                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2102
                             Filed November 8, 2017

TYLER JAMES LONG,
     Petitioner-Appellant,

vs.

HALEY MARIE WARNKE,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Guthrie County, Paul R. Huscher,

Judge.




       A father appeals the district court’s custody decree finding joint physical

care was in the child’s best interests. AFFIRMED.




       Dorothy L. Dakin and Daniel J. Johnson of Kruse & Dakin, L.L.P., Boone,

for appellant.

       Jessica L. Morton of Bruner, Bruner & Reinhart LLP, Carroll, for appellee.




       Heard by Danilson, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

      Tyler Long appeals the decree entered by the district court finding he and

Haley Warnke should have joint physical care of their young child. He argues

placement in his physical care—rather than joint physical care—is in the child’s

best interests. Haley seeks appellate attorney fees. Upon our review, we affirm

the court’s custody determinations and award Haley $3000 in attorney fees.

      I. Standard of Review.

      We review child-custody determinations made pursuant to Iowa Code

chapter 600B (2016) de novo. See McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa

Ct. App. 2010); see also Iowa R. App. P. 6.907; Wilker v. Wilker, 630 N.W.2d

590, 594 (Iowa 2001). This requires an examination of the whole trial record to

decide anew the issues raised on appeal.        See Wilker, 630 N.W.2d at 594.

Despite our de novo review, we give strong consideration to the district court’s

fact findings, including any credibility findings. See id.; see also Iowa R. App. P.

6.904(3)(g). In child-custody cases, the first and foremost consideration is the

child’s best interest. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa

2015); see also Iowa Code § 600B.31; Iowa R. App. P. 6.904(3)(o); Phillips v.

Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995).

      II. Background Facts and Proceedings.

      On our de novo review, we make the following findings of fact. Both Tyler

Long and Haley Warnke were born in 1993.           They met in high school and

graduated in approximately 2011. In winter 2013, Tyler and Haley had a short

relationship, during which Haley became pregnant.        At that time, Haley was

married to another man and in the process of getting a divorce.
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       In April 2014, Haley told Tyler she was pregnant with his child, but he did

not believe he was the child’s father. Haley’s divorce was finalized in May 2014.

During the pregnancy, Haley received no assistance from Tyler.

       Haley gave birth to A.M.L. in December 2014; however, because Tyler did

not believe the child was his, Haley did not put his name on the birth certificate.

Nevertheless, Haley let Tyler know when she went into labor and sent a picture

of the child the morning of the child’s birth. Tyler came to see the child the next

day. A paternity test in January 2015 confirmed Tyler was the child’s father, and

Tyler was later designated the child’s father on her birth certificate.

       Tyler had sporadic visitation with the child during the first six or seven

months of the child’s life. Until approximately August 2015, Tyler’s visits with the

child usually occurred at Haley’s request.       If Haley needed a babysitter, she

usually checked with Tyler and his mother to see if they wanted to keep the child

instead. Tyler did not offer Haley any sort of financial support at that time.

       After August 2015, Tyler became more involved in the child’s life, and he

generally had the child on weekends. Haley also offered Tyler occasional time

during the week, which Tyler accepted.          Additionally, Tyler provided some

diapers and clothes for the child, and twice he gave Haley some money. In

October 2015, Haley asked Tyler if there was “any way [they] could come to an

agreement for child support,” and Tyler answered, “No, I don’t think so.”

       Tyler testified that by the end of 2015, he had more overnights with the

child than Haley.1 Haley disputed his claim overall, but she admitted there may


1
 This is according to Tyler’s testimony and a calendar admitted at trial, but Tyler
admitted he did not create the calendar. Tyler testified it was accurate, but on cross-
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have been one or two months where he might have had the child more days than

her. She testified that her work schedule at that time changed frequently, and

rather than using a babysitter, she would ask Tyler if wanted to take the child.

She also testified and provided paystubs showing she worked as a certified

nursing assistant full-time plus overtime hours. According to Tyler’s calendar, by

March 2016, he and Haley had almost equal time with the child.

