Molly Kaye Hurlbert v. Scott Eugene Harris

IN THE COURT OF APPEALS OF IOWA

No. 16-0421
Filed January 11, 2017

MOLLY KAYE HURLBERT,
Plaintiff-Appellee,

vs.

SCOTT EUGENE HARRIS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Union County, Richard B. Clogg,

Judge.

A father appeals the court’s denial of joint physical care. AFFIRMED.

Scott D. Fisher of Fisher Law Firm, P.L.C., West Des Moines, for

appellant.

Andrew J. Zimmerman of Nielsen & Zimmerman, P.L.C., Corning, for

appellee.

Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

Scott Harris and Molly Hurlbert are the parents of now seven-year-old

O.H. In an action under Iowa Code chapter 600B (2015), the district court

granted the parents joint legal custody of their daughter and placed physical care

with Molly. On appeal, Scott asks for joint physical care. While the cordial and

constructive relationship between Scott and Molly does suggest the feasibility of

joint physical care, we ultimately agree with the district court’s assessment that

the parents’ historic pattern of caregiving tips the scale slightly toward Molly as

the physical-care provider.

O.H. was born in 2009. Scott and Molly moved in together in 2010 and

raised their daughter under the same roof until November 2014, when they

amicably separated. Scott and Molly both remained in Creston, residing less

than two miles apart. Scott lived with his girlfriend Kristina and her three

children. Scott also had visitation with his three biological children from an earlier

marriage. Molly lived alone with O.H.

Early in the separation, Scott did not exercise regular visitation, but Molly

and Scott soon formalized a parenting schedule, without court intervention, in

December 2014. The schedule included visitation for Scott on alternating

weekends, every Wednesday overnight, and a few additional hours the Monday

evening following Molly’s weekend parenting time.1

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Scott’s time with O.H. coincided with his visitation with his other children, which Molly
believed was important: “She deserves to be around her siblings.” Molly also confirmed
that when Kristina’s children were factored in, Scott would have seven children in his
household when O.H. had her overnights with him. Molly testified she believed they had
enough room to accommodate everyone.
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In January 2015, Molly filed a petition to establish paternity, custody,

visitation, and support. In his answer, Scott admitted paternity and requested

joint physical care (often referred to as shared physical care). Molly asked for

physical care of O.H. to be placed with her. In December 2015, the district court

heard testimony and issued a decree awarding physical care to Molly. Following

Scott’s motion for amended findings and conclusions under Iowa Rule of Civil

Procedure 1.904(2), the court issued an amended decree confirming it was not in

O.H.’s best interest “that Molly and Scott have shared physical care.” The court

explained its physical-care ruling as follows:

[O.H.] has lived with Molly since the parties’ breakup until the time
of trial. [O.H.] is a happy child and does well in school. Molly and
Scott have a history of good communication and acting in the best
interests of their child. The parties have no fundamental
disagreements regarding child rearing, disciplinary matters, and
schooling. Molly having primary care and Scott having liberal
visitation has gone well in the past. Molly is the one providing the
primary care for the child and is the person best suited to meeting
her needs. Due to the young age of the child it is in her best
interests not to disrupt the status quo. Molly has and can be
expected to promote and encourage the relationship between Scott
and the child.

Scott appeals the district court’s denial of joint physical care. We review

the custody decision de novo. See Iowa R. App. P. 6.907; Lambert v. Everist,

418 N.W.2d 40, 42 (Iowa 1988) (explaining we employ the same legal analysis in

resolving questions concerning custody of a child born to unmarried parents as

we do in the case of divorcing parents). Despite our de novo review, “we give

considerable weight to the sound judgment of the trial court who has had the

benefit of hearing and observing the parties firsthand.” In re Marriage of Kleist,

538 N.W.2d 273, 278 (Iowa 1995).
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This case presents a refreshing scenario where both parents are

respectful of one another and encourage their daughter to have a positive

relationship with the other parent.2 O.H. is lucky to have two loving parents who

hold her best interests in such high regard. But the civility between Molly and

Scott makes the decision regarding joint physical care a close call.

Scott argues joint physical care would be in O.H.’s best interests under the

factors identified in In re Marriage of Hansen, 733 N.W.2d 683, 696–99 (Iowa

2007). To assess the viability of shared care, the Hansen court zeroed in on four

factors: (1) the stability and continuity of care-giving, (2) the ability of the parents

to communicate and show mutual respect, (3) the degree of conflict between the

parents, and (4) the degree to which the parents generally agree about their

approach to daily child-rearing matters. 733 N.W.2d at 696–99. As already

discussed, factors two, three, and four point to the viability of joint physical care.

But the remaining factor—stability and continuity of care-giving—was the guiding

light for the district court’s decision. The court emphasized the success of the

parties’ voluntary parenting schedule, in place for the year leading up to the trial,

under which O.H. lived with Molly and had liberal visitation with Scott. Noting

O.H. was happy and doing well in school, the district court declined to disrupt

“the status quo.”

After reviewing the record anew, we reach the same conclusion as the

district court. Molly testified she believed it served O.H.’s best interests to remain

on the established schedule, telling the court: “I think it’s really important to keep

2
Scott even offered an exhibit showing polite text messages between him and Molly to
illustrate their ability to effectively communicate.
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things the same for [O.H.]” because “she’s young. It just gives her a steady

environment.” While not critical of the busy household maintained by Scott, Molly

testified: “I feel like with me it’s one on one more. I’m able to meet her needs.”

Molly testified Scott did not normally seek more time in deviation from their

set schedule, but she had occasionally asked him to take O.H. for an additional

overnight when Molly needed to study for a test, and he generally agreed. Molly

also told the court she would be flexible if Scott ever wanted more time with O.H.

Scott testified O.H. was doing well on her current schedule.

In Hansen, the court reiterated: “[S]tability and continuity of caregiving are

important factors that must be considered in custody and care decisions.” Id. at

696 (quoting a scholar for proposition that “past caretaking patterns likely are a

fairly reliable proxy of the intangible qualities such as parental abilities and

emotional bonds that are so difficult for courts to ascertain”). On the issue of

emotional bonds, O.H.’s maternal grandmother testified O.H. confided in her

several times that “she loves her dad very much and she wants to see him but

that she would rather live with her mother.”

The record supports continuing the routine for O.H. as established

voluntarily by the parents. Hansen advised: “[W]here one spouse has been the

primary caregiver, the likelihood that joint physical care may be disruptive on the

emotional development of the children increases.” Id. at 698; see also In re

Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974) (listing as a factor “the

effect on the child of continuing or disrupting an existing custodial status”). Molly

was the primary caregiver in the year before the trial. Like the district court, we
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find switching to shared care at this juncture would not be in O.H.’s best

interests.

In her brief, Molly asks for appellate attorney fees in the amount of $2040.

Under Iowa Code section 600B.26, we may award the prevailing party

reasonable attorney fees. An award of appellate attorney fees rests within our

discretion. See Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005). In

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

the request, the ability of the other party to pay, and whether the party making

the request was obligated to defend the trial court’s decision on appeal.” See id.

(citation omitted). Having considered these factors, we determine Scott shall pay

$1000 of Molly’s appellate attorney fees. Costs shall be assessed equally

between the parties.

AFFIRMED.