Christopher Sivertsen v. Elizabeth M. Ells

IN THE COURT OF APPEALS OF IOWA

No. 14-0196
Filed October 15, 2014

CHRISTOPHER SIVERTSEN,
Petitioner-Appellee,

vs.

ELIZABETH M. ELLS,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jones County, Ian K. Thornhill,

Judge.

Elizabeth Ells appeals the district court’s order awarding Christopher

Sivertsen physical care of their child. AFFIRMED.

Joseph D. Ferrentino of Iowa Legal Aid, Dubuque, for appellant.

Geneva L. Williams of Williams Law Office, P.L.L.C., Cedar Rapids, for

appellee.

Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

Elizabeth (Liz) Ells appeals the order granting physical care of the parties’

son to Christopher (Chris) Sivertsen. Liz argues the district court should have

awarded her physical care of their child. Because we agree the placement of

physical care with Chris was in the child’s best interest, we affirm.

I. Background Facts and Proceedings.

Chris and Liz are the parents of D.S., born in 2011. Liz has one other

child, born in approximately 2008. That child is placed in the physical care of the

child’s father, with Liz having visitation.

The parents met while working at a club, and they later began a

relationship. They lived together for a short time but separated in 2012. Chris

and Liz never married.

The parties’ relationship prior to their separation was rocky. One time,

while a passenger in Liz’s vehicle, Chris punched the dashboard, causing

damage, because he was angry about her tailgating and texting while driving.

Twice during the relationship, Liz filed allegations of domestic abuse against

Chris. She dismissed the petition in the first matter, but the second matter in

2012 advanced to a contested hearing. Following the hearing, the court found a

domestic assault had occurred, and it issued a domestic abuse protection order.

Around the same time, Chris filed his petition in district court to establish

child custody. Liz answered and requested the parties be granted joint custody

with their child placed in her primary care, with Chris having reasonable

visitation. Liz requested mediation be waived because there was a history of

domestic abuse between the parties, and the court waived mediation. A
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temporary custody order was established thereafter, and it continued the shared-

care arrangement the parties’ had begun after separating, alternating care of the

child weekly.

Trial commenced in November 2013. There, Chris said he would be

“okay” with shared care of the child until the child started school, but his

preference was that he have immediate primary care of the child, with Liz having

visitation. Liz said she would like to have full custody, but she felt the child would

benefit from parties’ continued shared care until the child started school, at which

time she wanted the child placed in her primary care. Chris admitted he had

punched Liz’s dashboard out of frustration, but he denied any physical abuse.

Additionally, there were allegations Liz had abused alcohol or substances during

their relationship, and Liz admitted she had had some issues while working at the

club. Liz testified she did not, at the time of trial, have any issues with illegal

drugs, and she only consumed alcohol once in a while.

At the time of trial, both parties had gained full-time employment

elsewhere, with Chris working at an auto parts store and Liz at a prescription-

processing center and a beauty supply store. The parties were communicating

at the time of trial, the protection order having expired, and they were doing a

good job keeping each other updated. Both parties generally testified the other

parent loves their child; however, Chris was more critical of Liz’s parenting,

claiming she had a wonderful heart but was short on patience. Liz denied his

assessment, and she asserted she had been the child’s primary caregiver until

the parents separated, noting she had taken him to the doctor more times than

Chris but conceding Chris was employed full-time at that time. She testified she
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was concerned about Chris’s abuse and objectification of women, but she felt

their child would benefit most from having both parents in his life as much as

possible.

Following trial, the court entered its order, noting it had “received evidence

from both parties on the abuse issue,” and it concluded both parties were

“‘overstating’ their respective positions.” The court was therefore “not convinced,

by a preponderance of evidence, the alleged physical abuse of Liz by Chris took

place,” though it believed “the relationship between the parties was contentious

during the time they were romantically involved.” However, the court found the

parties had matured and grown as parents since their separation, resulting “in the

parties’ ability to communicate and work together in the best interest of [their

child].” The court further found:

Both parties love [their child] and have a strong and positive
connection to him. Both parties have suitable housing for [their
child] and are able to provide for his basic needs. All the evidence
presented at trial suggests [their child] is growing and developing
on schedule with his peers, is a happy child, is in good health, and
loves both his parents. While each party has minor criticisms of the
other’s parenting style, neither voiced serious concern for [their
child’s] well-being while in the other’s custody outside of a diaper
rash issue raised by Chris. Considering the totality of the evidence,
the court finds both parties are fully capable of caring for [their
child].

After reviewing the relevant statutory factors and case law, the court concluded

Liz’s proposal that the parties have joint physical care of their child until he began

attending elementary school was in the child’s best interests, and the court

continued the alternating weekly schedule set forth in the temporary custody

order. However, due to the parties’ geographic distance, the court concluded

joint physical care was not workable once the child began attending school.
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Finding that “both parties are equally able to provide for [the child’s] physical

care” and noting it was a close call, it determined the balance tipped in favor of

Chris because “he has been the more stable parent for a longer period of time

and has provided [the child] with a consistent home since his birth.” The court

awarded Chris primary physical care of the child beginning August 1 of the year

the child enters kindergarten.

