                 IN THE SUPREME COURT OF IOWA
                             No. 07 / 05-2103

                         Filed February 16, 2007


IN RE MARRIAGE OF HOLLY A. HYNICK AND BRADLEY L. HYNICK

Upon the Petition of
HOLLY A. HYNICK,

      Appellee,


And Concerning
BRADLEY L. HYNICK,
      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Mahaska County, Daniel P.

Wilson, Judge.



      Wife seeks further review of court of appeals decision modifying

district court decree and awarding parties joint physical care of their minor

child. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.



      Eric Borseth of Borseth Law Office, Altoona, for appellant.



      Joel D. Yates of Clements, Pothoven, Stravers & Yates, Oskaloosa, for

appellee.
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TERNUS, Chief Justice.

      The issue presented in this dissolution-of-marriage case is whether

the parties should be awarded joint physical care of their minor son. The

district court awarded primary physical care to appellee, Holly Hynick. On

appeal, the court of appeals modified the trial court decree to award joint

physical care to Holly and the appellant, Bradley Hynick. Upon review of

the record and the governing statutes, we are convinced joint physical care

is inappropriate under the circumstances of this case. Therefore, we vacate

the court of appeals decision and affirm the district court.

      I. Prior Proceedings.

      Holly Hynick filed a petition for dissolution of marriage in March

2005. She and Bradley Hynick had been married since 2001 and had one

child, Garisin, born in 2003. At the time of trial in October 2005, Holly was

twenty-three years old, Brad was twenty-seven years old, and Garisin was

two and one-half years old. The parties agreed at trial that they should

share legal custody of Garisin, so the primary issue submitted to the district

court was Garisin’s physical care.        Brad argued that he should have

primary physical care of Garisin, or alternatively, that the parties should

share the child’s physical care. Holly requested that physical care be placed

with her. She opposed joint physical care for two reasons: (1) Brad’s alleged

abuse of her, and (2) the parties’ inability to communicate.

      Concluding there was a history of domestic abuse, the trial court

rejected Brad’s request for joint physical care and instead awarded primary

physical care to Holly. Brad was allowed visitation of one evening a week,

alternating three-day weekends and holidays, and three weeks in the

summer.    The district court’s judgment also ordered Brad to have no

contact with Holly for one year.
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      Brad appealed, claiming it was in Garisin’s best interest that the

parties be awarded joint physical care. The case was transferred to the

court of appeals. A divided panel of that court modified the district court

decree to provide that Brad and Holly would have joint physical care of

Garisin. We granted Holly’s application for further review.

      We review the district court’s decision de novo. See In re Marriage of

Sullins, 715 N.W.2d 242, 247 (Iowa 2006). “ ‘Although we decide the issues

raised on appeal anew, we give weight to the trial court's factual findings,

especially with respect to the credibility of the witnesses.’ ” Id. (quoting In re

Marriage of Witten, 672 N.W.2d 768, 778 (Iowa 2003)).

      II. Underlying Facts.

      When the parties married in 2001, Holly had completed a year of

college and Brad, who has a GED, was employed. Holly completed her

degree in May 2004 and took an advertising and marketing job with a local

radio station. Brad was the primary income producer while Holly was in

school. Holly was Garisin’s primary caretaker.

      At trial, both parties highlighted past conditions and conduct of the

other. The evidence showed Holly had counseling in high school for a

possible eating disorder. She had also suffered from episodes of depression

since marrying and was being treated for a major depressive disorder at the

time of trial.   Holly’s psychiatrist testified she was in full remission,

however, and had no mental health issues that would affect her ability to

parent. The evidence showed that prior to marrying Holly, Brad had had

several run-ins with the law, including possession of alcohol by a minor,

violation of the open container law, possession of methamphetamine, and

operating a motor vehicle while intoxicated. He had no criminal record after

2000, however, until charges of domestic abuse were filed by Holly after the

parties separated.     Notwithstanding Holly’s and Brad’s problems and
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shortcomings, the trial court found, and we agree, that both were good

parents to Garisin.

      We turn now to the allegations of domestic abuse. Holly decided to

leave Brad in February 2005; Brad did not want the marriage to end. The

parties agreed to share physical care of their son by each parent living in

the marital home with Garisin on an alternating schedule. When Holly was

not in the parties’ residence, she initially lived with Deb Patterson, a person

unknown to Brad. Patterson was the mother of Jason Hewitt, a friend of

Holly. Brad suspected that Holly was having an affair with Hewitt, an

allegation that Holly denied then and continued to deny at trial.

      On February 26, 2005, Holly came to the parties’ house to see

Garisin. Brad began questioning Holly about where she had been and with

whom she had been.        Rather than answering Brad’s questions, Holly

decided to leave. The parties’ explanations of what happened as Holly tried

to walk out vary, but it is clear Holly wanted to leave and Brad wanted her

to stay and talk. As Holly attempted to go out the door, Brad put his foot in

the doorway to stop her, and Holly ended up with a bruise on her knee

where her leg was hit by the door.        As a result of this incident, Holly

obtained a temporary no-contact order under Iowa Code chapter 236

(2005).

