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Savary v. Murdach

Court of Appeals of Iowa

February 7, 2018

JEFFREY L. SAVARY, Plaintiff-Appellee,
v.
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.

          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. [*]

          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 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; 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 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 ...


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