JENNIFER WIDDEL, Plaintiff-Appellant/Cross-Appellee, vs. NATHAN KANNEGIETER, Defendant-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-766 / 09-0436
Filed December 30, 2009
JENNIFER WIDDEL,
Plaintiff-Appellant/Cross-Appellee,
vs.
NATHAN KANNEGIETER,
Defendant-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Colleen D.
Weiland, Judge.
Plaintiff appeals the district court’s decision granting defendant physical
care of their minor child, and defendant cross-appeals the visitation provisions of
the paternity decree. AFFIRMED.
Teresa A. Rastede of Dunakey & Klatt, P.C., Waterloo, for appellant.
Dale E. Goeke of Goeke & Goeke, Waverly, for appellee.
Considered by Vaitheswaran, P.J., and Mansfield, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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ZIMMER, S.J.
Jennifer Widdel appeals from the district court’s decision in a paternity
action granting Nathan Kannegieter primary physical care of their minor child.
She also contends she should have been awarded trial attorney fees. Nathan
has cross-appealed seeking changes in the visitation provisions of the decree
and a change in the child’s surname. We affirm the decision of the district court.
I.
Background Facts & Proceedings
Nathan Kannegieter and Jennifer Widdel lived together for a period of
time, but never married. Jennifer became pregnant in the fall of 2007. Nathan
reacted very negatively to the news that Jennifer was expecting. According to
Nathan, he was upset because Jennifer stopped taking birth control pills without
informing him of her decision. He testified that he and Jennifer had agreed they
were not ready to have children and Jennifer would use birth control and not get
pregnant while they were cohabitating.
Jennifer was very hurt by Nathan’s
reaction to her pregnancy. The parties ended their romantic relationship and
stopped living together in November 2007. The circumstances surrounding the
parties’ breakup have colored their subsequent interactions with each other. The
parties continue to feel they cannot trust the other, and they have difficulty
communicating.
After Nathan and Jennifer separated, Jennifer moved in with her mother in
Waverly, while Nathan moved to Fort Dodge, about two hours away from where
Jennifer was living.
Nathan had limited involvement with Jennifer during the
remainder of her pregnancy; however, he was present in the hospital when the
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parties’ daughter, Alisyn (Ali), was born in June 2008. Prior to Ali’s birth, Nathan
asked Jennifer to consider a shared physical care arrangement. His requests
were rejected.
As the district court noted, both of these parents are “clearly infatuated”
with Ali.
Both parents provide Ali with excellent care.
Both parents live in
appropriate homes and have a stable lifestyle. Neither parent exposes Ali to
unreasonable risks or health hazards. Both parents surround Ali with family and
friends who assist with her care; however, neither parent delegates their primary
caretaking responsibility to a third party.
After Ali was born, Nathan made requests for parenting time so his
daughter could spend some time with him and his family. Jennifer either denied
these requests or would only permit Nathan to visit the child in her home, while
she was present. Jennifer was breastfeeding and stated the child could only go
to Fort Dodge with Nathan if she accompanied them.
As a result, Nathan’s
contact with the Ali was much more limited than he would have preferred. His
requests for less restrictive visitation were denied.
On July 14, 2008, Jennifer filed a petition to establish paternity, custody,
care, visitation, and support.
Nathan’s answer to the petition sought joint
physical care of Ali. Jennifer stopped breast feeding her daughter about three
weeks before a hearing on temporary matters was held on September 8. At the
hearing, Jennifer took the position that Nathan’s visitation should be supervised
and requested that any visitation take place in her father’s home.
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On September 11, 2008, the district court granted the parties temporary
joint physical care, with the parties alternating care on a weekly basis. The court
concluded there was no evidence that Nathan was unsuited as a parent. The
court further found “no evidence shows that Jennifer is especially experienced
with babies other than her recent care of Alisyn. In whole, both parties appear to
be responsible young people who are motivated to parent by a love for their
daughter.”
Nathan was ordered to pay temporary child support of $529 per
month.1
Jennifer is twenty-nine years old and in good health. She is employed at
Allen Memorial Hospital in Waterloo as a medical secretary and phlebotomist.
