JASON M. POJAR, Petitioner-Appellant, vs. LINDA D. NORBERG, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-919 / 07-1032
Filed December 28, 2007
JASON M. POJAR,
Petitioner-Appellant,
vs.
LINDA D. NORBERG,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Jason M. Pojar appeals seeking joint physical care of his daughter Grace.
AFFIRMED.
Dennis D. Jasper of Stafne, Lewis, Jasper & Preacher, Bettendorf, for
appellant.
Linda D. Norberg, Bettendorf, pro se.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
2
EISENHAUER, J.
Jason Pojar appeals a district court ruling placing physical care of the
parties' minor child with Linda Norberg. We affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
Jason and Linda are the parents of Grace A. Pojar, born in April 2003.
The parties were never married and have not been able to sustain a stable
relationship. Grace was born after one year of dating. Jason was present at
Grace’s birth and, although he has never shared physical care of Grace, he has
been actively involved in her life. Jason is a Davenport police officer and Linda
works at the Handicap Development Center. Linda has never been married and
is also the mother of Hailey, age seven. Hailey and Grace are very close.
When Grace was two, the parties tried to live together, but that ended
after seven months, in November 2005. Early in 2006, they again tried living
together, but separated in May 2006 after a night of drinking led to an incident in
a bar with female dancers and the eventual arrest of Linda.
In July 2006, a property dispute led to police involvement and to Jason
filing a complaint, which eventually was dismissed, charging Linda with assault.
Linda obtained a temporary protective order against Jason which was also
eventually dismissed.
A no contact order between Jason and Linda was
modified to allow telephone contact on February 21, 2007, and was cancelled as
a part of the district court’s ruling on physical custody.
Jason filed a petition in August 2006 seeking joint legal custody and
physical care or, in the alternative, shared care of Grace and the case was heard
in February 2007. The parties agreed on joint legal custody of Grace, but did not
3
agree on the issue of physical care.
In April 2007, the court ruled the best
interests of Grace required physical care to be placed with Linda and granted
Jason extraordinary visitation. Jason filed a motion to amend or enlarge which
was denied in May 2007. On appeal, Jason admits the parties’ relationship was
tumultuous, but argues joint physical care is still appropriate because they have
never had any arguments about raising Grace.
II.
SCOPE AND STANDARDS OF REVIEW.
Our review in this equity matter is de novo. Iowa R. App. P. 6.4. Although
not bound by the district court's fact findings, we give them weight, especially
when considering the credibility of witnesses. Iowa R. App. P. 6.14(6)(g).
III.
PHYSICAL CARE.
“When considering the issue of physical care, the child's best interest is
the overriding consideration.” In re Marriage of Fennelly, 737 N.W.2d 97, 101
(Iowa 2007). The court is guided by the factors set forth in Iowa Code section
598.41(3) (Supp. 2005); see Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct.
App. 1994) (noting criteria apply regardless of parents' marital status).
Our
supreme court recently devised a nonexclusive list of factors to be considered
when determining whether a joint physical care arrangement is in the best
interests of the child. In re Marriage of Hansen, 733 N.W.2d 683, 697 (Iowa
2007). The factors are (1) “approximation”—what has been the historical caregiving 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.” Id. at 697-99. The ultimate
4
objective is to place Grace in the environment most likely to bring her to healthy
physical, mental, and social maturity. See id. at 695. With these principles in
mind and after considering Jason’s arguments on appeal and reviewing the
evidence anew, we conclude the district court correctly denied Jason’s request
for joint physical care.
As the district court recognized, Linda and Jason are both competent and
loving parents who are sincere in their desire to care for Grace. Where the child
would flourish in the care of either parent, the choice of physical care necessarily
turns on narrow and limited grounds. In such cases “stability and continuity of
caregiving are important factors.” Id. at 696.
These factors tend to favor a
parent who was primarily responsible for the physical care of the minor child. Id.
Here, Linda has been Grace’s dominant primary care provider and her
successful history of caregiving is a reliable indication of the quality of primary
care Grace will receive in the future. Since the child’s birth in 2003, there have
only been approximately eleven months where the parties lived together and had
an opportunity to jointly care for the child. At all other times the child has lived
with and been cared for by Linda. This dominance in time spent with the child
also mitigates against shared care.
Additionally, in close cases, we give careful consideration to the district
court's findings. In re Marriage of Wilson, 532 N.W.2d 493, 495-96 (Iowa Ct.
App. 1995).
In finding Grace’s best interests would not be served by joint
physical care, the district court determined the parties do not communicate well
enough for a 50/50 shared care arrangement and lack mutual respect for each
other as evidenced by their history of harassing each other. In denying Jason’s
5
motion to enlarge, the court stated: “The parties’ relationship history, including
no contact orders and the filing of criminal charges against each other, is not
conducive to joint physical care as they do not support each other’s lifestyle
choices or communicate well.”
Additionally, the court found Linda’s home environment, a house close to
Grace’s school in Bettendorf, to be more appropriate than Jason’s residence in
Davenport which he shares with a thirty-year-old, single, male roommate.
Although Jason is hoping to eventually move to the day shift, the court
determined his night shift work schedule makes a 50/50 physical care
arrangement not in Grace’s best interests. Finally, the court found Linda has
been the primary care giver to Grace up to this point in her life.
Based on our de novo review of the record, we find many factors weigh
against shared care and in favor of awarding Linda physical care of Grace. See
Hansen, 733 N.W.2d at 697-99.
The district court's findings concerning the
parties’ inability to communicate and lack of mutual respect for each other are
amply supported by the evidence and we adopt them as are own.
Jason
suggests the parties’ disagreements have never included disputes about the
child’s care. While this may be true, under the circumstances of this case, it is
impossible to find the level of communication or mutual respect necessary to
warrant joint physical care. We also defer to the district court’s impressions of
the parties gleaned from observing their testimony at trial. For the same reasons
cited by the district court, we deny Jason’s request for joint physical care and
affirm the district court’s award of physical care to Linda.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
