DONALD JAMES JIRAN, Petitioner - Appellee, vs. KRISTY KAY PETERSEN, Respondent - Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 8-1050 / 08-0896
Filed March 11, 2009
DONALD JAMES JIRAN,
Petitioner-Appellee,
vs.
KRISTY KAY PETERSEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Patrick Grady, Judge.
Kristy Petersen appeals the district court ruling on Donald Jiran’s petition
for adjudication of paternity, custody, visitation, and support concerning the
parties’ child. AFFIRMED AS MODIFIED.
Steven E. Howes of Howes Law Firm, P.C., Cedar Rapids, for appellant.
Jacob R. Koller of Simmons Perrine, P.L.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
2
MILLER, J.
Kristy Petersen appeals the district court ruling on Donald Jiran’s petition
for adjudication of paternity, custody, visitation, and support concerning the
parties’ child, Carter. She contends the court erred in awarding Donald five
weeks of summer visitation and erred in the manner in which it allocated health
insurance costs. Donald seeks an award of appellate attorney fees. We affirm
as modified.
Donald and Kristy are the biological parents of Carter, born in May 2000.
The parties were never married but lived together in Stanwood, Washington,
from 1997 to 2004. Donald has lived in the Stanwood area his entire life except
for four years when he was on active duty in the military, and at the time of trial
lived there with his girlfriend.
His extended family, including his mother,
stepfather, sister, brother-in-law, niece, and nephew, also lives in that area.
Donald has worked at Davis Construction since 2000 and at the time of trial was
superintendent of field operations and purchasing a twenty percent interest in the
company.
Following the parties’ separation in 2004 Kristy took Carter to her parents’
home in Cedar Rapids, Iowa. Kristy was then employed for a short time in
Chicago, Illinois, but from 2005 until the time of trial she has lived and worked in
Cedar Rapids, Iowa. At the time of trial Kristy and Carter were sharing a home in
Cedar Rapids with Kristy’s parents, grandfather, and niece, and she was working
as a marketing manager for Panera Bread.
3
Until shortly before the filing of the current action, no formal order had
been entered concerning Carter.
Donald voluntarily paid monthly support to
Kristy and the parties resolved visitation questions on an informal basis.
However, this arrangement came to an end in the summer of 2007 when they
were unable to agree on how long Carter would have visitation with Donald that
summer.
Kristy told Donald Carter could spend only six days with him that
summer, instead of the approximately three weeks he had spent with him each of
the two previous summers. Her rationale was twofold, that Carter was busy with
extracurricular activities and she wanted him back a few weeks before school
started in order to get him back on schedule. Toward the end of the six-day visit
Donald called Kristy and told her he was keeping Carter for an additional week.
Kristy refused, became very upset, and threatened to file kidnapping charges
against Donald if he did not return Carter.
The next day Donald and his
stepfather began driving Carter back to Iowa, which took two to three days.
Upon arriving in Cedar Rapids Donald met with an attorney and filed his petition
on August 8, 2007.
Trial to the district court was held April 10, 2008. The significant dispute at
trial was over the frequency, timing, and duration of Donald’s visits with Carter.
The court entered a written ruling on May 13, 2008, giving the parties joint legal
custody of Carter and placing his physical care with Kristy. The order provided
that Donald would have, at minimum, visitation for five weeks during the summer,
every spring break, alternating winter breaks, and other reasonable times,
including times when Donald is in Carter’s state of residence. In ruling on the
4
visitation issue, the court found Kristy had given the court no reason to hesitate in
giving Donald extended summer visitation and such extended contact was
“clearly in Carter’s best interests.” It further specifically found “no harm in Carter
spending significant time with Donald’s relatives if Donald must work part of the
time Carter is in his care. Kristy has not hesitated to use her family in the same
way.” The court also ordered Donald to provide medical and dental insurance for
Carter, and ordered that in the event he failed to provide such insurance Kristy
could purchase a policy and Donald would be required to reimburse her for onehalf of the premium costs.
Kristy appeals the district court order, claiming the court erred in awarding
Donald five weeks of summer visitation and erred in the manner in which it
allocated health insurance costs. More specifically, she argues Carter’s best
interests require that his summer visitation not exceed two weeks because
Donald only has two to three weeks vacation in the summer to spend with Carter,
and any longer visitation would disrupt Carter’s summer extracurricular activities.
Kristy further argues the court’s order should be modified to provide that if
Donald fails to provide medical and dental insurance she would be allowed to
purchase the polices and assess all of the costs to Donald.
A proceeding to determine custody or physical care of a child born to
unmarried parents is in equity, so our review is de novo.
Phillips v. Davis-
Spurling, 541 N.W.2d 846, 847 (Iowa 1995). In our de novo review we examine
the entire record and adjudicate rights anew on the issues properly presented. In
re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the
5
fact-findings of the trial court, especially when considering the credibility of
witnesses, but are not bound by them.
