                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0348
                            Filed September 13, 2017


MANDY KAY HENSCH,
    Plaintiff-Appellant,

vs.

NICHOLAS ALLEN MYSAK,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      The mother appeals from a decree establishing paternity, custody,

visitation, and support. AFFIRMED.




      Mark A. Simons of Simons Law Firm, P.L.C., West Des Moines, for

appellant.

      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       Mandy Hensch and Nicholas Mysak are the parents of H.M., born in

August 2014. Shortly after the birth of the child, Hensch and Mysak ended their

romantic relationship. Although no longer in a romantic relationship, Hensch and

Mysak cohabited until November 2015. At that time, Mysak moved out of the

shared residence and into his own residence. In February 2016, Hensch filed

this action to establish paternity, custody, visitation, and support.   Although

Hensch’s prayer for relief requested sole legal custody and physical care of the

child, the parties entered an agreement on temporary matters, agreeing to joint

legal custody and shared care of the child. The parties exercised joint legal

custody and shared care of the child through trial. Following trial, the district

court entered its decree, making the temporary arrangement permanent and

ordering Mysak to pay child support. Hensch now appeals. She seeks physical

care of the child.

       Our review of equitable proceedings is de novo. See Iowa R. App. P.

6.907; Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We review the entire

record and decide anew the factual and legal issues preserved and presented for

review. See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App.

1998). Although our review is de novo, we afford deference to the district court

for institutional and pragmatic reasons. See In re Marriage of Morrison, No. 16-

0886, 2017 WL 936152, at *1 (Iowa Ct. App. Mar. 8, 2017). This means we give

weight to the district court’s findings of fact. See In re Marriage of Gust, 858

N.W.2d 402, 406 (Iowa 2015). This also means we will affirm the district court

unless the district court failed to do substantial equity. See In re Marriage of
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Mauer, 874 N.W.2d 103, 106 (Iowa 2016); In re Marriage of Lukowicz, No. 14-

0088, 2015 WL 162089, at *4 (Iowa Ct. App. Jan. 14, 2015) (using substantial

equity standard). In exercising our review, “[p]rior cases are of little precedential

value, except to provide a framework for analysis, and we must ultimately tailor

our decision to the unique facts and circumstances before us.” In re Marriage of

Kleist, 538 N.W.2d 273, 276 (Iowa 1995) (citing In re Marriage of Will, 489

N.W.2d 394, 397 (Iowa 1992)).

       When physical care is at issue, our primary consideration is the best

interests of the child. See Iowa R. App. P. 6.904(3)(o). “The objective of a

physical care determination is to place the children in the environment most likely

to bring them to health, both physically and mentally, and to social maturity.” In

re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).              Our case law

provides “a nonexclusive list of factors to be considered when determining

whether a joint physical care arrangement is in the best interests of the child.” In

re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007). “The factors

are (1) ‘approximation’—what has been the historical care giving arrangement for

the child between the two parties; (2) the ability of the spouses to communicate

and show mutual respect; (3) the degree of conflict between the parties; and (4)

‘the degree to which the parents are in general agreement about their approach

to daily matters.’” Id. (quoting Hansen, 733 N.W.2d at 697–99).

       “Although petitioner and respondent were never married, no higher burden

of proving fitness as a parent rests upon the father. The legal analysis employed

in resolving a question concerning the custody of a child born of such a union is

the same as that which would have been utilized if the child’s parents had been
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married and a dissolution of their marriage had resulted.” Lambert v. Everist, 418

N.W.2d 40, 42 (Iowa 1988). See Iowa Code § 600B.40 (2016) (providing section

598.41 shall apply in determining the visitation and custody arrangements of a

child born out of wedlock). Where, as here, either parent requests joint or shared

care of the child, if the district court “denies the request for joint physical care, the

determination shall be accompanied by specific findings of fact and conclusions

of law that the awarding of joint physical care is not in the best interest of the

child.”     Iowa Code § 598.41(5)(a).          “[T]his passage does not create a

presumption in favor of joint physical care.”       In re Marriage of Fennelly, 737

N.W.2d 97, 101 (Iowa 2007). It does, however, require a specific finding that

joint physical care is not in the best interest of the child. See Iowa Code §

598.41(5)(a).

