In re Fees

• Decision Date: 26 October 2016
• Docket Number: No. 15–2192.,15–2192.
• Citation: 888 N.W.2d 902 (Table)
• Parties: Upon the Petition of Cory Wane FEES, Petitioner–Appellee, and Concerning Amanda Leigh Cook, Respondent–Appellant.
• Court: Iowa Court of Appeals

888 N.W.2d 902 (Table)

Upon the Petition of Cory Wane FEES, Petitioner–Appellee,
and
Concerning Amanda Leigh Cook, Respondent–Appellant.

No. 15–2192.

Court of Appeals of Iowa.

Oct. 26, 2016.

Alexandra D. Frazier of R.J. Hudson Law Firm, P.C., West Des Moines, for appellant.

Kodi A. Brotherson of Becker & Brotherson Law Offices, Sac City, and Todd E. Babich of Babich Goldman, P.C., Des Moines, for appellee.

Considered by POTTERFIELD, P.J., and MULLINS and McDONALD, JJ.

MULLINS, Judge.

Amanda Cook appeals the physical-care provisions of the district court's order establishing custody, visitation, and support for her two minor children with Cory Fees. Amanda contends she should have been granted physical care of the parties' minor children. She also argues the district court abused its discretion by admitting a journal Cory submitted that contained information regarding Amanda's attendance at her appointments with mental-health providers. Alternatively, she argues if we affirm the court's grant of physical care to Cory, the court incorrectly ordered her to split the costs of the children's extracurricular activities; Cory concedes this point. Cory requests an award of appellate attorney fees. Upon our de novo review of the record, we affirm as modified.

I. Background Facts and Proceedings

Amanda and Cory are the unmarried parents of two children: C.F. and K.F. At the time of trial, Cory was thirty-four years old, and Amanda was twenty-eight. Cory holds a bachelor's degree in electrical engineering. At the time of trial in November 2015, Cory had been employed as a senior controls engineer with the same company since 2012. Cory owns the home where he and Amanda lived with the children since late 2010. Amanda has a bachelor's degree in nursing. At the time of trial, she had been employed as a registered nurse in a pediatric intensive care unit since 2013.

Cory and Amanda met in July 2007. They dated off and on until December 2009, when Amanda learned she was pregnant with their first child. In February 2010, Cory introduced Amanda to his friends as a "friend" rather than his girlfriend. Amanda became upset and refused to communicate with Cory for several months.

After the parties reconciled in May 2010, Cory attended birthing classes with Amanda as well as her prenatal medical appointments. Cory was present for C.F.'s birth in July 2010. After C.F.'s birth, Amanda and C.F. lived with Amanda's parents. Soon after her release from the hospital, Amanda developed complications and was admitted to the hospital for surgery. Cory took two weeks off of work to care for C.F. with assistance from Amanda's parents. After Amanda recovered, she and Cory shared in the responsibilities of caring for C.F. and transporting him to daycare with the help of both parties' parents. At the time, Amanda was attending nursing school full time and working at a grocery store. Cory continued to provide care for C.F. in the evenings after he returned to work and often stayed at Amanda's parents' home to assist in providing overnight care for C.F. until Amanda and C.F. moved into his home in December 2010.

In May 2011, Amanda obtained employment as a registered nurse. She had a sporadic schedule, working twelve-hour shifts that often extended past her scheduled shift end, rotating days and nights, and working every third weekend. Amanda also often picked up extra shifts. The parties kept track of her random schedule by entering the days she worked into a shared online calendar. Amanda cared for C.F. on the days she was not working, and Cory provided care for C.F. in the early mornings, evenings, and on weekends. In November 2012, Cory obtained new employment and began providing most of the transportation to and from daycare.

In February 2013, the parties learned they were pregnant with their second child. That same month, Cory proposed marriage to Amanda. In April, Cory started keeping an online journal describing incidents in which Amanda threatened to take the children away from him.¹ In September, the parties' second child, K.F., was born. Cory attended all prenatal appointments for K.F. and again took time off from work to care for the new baby with Amanda.

