Aaron J. Connell v. Emily J. Barker

IN THE COURT OF APPEALS OF IOWA

No. 22-1791
Filed July 26, 2023

AARON J. CONNELL,
Plaintiff-Appellant,

vs.

EMILY J. BARKER,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Fremont County,

Gregory W. Steensland, Judge.

A father appeals a child custody decision awarding physical care of the

parties’ child to the mother. AFFIRMED AS MODIFIED.

Amanda Heims, Council Bluffs, for appellant.

Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, PC, West Des

Moines, for appellee.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
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CHICCHELLY, Judge.

Aaron J. Connell appeals, challenging the physical care provisions of the

decree entered August 31, 2022, regarding his child, L.L.C.B. The decree

awarded physical care to the child’s mother, Emily J. Barker, and set forth

scheduled visitation for Aaron. Aaron also argues that if physical care remains

with Emily, then we should impute additional income to Emily for the calculation of

child support. Emily requests that we order Aaron to pay her appellate attorney

fees. Having reviewed the record, we find the district court’s decision was

equitable with respect to placement and child support. We modify the court’s

visitation schedule and decline to award appellate attorney fees.

I. Background Facts and Proceedings.

Aaron and Emily never married but have one child together, who was born

on March 1, 2021. At the time of their child’s birth, Emily and Aaron were eighteen

and nineteen years old, respectively. Emily is enrolled in online college courses,

while Aaron is an HVAC apprentice. Emily testified that she recently started her

own business selling makeup online and has yet to earn income from this venture.

Emily lives with her mother in Hamburg, Iowa, and Aaron lives with his parents in

Nebraska City, Nebraska. They are approximately twenty minutes apart.

Aaron and Emily’s romantic relationship was tumultuous, and their co-

parenting relationship has continued in this manner. Emily accused Aaron of

having a drinking problem and a temper. During their relationship, the couple

stayed in constant contact and routinely found themselves in dispute. When apart,

Aaron wanted to know Emily’s location and insisted that her phone’s location

feature be activated. Shortly after learning they were pregnant, Emily and Aaron
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ended their romantic relationship but continued to see each other often. Aaron

was present when L.L.C.B. was born and cut the umbilical cord. Emily alleges that

Aaron displayed a temper at the hospital, and she chose not to add him to the birth

certificate. Emily told Aaron that he might not be the child’s father but has since

explained that she said it to try to get Aaron to back off.1

On March 6, Emily texted Aaron about him coming over to see the baby at

her home. Emily thereafter advised Aaron that he could only see the child at

Emily’s home or he would need to take her to court. On March 16, Aaron filed the

underlying petition to establish custody and visitation. In May, the court entered a

temporary order awarding the parents joint legal custody but granting physical care

to Emily and affording Aaron visitation every other weekend. Aaron’s visitation

was ordered to be exercised in his parents’ home so that he could have the

assistance of his parents. In July, Emily filed petitions in Iowa and Nebraska

alleging that Aaron sexually assaulted her and caused L.L.C.B.’s conception. Both

petitions were dismissed. Aaron maintains that he and Emily had unprotected sex

on multiple occasions and took conscious efforts to conceive a child.

The parties each submitted several affidavits from individuals vouching for

their character. They also supplied numerous exhibits, such as text messages and

social media posts, reflecting their contentious relationship. The court appointed

Amy Garreans to serve as a child and family reporter in this case and tasked Ms.

Garreans with obtaining information about the parties, interviewing them, and

1 A paternity test confirmed that Aaron is the father of L.L.C.B.
The court ordered
the child’s birth certificate be amended to incorporate Aaron’s surname and
recognize him as the legal and biological father.
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making recommendations regarding parenting time. Ms. Garreans recommended

that Aaron be awarded physical care, primarily because she was concerned about

Emily’s unwillingness to support the child’s relationship with Aaron. She

recommended against shared physical care due to the contentious nature of the

parents’ relationship.

Ultimately, the district court granted joint legal custody to the parents but

awarded physical care to Emily. The court scheduled Aaron’s visitation to take

place every other weekend, as well as on Wednesday evenings, and also set forth

an alternating holiday schedule. The court ordered Aaron to pay child support to

Emily in the sum of $490.21 per month. The underlying proceedings also included

a contempt action against Emily for withholding visitation from Aaron. The district

court found Emily in contempt and ordered her to serve thirty days in jail. However,

the court suspended the sentence for one year and ordered that the contempt

could be purged if Emily follows the terms of the decree. Aaron filed a timely

appeal as to physical care and child support.

II. Review.

Our review of custody proceedings for a child born out of wedlock is de

novo. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). We give weight to the

district court’s factual findings and credibility determinations, though we are not

bound by them. Id.; Iowa R. App. P. 6.907. “Prior cases have little precedential

value, except to provide a framework for analysis, and we must base our decision

on the particular facts and circumstances before us.” In re Marriage of Will, 489

N.W.2d 394, 397 (Iowa 1992).
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III. Discussion.

