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Paglia v. Taylor

Court of Appeals of Iowa

May 15, 2019

JORDAN M. PAGLIA, Plaintiff-Appellee/Cross-Appellant,
HEATHER A. TAYLOR, Defendant-Appellant/Cross-Appellee.

          Appeal from the Iowa District Court for Polk County, David May, Judge.

         The parties appeal the district court order establishing paternity, custody, visitation, and support of their child.

          Ted E. Marks, West Des Moines, and Kolby P. Warren of McCormally & Cosgrove, PLLC, Des Moines, for appellant.

          Catherine C. Dietz-Kilen of Harrison & Dietz-Kilen, P.L.C., Des Moines, for appellee.

          Considered by Potterfield, P.J., Bower, J., and Carr, S.J. [*] May, J., takes no part.


         Heather Taylor and Jordan Paglia appeal the order establishing custody, visitation, and support of their child. Heather challenges certain findings by the district court as well as its determinations regarding custody and visitation. Jordan challenges the evidence concerning Heather's income and the district court's determination of child support. Jordan also seeks an award of his appellate attorney fees. We review their claims de novo. See Mason v. Hall, 419 N.W.2d 367, 369 (Iowa 1988) (stating the appellate court reviews custody determinations made in paternity actions de novo); see also Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996) (holding that decisions ancillary to the question of paternity are reviewed de novo).

         I. Heather's Appeal.

         Heather challenges the custody arrangement entered by the district court. Although her primary argument concerns the court's visitation schedule, Heather asks that we place physical care of the child with her at various points in her brief and in her prayer for relief. Therefore, we address both the custody and visitation provisions of the decree.

         Our primary concern in determining child-custody arrangements is the best interests of the child. See Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). Our goal is "to place the child in the environment most likely to bring that child to healthy physical, mental and social maturity." Id. (citation omitted). In making this determination, we use the same legal analysis employed in resolving custody in dissolution cases. See id.; see also Iowa Code § 600B.40(2) (2017) (directing the court to apply the provisions of section 598.41 in determining custody and visitation in paternity actions). The legislature directs us to determine the custody arrangement that "will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents . . ., and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child." Iowa Code § 598.41(1)(a). The custody arrangement should include "liberal visitation rights where appropriate." Id.

         At the outset, we note that Heather challenges various findings of the district court. On our de novo review, we may review the entire record and adjudicate the issues properly presented anew. See In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). However, because the district court had the opportunity to hear the evidence and view the witnesses firsthand, we give weight to the district court's findings even though they are not binding. See In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). This is especially true with regard to the court's credibility findings. See id. Additionally, although Heather argues the district court erred in considering and giving credibility to the child-custody evaluator's report, Heather specifically named the custody evaluator she wished the court to appoint, and the court granted her motion. The report was received into evidence without objection. Heather has failed to preserve this claim for our review. See In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct. App. 1995) (finding claim that trial court should not have considered expert witness's testimony was waived on appeal because the argument was not raised below).

         Affording the district court's findings the deference they are due, we agree that Jordan has shown he is better able to minister to the child's long-term needs. However, we have reservations concerning the visitation ordered by the court. The visitation schedule provides Heather with visitation each Wednesday from 5:00 p.m. to 8:00 p.m. and every other weekend from 5:00 p.m. Friday until 5:00 p.m. Sunday. Although the schedule places responsibility for transporting the child to weekend visits on both parents, it requires Heather to both pick up and drop off the child for weekly visits on Wednesday evening. Given the distance between the parties' homes, which the trial court found to be ninety miles, we note the child would spend the entire three-hour visit in a car. We modify the mid-week visit to provide that it must be exercised by Heather, if at all, in or near Ankeny.

         Heather argues the visitation schedule is contrary to the child's best interests because it does not provide her additional visitation during periods of break from school. Rather, the order states that Heather may have additional visitation as agreed to by both parties. Although the court declined to make additional visitation contingent upon Heather's boyfriend taking a parenting class, as Jordan requested, the court went on to state: "If, in the future, [Jordan] is satisfied that additional visitation is appropriate because of actions taken by [Heather's boyfriend] (or for whatever other reason), then [Jordan] is free to agree to additional visitation. He is also free to decline to agree to additional visitation. The choice remains with him." (emphasis added). She asks that the visitation ...

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