          With the foregoing principles in mind, we turn to the present case. Shared

physical care approximates the parties’ prior care arrangement. Both parents

took time off from work after H.M.’s birth to care for the child. The child lived with

Hensch and Mysak from the time of his birth until November 2015, when Mysak

moved out of the shared residence. The care arrangement between that date

and February 2016 is unclear. However, from February 2016 through the time of

trial, the parties exercised an agreed-upon shared-care arrangement.                The

arrangement has worked well. Both parents are gainfully employed and can

support the financial needs of the child. The parents live in close proximity to

one another, making transportation and exchanges easier. The child is thriving

in the current care arrangement.
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       Hensch discounts the importance of the approximation factor in this case.

She argues the arrangement has not been of long duration. We reject the notion

that the care arrangement was not of sufficiently long duration to have

significance in the case. Hensch and Mysak have exercised shared care of H.M.

for all or almost all of his life. The arrangement has proven beneficial to the child.

While past performance is not necessarily a predictor of future success, in family

law matters, past performance is a strong indicator of what is yet to come. See

Hansen, 733 N.W.2d at 696 (explaining “past caretaking patterns likely are a

fairly reliable proxy of the intangible qualities such as parental abilities and

emotional bonds that are so difficult for courts to ascertain”).

       At the time of trial, the parties’ ability to communicate was strained. This

weighs against an award of shared physical care. As in many cases of recent

vintage, much of the communication conflict arises out of the parents’ inability to

stop sending each other electronic communication, particularly text messages.

The district court aptly called this a “state of virtual cohabitation.” The district

court made several findings in this regard:

              The parties trade accusations regarding the extent and
       nature of their texting. In preparation for trial Nicholas had a friend
       analyze the number of the parties’ text messages to show they
       were sending and receiving a similar number to and from each
       other. However, the sheer number of texts does not tell the entire
       story.    In tone and substance, many of Nicholas’ written
       communications to Mandy, though ostensibly about H.M., display a
       focus on Mandy. Nicholas’ texts tend to be longer and they
       frequently devolve into attempts to draw Mandy into arguments or
       extended conversations.         Additionally, Nicholas’ texts tend
       frequently to be about, or include, references to his and Mandy’s
       relationship.
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The district court concluded that Mysak did not “bear[] all the blame” for the

parties’ communication issues:

       Some of Mandy’s communications are condescending and
       dismissive of Nicholas’ concerns when H.M. has been ill.
       Additionally, Mandy has not been flexible when Nicholas has made
       reasonable requests for additional time with H.M. although, again,
       some of Nicholas’ requests for more time seem more focused on
       provoking argument and of painting a bad picture of Mandy than on
       a genuine desire for more time with H.M. Additionally, in texts
       Mandy often, even after Nicholas has pointed out that H.M. is both
       of their child, refers to H.M. as “my” baby or “my” child,
       understandably provoking anger and defensiveness in Nicholas.
       Finally, even though her texts are focused on H.M. when Nicholas
       has him, they are excessive and sometimes imply that Nicholas is
       not capable of caring for H.M.

       The degree of tension or conflict between Hensch and Mysak is somewhat

elevated. This is due, in no small part, to the parties’ never-ending stream of

electronic communication with each other. It is also due, in part, to the parties’

perception of each other.       The evidence showed Mysak kept a journal in

preparation for trial.   Mysak’s journal revealed a critical and condescending

attitude toward Hensch. It also showed Mysak portrayed himself in an overly

flattering light. Hensch perceived Mysak to have a controlling attitude. She also

perceived him to be immature. The district court acknowledged these difficulties

but noted several mitigating factors that nonetheless supported an award of

shared physical care:

       Nicholas testified that he is in a new relationship and hopes that
       Mandy finds a new relationship as well. This, if genuine, should
       help Nicholas get past the resentment and jealousy he feels as a
       result of the end of the parties’ relationship. Second, the intense
       communication between the parties when H.M. is in the other
       party’s care is undoubtedly attributable in part to his young age and
       the fact that he is each party’s first child. Third, Nicholas’ posturing,
       including his exaggerated journal writing is, hopefully, mostly
       attributable to his defensiveness and effort to convince the court he
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       can be a good parent and not emblematic of his personality in
       general.

