JORDAN M. PAGLIA, Plaintiff-Appellee/Cross-Appellant,
HEATHER A. TAYLOR, Defendant-Appellant/Cross-Appellee.
from the Iowa District Court for Polk County, David May,
parties appeal the district court order establishing
paternity, custody, visitation, and support of their child.
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.
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).
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.
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.
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).
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.
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