She recently received a promotion and will be working in the lab section of the
Emergency Room, where she will receive $12.85 per hour. Jennifer continues to
live in a mobile home with her mother. She shares a bedroom with Ali. Jennifer
works several different shifts. The earliest requires her to leave home at about
4:30 a.m. The latest allows her to return home at about 5:00 p.m. Jennifer uses
a childcare provider for her daughter during work hours. Jennifer’s mother works
at John Deere. She assists Jennifer in caring for Ali. She leaves for work at
about 5:30 a.m. and usually drops her granddaughter off at her childcare provider
before going to work.
1
Jennifer appealed the temporary physical care order to the Iowa Supreme Court, and
sought a stay of the order. The supreme court determined a stay was not required. The
court also denied Jennifer’s request for an interlocutory appeal. Procedendo was
issued. After the case was returned to district court, Jennifer filed a motion seeking the
recusal of the judge that signed the temporary physical care order. That motion was
denied.
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Nathan is thirty years old and in good health.
In October 2008, he
accepted a position as a used car manager at a car dealership in Mason City.
He earns $5000 per month, plus commissions. Nathan was still living in Fort
Dodge at the time of trial, but planned to move to Clear Lake, a community near
his employer.
At Nathan’s home in Fort Dodge his daughter has her own
bedroom. Nathan is engaged to Sheena. Sheena is twenty-two years old and
has a degree in dental hygiene. During the weeks Nathan had physical care of
his daughter prior to trial, Sheena moved into his home to help care for the Ali.
Sheena planned to move to the Mason City area with Nathan. Like Jennifer,
Nathan uses a childcare provider for Ali while he is at work.
This case was tried to the court on February 11, 2009. Ali was seven and
one-half months old at the time of trial. The district court issued an order on
February 20, 2009, granting the parties joint legal custody of the child. The court
determined joint physical care was not in the best interests of the child based on
the geographical distance between the parties and “the continuing level of
animosity and discordant communication between the parties.”
In considering physical care of the child, the district court found “both
parties are in almost every way appropriate and beneficial caretakers.”
We
agree with this assessment. The court ultimately concluded that Nathan should
have physical care because of Jennifer’s continuing inability and unwillingness to
support a parent-child bond between Nathan and Ali. The court found Nathan
had made better and more generous attempts to communicate with Jennifer and
that he better supported Jennifer’s relationship with the child.
The court
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concluded that Jennifer’s difficulty in overcoming the anger she feels toward
Nathan has adversely affected her ability to communicate with him about Ali. We
believe the record supports all of the district court’s conclusions.
The court established a visitation schedule which provides that until the
child attends preschool, Jennifer will have visitation every week from Friday at
7:00 p.m. until Wednesday at 10:00 a.m.
If the child attends preschool,
Jennifer’s visitation will be reduced to three full days on alternating weekends.
Once the child is in school, Jennifer will have visitation on alternating weekends
from Friday at 7:00 p.m. until Sunday at 4:00 p.m. In addition, Jennifer may
exercise visitation on any day from 8:00 a.m. until 7:00 p.m., in Nathan’s
residential area, provided she gives forty-eight hours noticed to him.2 Jennifer
was awarded visitation on alternating holidays. Also, once the child is in school,
she may have visitation over one-half of the summer break and winter break, and
all of spring break.
Jennifer was ordered to pay child support of $274 per month. The court
refused Nathan’s request to give the child the surname of Kannegieter, as
opposed to Widdel, which is on her birth certificate. The court ordered each
party to pay his or her own attorney fees.
Jennifer appeals the physical care provisions of the paternity decree. She
also contends the court should have awarded her trial attorney fees, and she
seeks appellate attorney fees. Nathan has cross-appealed, alleging the child’s
2
Before the child attends preschool, and if she attends preschool, this visitation time
may not be exercised on a Wednesday.
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surname should be Kannegieter-Widdel. In addition, he asks to have the “any
day” visitation provision in the decree eliminated or modified.
II.
Standard of Review
Issues ancillary to a determination of paternity are tried in equity. Markey
v. Carney, 705 N.W.2d 13, 20 (Iowa 2005). We review equitable actions de
novo.
Iowa R. App. P. 6.907 (2009).
When we consider the credibility of
witnesses in equitable actions, we give weight to the findings of the district court,
but are not bound by them. Iowa R. App. P. 6.904(3)(g).
III.
