Ruden v. Peach

• Decision Date: 27 September 2017
• Docket Number: No. 17-0452,17-0452
• Citation: 904 N.W.2d 410
• Parties: Marc RUDEN, Plaintiff-Appellee, v. Kyra PEACH, Defendant-Appellant.
• Court: Iowa Court of Appeals

904 N.W.2d 410

Marc RUDEN, Plaintiff-Appellee,

v.Kyra PEACH, Defendant-Appellant.

No. 17-0452

Court of Appeals of Iowa.

Filed September 27, 2017

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellant.

Jamie A. Splinter of Splinter Law Office, Dubuque, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

DOYLE, Judge.

Kyra Peach appeals the district court's judgment on Marc Ruden's petition to establish paternity, custody, visitation, and support of their child. She contends granting her physical care of the child is in the child's best interests. Both parties request an award of appellate attorney fees.

I. Background Facts and Proceedings.

Kyra met Marc when she interviewed for an internship with Marc's employer, IIW Engineering. The part-time internship began in January 2014. At the time, Kyra was a student in an engineering program and was in a relationship and living with Jeremy Peach. Marc was married.

After Kyra earned her engineering degree in the spring of 2014, she moved to Dubuque, where she lived with Jeremy and began working full-time at IIW. IIW assigned one of its employees to act as Kyra's mentor. After that employee left the company, IIW assigned Marc to be Kyra's mentor. Because her work went through Marc, Kyra viewed him as her boss.

Marc began to pursue and initiated a romantic relationship with Kyra. They began an affair sometime during the summer of 2014. Kyra ended her relationship with Jeremy. By October, the affair ended. Kyra resumed her relationship with Jeremy, and they became engaged to be married. Marc and his wife separated and eventually divorced.

After the affair ended, Kyra learned she was pregnant and informed Marc. Initially, the two maintained a friendly relationship, but Kyra perceived Marc to be persistent in his attempts to resume a romantic relationship with her, which made her uncomfortable at work. After IIW assigned Kyra a new mentor, she believed Marc began to treat her differently in the workplace. She resigned from IIW in February 2015 due to the tension and stress she felt at work. Marc did not contact Kyra after she left IIW.

Marc filed a paternity action shortly before the child's June 2015 birth. Because Kyra and Jeremy were planning to marry in July, Kyra gave the child Jeremy's surname, which Kyra also assumed upon marrying him. Initially, the child's birth certificate did not name the child's father, though Kyra later had Jeremy's name added as the child's father. Paternity testing eventually established that Marc is the child's father.

Marc began having visits with the child in July 2015. In September 2015, the district court entered a temporary order placing the child in Kyra's care and providing Marc visits with the child each Tuesday and Thursday, as well as alternating weekends. After Kyra was hired as a wastewater engineer in Baraboo, Wisconsin, she sought permission to relocate the child to Wisconsin and to modify the temporary visitation schedule to accommodate her anticipated move.

Marc wanted extended visits with the child, including overnight visits. Because Kyra was practicing attachment-style parenting, including breastfeeding and co-sleeping, she opposed overnight visits until the child was older but agreed to lengthen Marc's daytime visits. After a hearing in April 2016, the court modified temporary custody and visitation to alternate care of the child between the parties for three consecutive nights at a time.

The matter came to trial in November 2016, and the district court entered its judgment the following month. The court placed the child in Marc's physical care and continued the three-day rotation of custody between the parties until the child reached the age of three, at which point Kyra was granted visitation on alternating weekends and an overnight visit every Wednesday. Also, once the child reached age three, "if either parent is intending to take the child on an extended vacation, they shall be entitled up to seven days of uninterrupted time for out-of-town travel each month of the summer, which are June, July and August (first two weeks only.)" (Emphasis in original.) Kyra filed a motion seeking to enlarge and amend the court's findings and modify its judgment, the bulk of which the court denied.

II. Scope and Standard of Review.

We review the district court's custody determination de novo. See Mason v. Hall, 419 N.W.2d 367, 369 (Iowa 1988) (stating the appellate court reviews custody determinations made in paternity actions de novo). Although we may give the district court's fact finding weight, they are not binding on us. See Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). This includes credibility findings. See id.