      Rather than pursue a permanent no-contact order, Holly filed for

divorce on March 7, 2001. The parties agreed to a temporary order allowing

shared physical care of Garisin.

      Brad did not handle the pending dissolution of his marriage well, and

he was quite bothered by his suspicions that Holly was involved with

another man. On March 26, he learned that Holly was with Hewitt at a

third person’s home. Brad went there and pounded on the door, shouting

for Holly.   Holly was scared and called the police.        The officers who
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responded spent several minutes talking with Brad before convincing him to

leave.

         On June 5, Brad called Holly to talk to her about the divorce. After

speaking with him at length, Holly eventually hung up. Brad then came to

her apartment and started pounding on the door. Holly told him to leave

and threatened to call the police, but he kept knocking on the door. Holly

finally called law enforcement, but Brad left before the officers arrived.

While the officers were at Holly’s apartment, Brad called her. She gave the

phone to an officer who told Brad to leave Holly alone. Nonetheless, later

that day, Brad called Holly again, trying to talk her out of the divorce. Holly

considered Brad’s phone calls not only harassing, but also threatening, as

he asserted in his calls that he was not going to let her go through with the

divorce.

         In this same time frame, another incident occurred that eventually led

Holly to seek a second no-contact order. Holly was at the home of Brad’s

parents to pick up Garisin when Brad arrived. While inside the house, Brad

pulled down Holly’s slacks and demanded to know when she stopped

wearing underwear. He then went outside to Holly’s vehicle and began

looking through it. As she was trying to leave, Brad said something to the

effect that, if he gave Holly a gun, would she just shoot him, that that would

make the whole situation easier.

         On June 7, 2005, Holly filed a petition for relief from domestic abuse.

The district court entered a no-contact order and granted temporary

custody of Garisin to Holly. The parties agreed to a visitation schedule,

pending a hearing on a permanent order.

         While the temporary no-contact order was in place, Brad and Holly

again crossed paths. On September 22, 2005, Holly stopped at Brad’s

parents’ home to drop off Garisin. Typically, Brad would arrive ten or
                                      6
fifteen minutes after Holly left, but on that occasion he arrived while Holly

was still there. As Holly got into her car to leave, Brad directed several

derogatory remarks toward her in Garisin’s presence.

      Brad was not the only person unhappy with Holly’s decision to seek a

divorce. Holly’s family and the couple’s friends disapproved of her actions

and sided with Brad at trial. They testified that Holly was manipulative,

that Brad was more focused on his son than was Holly, and that Brad

should have equal time with his son. They believed Holly had fabricated or

at least exaggerated her claims of domestic abuse and harassment. Brad’s

father and mother testified similarly. Friends described instances prior to

the parties’ separation when Holly would criticize Brad in front of Garisin.

Nonetheless, no one testified that Holly was a bad parent, and several

family members acknowledged Holly was a good mother to Garisin.

      III. Applicable Law.

      In evaluating the propriety of shared physical care, it is helpful to

consider this concept in the context of related principles and alternatives.

When a district court dissolves a marriage involving a minor child, the court

must determine who is to have legal custody of the child and who is to have

physical care of the child. “Legal custody” carries with it certain rights and

responsibilities, including, but not limited to, “decision making affecting the

child’s legal status, medical care, education, extracurricular activities, and

religious instruction.” Iowa Code § 598.1(3), (5). When parties are awarded

“joint legal custody,” “both parents have legal custodial rights and

responsibilities toward the child” and “neither parent has legal custodial

rights superior to those of the other parent.” Id. § 598.1(3). In deciding

whether joint custody is in the best interest of a minor child, the court must

consider several factors, including “[w]hether the parents can communicate

with each other regarding the child’s needs” and “whether a history of
                                      7
domestic abuse, as defined in section 236.2, exists.” Id. § 598.41(3). In

fact, “if the court finds that a history of domestic abuse exists, a rebuttable

presumption against the awarding of joint custody exists.”                  Id.

§ 598.41(1)(b). When parents agree to joint custody, the court need not

consider the factors set forth in section 598.41(3). Id. § 598.41(4).

      “If joint legal custody is awarded to both parents, the court may

award joint physical care to both joint custodial parents upon the request of

either parent.” Id. § 598.41(5)(a). “ ‘Physical care’ means the right and

responsibility to maintain a home for the minor child and provide for the

routine care of the child.” Id. § 598.1(7). Similarly to joint custody, “joint

physical care” means both parents are awarded physical care of the child.

Id. § 598.1(4). Under this arrangement, “both parents have rights 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. “[N]either parent has physical care

rights superior to those of the other parent” when joint physical care is

awarded. Id.

      Joint physical care anticipates that parents will have equal, or

roughly equal, residential time with the child. See generally Iowa Ct. R.

