Upon the Petition of AMY BLEVINS, Petitioner-Appellant, And Concerning DAVIS HEYWOOD, JR., Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-745 / 06-0096
Filed October 25, 2006
Upon the Petition of
AMY BLEVINS,
Petitioner-Appellant,
And Concerning
DAVIS HEYWOOD, JR.,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Fremont County, J.C. Irvin, Judge.
Mother appeals from a district court order, judgment, and decree that
awarded physical care of a child to its father and changed the child’s surname.
AFFIRMED.
Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellant.
Michael Gallner, Council Bluffs, for appellee.
Heard by Sackett, C.J., and Zimmer, J., and Hendrickson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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ZIMMER, J.
Amy Blevins f/k/a Amy Neeman and Davis Heywood are the biological
parents of Kassie Neeman n/k/a Kassie Heywood, born in 1997. Amy appeals
from the district court order, judgment, and decree that awarded the parties joint
legal custody of Kassie, placed the child in Davis’s physical care, and changed
Kassie’s surname to Heywood. We affirm the district court.
I. Background Facts and Proceedings.
Amy and Davis have never been married to each other.
Amy was
Kassie’s primary caregiver from the child’s birth until the district court awarded
Davis physical care.
Davis initially had visitation with Kassie every other
Saturday, but the visitation ceased after a few months. Shortly thereafter, Davis
moved to Colorado. Other than one brief visit with Kassie when she was a year
old, Davis did not have visitation with her until 2002. Amy contends Davis never
contacted her to request visitation. Davis contends that Amy’s frequent moves
during the first few years of Kassie’s life made it difficult to contact her regarding
visitation and, moreover, that Amy ignored the requests for visitation she did
receive.
Amy and Davis eventually began relationships with, married, and had
children with other individuals. Amy married Michael Blevins in 2002, and they
have three children together. Davis married Wendy Heywood in 2004, and they
have two children together. Wendy also has two children from a prior marriage.
In 2001 Davis contacted Amy about resuming visitation with Kassie. In
February of that year the Colorado District Court established a permanent child
support obligation. The order, which listed Amy and Davis as co-petitioners,
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stated that no request for back child support had been made.
According to
Davis, he was not required to pay back child support because he provided the
court with proof that he had provided Amy monetary assistance for Kassie during
those periods of time he had been able to ascertain her location.
Davis has complied with the terms of the child support order, including the
requirement to provide health insurance for Kassie.
However, after Amy
experienced some initial difficulties with Kassie’s doctors accepting Davis’s
insurance, she ceased taking advantage of the coverage and instead relied on
Medicaid.
In 2002 Davis traveled to Iowa for a visit with Kassie. In 2003 Davis
requested and received visitation with Kassie for seven weeks during the
summer and one week during Christmas break.
Colorado.
The visitation was spent in
In 2004 Davis requested and received approximately a month of
summer visitation with Kassie, which was again exercised in Colorado. Davis
also spoke with Kassie on the telephone once or twice a month. During at least
part of the time Davis had to rely on Amy placing the phone calls, because Amy’s
home phone service has been shut off and she did not own a cell phone.
In February 2005 Amy filed a petition for determination of legal custody,
physical care, and visitation.
In the summer of 2005 Davis exercised
approximately three months of visitation with Kassie. During this time a dispute
arose over a doctor’s appointment Amy had made for Kassie.
Kassie, who suffers from simple absence seizures, had been scheduled to
see her neurologist on July 7. The parties dispute whether Davis refused to
return Kassie to Iowa for the appointment or whether Amy simply did not provide
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Davis adequate notice that Kassie needed to be returned for the appointment. In
lieu of the July 7 appointment, Davis had Kassie evaluated by a neurologist in
Colorado. After Kassie indicated that she did not always receive both doses of
her seizure medication, the neurologist prescribed a one-dose form of the drug.
Since the change, Kassie has experienced fewer seizures.
Amy’s petition came before the district court in October 2005. At the time
of trial Amy was twenty-seven years old, and her children with Michael were
aged four years, twenty months, and one month. Amy was unemployed and
staying home to care for the children, but had previously worked as a nurse’s
aide earning $11.50 per hour. Michael was employed as a forklift driver, earning
$10 per hour. The family was also receiving government assistance in the form
of food stamps and Medicaid. Amy’s family was occupying a two-bedroom rental
home, but was hoping to move in the near future. The new home would be the
sixth residence Amy has occupied since Kassie’s birth.
At the time of trial Davis was thirty years old. His children with Wendy
were five years old and two years old, and Wendy’s two children were ten years
old and eight years old. Wendy and Davis were also certified foster parents and
had the care of two foster children, then aged eight and five. However, the foster
children were in the process of being adopted, and Wendy and Davis stated they
would stop providing foster care if Davis received Kassie’s physical care.