Kyra argues this court should not defer to the district court's findings concerning the parties' credibility, claiming the court's "implicit bias against Kyra is evidenced from the trial record and the court's ruling." She cites a portion of the court's findings of fact in which the court found Kyra's claim Marc created a hostile work environment at IIW were not credible. The district court's adverse credibility finding was based, in part, on purported exhibitionist behavior by Kyra during a break in the trial.

Kyra filed a motion asking the district court to enlarge and amend its fact findings. In it, she complained about the court's reliance on "ex parte extrajudicial resources" in its findings, explaining:

The court's reference to [Kyra] being seen by court personnel during a break in the trial is not on the record. The court did not bring the incident to the attention of the parties or their counsel during the trial. [Kyra] has not had a chance to rebut the court's allegations. [Kyra] and her attorney were not aware of these allegations until they read the Judgment filed December 21, 2016. The statement made by the court is inflammatory, not based on the trial record, and should not be considered by the court as it came from an ex parte extrajudicial resource. [Kyra] requests that the sentence, "In fact, during one of the breaks in the trial, she was seen by court personnel in the courtroom with her shirt up and her breasts exposed" be deleted from the Judgment and not considered by the court.

In denying Kyra's request, the district court asserted it "has the ability to make observations of everything that goes on in the courthouse during a trial." The court asserted that it carefully watched the parties conduct toward each other, their attorneys, and their witness. Based on these observations, the court concluded:

[Kyra]'s conduct during the trial once again shows her complete disregard for those around her. While the break occurred when the observations were made of [Kyra], there were male workers within the courthouse and the courtroom maintaining the new heating and cooling system. They had been walking in and out of the courtroom, and this fact was very clear to all within the courtroom. That was the reason the issue was raised with the court. In fact, [Kyra]'s attorney was in the courtroom when her conduct occurred.

It is well settled that a factfinder may "take into account the conduct and appearance of the witness on the witness stand" in determining the facts. See Bauer v. Reavell, 219 Iowa 1212, 260 N.W. 39, 47 (1935). A witness's demeanor while testifying—as perceived through the witness's "carriage, behavior, bearing, manner and appearance"—is part of the evidence, and factfinders "may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness." Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952). However, the court here went beyond its observations of Kyra during her testimony—and even during the course of the trial. The conduct cited by the trial court, though alleged to have occurred in the courtroom, took place outside of trial altogether. By relying on conduct outside the record in making its credibility determination, the court became a witness. See Kovacs v. Szentes, 130 Conn. 229, 33 A.2d 124, 125-26 (1943) (stating the trial court, by reciting its observation of the parties and their conduct during trial in its findings, made itself an unsworn witness to material facts without the defendant having any opportunity to cross-examine, offer countervailing evidence, or know upon what evidence the decision would be made); Dworkis v. Dworkis, 111 So.2d 70, 74 (Fla. Dist. Ct. App. 1959) ("The effect of a trial judge's observation of a party's manner and demeanor in the court room should be limited to its bearing on the credibility to be accorded to the party's testimony given under oath; and such observations by the judge should not be the basis for findings by the court on disputed facts, to the contrary of that party's position, because in so doing a judge may be said to have made himself a witness, unsworn and not cross-examined."). A judge cannot function as a witness because it is inconsistent with the impartiality expected of the court. See Iowa R. Evid. 5.605 ; State v. Gardner, 661 N.W.2d 116, 118 (Iowa 2003) (noting a judge may function as a witness without actually taking the stand to testify).

[I]t runs against the grain of fairness to say that the same judge may consider his own crucial testimony and recollection rebutting petitioner's claim and simultaneously pass upon the credibility of all witnesses in weighing the evidence. A member of the judiciary has no peculiar competence in factual recollection of unrecorded events.... A party should be permitted to test a judge's recollection, as a witness presenting factual material testimony, as he would any other witness upon cross-examination.

Id. (quoting Tyler v. Swenson, 427 F.2d 412, 415 (8th Cir. 1970) ).

We further note that the conduct the court relied on in making its credibility determination took place outside the presence of the court itself. Rather than basing its determination on behavior it witnessed directly, ...