Upon Petition of Upah, 040616 IWCA, 15-0686

• Judge: Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
• Parties: Upon the Petition of DANIEL DAVID UPAH, Petitioner-Appellee, And Concerning MOLLI JO BRANDT, Respondent-Appellant.
• Date: 06 April 2016
• Court: Iowa Court of Appeals
• Docket Number: 15-0686

Upon the Petition of DANIEL DAVID UPAH, Petitioner-Appellee,

And

Concerning MOLLI JO BRANDT, Respondent-Appellant.

No. 15-0686

Court of Appeals of Iowa

April 6, 2016

Appeal from the Iowa District Court for Benton County, Christopher L. Bruns, Judge.

A mother appeals from the district court's order placing the child in the father's physical care.

Melissa A. Nine of Nine Law Office, Marshalltown, for appellant.

John G. Daufeldt of Daufeldt Law Firm, P.L.C., Conroy, for appellee.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.

DANILSON, Chief Judge.

Molli Brandt appeals from the district court's judgment and decree placing the parties' minor child, L.D.U., in the physical care of the child's father, Daniel Upah. Due to Daniel's stability and Molli's criminal history, we find that placing the child in Daniel's physical care is in the child's best interests. Therefore, we affirm the district court's ruling.

I. Background Facts and Proceedings.

Molli and Daniel are the parents of L.D.U., born in August 2013. Molli and Daniel were never married, but resided together for a period of two years, during which time L.D.U. was born. A dispute arose in late 2013 when Daniel learned that Molli had taken approximately $17, 000 from his checking account and had modified his bank statements to hide her conduct. Upon discovering the discrepancy, Daniel contacted the Benton County Attorney and a criminal prosecution was initiated.

On December 12, 2014, Molli entered an Alford¹ plea to a charge of class "D" felony forgery related to the monies taken from Daniel. At the time she entered the December 2014 plea, Molli was already on probation for a November 2011 felony-forgery plea. Molli had received a deferred judgment on the prior charge, but the deferred judgment was revoked as a result of her December 2014 plea. At the time of trial in this custody action, Molli remained on probation for these convictions, and had been ordered to pay $17, 000 in restitution to Daniel.

Molli and L.D.U. moved out of Daniel's residence in December 2013. After leaving Daniel's home, Molli lived with her mother in Illinois for one week, and then moved to her sister's residence in Toledo, Iowa, for a brief period of time. Molli subsequently obtained a two-bedroom apartment in Toledo, where she remained living at the time of trial. Molli works as the manager of a motel on a part-time basis for five hours per day, three to four days per week, earning eight dollars an hour. Molli earned $7352 from her employment in 2014, but expected to earn approximately $15, 000 to $16, 000 in the following year.

Daniel has worked as a farm laborer for the same employer for ten years. As part of his employment, Daniel is expected to live in a residence provided by his employer in Belle Plaine, Iowa. In addition to his work as a farm laborer, Daniel farms ninety acres and raises cattle with his father. Daniel testified at trial that he has worked long hours in the past, and at times will work up to seven days a week. However, Daniel also stated that his employer is supportive of his family responsibilities and is amenable to having Daniel work typical daily hours from eight a.m. to five p.m. In 2014 Daniel earned $36, 672 from his employment, and received a net income of $703 from his additional farming endeavors.

Daniel filed a petition for custody on January 3, 2014, after his paternity was established by testing.² On March 7, 2014, the district court issued a temporary order granting Molli and Daniel shared physical custody on an alternating weekly schedule. Trial was held on the matters of custody, visitation, and child support on April 1, 2015. The district court entered a judgment and decree on April 2, 2015.

The district court granted Molli and Daniel joint legal custody and placed physical care with Daniel. Molli was awarded visitation with L.D.U. for two weekends out of every three; two, two-week non-consecutive blocks during the summer months; one week during spring break; and alternating holidays. Molli was also ordered to pay monthly child support in the amount of $120.

Molli now appeals.

II. Standard of Review.

We review physical care determinations under Iowa Code section 600B.40 (2013) de novo. Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). We give weight to the fact findings of the district court, especially upon consideration of witness credibility, but are not bound by them. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). "Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us." In re Marriage of Riddle, 500 N.W.2d 718, 719 (Iowa Ct. App. 1993).

III. Discussion.

In cases involving custody or care determinations, the best...