Iowa R. App. P. 6.14(6)(g). This is
because the trial court has a firsthand opportunity to hear the evidence and view
the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). In
deciding custody and physical care issues, “[p]rior cases have little precedential
value, except to provide a framework for analysis, and we must base our
decision on the particular facts and circumstances before us.” Id.
A court, insofar as is reasonable, in the best interest of the child, and
appropriate, is to order liberal visitation rights that will assure the child the
opportunity for the maximum continuing physical and emotional contact with both
parents.
Iowa Code §§ 598.1(1) and 598.41(1)(a) (2007).
Generally, Iowa
courts consider liberal visitation rights to be in the best interest of a child. In re
Marriage of Stepp, 485 N.W.2d 849, 850 (Iowa Ct. App. 1992). Despite the fact
that parents live a substantial distance apart a court can nevertheless provide for
“maximum continuous physical and emotional contact” with both parents through
means other than a traditional alternating-weekends visitation schedule, for
example, by ordering “extended visitation during summer vacations and school
breaks and scheduled telephone contact.”
In re Marriage of Thielges, 623
N.W.2d 232, 238 (Iowa Ct. App. 2000); see also Iowa Code § 598.21D (allowing
court to require “extended visitation during summer vacations and school breaks
and scheduled telephone contact” when a caretaker parent relocates a child
more than 150 miles from the residence of the child at the time custody was
determined).
6
Here Donald and Kristy live approximately 2,000 miles apart, making a
traditional liberal visitation schedule impossible. Donald lived with Carter for the
first four years of Carter’s life, and thus they clearly know each other well and are
closely bonded as father and son.
Furthermore, we find no evidence in the
record before us that Carter was or is at any risk of physical or emotional harm
during his visits with Donald. Donald has no criminal record, no history of child
abuse, and no other issues that cause us any concern regarding his ability to
care for Carter or provide for Carter’s safety and well being while in his care. We
also agree with the district court that there is no harm in Carter spending
significant time with Donald’s relatives in Washington if Donald must spend some
time working during part of Carter’s summer visitation. Carter knew and had
established a bond with his paternal grandmother, aunt and uncle, and cousins
before Kristy moved him to Iowa. Additionally, as the court noted, Kristy has not
hesitated to rely greatly on her extended family for help in caring for Carter,
especially during the time she was working in Chicago.
Based on the significant distance between the parties, the established
bond between Carter and Donald, and the fact there is no evidence in the record
of any risk to Carter while in Donald’s care we, like the district court, find no
reason to restrict Donald’s summer visitation to the very short time Kristy
suggests. We conclude five weeks of summer visitation is appropriate and is in
Carter’s best interest. We further note that a child’s extracurricular activities,
while entitled to consideration when determining visitation, should not be
7
considered to be more important than encouraging and reinforcing a parent-child
relationship.
Kristy also claims the district court’s order should be modified to provide
that if Donald fails to provide medical and dental insurance she would be allowed
to purchase the polices and assess all of the costs to Donald. She argues in part
that the court’s assessment of medical support costs is inequitable because there
is no incentive for Donald to provide the insurance.
Donald would arguably be in contempt if he did not provide medical and
dental insurance for Carter as ordered by the court. He can currently provide
such insurance at no cost to him because it is provided by his employer. Thus,
contrary to Kristy’s assertion, it will be advantageous to Donald to cover Carter
under his employer’s plan rather than to reimburse Kristy for one-half the
premium costs she would incur to provide the coverage. Donald therefore has
no incentive to not provide insurance for Carter.
However, we agree in part with Kristy’s position on this issue, believing the
district court’s order should be modified to provide that if Donald fails to provide
medical and dental insurance coverage for Carter then Donald shall reimburse
Kristy for whatever it costs her to provide such coverage for Carter alone.
Donald seeks an award of appellate attorney fees. Appellate attorney
fees are not a matter of right, but rather rest in the appellate court's discretion. In
re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).
We consider the
needs of a party seeking an award, the ability of the other party to pay, and the
relative merits of the appeal. Id. The district court found, and the parties do not
8
dispute, that Donald’s income for 2007 was $56,800 and Kristy’s was $30,740.
Taking into consideration the relevant factors, we conclude each party should be
responsible for his or her own attorney fees on appeal and deny Donald’s
request.
Based on our de novo review, and for the reasons set forth above, we
affirm the district court’s award of five weeks of summer visitation, finding it is
proper, reasonable, and in Carter’s best interest.
We modify the court’s
assessment of medical support costs to provide that if Donald fails to provide
medical and dental insurance coverage for Carter then Donald shall reimburse
Kristy for (1) what it costs Kristy if she purchases policies covering only Carter, or
(2) the incremental costs of covering Carter if she purchases policies covering
not only Cater but an additional person or persons as well. We deny Donald’s
request for an award of appellate attorney fees. Costs are taxed two-thirds to
Kristy and one-third to Donald.
AFFIRMED AS MODIFIED.
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.
