In Re the Marriage of Andrew J. Cummer and Kitty H. Cummer Upon the Petition of Andrew J. Cummer, and Concerning Kitty H. Cummer

IN THE COURT OF APPEALS OF IOWA

No. 15-1405
Filed August 31, 2016

IN RE THE MARRIAGE OF ANDREW J. CUMMER
AND KITTY H. CUMMER

Upon the Petition of
ANDREW J. CUMMER,
Petitioner-Appellant,

And Concerning
KITTY H. CUMMER,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Delaware County, Michael J.

Shubatt, Judge.

Andrew John Cummer appeals the physical-care provision of the decree

dissolving his marriage to Kitty H. Cummer. AFFIRMED.

Dan J. McClean of McClean & Heavens Law Offices, Dyersville, for

appellant.

Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,

for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

Andrew John Cummer appeals the physical-care provision of the decree

dissolving his marriage to Kitty H. Cummer. We affirm.

I. Background Facts and Proceedings

The parties first started dating in March 2013. Kitty discovered she was

pregnant seven weeks later. The parties broke off the relationship shortly

thereafter, and the parties got back together and split up again a number of times

during the pregnancy. In February 2014, the parties’ minor child, R.P., was born.

When R.P. was approximately two weeks old, Andrew filed a custody

action. A temporary visitation order was entered, awarding Andrew supervised

visitation at Kitty’s home. While exercising this visitation, Andrew and Kitty

rekindled their relationship, and the parties wed in July 2014. The parties

separated a few months later. In October 2014, Andrew filed a petition for

dissolution of marriage. Kitty has at all times been the primary caregiver to R.P.

At the time of trial, Andrew lived in a four-bedroom home in which he had

recently completed some home-improvement efforts. Andrew works forty to

forty-five hours a week as a manager at a grocery store making $18.50 an hour.

Kitty lived in a one-bedroom apartment. Kitty has a GED, some secondary

schooling, and has studied sign language. Kitty indicated she wanted to go back

to school and ultimately teach sign language, although at the time of trial, she

was a stay-at-home mother receiving social security disability benefits for her

bipolar condition, for which she takes medication under a physician’s supervision.
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At the time of trial, the minor child was approximately fifteen months old.

The parties and various third-parties confirmed R.P. is a happy baby reaching his

developmental milestones, although he was born without enamel on his teeth.

Since R.P.’s birth, Kitty has engaged in a number of services through

which she receives support in caring for R.P. An in-home parent educator for

Regional Medical Center, who had known Kitty in her official capacity for

approximately a year, testified Kitty had requested the assistance of and

voluntarily participated in a parenting-assistance program. The parent educator,

who sees Kitty every two weeks, described Kitty as “hands on,” “very loving,” and

engaged in learning about R.P.’s development. She testified Kitty is aware of her

weaknesses as a parent and that she has no concerns about R.P. being in Kitty’s

care. She testified R.P. was developmentally on target and a very happy child.

She also testified she was aware Kitty was bipolar but has no concerns about

Kitty’s mental illness in relation to Kitty’s ability to take care of R.P.

A social worker testified regarding Kitty’s involvement in a play group,

called a Mom and Me class, through a local hospital. She testified she sees Kitty

on a monthly basis with R.P. at the class and that R.P. is happy and developing

normally. She described Kitty as an attentive and caring mother.

Kitty’s doula also testified, stating that since R.P.’s birth she has seen Kitty

with R.P. at the Mommy and Me classes. She indicated she saw no concerns in

R.P.’s development, saw a strong bond between the child and Kitty, and had no

concerns for Kitty as a mother.

Kitty voiced concerns at trial about Andrew’s ability to properly care for

R.P. She indicated Andrew originally failed to properly secure R.P. in a car seat
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or properly secure the car seat to the car, Andrew has repeatedly put R.P. in

diapers a size too small, and R.P. has been returned to her home at least four

times with a diaper rash. She also indicated Andrew has failed to communicate

with her about what he is feeding R.P. and failed to provide that information to

R.P.’s doctor despite indicating he would. Kitty also expressed concerns about

the condition of Andrew’s home, stating there is a constant flow of people in and

out of the home and identifying numerous safety concerns including holes in the

wall and flooring, torn carpet, and exposed plaster.

In response to Kitty’s concerns, Andrew testified he had his home

inspected by a registered nurse and a social services worker. He also testified to

his concerns about Kitty’s feeding of R.P., primarily regarding Kitty’s continued

breastfeeding of the child.

Much of the testimony at trial revolved around the parties’ respective past

relationships. The record supports that Kitty has a history of domestic violence in

past relationships. The record further supports that Andrew has a contentious

relationship with his ex-wife, and multiple witnesses testified Andrew puts his

children in the middle of disputes he has with his ex-wife. The district court

found, however, and the record supports, that there was no credible history of

domestic abuse between the parties themselves.

