In re Marriage of Hynick

• Decision Date: 16 February 2007
• Docket Number: No. 05-2103.,05-2103.
• Parties: In re Marriage of Holly A. HYNICK and Bradley L. Hynick Upon the Petition of Holly A. Hynick, Appellee, And Concerning Bradley L. Hynick, Appellant.
• Court: Iowa Supreme Court

727 N.W.2d 575

In re Marriage of Holly A. HYNICK and Bradley L. Hynick Upon the Petition of Holly A. Hynick, Appellee And Concerning Bradley L. Hynick, Appellant.

No. 05-2103.

Supreme Court of Iowa.

February 16, 2007.

Eric Borseth of Borseth Law Office, Altoona, for appellant.

Joel D. Yates of Clements, Pothoven, Stravers & Yates, Oskaloosa, for appellee.

TERNUS, Chief Justice.

The issue presented in this dissolution-of-marriage case is whether the parties should be awarded joint physical care of their minor son. The district court awarded primary physical care to appellee, Holly Hynick. On appeal, the court of appeals modified the trial court decree to award joint physical care to Holly and the appellant, Bradley Hynick. Upon review of the record and the governing statutes, we are convinced joint physical care is inappropriate under the circumstances of this case. Therefore, we vacate the court of appeals decision and affirm the district court.

I. Prior Proceedings.

Holly Hynick filed a petition for dissolution of marriage in March 2005. She and Bradley Hynick had been married since 2001 and had one child, Garisin, born in 2003. At the time of trial in October 2005, Holly was twenty-three years old, Brad was twenty-seven years old, and Garisin was two and one-half years old. The parties agreed at trial that they should share legal custody of Garisin, so the primary issue submitted to the district court was Garisin's physical care. Brad argued that he should have primary physical care of Garisin, or alternatively, that the parties should share the child's physical care. Holly requested that physical care be placed with her. She opposed joint physical care for two reasons: (1) Brad's alleged abuse of her, and (2) the parties' inability to communicate.

Concluding there was a history of domestic abuse, the trial court rejected Brad's request for joint physical care and instead awarded primary physical care to Holly. Brad was allowed visitation of one evening a week, alternating three-day weekends and holidays, and three weeks in the summer. The district court's judgment also ordered Brad to have no contact with Holly for one year.

Brad appealed, claiming it was in Garisin's best interest that the parties be awarded joint physical care. The case was transferred to the court of appeals. A divided panel of that court modified the district court decree to provide that Brad and Holly would have joint physical care of Garisin. We granted Holly's application for further review.

We review the district court's decision de novo. See In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). "`Although we decide the issues raised on appeal anew, we give weight to the trial court's factual findings, especially with respect to the credibility of the witnesses.'" Id. (quoting In re Marriage of Witten, 672 N.W.2d 768, 778 (Iowa 2003)).

II. Underlying Facts.

When the parties married in 2001, Holly had completed a year of college and Brad, who has a GED, was employed. Holly completed her degree in May 2004 and took an advertising and marketing job with a local radio station. Brad was the primary income producer while Holly was in school. Holly was Garisin's primary caretaker.

At trial, both parties highlighted past conditions and conduct of the other. The evidence showed Holly had counseling in high school for a possible eating disorder. She had also suffered from episodes of depression since marrying and was being treated for a major depressive disorder at the time of trial. Holly's psychiatrist testified she was in full remission, however, and had no mental health issues that would affect her ability to parent. The evidence showed that prior to marrying Holly, Brad had had several run-ins with the law, including possession of alcohol by a minor, violation of the open container law, possession of methamphetamine, and operating a motor vehicle while intoxicated. He had no criminal record after 2000, however, until charges of domestic abuse were filed by Holly after the parties separated. Notwithstanding Holly's and Brad's problems and shortcomings, the trial court found, and we agree, that both were good parents to Garisin.

We turn now to the allegations of domestic abuse. Holly decided to leave Brad in February 2005; Brad did not want the marriage to end. The parties agreed to share physical care of their son by each parent living in the marital home with Garisin on an alternating schedule. When Holly was not in the parties' residence, she initially lived with Deb Patterson, a person unknown to Brad. Patterson was the mother of Jason Hewitt, a friend of Holly. Brad suspected that Holly was having an affair with Hewitt, an allegation that Holly denied then and continued to deny at trial.