Cory and Amanda's relationship started to deteriorate soon after. In early 2014, the parties split, and Amanda moved back in with her parents. The parties shared parenting time with the children and agreed to attend couples counseling. Amanda also started attending individual counseling. Eventually, the parties reconciled and Amanda moved back in with Cory; however, their relationship continued to decline. Disagreements between the parties would often end with Amanda putting the children in the car and driving away, threatening Cory he would never see their children again.

In late November 2014, the parties had a disagreement that again resulted in Amanda moving out of Cory's home. On December 4, Cory filed a petition for custody, visitation, and child support. On December 16, Amanda served Cory with a temporary no-contact order, prohibiting contact between the parties and between Cory and the children.² On December 31, the parties agreed to the entry of a protective order by consent. The district court did not expressly find that either party had committed a domestic abuse assault.³

On February 16, 2015, the district court entered a temporary custody order granting joint legal custody and joint physical care and incorporating the no-contact order.⁴ The parties continued to struggle with communication issues regarding the children and their activities. The matter came on for trial on November 17–19, 2015.

Cory testified that throughout the parties' relationship he was responsible for maintaining the home, including preparing meals for the children; cleaning; and doing laundry, yard work, and other household tasks. He testified he also paid the couple's shared bills, except the daycare expenses, for which Amanda agreed to pay.⁵ Cory testified he had a stable home in a good neighborhood and a job that allowed him flexibility to care for the children. He also testified he did not believe Amanda would support his relationship with their children.

Amanda testified she was the primary caregiver for the children. She testified she was in charge of coordinating schedules and figuring out who was picking up the children from daycare. She also testified she was in charge of making the children's medical appointments and taking them to well- and sick-child appointments; however, she also acknowledged Cory attended the children's well-child checkups and specialty doctor appointments. At the time of trial, Amanda had switched her schedule at the hospital to only overnight shifts and shifts on every other weekend in order to maximize her time spent with the children.

The children's daycare provider volunteered to serve as the intermediary for the parties' physical care exchanges. Both parties testified they were satisfied with the provider's care of their children and believed she provided high-quality care for them. The provider testified at trial Cory was "a great dad," who always put the children first and tried to make the exchanges easy for them. In contrast, she testified Amanda sought confrontation with Cory, showing up late to the exchanges, dragging out her goodbyes with the children, and making inappropriate comments about Cory to the children, including "Your daddy has you dressed inappropriately," "Daddy was wrong. We are going to the police station now. He is in violation of the order," and "I see your daddy has you dressed in the same filthy clothes I brought you in." She also testified Amanda became upset if she thought Cory parked too close to the provider's house and once yelled to the provider with the children in the car to "tell him to get the hell out of here before I drop these kids off." She further testified Amanda often yelled in front of the children and would leave the exchanges upset, saying she was going to contact her lawyer. The provider described this type of behavior as typical for Amanda if Cory was present when she was picking up or dropping the children off at daycare.

Cory's neighbor also testified at trial. She testified she heard Amanda yelling at Cory and the children so frequently it became an uncomfortable joke among her family members and the neighbors. She described observing Cory playing with the children outdoors and calmly providing them with redirection when necessary.

In an oral ruling from the bench, the district court noted both parents clearly loved their children but neither demonstrated the high level of maturity or ability to communicate to be able to focus on the best interests of the children and share physical care. The court also noted it was dismayed by the hostility the parties had exhibited toward each other in front of the children.

The court weighed the credibility of both parties' witnesses and found Cory's neighbor and the children's daycare provider to be particularly credible and compelling. The court also noted several witnesses had "testified and described a pattern of behavior between Cory and Amanda." The court found "[d]uring any kind of conflict Amanda would escalate and ultimately threaten Cory that he...