In re the Marriage of Hansen

IN THE COURT OF APPEALS OF IOWA

No. 18-2212
Filed August 7, 2019

IN RE THE MARRIAGE OF JAMES MATHIAS HANSEN
AND BRANDY SUE HANSEN

Upon the Petition of
JAMES MATHIAS HANSEN,
Petitioner-Appellee,

And Concerning
BRANDY SUE HANSEN,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jackson County, John D. Telleen,

Judge.

Brandy Hansen appeals from the decree dissolving her marriage.

AFFIRMED.

Taryn R. McCarthy of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,

Dubuque, for appellant.

Jamie A. Splinter of Splinter Law Office, Dubuque, for appellee.

Considered by Potterfield, P.J., and Doyle and May, JJ.
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MAY, Judge.

Brandy Hansen appeals from the decree dissolving her marriage to James

Hansen. She argues the district court erred in granting James physical care of two

children and child support. We affirm.

The parties’ relationship began in 2004. Soon after, Brandy gave birth to a

child, referred to here as the “oldest child.” In 2010, James and Brandy married.

James adopted the oldest child. James and Brandy had two more children,

referred to here as the “younger children.”

By 2014, the parties’ relationship was deteriorating. It was marred by

substance abuse and domestic violence. By 2016, the Iowa Department of Human

Services was involved.

Also in 2016, James commenced this dissolution action. Although the

parties agreed they should be awarded joint legal custody of the children, neither

party suggested joint physical care was appropriate. Instead, each party asked for

physical care.

Following a two-day trial, the district court entered a decree dissolving the

marriage. The court granted physical care of the oldest child to Brandy, physical

care of the younger children to James, and child support to James. Brandy

appealed.

We review dissolution proceedings de novo. In re Marriage of McDermott,

827 N.W.2d 671, 676 (Iowa 2013). Even so, we afford deference to the district

court. Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). “[W]e will

affirm . . . unless the district court failed to do substantial equity.” Id.; see also In

re P.C., No. 16-0893, 2016 WL 4379580, at *2 (Iowa Ct. App. Aug. 17, 2016)
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(identifying “reasons to exercise ‘de novo review with deference,’ including: notions

of judicial comity and respect; recognition of the appellate court’s limited function

of maintaining the uniformity of legal doctrine; recognition of the district court’s

more intimate knowledge of and familiarity with the parties, the lawyers, and the

facts of a case; and recognition there are often undercurrents in a case—not of

record and available for appellate review—the district court does and should take

into account when making a decision”).

Brandy argues the district court erred in granting James physical care of the

younger children. When deciding physical care, “[t]he children’s best interest is

the ‘controlling consideration.’” In re Marriage of Hoffman, 867 N.W.2d 26, 32

(Iowa 2015) (quoting In re Marriage of Leyda, 355 N.W.2d 862, 865 (Iowa 1984)).

This standard requires us to examine each family’s unique circumstances on a

case-by-case basis. Id. We consider which parent would support the other’s

relationship with the children as well as continuity, stability, and approximation. In

re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). We also consider

additional factors relating to the children’s safety and other needs. See Iowa Code

§ 598.41(3) (2016); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).

As is often the case, our determination of physical care depends heavily on

testimony and—therefore—witness credibility. See In re Marriage of Vrban, 359

N.W.2d 420, 422 (Iowa 1984). As Justice Wolle observed,

There is good reason for [our appellate courts] to pay very close
attention to the trial court’s assessment of the credibility of witnesses.
The trial court deciding dissolution cases “is greatly helped in making
a wise decision about the parties by listening to them and watching
them in person.” In contrast, appellate courts must rely on the printed
record in evaluating the evidence. We are denied the impression
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created by the demeanor of each and every witness as the testimony
is presented.

Id. at 423 (citations omitted). Accordingly, when the parties present contrasting

versions of events, we generally defer to the district court’s credibility

determinations. In re Marriage of Wallert, No. 16-1669, 2017 WL 4843183, at *2

(Iowa Ct. App. Oct. 27, 2017).

