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Hester v. Davis

Court of Appeals of Iowa

May 15, 2019

KYLE HESTER, Plaintiff-Appellant,
v.
AMANDA DAVIS, Defendant-Appellee.

          Appeal from the Iowa District Court for Clinton County, Patrick A. McElyea, Judge.

         A father appeals the district court's custody, visitation, and support order.

          Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellant.

          J. David Zimmerman of J. David Zimmerman, P.C., Clinton, for appellee.

          Considered by Doyle, P.J., Mullins, J., and Mahan, S.J. [*]

          DOYLE, PRESIDING JUDGE.

         Kyle Hester is the father and Amanda Davis is the mother of K.D., born in July 2015. In September 2018, following a contested hearing, the district court entered its ruling on custody, visitation, and support granting the parents joint legal custody of their child. The court determined Amanda would have physical care of the child, and Kyle would have visitation on every other weekend, along with scheduled holiday and summer visits. The court ordered that Amanda could claim the child for tax purposes until she was no longer eligible to do so.

         Kyle appeals the order, arguing the court should have placed the child in his physical care. In the event that this court affirms the physical-placement determination, Kyle asserts the district court should have granted him expanded and liberal visitation with the child and applied the relevant economic considerations related to extra visits. See, e.g., Iowa Ct. R. 9.9 (providing for the application of an extraordinary visitation credit to the noncustodial parent's child support obligation if that parent's ordered visits exceed 127 days per year).

         Our review is de novo. See Iowa R. App. P. 6.907; Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005). However, we recognize that the district court was able to listen to and observe the parties and witnesses. See In re Marriage of Zebecki, 389 N.W.2d 396, 398 (Iowa 1986). Consequently, we give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. See Iowa R. App. P. 6.904(3)(g). Importantly, our overriding consideration is the best interests of the child. See Iowa R. App. P. 6.904(3)(o); In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

         The facts of the case are essentially undisputed, and we adopt the facts found by the district court:

Amanda and Kyle had a very short relationship which resulted in the birth of their minor child . . . . During the pregnancy Kyle and Amanda were not on good terms, to the point where Amanda concealed the fact that she was still pregnant to Kyle. When [the child] was born, Kyle was unaware he had a daughter. In July 2016, Amanda learned Kyle was doing better in his personal life and decided to introduce him to their daughter. For a period of about ten days Kyle had regular visits with his daughter. . . [and tried to] make a family unit with Amanda. This fell apart at [the child's] first birthday party when Kyle used marijuana. At that point Amanda prevented Kyle from having visits with [the child], and Kyle did not see his daughter for a period of almost two years.
Kyle has made significant strides in the last couple of years. He was charged with a drug offense in January 2016 and subsequently pled guilty to a lesser-included offense several months later. Kyle has undergone drug treatment and remained sober.

         On appeal, Kyle maintains the court failed to weigh Amanda's dishonesty regarding the pregnancy and her subsequent separation of the child from Kyle after he learned he was the child's father in its custody determination, and he asserts Amanda's actions show placement of the child in his physical care is in the child's best interests. We disagree.

         Here, the district court was generous in its description of Kyle's conduct during "the last couple of years" when Kyle made "significant strides" after being "charged with a drug offense." Kyle was, in fact, charged with three criminal counts-one for possession of a controlled substance with the intent to deliver, namely marijuana, and two counts for unlawful possession of a prescription drug. Kyle pled guilty to the two counts of possession of a prescription drug and to the lesser offense of possession of marijuana. This does not include the prior "relatively serious" incident for which Kyle was on probation when he picked up the three drug charges.[1] Additionally, Amanda testified she had been frightened by Kyle's actions during her pregnancy. In January 2015, she reported to the police that Kyle had been harassing her. Then, after she thought Kyle had "cleaned up his act," Amanda contacted Kyle about their child. He ...


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