A. Physical Care.

Aaron argues the district court should have ordered shared physical care of

the minor child, or in the alternative, awarded physical care to Aaron or at least

granted him additional parenting time. The court considers several factors when

determining whether to award joint physical care: (1) approximation, which focuses

on historic patterns of caregiving for the child involved, (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 are in general agreement about

their approach to daily matters. In re Marriage of Hansen, 733 N.W.2d 683, 699

(Iowa 2007). These factors are not exclusive or necessarily determinative. Id.

Having reviewed the record, we find the parties’ history generally reflects an

inability to communicate and show mutual respect, as well as a significant degree

of conflict even as to daily matters. Therefore, we conclude joint physical care is

not appropriate and turn to the question of who should be awarded physical care.

In making this decision, Aaron specifically requests that we reverse the

district court’s finding that Emily was historically the primary caretaker of the child.

We understand Aaron’s point that it was not his choice for Emily to assume the

role of primary caretaker leading up to trial and that he took on as much

involvement as Emily and the court allowed. This understanding does not change

the facts of the case but does inform the weight we afford this detail. After all, the

general preference for continuity does not dictate that the historical primary

caretaker must remain the custodial parent. See In re Marriage of Decker, 666

N.W.2d 175, 178 (Iowa Ct. App. 2003).
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As noted earlier, we give weight to the trial court’s factual findings,

particularly with respect to the credibility of witnesses. The trial court had the

opportunity to observe the witnesses and concluded physical care should be

awarded to Emily. We agree.

Physical care issues are not to be resolved based upon perceived
fairness to the [parents], but primarily upon what is best for the child.
The objective of a physical care determination is to place the children
in the environment most likely to bring them to health, both physically
and mentally, and to social maturity.

Hansen, 733 N.W.2d at 695. Despite ruling in her favor, the district court

expressed significant concerns about Emily’s parenting:

She may well be described as a “helicopter mom”. She comes very
close to obsessing over her relationship with her daughter. She
testified that she spends all day everyday with [the child] and doesn’t
want her spending time with anyone else or going to a daycare of
any kind. Her devotion to her daughter is well-intended, but clearly
excessive.
....
This Court finds that Emily can, in fact, as indicated in Ms.
Garreans’s Report and testimony be demanding, unrelenting,
accusatory, and manipulative.

We share these concerns but likewise conclude that placement with Emily will

support the child’s physical and mental health. While both parents have their

shortcomings, the decree represents an implied credibility finding in favor of Emily,

which we do not find occasion to disturb.

At the time of the final trial, Aaron had not yet parented the child on his own.

L.L.C.B. was only one year old and had been in her mother’s care for almost all of

her life. Our affirmation of the district court’s determination of the custody award

should not be read to condone some of Emily’s behaviors exhibited during the

pendency of the case. Emily assured the court that going forward she will abide
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by the court order. We recognize the importance of a child maintaining meaningful

relationships and substantial contact with both parents. See In re Marriage of

Leyda, 355 N.W.2d 862, 866 (Iowa 1984). In fact, we are directed to “consider the

denial by one parent of the child’s opportunity for maximum continuing contact with

the other parent, without just cause, a significant factor in determining the proper

custody arrangement.” Iowa Code § 598.41(1)(c) (2021). “When one parent’s

obduracy makes joint custody unworkable, the trial court in a modification

proceeding may find the child’s best interests require sole custody in the other

parent.” In re Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983).

At this time, Aaron also requests increased visitation but does not offer a

proposed schedule or other specific logistical details. Upon careful consideration,

we modify the schedule set forth by the district court such that Aaron’s Wednesday

evening visitation shall extend overnight, with the child returned to Emily in the

morning by 7:30 A.M. We also modify the decree’s award of summer visitation to

include two weeks of uninterrupted visitation with Aaron in August in addition to

that set forth for June and July. We remind the parties that the court-ordered

visitation schedule is the minimum, and additional visits may occur as may be

mutually agreed to by the parties. In re Marriage of Bevers, 326 N.W.2d 896, 899

(Iowa 1982). We affirm the district court’s physical care determination and

visitation schedule as modified.

B. Child Support.

Aaron argues we should impute additional income to Emily for purposes of

calculating child support. The district court imputed Emily’s annual income to be

$15,131.79. Aaron points out that this amount corresponds approximately to
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minimum wage but is even less than Emily’s rate of pay when she was in high

school and earned $8 per hour. He argues Emily is underemployed because she

should be able to find a higher-paying job. Aaron requests we impute Emily’s

income at $12 per hour for forty hours per week. We decline to do so.

Emily is a full-time college student endeavoring to earn minimum wage

through an online business. We are optimistic Emily’s studies will lead to more

gainful employment in the future and do not believe she should be held to a higher

standard prematurely. See In re Marriage of Yazigi and Nahra, No. 13-1553, 2015

WL 1046129, at *3 (Iowa Ct. App. Mar. 11, 2015) (concluding the district court did

not err in imputing minimum wage income to a mother enrolled in college).

