their principal consideration over all else.

Both parents sought an award of physical care, but Alanna agreed she

would settle for joint care, and her trial strategy was geared more toward that goal.
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See id. § 598.41(3)(g). However, we have already determined such an

arrangement would be unworkable. The parents live geographically close to one

another, but this factor has a heavier bearing on questions of joint physical care

and visitation than it does on which parent should be awarded physical care. See

In re Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983). There is unquestionably

a history of domestic abuse. See Iowa Code § 598.41(3)(g). While neither party

is innocent on this front, the legal history shows Alanna is the primary perpetrator.

She even assaulted one of the children on one occasion. We find this factor

weighs in favor of David as the physical care parent.

At the end of the day, “[t]he objective of a physical care determination is to

place the children in the environment most likely to bring them to health, both

physically and mentally, and to social maturity.” Hansen, 733 N.W.2d at 695;

accord Courtade, 560 N.W.2d at 38. “Determining what custodial arrangement will

best serve the long-range interest of a child frequently becomes a matter of

choosing the least detrimental available alternative for safeguarding the child’s

growth and development.” Winter, 223 N.W.2d at 167. On our review, we agree

with the district court that awarding David physical care better serves these goals.

We therefore affirm the award of physical care to David.

B. Visitation

Alanna argues her visitation should be expanded. Her only meaningful

complaint is that the decree provided her with less parenting time than she was

allowed under the temporary matters order. However, she ignores the fact that the

court significantly increased her visitation during the summer months to every other

week.
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“Liberal visitation rights are in the best interests of the children,” and children

“should be assured the opportunity for the maximum continuing physical and

emotional contact with both parents.” In re Marriage of Ruden, 509 N.W.2d 494,

496 (Iowa Ct. App. 1993); accord Iowa Code § 598.41(1)(a). “Although liberal

visitation is the benchmark, our governing consideration in defining visitation rights

is the best interests of the children, not those of the parent seeking visitation.” In

re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App. 1994).

Alanna essentially requests that she be awarded two overnight visits during

the week during the school year. Due to the issues with the children completing

their homework and making it to extracurricular activities while in Alanna’s care

during the week, we conclude the current visitation schedule is in the best interests

of the children. We therefore affirm the visitation schedule imposed by the district

court.

IV. Conclusion

Finding no cause for modifying the district court’s decree based on the

issues raised on appeal, we affirm.

AFFIRMED.