Erickson v. Blake

883 N.W.2d 536 (Table)

Dianna Kaye ERICKSON, Petitioner–Appellee,

v.Douglas Dale BLAKE, Respondent–Appellant.

No. 15–0251.

Court of Appeals of Iowa.

March 23, 2016.

Sandra P. Trevino of Hammer, Simon & Jensen, P.C., East Dubuque, Illinois, for appellant.

Dianna Kaye Erickson, pro se, for appellee.

Considered by VAITHESWARAN, P.J., and DOYLE and MULLINS, JJ.

DOYLE, Judge.

Douglas Blake appeals from the court's decree for custody, visitation, and support, which grants Douglas and Dianna Erickson joint physical care of their child.¹ Douglas argues joint physical care is not in the child's best interests and advocates that he be granted physical care of the child instead. He further argues the trial court improperly considered testimony by witnesses Dianna failed to disclose before trial and admitted into evidence undisclosed exhibits, which amounts to reversible error.

We review district court decisions regarding child custody de novo. McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct.App.2010). We are not bound by the district court's fact findings. Id. However, because the district court has the opportunity to listen to and observe the parties and witnesses, we give weight to those fact findings, especially those concerning witness credibility. Id. Our overriding consideration is the child's best interests. Id. We base our decision on the unique circumstances of each case. See In re Marriage of Crotty, 584 N.W.2d 714, 717 (Iowa Ct.App.1998). “Though we do not award custody based on hours of service for past care, we attempt to determine which parent will in the future provide an environment where the child is most likely to thrive.” Id.

Although Douglas complains the court admitted testimony and exhibits into evidence that Dianna failed to disclose to him before trial, we note custody determinations are made in equity. See Schott v. Schott, 744 N.W.2d 85, 88 (Iowa 2008) (“A court of equity has inherent power and jurisdiction in all proceedings involving the custody and care of minor children.”). As such, the district court properly withheld ruling on Douglas's objections to facilitate our de novo review of the entire record. See Davis v. Roberts, 563 N.W.2d 16, 20 (Iowa Ct.App.1997). The trial court stated as much at trial and in its ruling:

[Dianna] offered exhibits A through G, inclusive. Exhibits A and B were admitted. Exhibits C through G were admitted for the purposes of the record of the case. [Douglas] objected to these exhibits on the basis that they had not been previously disclosed pursuant to local rule and, further, there was no foundation for these exhibits. The court, on the record, stated that it would not consider these exhibits but that they were admitted solely for the purpose of the record. [Douglas] had no opportunity to view these records in advance in order to prepare his case, and further, there was no foundation that these records were authentic.

To the extent any evidence was improperly considered by the district court, reversal is not required given our de novo review of the record on appeal. See In re Marriage of Anderson, 509 N.W.2d 138, 142 (Iowa Ct.App.1993) (holding there is no need to rule on admissibility of evidence because the court did not consider the challenged evidence in its de novo review).

In making custody determinations, we apply the criteria found in Iowa Code section 598.41 (2013). See Iowa Code § 600B.40. Our objective is to place the child in the environment most likely to promote a healthy physical, mental, and social maturity. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). The court must fashion a child-custody arrangement that will afford “the opportunity for the maximum continuing physical and emotional contact with both parents” and “will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.” Iowa Code § 598.41(1)(a).

The court was required to consider joint physical care because Dianna requested it. See id. § 598.41(5)(a) (stating joint physical care is to be considered by the court if joint legal custody is awarded and either parent requests it). In determining whether to award joint physical care, the court must consider the following factors:

(1) “approximation”—what has been the historical care giving arrangement for the child between the two parties; (2) the ability of the spouses to communicate and show mutual respect; (3) the degree of conflict between the parents; and (4) “the degree to which the parents are in general agreement about their approach to daily matters.”

In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct.App.2007) (quoting Hansen, 733 N.W.2d at 697–99 ).

The trial court granted joint physical care after determining “neither party is superior to the other in respect to parenting,” finding instead the parties are “essentially equal.” While the parties have had conflict, the court noted both parents possessed “the skills and ability to communicate with each other.” After finding the child needs both parents “in equal measure,” the court determined joint physical care was in the child's best interests.

Douglas claims joint physical care is not in the child's best interests, citing the parties' history of conflict. Undoubtedly, there has been a strain in the parties' relationship during the pendency of the custody proceedings. However, the trial court indicated it believed the tension between the parties was caused in large part by the custody proceedings and would resolve once the proceedings concluded, allowing the parties to focus on the child's best interests rather than tactical maneuvering. The court further determined that a “specific and precise” custody schedule would reduce the potential for conflict to arise. We concur in this...