Moreover, Aaron has not offered evidence to demonstrate that Emily actually earns

a higher income than the amount already imputed to her. See In re Marriage of

Wade, 780 N.W.2d 563, 566 (Iowa Ct. App. 2010) (referencing the district court’s

decision during an earlier proceeding in the case not to impute any income to a

parent enrolled in college full-time, “other than what she will actually earn”).

Accordingly, we affirm the district court’s order with regard to Emily’s income.

C. Attorney fees.

Emily requests that Aaron be ordered to pay her appellate attorney fees for

defending the district court’s decision on appeal. An award of attorney fees is a

matter of our discretion and not merely a matter of course. In re Marriage of

Benson, 545 N.W.2d 252, 258 (Iowa 1996). “We are to 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 district court’s decision on appeal.”

In re Marriage of Ales, 592 N.W.2d 698, 703 (Iowa 1999). Given the financial
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positions of the parties and merits of the arguments on appeal, we decline to award

appellate attorney fees to Emily.

AFFIRMED AS MODIFIED.

Schumacher, P.J., concurs; Buller, J., specially concurring.
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BULLER, Judge. (specially concurring)

I reluctantly concur in affirming the custody ruling, agree with the expansion

of Aaron’s parenting time, and have no disagreement with the majority’s child-

support analysis. I write separately to express my concern over the difficult

position the appellate courts are put in when the district court does not make

express credibility findings or explain why it is rejecting what appears to be credible

testimony in favor of other evidence.

The Child and Family Reporter (CFR) in this case, a Council Bluffs attorney,

submitted a written report described by the district court as “thorough and well-

written.” I agree with that description. The CFR also withstood significant attacks

by Emily’s trial counsel, which the district court described as “unwarranted.” I

agree with that too. The district court described the CFR’s testimony overall as

“compelling and helpful to [the] Court,” which is a view I share as well. Yet the

district court ultimately rejected the CFR’s recommendation to place physical care

with Aaron, with little explanation why.

The explanation does not lie in a finding that Emily testified credibly at trial.

As the majority notes, both the district court and this court found significant deficits

in Emily’s parenting and other behavior. It is reasonable to conclude from the

record that Emily made false allegations of criminal conduct against Aaron in a bid

to limit his access to the child. The CFR’s testimony also credibly highlighted

significant problems with Emily’s manipulative behavior, dishonesty, and

willingness to do anything she can to tear Aaron down and bias witnesses and the

court against him. For example, Emily accused the CFR of asking her an

inappropriate question during the interview, but the CFR had recorded the
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exchange between herself and Emily, and the question was never asked. The

CFR also detailed how Emily was “very confrontational,” “not cooperative,” and

refused to consent to the release of the child’s records. Emily’s concerns were

parroted by counsel, who filed a motion to disqualify the CFR. The district court

summarily denied the motion to disqualify, apparently finding it baseless. Last,

and perhaps most damning to any claim the district court found Emily credible, the

court found her in contempt beyond a reasonable doubt, necessarily finding a

willful violation of a court order. Emily’s credibility cannot explain the district court’s

ruling.

Nor can the explanation for rejecting the CFR’s recommendation be found

in the district court’s concerns about Aaron as a parent. To the contrary, the court

found “Aaron to be perfectly capable as a parent in this case.” Consistent with that

finding, the CFR testified that she did not have any concerns about Aaron’s

cooperation or parenting skills, and Aaron provided consent for release of the

child’s records.

So what is the basis for the district court rejecting the CFR’s

recommendation and instead awarding physical care to Emily? The only overt

factor identified in the ruling is Emily’s historical caregiving, and the weight that

factor is owed is limited for the reasons identified by the majority (namely that

Aaron parented as much as Emily or the court allowed). We are left with what the

majority describes as an “implied credibility finding” in favor of placing physical

care with Emily. I cannot fault the majority with this description, though it has scant

support in the actual text of the district court’s ruling. At most, the “implied

credibility” determination lives within this sentence of the ruling, which was perhaps
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intended to shed light on the departure from the CFR’s report: “While this Court

has a great deal of respect for the recommendation made [by the CFR], this Court

believes that the totality of the circumstances and the best interests of [the child]

require joint legal custody with Emily having physical care.” In my view, this offers

the illumination of a flickering street-lamp down the street on a stormy night. The

majority is likely right that an implied credibility finding was made, but I am hard

pressed to know the reasoning or if the finding was based on considerations we

actually owe deference, like the trial court’s ability to observe in-court testimony.

I strongly encourage district courts to make express credibility findings in

the future, with an explanation of the finding and its basis. It does a tremendous

disservice to leave the appellate courts and litigants wondering why a trial court,

required to make written fact-findings, chose to believe one witness over another.

The appellate courts cannot offer appropriate deference to credibility findings,

while simultaneously engaging in de novo review, if we cannot distinguish between

credibility findings and a mixed analysis of law and fact.

Reading this cold record, I found the CFR credible and Emily decidedly not.

If I were reviewing this transcript as trial judge and fact-finder, I would likely award

physical care to Aaron. Yet given the limited role of our appellate courts, I must

decline to second-guess the credibility findings of the district court, even in the

spartan—or “implied”—fashion they are made here. I therefore reluctantly concur.