Physical Care
Jennifer contends it would be in the Ali’s best interests to be placed in her
physical care. She claims Nathan had no real interest in the child until she stated
she would be seeking child support. She states she was rightfully concerned
about permitting Nathan to have visitation away from her home due to the limited
interest he had exhibited before the child was born and immediately after the
birth.
Jennifer also finds fault in some of Nathan’s actions regarding the child,
such as switching the child’s formula, taking the child to have two haircuts, and
arranging to have the child baptized.3 Jennifer contends she is more stable than
Nathan because he has changed jobs more frequently than she has, and he
testified he would be moving soon after the paternity hearing.
3
Jennifer also
Nathan invited Jennifer to attend the baptism. She initially accepted the invitation, but
later objected to the event. After Jennifer protested the baptism, the event was
cancelled.
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asserts that Nathan’s fiancé, Sheena, will probably bear the bulk of Nathan’s
child-caring responsibilities.
In determining physical care for a child, our first and governing
consideration is the best interest of the child. Iowa R. App. P. 6.904(3)(o). When
physical care is an issue in a paternity action, we apply the criteria found in Iowa
Code section 598.41 (2007). Iowa Code § 600B.40. Our analysis is the same
whether the parents have been married, or remain unwed. Lambert v. Everist,
418 N.W.2d 40, 42 (Iowa 1988); Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa
Ct. App. 1994). Our objective is to place the child in an environment likely to
promote a healthy physical, mental, and social maturity.
In re Marriage of
Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Some of the factors we consider are
“[w]hether the parents can communicate with each other regarding the child’s
needs,” and “[w]hether each parent can support the other parent’s relationship
with the child.” Iowa Code § 598.41(3)(c), (e).
Upon careful review of the record, we find no reason to disagree with the
district court’s decision to award physical care to Nathan. Jennifer’s bitterness
about the circumstances surrounding parties’ break-up continues to adversely
affect her ability to communicate with Nathan about Ali. The record shows she
has not been able to put aside her anger toward Nathan. Because of this she
has not adequately supported the relationship between Nathan and his daughter.
While Nathan was not involved during Jennifer’s pregnancy, he became a
supportive and caring parent soon after Ali’s birth. Unfortunately, Jennifer has
resisted his attempts to establish a relationship with Ali from the time of her birth.
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We agree with the district court that it was reasonable for Jennifer to limit the
time her daughter was away from her while she was breastfeeding. However, as
the district court noted, “Jenni’s restrictions exceeded the scope and time period
of that concern.” For instance, at the hearing regarding temporary care held
when the child was two and one-half months old, Jennifer took the position that
Nathan should be allowed only supervised visitation at her father’s home. At that
time, Jennifer was no longer breastfeeding Ali. We find nothing in the record
which suggests that Nathan was unable to provide good care for Ali by himself
during that period of time. After the court ordered a shared care arrangement,
Jennifer remained rigid and inflexible with regard to sharing Ali with Nathan. The
record reveals that she finds Nathan’s legitimate inquiries about Ali’s health,
appointments, routine, and development intrusive.
She often responds
inappropriately to Nathan’s efforts to stay connected with Ali and her well-being.
Jennifer remains unable or unwilling to accommodate Nathan’s desire to become
a part of his child’s life.
Contrary to Jennifer’s contention, we do not find that Nathan’s efforts to
better his economic circumstances show instability. Also, while Sheena provides
significant care for Ali now, this will change once Nathan moves closer to his
employment and no longer has a long commute to work.
After considering the evidence and the arguments of both parties, we
affirm the district court decision to place Ali in the physical care of Nathan. We
conclude this is in the child’s best interests because Nathan has shown more of a
willingness to communicate with Jennifer, and is better able to support Jennifer’s
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relationship with the child.
In reaching this decision, we give considerable
deference to the trial court’s credibility assessments. This is because the trial
court had the opportunity to hear the evidence and view the witnesses firsthand.
In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007).
It is
apparent that the trial court gave careful and thoughtful attention to the issue of
physical care and we find no reason to disagree with the court’s conclusion.
IV.
Visitation
Nathan asks to have the “any day” visitation provision in the paternity
decree be eliminated or modified. The district court provided Jennifer could have
visitation “any day for any time period between 8:00 a.m. and 7:00 p.m. upon 48
hours notice to Nate.”4
Nathan argues this provision is unduly disruptive
because it gives Jennifer a “virtually unfettered right for visitation.”