The family lived in a five-bedroom home Wendy and Davis purchased two
years prior to trial. Davis was employed as a supervisor by an area apartment
complex, a job he had held since 2000, earning $36,400 per year. He also
operated a small construction business, which had not yet shown a profit.
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Wendy, in addition to caring for the home and the children, worked as a house
cleaner on a part- to full-time basis.
In its December 2005 order, judgment, and decree, the district court noted
it was “clear” that Davis should be awarded Kassie’s physical care. The court
recognized Amy’s role as Kassie’s primary caregiver and the limited amount of
time Davis had spent with the child. However, the court found Davis’s early
visitation had been limited, at least in part, because his requests for visitation
“went unheeded” by Amy. The court was also troubled by the fact Michael had
admitted to drug use as recently as 2004, 1 and that he had been convicted of
domestic abuse against Amy for an incident in October 2003. In addition, the
court focused on the fact that Amy, Michael, and the children had “lived in a
number of residences . . . in a variety of locations.”
The court determined Davis had demonstrated greater stability in his
family life and his career and would be better able to provide for Kassie’s
emotional and economic needs. The court accordingly placed physical care with
Davis, ordered that Kassie’s last name be changed to Heywood, awarded Amy
visitation, and ordered Amy to pay child support. The court directed the parties
to pay their own attorney fees and taxed the costs of the action against Amy.
Amy appeals. She asserts the court erred in awarding Davis physical care
of Kassie and in ordering that Kassie’s last name be changed to Heywood. She
asserts the court further erred by failing to award her trial attorney fees and in
ordering her to pay the costs of the action.
1
Although Amy and Davis both abused methamphetamine at the time Kassie was
conceived, the record credibly indicates neither has used drugs since Kassie’s birth.
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II. Scope and Standard of Review.
We conduct a de novo review of the district court’s decision. Iowa Code §
600B.40 (2005); Iowa R. App. P. 6.4. We give weight to the court’s fact findings,
especially in determining witness credibility, but are not bound by them. Iowa R.
App. P. 6.14(6)(g).
III. Physical Care.
When considering the issue of physical care, our overriding consideration
is Kassie’s best interests. Iowa R. App. P. 14(6)(o). We are guided by the
factors set forth in Iowa Code section 598.41(3), as well as those identified in In
re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). See Iowa Code §
600B.40 (providing section 598.41 criteria apply in an action between unmarried
parents). The ultimate goal is to provide the child the environment most likely to
bring her to healthy physical, mental, and social maturity. See In re Marriage of
Murphy, 592 N.W.2d 681, 683 (Iowa 1999). The critical issue is which parent will
do better in raising the child; gender is irrelevant, and neither parent has a
greater burden than the other. In re Marriage of Courtade, 560 N.W.2d 36, 37-38
(Iowa Ct. App. 1996).
Amy admits that Davis is a “fit and proper parent” for Kassie, but points
out that she has been Kassie’s primary caregiver and that Kassie has done well
in her care.
Amy also points out that awarding physical care to Davis will
separate Kassie from her three step-siblings.
She contends these facts
preponderate so heavily in her favor that she must be awarded physical care.
Although we give significant consideration to placing the child with the
primary caregiver, it is not the singular factor in determining which placement
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would best serve the child’s interests. In re Marriage of Wilson, 532 N.W.2d 493,
495 (Iowa Ct. App. 1995). 2 Moreover, while courts do attempt to keep siblings
and step-siblings together whenever possible, if the record indicates separation
might “better promote the long-term best interests of the children, then a court
may depart from the rule.” Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct.
App. 1994). Here, the concern engendered by separating Kassie from Amy and
Michael’s children is somewhat dissipated by the young age of those children
and the fact Amy points to no evidence that Kassie is closely bonded with her
step-siblings. Moreover, other concerns lead us to conclude this is a case where
the child’s interests are best served by departing from the rule.
As the district court noted, Amy and Michael have been unable to maintain
the stability Davis and Wendy enjoy. Amy and Michael have experienced severe
financial difficulties, extended periods of unemployment, and have moved
frequently. The insecurity created by these situations cannot help but have a
destabilizing effect on Kassie. In contrast, Davis’s employment, financial history,
and living situation have been relatively stable over the years.
Davis also
appears to be somewhat more attentive to Kassie’s medical needs.
In addition, we give weight to the district court’s finding that Davis’s lack of
involvement in Kassie’s early years was at least partially due to Amy’s failure to
heed Davis’s requests for visitation. In fact, the record credibly indicates that
2
We reject Amy’s unsupported suggestion that because she has been Kassie’s sole or
primary caretaker since birth we should in effect treat this matter as one for modification
of a prior court-ordered custody and care determination and require Davis to prove “the
most cogent reasons” exist for awarding him physical care. See In re Marriage of
Frederici, 338 N.W.2d 156, 158 (Iowa 1983) (requiring a party seeking modification of a
prior physical care determination to meet the heavy burden of showing a substantial and
material change in circumstances, on the basis that once care has been fixed by the
court it should be disturbed only for the most cogent of reasons).
