from the Iowa District Court for Grundy County, George L.
appeals the award of shared physical care of the parties'
L. Luhring and Shanna Chevalier of Laird & Luhring,
Waverly, for appellant.
Heather A. Prendergast of Roberts, Stevens & Prendergast,
PLLC, Waterloo, for appellee.
Considered by Doyle, P.J., Tabor, J., and Blane, S.J.
Moses (Lindsay) appeals the district court's award of
shared physical care of the parties'
one-and-a-half-year-old child, L.R. She contends the shared
physical care decision is not supported by the trial record,
asserting Zachary Rosol (Zach) does not have the means to
transport L.R. due to the suspension of his driver's
license, lacks recognition of L.R.'s special needs, and
is unable to communicate appropriately with Lindsay
concerning L.R. Lindsay also contends that the "best
interests of the child" standard should recognize a
special-needs criteria. Finally, Lindsay contends the trial
judge did not comply with the rules of civil procedure when
he failed to make factual findings in writing to support the
ruling. Based upon our review, we affirm.
trial, Lindsay was twenty-eight years old and residing in a
home she is purchasing in Dike, Iowa. She obtained a college
degree from the University of Northern Iowa and works at the
Cedar Falls Community Credit Union as a loan officer. She
primarily works in an office in Cedar Falls but works in
Waverly on Thursdays. Her hours are typically 9:00 a.m. to
5:00 p.m., but she is also required to work alternating
Saturdays. Lindsay was previously married and has a child,
D.B., who at the time of trial was five years old and
attended kindergarten in the Dike-New Hartford school
district. Lindsay has shared physical care of D.B. with his
father on a two day/two day/three day (weekend) rotation.
also twenty-eight years old. He has a college degree from
Upper Iowa University in criminology where he wrestled
collegiately. For the past five years he has been employed at
Union Tank Car in Waterloo. He cleans, repairs, and welds
rail cars. His work schedule is Monday through Friday from
7:00 a.m. to 3:30 p.m., with some overtime. He can be
required to work weekends. His work hours can be flexible if
he gives timely notice to his foreman. Zach moved into an
apartment in Evansdale, Iowa, a few weeks before the trial,
where he is close to work and L.R.'s daycare.
and Zach were in a two-year relationship and resided in
Lindsay's home in Dike. Near the end of their
relationship, Lindsay and Zach had L.R., born in August 2016,
who was approximately one and a half years old at the time of
trial. Shortly after L.R.'s birth, Lindsay and Zach ended
their relationship, and Zach moved out of Lindsay's home.
L.R. was diagnosed as having severe hearing loss. His
pediatrician referred L.R. to the University of Iowa
Hospitals and Clinics, and after testing he underwent
bilateral cochlear implant surgeries in the latter part of
L.R. was born, Zach was convicted twice of operating while
intoxicated (OWI). These convictions resulted in suspension
of Zach's driving privileges until September 22, 2020. He
obtained a temporary restricted license (work permit) that
allows him to drive to and from work and L.R.'s day care.
He completed the OWI probations on September 22, 2017.
However, a week or so before discharging his probation, Zach
was arrested for driving while barred. That charge was still
pending at the time of the custody trial, and its impact on
his future driving status was unknown. Zach also participated
in mixed martial arts fights to help with his financial
obligations but suffered a broken hand and no longer engages
in this sport.
Lindsay ended her maternity leave, the parties utilized
Zach's sister-in-law, Shannon Foote,  who also lives in
Evansdale, for L.R.'s daycare. At trial, both Lindsay and
Zach agreed that Shannon should continue to provide the
daycare because she is "family," loves L.R., and
provides the care for free. However, it requires Lindsay to
drive from Dike to Evansdale to drop him off at Shannon's
and to drive from her work in either Cedar Falls or Waverly
to pick him up. This childcare arrangement is to continue
until L.R. is three years old, when he is eligible to start a
preschool program in the Dike-New Hartford school district.
Zach agrees that L.R. should attend the same school as his
half-brother, D.B. in the Dike-New Hartford district, and
Zach intends to move to Dike to facilitate this arrangement.
a healthy child other than his hearing deficiency, cochlear
implants, and its impact on his language and speech
development. He is receiving services from Area Education
Agency, the University of Iowa, and speech therapy. It is
anticipated an Individualized Education Plan will be
implemented when he begins attending school. Lindsay has
taken classes to learn sign language. L.R. is also learning
sign language, and this is one manner in which they
communicate. L.R. is being gradually retrained to hear and
identify sounds so that he can also learn to talk. The speech
therapist instructs L.R.'s caregivers how to teach him to
associate sounds and words so that they have meaning and lead
to an ability to talk.
specific facts related to the issues will be set out below.
September 16, 2016, approximately one month after L.R. was
born, and while still living with Zach, Lindsay filed her
petition to establish paternity, custody, visitation and
child support. She requested physical care of L.R. Zach filed
his answer and requested shared physical care of L.R.
Simultaneously with his answer, Zach filed an application for
hearing on temporary matters requesting that the court enter
temporary orders in regard to placement and visitation while
also requesting shared physical care. On January 4, 2017, the
court entered a temporary order placing L.R.'s physical
care with Lindsay and awarding Zach visitation. Lindsay was
also authorized to select alternative day care if she
April 3, 2018, the parties filed the required pretrial
stipulation with the court, agreeing on joint legal custody
but not agreeing on physical care. Trial was held on April 4
and 5. Following the close of evidence, the trial judge
dictated his findings into the record with the parties and
counsel present. The court made certain credibility findings,
including that Zach had made significant changes in his life
since L.R.'s birth and that Lindsay possessed a great
deal of animosity towards Zach related to their failed
relationship and may benefit from counseling. But, the court
found the parties were able to communicate when it came to
L.R.'s care and determined shared physical care was in
L.R.'s best interest. The court then directed Zach's
counsel to prepare the order since the court had determined
that the shared care order should provide that Lindsay's
care of L.R. correspond with her care of D.B. The proposed
order was submitted for review to Lindsay's counsel. On
April 11, Lindsay filed an "Objection to Proposed
Decree" with the court. On April 13, the court filed the
order placing L.R.in the shared physical care of the parties
among other rulings. Lindsay then filed a timely appeal of
Failure by trial court to make written findings pursuant to
Iowa Rule of Civil Procedure 1.904(1).
points out that the trial judge's dictated findings of
fact into the record does not comply with Iowa Rule of Civil
Procedure 1.904(1), which requires, "The court trying an
issue of fact without a jury, whether by equitable or
ordinary proceedings, shall find the facts in writing,
separately stating its conclusions of law, and direct an
appropriate judgment." Zach points out, on April 11,
Lindsay filed a document entitled "Objection to Proposed
Decree." The document is not a motion to enlarge or
amend findings as provided in Iowa Rule of Civil Procedure
1.904(2). Our court has previously addressed a similar
We are hampered in our review of this case because the
district court made no findings of fact from which its
spousal support order is presumably based. Under Iowa Rule of
Civil Procedure 1.904(1) the district court was required to
find the facts in writing and separately state its
conclusions of law. However, [respondent] did not address
this deficiency nor did he preserve error by filing a rule
1.904(2) motion asking the district court to enlarge its
findings. Nevertheless, we review orders granting temporary
spousal support in dissolution of marriage cases de novo.