       In March 2016, Tyler received a notice from the Child Support Recovery

Unit that Haley was seeking child support. A few weeks later, Tyler filed his

petition to establish custody and other matters related to the care of the child. He

agreed he and Haley should have joint legal custody, but he asked that the child

be placed in his physical care.     Haley answered and requested the child be

placed in her physical care.

       The matter was tried to the court in November 2016. After hearing the

parties’ testimony, along with their witnesses’ testimony, and receiving numerous

exhibits, the court ruled from the bench at the end of the trial, finding shared

physical care was in the child’s best interests. The court stated:

              The court is aware that custody cases always seem to bring
       out the worst of the parties. They seem to poison the relationships
       between the parties and the family members or extended family
       members.
              In looking at this case, the court, to some extent, looks at the
       relationship that these parties had, the complaints that they had,
       and the manner in which they related to each other prior to the legal
       proceedings, the involvement of attorneys, the marshaling of
       evidence, and the pitting of sides against each other.



examination there were some challenges to its precision. Additionally, Haley testified
the calendar was not accurate, explaining the calendar said Tyler had the child every
weekend in 2015, but she recalled having the child on some weekends with her other
two children.
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        It appears that primarily the child was in the care of [Haley]
from birth; that she was more than willing to provide contact
between the child and [Tyler]. It is difficult for the court to
determine whether [Tyler] comes into this court complaining that he
had too much visitation, but it was his record to make that he had
way more than half of the time.
        It is [Tyler] who urges that the parties are unable to
communicate and offered, although the court did not accept it, but
offered over 100 pages of text messages.
        There is no question that both parties care about their child.
This is a case where there is very little history and very little for the
court to go on. The parties, who spent approximately a week
together, they have no established relationship for the court to
review. The parties were never married. Didn’t live together.
Neither one has a particularly stable relationship for the court to
look at. The parties have moved some. They are, as the court
might expect, establishing other relationships. But even as far as
the care of the child, it is a child of less than two years of age.
        Substantially, [Tyler]’s argument is that he wants to have a
better mother for the child than the mother that he selected. The
court must choose or decide between the two parents that the child
has which is the most likely to provide for the child, most likely to
support the other parent’s relationship with the child, and then
whose care the child is more likely to grow to be happy and healthy.
And it is not the function of the court to provide a different or a
better parent, and this court is reluctant to try to base custody
decisions on voluntary conduct by the parents that is socially and
legally acceptable.
        While the court can certainly express its own opinions
regarding the healthiness of smoking or drinking or riding
motorcycles or riding on four-wheelers or hunting or shooting bows
and arrows or fishing or any number of other things, it is not the
function of the court to determine that parties who come before the
court must comply with the court’s preference as far as the way
people live their lives.
        The court is required to consider whether or not a shared
physical care arrangement is appropriate when it is requested by
the parties. In fact, the court can consider whether a shared
physical care arrangement is appropriate even when neither of the
parties requests such an arrangement.
        This court notes that on a temporary basis the court ordered
that the parties have a shared physical care arrangement. Other
than the difficulties of a one-week time frame, alternating weeks
essentially between the parents, the court has no evidence in this
record that a shared physical care arrangement did not provide the
maximum contact with both parents and was not in the child’s best
interest.
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                 The court does note that this is a young child. It is a child of
         one and a half years. With parents who are young, who are still
         addressing issues of relationships, their interpersonal relationships.
         They’re establishing their homes. The court finds that it would be
         entirely reasonable to expect that one or both parties may change
         their residence in the next year or two.
                 The court is not terribly concerned about which school
         district this child will attend. The court finds that it is in the child’s
         best interest to have a shared care arrangement where the child
         has the opportunity to be parented by both parents for the next four
         years or so, before any determination must be made as far as the
         geographical distance and school matters.
                 Having considered all of the factors that are set forth in The
         Code, as well as in the case of In Re Winter, the court does find
         these parties should have a shared physical care arrangement.
         They should have joint legal custody of the minor child. Child
         support should be established in accordance with the child support
         guidelines.