A considerable portion of the testimony at trial also pertained to the

parties’ respective children from past relationships. The district court found and

the record supports that Andrew’s children with his ex-wife have generally had a

hot and cold relationship with their parents, moving between the two households

based upon their living preferences at the time. The record indicates Andrew has
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been physical with his children in the past. Andrew admitted there was a

founded Iowa Department of Human Services report for a bruise he put on his

daughter. He also admitted to having “tapped” his daughter in the mouth and

then putting his daughter’s personal items on the lawn, an incident that ultimately

involved the police. He also admitting to “tapping” his son in the mouth.

Similarly, the record indicates Kitty has had an equally inconsistent relationship

with her adult children, one of whom has a history of drug-addiction issues. All of

the children who testified, however, stated they had good relationships with their

respective parents who are parties to this matter and that they believed R.P.

should be with their respective parent.

The record also evidences the parties have poor communication. The

district court found their communication bordered on toxic. Despite this, Kitty has

taken R.P. to visit some of Andrew’s other children in order to maintain R.P.’s

relationship with his half-siblings.

At trial, Andrew requested sole legal custody and physical care of the

child, or, in the alternative, shared care. Kitty requested joint legal custody and

physical care. She also expressed her desire to relocate with R.P. to South

Carolina to be with her family.

Kitty is originally from South Carolina, where her family still lives, including

her father, step-mother, uncles, aunts, stepbrothers, cousins, grandmother, and

grandfather. She indicated she would move in with her grandparents, who have

a three-bedroom ranch home, and hoped to get a job as a sign language

translator at the college where her father works, although she indicated she

intended to stay home to care for R.P. in the more immediate future.
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Trial was held on this matter in May 2015. In its decree, the district court

granted joint legal custody to the parties, physical care to Kitty, and visitation to

Andrew, accounting for the fact that Kitty might relocate to South Carolina with

the child.

II. Scope and Standard of Review

We review dissolution cases, which are tried in equity, de novo. Iowa R.

App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa

2012). While we give weight to the factual findings of the district court, especially

when considering the credibility of witnesses, we are not bound by them. Iowa

R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must

depend upon the facts of the particular case.” In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007) (citation omitted).

III. Analysis

A. Physical Care

Where child custody and physical care are at issue in a marriage

dissolution case, the primary consideration is the best interests of the child. Iowa

R. App. P. 6.904(3)(o). We look to the factors listed in Iowa Code section

598.41(3): (1) whether each parent would be a suitable custodian for the child;

(2) whether the psychological and emotional needs and development of the child

will suffer due to lack of active contact with and attention from both parents;

(3) whether the parents can communicate with each other regarding the child’s

needs; (4) whether both parents have actively cared for the child before and

since the separation; (5) whether each parent can support the other parent’s

relationship with the child; (6) whether the custody arrangement is in accord with
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the child’s wishes or whether the child has strong opposition, taking into

consideration the child’s age and maturity; (7) whether one or both parents agree

or are opposed to joint custody; (8) the geographic proximity of the parents; (9)

whether the safety of the child, other children, or other parent will be jeopardized;

(9) whether a history of domestic violence exists; and (10) whether either parent

has allowed a sex offender access to the child. We also look at the factors

announced in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974):

(1) The characteristics of each child, including age, maturity,
mental and physical health.
(2) The emotional, social, moral, material, and educational
needs of the child.
(3) The characteristics of each parent, including age,
character, stability, mental and physical health.
(4) The capacity and interest of each parent to provide for
the emotional, social, moral, material, and educational needs of the
child.
(5) The interpersonal relationship between the child and
each parent.
(6) The interpersonal relationship between the child and its
siblings.
(7) The effect on the child of continuing or disrupting an
existing custodial status.
(8) The nature of each proposed environment, including its
stability and wholesomeness.
(9) The preference of the child, if the child is of sufficient age
and maturity.
(10) The report and recommendation of the attorney for the
child or other independent investigator.
(11) Available alternatives.
(12) Any other relevant matter the evidence in a particular
case may disclose.

Also relevant to this decision are the factors of continuity, stability,

communication, and approximation. See In re Marriage of Hansen, 733 N.W.2d

683, 700 (Iowa 2007). Not all factors are given equal consideration, and the

weight assigned to each factor depends on the specific facts and circumstances
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of each case. See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct.

App. 1998).

Andrew argues he should have physical care of the parties’ child because

Kitty does not encourage his relationship with the child and he can provide a

more appropriate living situation for the child. As an initial matter, there is no

evidence in the record that Kitty’s home is unsuitable. Though small, nothing

indicates the home is incapable of meeting the child’s needs. The only evidence

regarding Kitty’s home is contrary to Andrew’s assertions on appeal. Further, at

the time of trial, Kitty testified she was remaining in the apartment only until she

was told by the district court whether she could move with R.P. to South

Carolina, at which point in time, regardless of the answer, she intended to find

different housing. We are cognizant Andrew made significant improvements to

his home leading up to trial. Ultimately, the record reflects both parents are

capable of providing suitable living accommodations.