We determine the mid-week visitation will not be unduly disruptive.
Jennifer must give forty-eight hours notice to Nathan. The visitation may only
take place in his residential area, and Jennifer must drive to this location if she
exercises visitation. The decree provides that visitation may not interrupt the
child’s school schedule. We conclude the visitation provision should be affirmed
because it will “assure the child the opportunity for the maximum continuing
physical and emotional contact with both parents . . . .”
See Iowa Code §
598.41(1)(a). “When it is in the best interest of the child to do so, the court may
consider maximum contact with both parents.” Callender v. Skiles, 623 N.W.2d
852, 854 (Iowa 2001).
4
Prior to the time the child attends preschool, and if she attends preschool, the
visitation provision is for any day except Wednesday.
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V.
Surname of Child
At trial, Nathan asked the court to change Ali’s surname from Widdel to
Kannegieter. In his brief on appeal, he now asks that the child’s last name be
changed to be Kannegieter-Widdel.
Jennifer named Ali, and the birth certificate lists the child’s last name as
Widdel. Nathan is not listed on the birth certificate. A mother does not have a
unilateral right to name a child, and she does not gain any advantage in the
naming of the child in doing so. Montgomery v. Wells, 708 N.W.2d 704, 706
(Iowa Ct. App. 2005). “[W]hen the court first entertains an action between the
parents to determine their legal rights and relationships with each other and the
child, the court may also consider the legitimacy of the child’s original naming . . .
.”
Id.
In determining the proper surname for a child, we consider the best
interests of the child. Id. at 708. In Montgomery, we listed the following factors
to be considered in making this determination: (1) convenience for the child; (2)
identification as part of a family unit; (3) assurances the mother will not change
her name if she marries; (4) avoiding embarrassment, inconvenience, and
confusion; (5) the length of time the surname has been used; (6) parental
misconduct; (7) community respect for the surname; (8) the possible effect of
name change on a parental bond; (9) any delay in requesting different surname;
(10) preference of the child; (11) motivation of the parent; and (12) any other
factor in the child’s best interest. Id. at 708-09.
In this case, little evidence was presented at trial regarding the issue of
Ali’s surname. In response to a question from his attorney regarding whether he
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wanted Ali’s name changed to Kannegieter, Nathan replied, “Yes, sir.” There
was no further discussion of the name change issue and the factors set forth in
Montgomery were not directly addressed. In its paternity decree, the district
court gave several reasons on its own for declining to change Ali’s name from
Widdel to Kannegieter. The court noted that Nathan did not object to the child
having the surname of Widdel until trial proceedings. The child’s birth certificate
and medical records show the surname of Widdel. Jennifer and her family have
that last name, and the child enjoys a close relationship with them. There was no
evidence Jennifer planned to change her surname upon marriage, or for any
other reason. The court also mentioned that the surname of Widdel reinforced
the child’s bond with Jennifer. In the absence of a more fully developed record
supporting a change in the child’s surname, we decline to overturn the trial
court’s decision.
VI.
Trial Attorney Fees
Jennifer contends the district court abused its discretion by refusing to
award her trial attorney fees. Section 600B.25 provides, “The court may award
the prevailing party the reasonable costs of suit, including but not limited to
reasonable attorney fees.” Thus, in paternity actions, an award of attorney fees
may only be made to the prevailing party. Iowa Code § 600B.25. Furthermore,
any award of attorney fees rests within the sound discretion of the district court.
Bryant v. Schuster, 447 N.W.2d 566, 568 (Iowa Ct. App. 1989).
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Jennifer was not the prevailing party in the district court. We find no
abuse of discretion in the district court’s decision not to award her trial attorney
fees.
VII.
Appellate Attorney Fees
Jennifer seeks attorney fees for this appeal.
“An award of appellate
attorney fees is within the discretion of the appellate court.” Markey, 705 N.W.2d
at 26. We consider the parties’ needs and ability to pay, and whether a party
was obligated to defend the trial court’s decision on appeal.
We award no
appellate attorney fees.
We affirm the decision of the district court.
assessed one-half to each party.
AFFIRMED.
Costs of this appeal are
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