9.14 (setting forth rules for determining child support obligations “[i]n cases

of court-ordered joint (equally shared) physical care”). Given the fact that

neither parent has rights superior to the other with respect to the child’s

routine care, joint physical care also envisions shared decision making on

all routine matters.    Obviously, such decision making requires good

communication between the parents as well as mutual respect. Because

domestic abuse reflects the ability of the parties to listen to one another and

respect one another’s opinions and feelings, the existence of domestic abuse

is a significant factor in determining whether joint physical care is
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appropriate. See generally In re Marriage of Daniels, 568 N.W.2d 51, 55

(Iowa Ct. App. 1997) (stating “evidence of untreated domestic battering

should be given considerable weight in determining the primary caretaker”).

      When joint physical care is not warranted, the court must choose one

parent to be the primary caretaker, awarding the other parent visitation

rights.   See generally Iowa Code § 598.41(1)(a), (5).           Under this

arrangement, the parent with primary physical care has the responsibility

to maintain a residence for the child and has the sole right to make

decisions concerning the child’s routine care. See generally id. § 598.1(7).

The noncaretaker parent is relegated to the role of hosting the child for

visits on a schedule determined by the court to be in the best interest of the

child. Visitation time varies widely and can even approach an amount

almost equal to the time spent with the caretaker parent. See generally

Iowa Ct. R. 9.9 (setting forth graduated credits against child support

obligation for extraordinary visitation including a twenty-five percent credit

for “167 or more [visitation days] but less than equally shared physical

care”). Thus, the main distinction between joint physical care and primary

physical care with liberal visitation rights is the joint decision making on

routine matters required when parents share physical care.

      IV. Discussion.

      As mentioned above, only physical care was contested in the present

case because Holly and Brad agreed they would share custody. The critical

question in deciding whether joint physical care is also appropriate is

whether the parties can communicate effectively on the myriad of issues

that arise daily in the routine care of a child. We are convinced the record

shows they cannot.

      Despite the fact Brad is a good father to Garisin, Brad has not

brought the same level of maturity to his relationship with Holly. Divorce is
                                      9
never easy, so it is admirable that, when the parties first separated, they

agreed to share physical care of Garisin. Unfortunately, Brad’s personal

disagreements with Holly’s decisions soon led him to behave in a way that

not only alienated Holly, but ultimately caused her to fear for her safety.

Notwithstanding his denials and family members’ minimization of his

conduct, the trial court found, and we agree, that his actions were

harassing and constituted domestic abuse. See generally Iowa Code § 236.2

(defining “domestic abuse”). While his desperate efforts to learn why his

wife had left him are understandable, we cannot ignore the fact that

eventually his actions reflected not the attempts of a husband trying to save

his marriage, but the bitterness of a man who had been rejected and who

resented his former partner.        Just three weeks before trial Brad

encountered Holly and rather than behave in a mature manner, he called

her derogatory names in front of Garisin.        In addition, Brad has not

cooperated with Holly on relatively minor matters. Prior to trial, the parties

reached an agreement with respect to a division of their personal property.

Pursuant to their agreement, Holly was to have a photo album that

contained pictures of Garisin. When Brad finally gave her the photo album,

he had removed all the pictures. Moreover, he refused to give Holly any

pictures of their son until a few weeks before trial.

      We cannot assume in the face of such hostile and petty conduct that,

if Brad were given joint physical care of Garisin, he would respect Holly’s

judgment and reach mutually agreeable decisions concerning their son. In

spite of Brad’s testimony that he would effectively communicate with Holly if

they shared Garisin’s physical care, we think the evidence shows Brad is

simply not emotionally ready to interact with Holly in a responsible manner

on a daily basis. Therefore, joint physical care is not feasible.
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      That brings us to the choice of which parent should be granted

primary physical care. As noted earlier, we give weight to the trial court’s

factual findings, particularly with respect to the credibility of witnesses.

The trial court had the opportunity to observe the witnesses and concluded

primary care should be awarded to Holly. We agree. Even the witnesses

who supported Brad’s request for joint physical care agreed that Holly,

while not perfect, was a good mother to her son. We also think the record

demonstrates that Holly recognizes the importance of Brad’s involvement in

Garisin’s life, as well as the involvement of the parties’ extended families.

She was supportive of shared physical care until Brad engaged in harassing

and abusive conduct. In addition, despite the fact her parents and Brad’s

parents have openly disapproved of her conduct, Holly has facilitated

continuing contact between Garisin and his grandparents. We believe Holly

will fulfill her legal responsibility as the parent with primary physical care to

support Brad’s relationship with Garisin. See Iowa Code § 598.41(5)(b). It

would be in Garisin’s best interest that Brad similarly support Holly’s

relationship with their son.

      We have reviewed the visitation schedule set by the trial court and

find no reason to modify it.

      V. Conclusion and Disposition.

      The mutual respect and the ability to communicate essential for joint

physical care is lacking in this case. Accordingly, we vacate the court of

appeals decision modifying the district court’s decree and awarding the

parties joint physical care of their son.

      We agree with the trial court’s assessment that Holly should be

awarded primary physical care of Garisin. Therefore, we affirm the trial

court’s decree awarding Holly primary physical care with liberal visitation

by Brad. We hope the parties, with the support of their extended families,
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will put their personal disappointments and anger aside and fashion a

loving and stable environment for their son.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

      All justices concur except Hecht, J., who takes no part.