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Amy continues to obstruct, or at least makes little effort to facilitate, Kassie’s
relationship with her father.
In contrast, Davis appears to understand the
importance of ensuring Amy’s involvement in Kassie’s life.
Finally, like the district court, we are concerned by Michael’s relatively
recent history of drug use and the domestic abuse he perpetrated on Amy.
Although Amy attempts to minimize the abuse and drug use by pointing out that
neither happened in Kassie’s presence and to testimony that neither has
reoccurred, these events do have a detrimental impact on the home environment
Amy is able to provide Kassie.
We are also troubled because Michael’s
testimony reveals a somewhat dismissive attitude regarding his past drug use
and the domestic abuse. For example, despite admitting to the abuse, Michael
stated he did not feel there was any reason for him to participate in batterers’
education classes.
We do not doubt Amy’s love for Kassie, and despite Davis’s assertions to
the contrary, the record indicates Amy has been able to meet Kassie’s day-today needs. We also acknowledge that Amy has been Kassie’s primary caregiver
and that awarding Davis physical care separates Kassie from Amy’s other
children. The key question, however, is which parent can provide Kassie with the
environment most likely to bring her to healthy physical, mental, and social
maturity. See Murphy, 592 N.W.2d at 683. In light of the totality of the record,
and giving due weight to the district court’s fact findings and credibility
assessments, we agree that parent is Davis.
Although Davis’s early contact with Kassie was limited, in the past few
years he has successfully exercised extended periods of visitations that have
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allowed Kassie an opportunity to bond with Davis, Wendy, and the other children.
The record credibly indicates Kassie has done well during and enjoyed the visits.
Moreover, Davis offers Kassie a home environment with greater structure and
stability than Amy can provide. In addition, Davis offers a home which is free
from the concerns raised by Michael’s drug use and domestic abuse. It is a
home environment that emphasizes education and extracurricular participation,
an environment in which Davis’s and Wendy’s children and the foster children
have thrived. We conclude the totality of the foregoing factors indicate Kassie’s
interests are best served by awarding Davis physical care.
IV. Name Change.
Amy also asserts the court erred when it ordered Kassie’s last name
changed to Heywood. The controlling question on this issue is whether the name
change serves Kassie’s best interests. Montgomery v. Wells, 708 N.W.2d 704,
708 (Iowa Ct. App. 2005). In answering this question we consider and weigh
various factors particular to the individual case, including (1) whether it is
convenient for Kassie to have the same name as Davis, (2) whether the name
change will facilitate or detract from Kassie’s identification as part of a family unit,
(3) avoiding embarrassment, inconvenience, or confusion for Davis or Kassie,
(4) the length of time Kassie’s former surname has been used, and (5) whether
the change will have a positive or an adverse effect on the bond between Kassie
and either Amy or Davis, or Amy’s and Davis’s families.
(citations omitted).
See id. at 708-09
Upon review of these factors, we agree that Kassie’s
surname should be changed to Heywood.
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V. Attorney Fees and Costs.
Finally, we address Amy’s contention the court abused its discretion when
it failed to award her trial attorney fees and ordered her to pay the costs of the
proceedings. In support of her assertion, Amy cites to a case that governs an
award of attorney fees in an action to modify a dissolution decree. See, e.g., In
re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Such attorney fees are
statutorily authorized.
See Iowa Code § 598.36.
This matter was brought
pursuant to section 600B.40, which contains no such authorization. 3 The only
other authority cited by Amy refers to the standards this court employs to
determine if attorney fees should be awarded on appeal.
See, e.g., In re
Marriage of Kunkel, 555 N.W.2d 250, 254 (Iowa Ct. App. 1996). Such cases
have no application to an award of trial attorney fees. We accordingly find no
error in the district court’s decision to require each party to pay his or her own
attorney fees. Nor do we see any error in the court’s decision to assess to Amy
the costs of an action that she initiated and in which she did not prevail.
VI. Conclusion.
The district court did not err in awarding Davis Kassie’s physical care or in
ordering that Kassie’s surname be changed to Heywood. Nor did the court err in
ordering Amy to pay her own attorney fees and requiring her to pay the costs of
the action. The district court’s order, judgment, and decree is affirmed.
AFFIRMED.
3
Section 600B.25 does grant the district court discretion to award reasonable costs,
including reasonable attorney fees, in certain circumstances. However, that section
appears to apply only paternity judgments, and moreover only authorizes the court to
award costs and fees to the prevailing party. Iowa Code § 600B.25(1).
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