Applying these principles, we conclude James is best situated to provide a

stable home for the younger children. His work schedule is more flexible, and the

children lived at his residence for the majority of their lives. Moreover, as the

district court discussed in detail, only James is prepared to “support the other

parent’s relationship with the child[ren].” Iowa Code § 598.41(5)(b). Under the

particular facts of this case, we assign great weight to this factor. See id.; see also

Axline v. Wylie, No. 13-1120, 2014 WL 3747684, at *2 (Iowa Ct. App. July 30,

2014) (“Some factors are given more weight than others, and the weight assigned

to each factor turns on the particular facts of a case.”).

Two of Brandy’s contentions deserve particular mention. First, Brandy

challenges some of the district court’s factual findings. Her challenges depend

heavily on her own testimony. But the district court made express credibility

findings against Brandy. Conversely, the court credited the testimony of James

and other witnesses. As explained above, we generally rely on the district court’s

findings “regarding the believability of the parties because of the trial judge’s

superior ability to gauge their demeanor.” In re Marriage of Geary, No. 10-1964,

2011 WL 2112479, at *1 (Iowa Ct. App. May 25, 2011). We rely on those findings

here. See In re Estate of Loy, No. 12-0766, 2013 WL 1759930, at *4 (Iowa Ct.
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App. Apr. 24, 2013) (“Where a factual determination hinges on the relative

believability of the witnesses, we rely on the district court’s findings.”).

Second, Brandy argues the district court erred in admitting a written

statement from a physician.1 We agree that Brandy’s hearsay objection was valid.

See Iowa Rs. Evid. 5.801(c), .802, .1101. Therefore, in our review, we have not

relied on the physician’s statement. See Iowa R. Evid. 5.801; Williams, 449

N.W.2d at 881. Even so, we still conclude the district court reached the correct

physical-care determination.

As to the award of child support, Brandy does not dispute the district court’s

calculation of the parties’ income, health insurance costs, or dependency

deductions. Instead, she contends that, “in the event [she were] awarded physical

care,” James should be required to pay child support. As explained above,

however, we agree with the district court’s physical-care determination. Therefore,

we do not disturb its child support award.

Both parties seek appellate attorney fees. “Appellate attorney fees are not

a matter of right, but rather rest in this court’s discretion.” See McDermott, 827

1
In equity cases, the district court should “receive all exhibits subject to objection.” In re
Marriage of Thompson, No. 10-0056, 2011 WL 441698, at *2 (Iowa Ct. App. Feb. 9, 2011).
“This procedure permits de novo review of the record in the appellate courts.” Hughes A.
Bagley, Inc. v. Bagley, 463 N.W.2d 423, 426 (Iowa Ct. App. 1990). It “allows the appellate
court, if it finds error in its de novo review, to decide the case on the record without a
remand.” Leo v. Leo, 213 N.W.2d 495, 498 (Iowa 1973).
But “[e]quity courts” must still “give effect to the general rules of evidence.” Moser
v. Thorp Sales Corp., 312 N.W.2d 881, 899 (Iowa 1981); see also Iowa R. Evid. 5.1101
(providing the rules of evidence are applicable to all proceedings except those specifically
identified). Therefore, when finding facts in a dissolution case, the court should not rely
on exhibits or testimony to which a valid objection has been made. For example, in In re
Marriage of Williams, we concluded a farm appraisal was “inadmissible hearsay.” 449
N.W.2d 878, 881 (Iowa Ct. App. 1989). Accordingly, “we [did] not consider it as we
determine[d] the value of the farm property.” Id.
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N.W.2d at 687 (quoting In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa

2005)). “In determining whether to award appellate 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. (quoting Okland, 699 N.W.2d at 270). After

considering the relevant factors, we decline to award either party appellate

attorney fees.

AFFIRMED.