On February 26, 2005, Holly came to the parties' house to see Garisin. Brad began questioning Holly about where she had been and with whom she had been. Rather than answering Brad's questions, Holly decided to leave. The parties' explanations of what happened as Holly tried to walk out vary, but it is clear Holly wanted to leave and Brad wanted her to stay and talk. As Holly attempted to go out the door, Brad put his foot in the doorway to stop her, and Holly ended up with a bruise on her knee where her leg was hit by the door. As a result of this incident, Holly obtained a temporary no-contact order under Iowa Code chapter 236 (2005).

Rather than pursue a permanent no-contact order, Holly filed for divorce on March 7, 2001. The parties agreed to a temporary order allowing shared physical care of Garisin.

Brad did not handle the pending dissolution of his marriage well, and he was quite bothered by his suspicions that Holly was involved with another man. On March 26, he learned that Holly was with Hewitt at a third person's home. Brad went there and pounded on the door, shouting for Holly. Holly was scared and called the police. The officers who responded spent several minutes talking with Brad before convincing him to leave.

On June 5, Brad called Holly to talk to her about the divorce. After speaking with him at length, Holly eventually hung up. Brad then came to her apartment and started pounding on the door. Holly told him to leave and threatened to call the police, but he kept knocking on the door. Holly finally called law enforcement, but Brad left before the officers arrived. While the officers were at Holly's apartment, Brad called her. She gave the phone to an officer who told Brad to leave Holly alone. Nonetheless, later that day, Brad called Holly again, trying to talk her out of the divorce. Holly considered Brad's phone calls not only harassing, but also threatening, as he asserted in his calls that he was not going to let her go through with the divorce.

In this same time frame, another incident occurred that eventually led Holly to seek a second no-contact order. Holly was at the home of Brad's parents to pick up Garisin when Brad arrived. While inside the house, Brad pulled down Holly's slacks and demanded to know when she stopped wearing underwear. He then went outside to Holly's vehicle and began looking through it. As she was trying to leave, Brad said something to the effect that, if he gave Holly a gun, would she just shoot him, that that would make the whole situation easier.

On June 7, 2005, Holly filed a petition for relief from domestic abuse. The district court entered a no-contact order and granted temporary custody of Garisin to Holly. The parties agreed to a visitation schedule, pending a hearing on a permanent order.

While the temporary no-contact order was in place, Brad and Holly again crossed paths. On September 22, 2005, Holly stopped at Brad's parents' home to drop off Garisin. Typically, Brad would arrive ten or fifteen minutes after Holly left, but on that occasion he arrived while Holly was still there. As Holly got into her car to leave, Brad directed several derogatory remarks toward her in Garisin's presence.

Brad was not the only person unhappy with Holly's decision to seek a divorce. Holly's family and the couple's friends disapproved of her actions and sided with Brad at trial. They testified that Holly was manipulative, that Brad was more focused on his son than was Holly, and that Brad should have equal time with his son. They believed Holly had fabricated or at least exaggerated her claims of domestic abuse and harassment. Brad's father and mother testified similarly. Friends described instances prior to the parties' separation when Holly would criticize Brad in front of Garisin. Nonetheless, no one testified that Holly was a bad parent, and several family members acknowledged Holly was a good mother to Garisin.

III. Applicable Law.

In evaluating the propriety of shared physical care, it is helpful to consider this concept in the context of related principles and alternatives. When a district court dissolves a marriage involving a minor child, the court must determine who is to have legal custody of the child and who is to have physical care of the child. "Legal custody" carries with it certain rights and responsibilities, including, but not limited to, "decision making affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction." Iowa Code § 598.1(3), (5). When parties are awarded "joint legal custody," "both parents have legal custodial rights and responsibilities toward the child" and "neither parent has legal custodial rights superior to those of the other parent." Id. § 598.1(3). In deciding whether joint custody is in the best interest of a minor child, the court must consider several factors, including "[w]hether the parents can communicate with each other regarding the child's needs" and "whether a history of domestic abuse, as defined in section 236.2, exists." Id. § 598.41(3). In fact, "if the court finds that a history of domestic abuse exists, a rebuttable presumption against the awarding of joint...