The court then filed a written decree incorporating its oral pronouncement into

the decree.

         Tyler now appeals the court’s decree, arguing it was in the child’s best

interests that she be placed in his physical care rather than the shared-physical-

care arrangement found by the court.             Haley resists and requests appellate

attorney fees. We address their arguments in turn.

         III. Discussion.

         A. Physical Care.

         “Iowa Code chapter 600B confers subject matter jurisdiction upon the

district court to decide cases of paternity, custody, visitation and support between

unmarried parties.” Montgomery v. Wells, 708 N.W.2d 704, 707 (Iowa Ct. App.

2005).     Relevant here, “section 600B.40 grants the district court authority to

determine matters of custody and visitation as it would under Iowa Code section
                                         7

598.41”—section 600B.40’s counterpart for divorcing or separating parents. See

id.; see also Braunschweig v. Fahrenkrog, 773 N.W.2d 888, 891 n.3 (Iowa 2009).

       “Physical care” is “the right and responsibility to maintain a home for the

minor child and provide for routine care of the child.” Iowa Code § 598.1(8). If

joint physical care is awarded, “both parents have rights to and responsibilities

toward the child including, but not limited to, shared parenting time with the child,

maintaining homes for the child, [and] providing routine care for the child.” Id.

§ 598.1(4). Even though the parties disagree on some matters, these problems

should be able to be resolved to the benefit of the child. See In re Marriage of

Gensley, 777 N.W.2d 705, 716 (Iowa Ct. App. 2009). “When joint physical care

is not warranted, the court must choose one parent to be the primary caretaker,

awarding the other parent visitation rights.” In re Marriage of Hynick, 727 N.W.2d

575, 577 (Iowa 2007).

       In determining whether to award joint physical care or physical care with

one parent, the district court is guided by the factors enumerated in section

598.41(3), as well as other nonexclusive factors set out in In re Marriage of

Winter, 233 N.W.2d 165, 166-67 (Iowa 1974), and In re Marriage of Hansen, 733

N.W.2d 683, 696-99 (Iowa 2007) (holding that although section 598.41(3) does

not directly apply to physical care decisions, “the factors listed [in this code

section] as well as other facts and circumstances are relevant in determining

whether joint physical care is in the best interest of the child”). See also McKee,

785 N.W.2d at 737. Although consideration is given in any custody dispute to

allowing the child to remain with a parent who has been the primary caretaker,

see Hansen, 733 N.W.2d at 696, the fact that a parent was the primary caretaker
                                         8

of the child prior to separation does not assure an award of physical care, see In

re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991). The ultimate

objective of a physical care determination is to place the child in the environment

most likely to bring her to healthy physical, mental, and social maturity. In re

Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999); In re Marriage of

Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996). As each family is unique,

the decision is primarily based on the particular circumstances of each case.

Hansen, 733 N.W.2d at 699.

       Here, the district court had the advantage of listening and observing each

witness’s demeanor firsthand.      While the court did not make any express

credibility findings, we believe implicit in the court’s ruling is the conclusion the

court, as the trier of fact, found Haley to be more credible than Tyler. See, e.g.,

City of Riverdale v. Diercks, 806 N.W.2d 643, 655 (Iowa 2011) (“Under these

circumstances, we must assume the district court implicitly rejected the City’s

good-faith defense.”); Schutjer v. Algona Manor Care Ctr., 780 N.W.2d 549, 560-

61 (Iowa 2010) (applying standard to “work backward” and ascertain implicit

credibility findings in workers’ compensation commissioner’s decision); Norland

v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 909 (Iowa 1987) (deducing “the

department implicitly found that there was no good cause to refuse the offered

work in this case”). Importantly, the court did not find Tyler’s claim that he and

Haley were unable to communicate credible, pointing out that Tyler sought to

enter “over 100 pages of text messages” into evidence.