As to Andrew’s other argument, the record supports that the parties have

issues communicating, but those issues are mutual. See In re Marriage of Clark,

No. 12-2192, 2013 WL 3291834, at *4 (Iowa Ct. App. June 26, 2013) (“A

significant factor in the physical care determination is the ability of each parent to

communicate effectively with the other about the needs of their children.”). Kitty

blocked Andrew’s ability to communicate with her by text; knowing this, Andrew

continued to attempt to communicate with her by text anyway. Kitty delayed

granting Andrew access to R.P.’s medical records; Andrew failed to inform Kitty

or the child’s doctor of the foods he was feeding R.P., despite indicating he would

do so. Andrew told Kitty she was the last person he would call if R.P. were
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crying or upset. There is no evidence in the record that Andrew is any more

willing to encourage R.P.’s relationship with Kitty than Kitty has encouraged

R.P.’s relationship with Andrew.1

Ultimately, however, this court must determine what is in the best interests

of R.P.2 The record establishes Kitty has been the primary caregiver to the child.

See Hansen, 733 N.W.2d at 697 (noting “the caregiving of parents in the post-

divorce world should be in rough proportion to that which predated the

dissolution”). A social worker, Kitty’s doula, and a parent teacher all testified Kitty

is a loving and attentive mother, R.P. is bonded to Kitty, and R.P is a happy child

meeting all of his developmental milestones. See id. (“[S]uccessful caregiving by

one spouse in the past is a strong predictor that future care of the children will be

of the same quality.”). The parent teacher testified Kitty is aware of her

shortcomings as a parent and seeks help and support for those areas. Further,

Kitty has encouraged and facilitated R.P.’s relationship with his half-siblings from

Andrew’s past marriage. See Winter, 223 N.W.2d at 166 (noting a factor to

consider was “[t]he interpersonal relationship between the child and its siblings”).

Andrew also contends this court should disallow Kitty to move to South

Carolina with the child. He asserts this move will only frustrate and deteriorate

his relationship with R.P., Kitty has no legitimate reason to want to move to South

1
This is further demonstrated by the fact that, after trial but before the court entered its
decree, Kitty requested the opportunity to take R.P. to South Carolina to visit her
grandmother, who had fallen ill. Andrew refused. Kitty filed a motion pursuant to Iowa
Rule of Civil Procedure 1.904 seeking leave to visit South Carolina with her son—a trip
that would interfere with one day of visitation for Andrew. Andrew resisted. Eventually,
Andrew withdrew his resistance and the request was granted.
2
At trial, Andrew requested sole legal custody of R.P. or, in the alternative, joint physical
care of R.P with Kitty. Andrew does not appeal the district court’s denial of these
requests.
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Carolina, and it is in R.P.’s best interests that the State of Iowa retain jurisdiction

over the child because of Kitty’s mental illness and various allegations that Kitty

experienced abuse in the past.

In In re Marriage of Vrban, the Iowa Supreme Court affirmed the district

court’s decision granting the mother physical care where the mother intended to

move the children to a different state, noting “that stability in the lives of young

children can be nurtured as much by leaving them with the person who has been

their primary parent figures as by requiring them to live in a neighborhood from

which that person has moved.” 359 N.W.2d 420, 425 (Iowa 1984). The court

noted the mother had planned for the move, testified openly about her plans at

trial, and awaited the court’s custody determination before making the move. Id.

Similarly, here, Kitty expressed her plans to move back to South Carolina

to be near her extended family, to move in with her grandparents until she could

find suitable accommodations for herself and R.P., and her intention to eventually

secure work—with the assistance of her father—as a sign language interpreter.

She indicated this move was necessary because there are few job opportunities

in her current community, few child care options, and she lacks family support in

Iowa—beyond her adult son whose future plans are undetermined. There is no

indication in the record that Kitty desires to move simply to interfere with

Andrew’s contact with R.P. See In re Marriage of Jerome, 378 N.W.2d 302, 305

(Iowa Ct. App. 1985) (recognizing “how mobile our society is” and how Iowa

courts “have been reluctant to limit a custodial parent to a geographic area where

there is evidence that the custodial parent has valid economic reasons for

moving and the move is not predicated on an attempt to limit visitation of the
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noncustodial parent”). She also waited until the court had made its determination

before moving R.P.

The district court expressed concerns about designating either Kitty or

Andrew as physical-care provider, but determined it was in R.P.’s best interests

to be placed with Kitty because “she will be better able to provide R.P. with a

peaceful home setting that addresses R.P.’s physical, mental, and emotional

needs.” On our de novo review, we agree. Accordingly, we affirm the district

court’s grant of physical care to Kitty.

B. Attorney Fees

Kitty requests not less than $5250.00 in appellate attorney fees. Appellate

attorney fees are not a matter of right, but rather rest in this court’s sole

discretion.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). In

determining whether to award attorney fees, we consider “the needs of the party

seeking the award, the ability of the other party to pay, and the relative merits of

the appeal.” Id. Having considered these factors, we determine Andrew shall

pay $2500 of Kitty’s appellate attorney fees. Costs shall be assessed one-half to

each party.

AFFIRMED.