Savary v. Murdach

IN THE COURT OF APPEALS OF IOWA

No. 17-0559
Filed February 7, 2018

JEFFREY L. SAVARY,
Plaintiff-Appellee,

vs.

ELISABETH MURDACH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Edward A.

Jacobson, Judge.

The mother appeals from the physical-care provision of the district court’s

decree. AFFIRMED.

Rosanne Lienhard Plante of Second Opinion Legal Center and Mediation

Service, P.L.C., Hinton, for appellant.

Craig H. Lane of Craig H. Lane, P.C., Sioux City, for appellee.

Considered by Vaitheswaran, P.J., Bower, J, and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2

BLANE, Senior Judge.

Elisabeth Murdach appeals the physical-care provision of the district court’s

decree, which provided joint physical care of the minor child, N.T., to Elisabeth and

the child’s father, Jeffrey Savary. Elisabeth maintains the court should have given

her physical care of the minor child and asks for an award of appellate attorney

fees. Jeffrey asks that we affirm the district court’s shared-care provision and

award him appellate attorney fees.

We review custody decisions de novo. Melchiori v. Kooi, 644 N.W.2d 365,

368 (Iowa 2002). We base our decision primarily on the circumstances of the

parties presently before us. Id. As always, we are guided by the best interests of

the child at issue. See In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa

2007).

A. Physical Care. In deciding what arrangement of physical care is in the

child’s best interests, we apply the same legal analysis for unmarried parents as

those who were once married. See Hensch v. Mysak, 902 N.W.2d 822, 825 (Iowa

Ct. App. 2017). There is no presumption in favor of either a mother or a father, In

re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996), and child-

custody decisions are not an issue of reward or fairness for the parents, Hansen,

733 N.W.2d at 696. While we consider an award of joint physical care when either

parent requests it,1 there is no presumption in favor of joint physical care. See

1
In her appellate brief, Elisabeth maintains “neither party requested shared physical care.”
If she was correct, the district court’s ruling would have to be modified, as the court may
only order joint physical care after a parent requested it. See, e.g., Gaswint v. Robinson,
No. 12-2149, 2013 WL 4504879, at *3 (Iowa Ct. App. Aug. 21, 2013). However, based
upon our review of the record, Jeffrey asked the court to consider joint physical care in
both his pretrial stipulation and his testimony at trial.
3

Iowa Code § 598.41(5)(a) (2016) (providing “the court may award joint physical

care to both joint custodial parents upon the request of either parent” (emphasis

added)); Hensch, 902 N.W.2d at 825 (reiterating the supreme court’s earlier

holding that section 598.41(5)(a) “does not create a presumption in favor of joint

physical care” (quoting In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa

2007))).

In deciding the optimal care arrangement for the child, we consider the

nonexclusive factors set out by our legislature in Iowa Code section 598.41(3).2

See Iowa Code § 600B.40(2) (“In determining the visitation or custody

arrangements of a child born out of wedlock, . . . the court shall consider the factors

specified in section 598.41, subsection 3.”). We also consider (1) stability,

continuity of caregiving, and approximation; (2) the ability of the parents to

communicate and show mutual respect; (3) the degree of conflict between parents;

2
The factors include, as relevant here:
a. Whether each parent would be a suitable custodian for the child.
b. 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.
c. Whether the parents can communicate with each other regarding
the child’s needs.
d. Whether both parents have actively cared for the child before and
since the separation.
e. Whether each parent can support the other parent’s relationship
with the child.
f. Whether the custody arrangement is in accord with the child’s
wishes or whether the child has strong opposition, taking into consideration
the child’s age and maturity.
g. Whether one or both the parents agree or are opposed to joint
custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other parent
will be jeopardized by the awarding of joint custody or by unsupervised or
unrestricted visitation.
Iowa Code § 598.41(3).
4

and (4) the degree to which the parents are in general agreement about their

approach to daily matters. Id. at 695.

Upon our de novo review of the record, we agree with the district court that

joint physical care is in the child’s best interests. We recognize that there were

initially some hard feelings between the parties in this case. Elisabeth was angry

with Jeffrey for not being a support when the child was first born and diagnosed

with her condition.3 Jeffrey originally questioned paternity and the parties disputed

what Jeffrey needed to learn about the child’s physical condition before Elisabeth

would allow him to have overnight visits with the child, which led Elisabeth to cut

off Jeffrey’s visits altogether for one and one-half years.

But, according to both parents’ testimony, things went well after the court

entered the temporary order granting Jeffrey visitation and setting up a visitation

schedule. Elisabeth never took any action to prevent a scheduled visit, and the

parents were flexible when visits needed to be changed due to issues with work or

family matters. Additionally, Jeffrey and his wife 4 testified they would continue to

support the child’s relationship with Elisabeth, and Jeffrey’s wife testified the child

had never said anything that would lead the wife to believe Elisabeth has said

negative things about Jeffrey in front of the child.

Jeffrey and Elisabeth have also been able to communicate regarding the

child’s physical condition. Jeffrey wanted to explore the option of using doctors

and surgeons closer to Iowa to treat the child, but he and his wife also testified

3
The child was born with a congenital condition that causes joint contracture in her upper
extremities.
4
After N.T. was born, Jeffrey married Charity, with whom he had an ongoing relationship.
5

they were willing to continue the child’s treatment with her current out-of-state

specialists if they could not find comparable care nearby. The child has a close

relationship with her half-sibling, Elisabeth’s older child, and at least one of her

step-siblings, who lives with Jeffrey and his wife half the time. Additionally, the

homes of the two parents, which are both satisfactory abodes for raising the child,

are approximately twelve miles apart, with a school the child could attend between

the two locations.

Applying the legal standards discussed above to the evidence in this record,

we conclude that joint physical care is in the best interest of this child. These

parents are both able and willing to parent this child and participate in her ongoing

medical care, and she will benefit from getting to spend the maximum time with

each of these loving and caring parents.

B. Appellate Attorney Fees. Next, we consider both parents’ request for

appellate attorney fees. An award of appellate attorney fees is within our

discretion. Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). In deciding

whether an award is warranted, 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.” Id. (citation

omitted). Here, while Jeffrey was successful on appeal, evidence at trial

established that his hourly wage was approximately double what Elisabeth earned.

We decline to award either party appellate attorney fees.

AFFIRMED.