       Although cooperation and communication are essential in a shared-care

arrangement, tension between the parents is not alone sufficient to demonstrate

a shared-care arrangement will not work. See In re Marriage of Stafford, 386

N.W.2d 118, 121 (Iowa Ct. App. 1986). Instead, the communication difficulties

and tension must rise above the not atypical acrimony that accompanies litigation

in family-law matters. See In re Marriage of Ertmann, 376 N.W.2d 918, 920

(Iowa Ct. App. 1985). The communication problems and conflict in this case do

not rise to this level. Moreover, the district court inserted several provisions in

the decree related to “reform[ing] the nature and extent” of the parties’

communication with each other. These included limiting the child’s FaceTime

conversations with the absent parent; instructing only the parent taking custody

need be present at visitation exchanges if the exchange occurs at daycare;

stating the “parties do not need to have daily, multiple, lengthy written

conversations” about H.M.; and noting “it would be nice if the parties could be

flexible and accommodating of each other when one requests some adjustment

of the parenting time schedule.” These measures seem appropriate under the

circumstances.     Finally, like the district court, we expect the parties’

communication difficulties and conflict to dissipate as the parties become further

removed from the intense heat of the litigation and trial process.

       We finally consider the degree to which Hensch and Mysak are in general

agreement about their approach in raising H.M. The record reflects the parents

are both good parents and in general agreement regarding fundamental issues of
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importance in raising the child. H.M. is the first child for both parents. They have

both taken positive steps, together and alone, to be good parents. For example,

Hensch and Mysak attended parenting classes, read parenting books, attended

prenatal doctors appointments together, and sought out counsel from family and

friends. The evidence shows the parties in fact can and do cooperate with each

other on a regular basis on child-rearing matters. For example, they held a joint

birthday party for H.M., which involved both sides of the family.         They have

attended appointments with each other after their separation. They also appear

in general agreement regarding disciplinary matters.

       In sum, the relevant factors weigh in favor of awarding Hensch and Mysak

joint physical care of H.M. The continuity of the parties’ caregiving relationship

with the child strongly militates in favor of the award of joint physical care of the

child. While the parties have had some communication difficulties and personal

conflict, there is no evidence the communication difficulties or personal conflict

interfered with their ability to act in the best interest of the child.   See In re

Marriage of Schnitzler, No. 14-0858, 2015 WL 800064, at *4 (Iowa Ct. App. Feb.

25, 2015) (finding parties’ communication difficulties throughout divorce did not

preclude award of shared physical care).         Further, we expect the parties’

communication difficulties and conflict to resolve once they move past this

litigation and communicate less often. Finally, Hensch and Mysak both love and

care for the child and are in general agreement regarding the upbringing of the

child. There is no evidence showing joint physical care of the child is not in

H.M.’s best interest. We thus see no reason to disturb the judgment of the

district court.
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      Mysak requests appellate attorney fees. Appellate attorney fees are not a

matter of right but may be awarded as a matter of discretion. See Iowa Code

§ 600B.26 (“In a proceeding to determine custody or visitation, or to modify a

paternity, custody, or visitation order under this chapter, the court may award the

prevailing party reasonable attorney fees.”). In determining whether to award

appellate attorney fees, we consider the needs of the party making the request,

the ability of the other party to pay, and whether the party making the request

was obligated to defend the decision of the trial court on appeal.         Having

considered those factors, we decline to award appellate attorney fees.

      AFFIRMED.