Liz now appeals.

II. Discussion.

We review de novo decisions on child custody. In re Marriage of Hynick,

727 N.W.2d 575, 577 (Iowa 2007). We have a duty to examine the entire record

and adjudicate anew rights on the issues properly presented. In re Marriage of

Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Despite our de novo

review, we give strong consideration to the district court’s fact findings, especially

with regard to witness credibility. Hynick, 727 N.W.2d at 577.

In matters of child custody, the first and foremost consideration “is the best

interest of the child involved.” In re Marriage of Weidner, 338 N.W.2d 351, 356

(Iowa 1983); see also Iowa R. App. P. 6.904(3)(o). The Iowa Code provides a

nonexclusive list of factors to be considered in determining a custodial

arrangement that is in the best interest of a child. Iowa Code § 598.41(3) (2013);

In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). We also look to the

non-exclusive considerations articulated in In re Marriage of Winter, 223 N.W.2d

165, 166-67 (Iowa 1974) (including the needs of the child, the characteristics of

the parents, the relationship between the child and each parent, and the stability

and wholesomeness of the proposed environment). The goal is to assure the
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child “the opportunity for the maximum continuing physical and emotional contact

with both parents after the parents have separated or dissolved the marriage.”

Iowa Code § 598.41(1)(a). We seek to place the child in the environment “most

likely to bring [the child] to health, both physically and mentally, and to social

maturity.” Hansen, 733 N.W.2d at 695.

On appeal, Liz argues the district court erred in finding the balance tipped

toward Chris having physical care of the child when he begins school. Liz

emphasizes Chris’s history of domestic abuse, and she points to the entry of the

protective order after another court found there had been domestic abuse by

Chris. She takes issue with the custody court’s finding “that the same allegations

of domestic abuse were not established by a preponderance of the evidence,”

and she argues the principles of issue preclusion prevent the court from revisiting

the domestic abuse issue. Reviewing the record de novo, even if the custody

court should have found Liz had already established an incidence of domestic

violence perpetrated by Chris by way of the other court’s earlier ruling and entry

of a protective order, we cannot say this supports reversal of the court’s ruling,

considering all of the applicable factors and the child’s best interests.

It is true that domestic abuse is a substantial factor in determining

custody. Iowa Code section 598.41(3) (2013) sets forth several factors for the

court to consider in making an award of physical care, including whether a history

of domestic abuse exists. See Iowa Code § 598.41(3)(j). This is because

domestic abuse has “ravaging and long-term consequences” on children. In re

Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa Ct. App. 1997). In interpreting

what is sufficient to constitute a “history of domestic abuse,” the supreme court
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has held a “history” is not necessarily established by a single documented

incident. In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). Nor does

more than one minor incident automatically establish a “history of domestic

abuse.” Id. Although evidence of domestic abuse creates a rebuttable

presumption against an award of custody, see In re Marriage of Ford, 563

N.W.2d 629, 632 (Iowa 1997), it is for the court to weigh the evidence of

domestic abuse, its nature, severity, repetition, and to whom directed, not just to

be a counter of numbers. Forbes, 570 N.W.2d at 760. We are mindful the

district court had the benefit of hearing and observing the parties first-hand and

therefore give considerable weight to its judgment. Id. at 759.

Here, the district court clearly weighed the evidence of domestic abuse,

along with its nature, severity, repetition, and to whom directed, and it found,

after hearing the witnesses first-hand, the parties had “overstated” the

allegations. We give strong consideration to the district court’s fact findings,

especially with regard to witness credibility. Hynick, 727 N.W.2d at 577. This is

not to say we take domestic abuse lightly, because “domestic abuse reflects the

ability of the parties to listen to one another and respect one another’s opinions

and feelings.” Id. at 579. However, the parties have moved on now, and the

child is currently in the parties’ joint physical care. Liz herself testified she

believed joint physical care is in the child’s best interests, which ordinarily

negates the court’s need to consider the factors set forth in section 598.41(3). Id.

(citing Iowa Code § 598.41(4)).

Upon our de novo review of the record and considering the factors

pertinent to physical care, we find no reason to disturb the district court’s award
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of physical care of the parties’ child to Chris. The record shows there has been

improved communication on the part of both parents, and this court expects the

parties will follow through with the current court-ordered parenting schedule and

facilitate a healthy and nurturing environment for their child. It is time for the

parents to put their child first and work together as grownups for the best

interests of everyone, and we trust they understand the importance of showing

respect for one another as they embark on many years of joint parenting. We

affirm the physical care decision of the district court. Costs on appeal are

assessed to Liz.

AFFIRMED.