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Moses v. Rosol

Court of Appeals of Iowa

May 15, 2019

LINDSAY MOSES, Petitioner-Appellant,
ZACHARY RAY ROSOL, Respondent-Appellee.

          Appeal from the Iowa District Court for Grundy County, George L. Stigler, Judge.

         Petitioner appeals the award of shared physical care of the parties' minor child.

          Lana 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. [*]


         Lindsay 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.

         I. Factual background.

         At 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.

         Zach is 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.

         Lindsay 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 2017.

         Before 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.

         After Lindsay ended her maternity leave, the parties utilized Zach's sister-in-law, Shannon Foote, [1] 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.

         L.R. is 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.

         Other specific facts related to the issues will be set out below.

         II. Procedural background.

         On 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 desired.

         On 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 the shared physical care of the parties among other rulings. Lindsay then filed a timely appeal of the order.

         III. Discussion.

         A. Failure by trial court to make written findings pursuant to Iowa Rule of Civil Procedure 1.904(1).

         Lindsay 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."[2] 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 situation:

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. ...

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