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Hensch v. Mysak

Court of Appeals of Iowa

September 13, 2017

MANDY KAY HENSCH, Plaintiff-Appellant,
NICHOLAS ALLEN MYSAK, Defendant-Appellee.

         Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         The mother appeals from a decree establishing paternity, custody, visitation, and support. AFFIRMED.

          Mark A. Simons of Simons Law Firm, P.L.C., West Des Moines, for appellant.

          Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          McDONALD, Judge.

         Mandy Hensch and Nicholas Mysak are the parents of H.M., born in August 2014. Shortly after the birth of the child, Hensch and Mysak ended their romantic relationship. Although no longer in a romantic relationship, Hensch and Mysak cohabited until November 2015. At that time, Mysak moved out of the shared residence and into his own residence. In February 2016, Hensch filed this action to establish paternity, custody, visitation, and support. Although Hensch's prayer for relief requested sole legal custody and physical care of the child, the parties entered an agreement on temporary matters, agreeing to joint legal custody and shared care of the child. The parties exercised joint legal custody and shared care of the child through trial. Following trial, the district court entered its decree, making the temporary arrangement permanent and ordering Mysak to pay child support. Hensch now appeals. She seeks physical care of the child.

         Our review of equitable proceedings is de novo. See Iowa R. App. P. 6.907; Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We review the entire record and decide anew the factual and legal issues preserved and presented for review. See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Although our review is de novo, we afford deference to the district court for institutional and pragmatic reasons. See In re Marriage of Morrison, No. 16-0886, 2017 WL 936152, at *1 (Iowa Ct. App. Mar. 8, 2017). This means we give weight to the district court's findings of fact. See In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). This also means we will affirm the district court unless the district court failed to do substantial equity. See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); In re Marriage of Lukowicz, No. 14-0088, 2015 WL 162089, at *4 (Iowa Ct. App. Jan. 14, 2015) (using substantial equity standard). In exercising our review, "[p]rior cases are of little precedential value, except to provide a framework for analysis, and we must ultimately tailor our decision to the unique facts and circumstances before us." In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995) (citing In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992)).

         When physical care is at issue, our primary consideration is the best interests of the child. See Iowa R. App. P. 6.904(3)(o). "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." In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Our case law provides "a nonexclusive list of factors to be considered when determining whether a joint physical care arrangement is in the best interests of the child." In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007). "The factors are (1) 'approximation'-what has been the historical care giving arrangement for the child between the two parties; (2) the ability of the spouses to communicate and show mutual respect; (3) the degree of conflict between the parties; and (4) 'the degree to which the parents are in general agreement about their approach to daily matters.'" Id. (quoting Hansen, 733 N.W.2d at 697-99).

         "Although petitioner and respondent were never married, no higher burden of proving fitness as a parent rests upon the father. The legal analysis employed in resolving a question concerning the custody of a child born of such a union is the same as that which would have been utilized if the child's parents had been married and a dissolution of their marriage had resulted." Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). See Iowa Code § 600B.40 (2016) (providing section 598.41 shall apply in determining the visitation and custody arrangements of a child born out of wedlock). Where, as here, either parent requests joint or shared care of the child, if the district court "denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child." Iowa Code § 598.41(5)(a). "[T]his passage does not create a presumption in favor of joint physical care." In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). It does, however, require a specific finding that joint physical care is not in the best interest of the child. See Iowa Code § 598.41(5)(a).

         With the foregoing principles in mind, we turn to the present case. Shared physical care approximates the parties' prior care arrangement. Both parents took time off from work after H.M.'s birth to care for the child. The child lived with Hensch and Mysak from the time of his birth until November 2015, when Mysak moved out of the shared residence. The care arrangement between that date and February 2016 is unclear. However, from February 2016 through the time of trial, the parties exercised an agreed-upon shared-care arrangement. The arrangement has worked well. Both parents are gainfully employed and can support the financial needs of the child. The parents live in close proximity to one another, making transportation and exchanges easier. The child is thriving in the current care arrangement.

         Hensch discounts the importance of the approximation factor in this case. She argues the arrangement has not been of long duration. We reject the notion that the care arrangement was not of sufficiently long duration to have significance in the case. Hensch and Mysak have exercised shared care of H.M. for all or almost all of his life. The arrangement has proven beneficial to the child. While past performance is not necessarily a predictor of future success, in family law matters, past performance is a strong indicator of what is yet to come. See Hansen, 733 N.W.2d at 696 (explaining "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").

         At the time of trial, the parties' ability to communicate was strained. This weighs against an award of shared physical care. As in many cases of recent vintage, much of the communication conflict arises out of the parents' inability to stop sending each other electronic communication, particularly text messages. The district court aptly called this a "state of virtual cohabitation." The district court made several findings in this regard:

The parties trade accusations regarding the extent and nature of their texting. In preparation for trial Nicholas had a friend analyze the number of the parties' text messages to show they were sending and receiving a similar number to and from each other. However, the sheer number of texts does not tell the entire story. In tone and substance, many of Nicholas' written communications to Mandy, though ostensibly about H.M., display a focus on Mandy. Nicholas' texts tend to be longer and they frequently devolve into attempts to draw Mandy into arguments or ...

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