       In fact, more than 200 pages of text messages spanning more than a year

were admitted into the record, showing the parents communicated almost every
                                          9


day via texts. At the beginning, most text messages were initiated by Haley—

sometimes unrelated to the child—but Tyler generally responded when he could.

There was occasional bickering between them, particularly after the custody

action was filed, but for the most part, for all of their faults, the record shows the

parents actually communicated very well.        They sent text messages to each

other regularly about the child; when the child was with one parent, the other

parent checked in to see how the child was. Each texted pictures of the child to

the other parent while the child was in his or her care. They told the other parent

about the child’s moods and the child’s health. Haley generally told Tyler about

doctor appointments she made for the child, and Tyler even took Haley to some

of the child’s appointments. Tyler may not have wanted to have to communicate

with Haley, but the parents were clearly able to communicate with each other

regarding the child’s needs.

       Haley was the child’s primary caregiver after the child’s birth. When Tyler

increased his involvement in the child’s life, he eventually reached the point

where he was very involved in the child’s day-to-day care. But his assertion that

he “was a paragon of stability for [the child] while Haley was socializing, working,

moving, and romanticizing the plethora of men she had in and out of her life

since [the child] was born,” ignores the fact he was not really involved at all the

first six months of his young child’s life. Haley cared for their child without any

assistance from Tyler. Haley is not a perfect parent, but there is no question she

was a suitable custodian for the child.

       Tyler characterizes the times Haley placed the child in the care of others

as pawning the child off and believes Haley’s actions show the child has “take[n]
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a back seat to [Haley’s] work and social life,” but the text messages paint a

different story. Haley works regularly with a frequently changing schedule. Once

Tyler was more involved in the child’s life, Haley clearly felt comfortable asking

him to care for the child when she could not. To his credit, he and his family

were almost always available when Haley asked. Nevertheless, her texts show

she made no demands that he care for the child; she just offered him the

opportunity to spend more time with the child when she knew she needed to

make alternative care arrangements. A few texts indicate Haley may have asked

Tyler and his family to care for the child so she could make other plans, but the

overwhelming majority of her messages evidence her requests were due to

changes to her work schedule or the unavailability of her regular caregiver.

      Here, the parents live near each other and were able to meet in the middle

of their locations to exchange the child. As the district court found, the parents’

shared physical-care arrangement worked very well for the parties, and clearly

the arrangement allowed the child to spend the maximum amount of time with

each parent. Both parties are young, as is their child. Tyler points out Haley

smokes and drinks alcohol, asserting this makes him a better caregiver for the

child. Yet, the evidence showed both that Haley did not generally smoke or drink

in the child’s direct vicinity and the child was exposed at times to smoking or

drinking when in Tyler or his family’s care. Like the district court recognized,

regardless of any personal preference, these activities are legal. Considering the

child’s best interests, permitting the child to have the maximum contact available

with both parents outweighs Tyler’s concerns.
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         Ultimately, upon our de novo review of the record, and considering the

numerous applicable factors, we agree with the district court’s conclusion that

shared physical care between the parties is in the child’s best interests.

Accordingly, we affirm on the issue.

         B. Appellate Attorney Fees.

         “In a proceeding to determine custody or visitation, . . . the court may

award the prevailing party reasonable attorney fees.” Iowa Code § 600B. Here,

Haley originally requested appellate attorney fees in the amount of $5500. At

oral argument she increased her request to $7500 to account for the time and

costs attendant to the oral argument. Whether to award appellate attorney fees

is within our discretion. See Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006).

An award of appellate attorney fees depends on three factors: (1) the needs of

the party making the request, (2) the ability of the other party to pay, and (3)

whether the party making the request was obligated to defend the trial court’s

decision on appeal. Id. After considering the appropriate factors, we award

Haley appellate attorney fees of $3000.

         IV. Conclusion.

         Having reviewed the record de novo, we agree with the district court that

placement of the parties’ child in their shared physical care was in the child’s best

interests.   Accordingly, we affirm the district court’s custody decree, and we

award Haley appellate attorney fees of $3000. Costs on appeal are assessed to

Tyler.

         AFFIRMED.
