                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-2083
                                Filed July 30, 2014


SEAN FOWLER,
     Plaintiff-Appellant/Cross-Appellee,

vs.

JAMIE MEAD,
     Defendant-Appellee/Cross-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Clinton County, Mark D. Cleve,

Judge.



       Sean Fowler appeals, and Jamie Mead cross-appeals, raising issues

arising from a child custody ruling. AFFIRMED ON BOTH APPEALS.




       Constance Peschang Stannard of Johnston, Stannard, Klesner, Burbidge

& Fitzgerald, P.L.C., Iowa City, for appellant.

       Jennie L. Clausen of H.J. Dane Law Office, Davenport, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.

          This appeal and cross-appeal raise issues arising from a child custody

ruling.

I.        Background Facts and Proceedings

          Sean Fowler and Jamie Mead met and began a relationship in 2005.

They had two children together and Sean acknowledged paternity of a third child

of Jamie’s. Sean and Jamie separated in 2012.

          Sean petitioned for joint physical care of all three children or, alternatively,

physical care. Jamie answered with her own request for physical care of the

children. The district court entered a stipulated temporary order granting Jamie

physical care, subject to Sean’s right to visit the younger two children. Following

trial, the court ordered physical care to remain with Jamie and formalized a

visitation schedule for Sean with all three children.

          Sean filed a motion to enlarge the ruling. In part, he sought to have the

record reopened to include supplemental answers to interrogatories that were

proffered to the court the day after trial. The district court denied the request.

Sean appealed and Jamie cross-appealed.

II.       Physical Care

          Sean contends the district court should have granted the parents joint

physical care of the children. The district court found this option inappropriate,

“given the high degree of conflict and the poor level of communication between

the parties.” On our de novo review, we agree with this assessment.

          Both parents testified to post-separation discord and highly-charged

visitation exchanges that included multiple calls to police. At trial, Sean said his
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relationship with Jamie had “[a]bsolutely not” calmed down and there were “still

communication problems” between the two. Sean accused Jamie of failing to

discuss major decisions involving the children, such as a move from DeWitt to

Davenport, enrollment of the oldest child in a Catholic school, and the children’s

activities.

        Jamie acknowledged the parents “don’t speak” and agreed she did not

discuss her move to Davenport because she “knew [Sean] would have issues

with” the children “going to school in Davenport.”     She also conceded Sean

“probably” would “not” have been happy with her decision to enroll the oldest

child in a Catholic school because Sean was not Catholic.         She stated the

parents disagreed on religious training and methods of disciplining the children,

among other things.

        These frank admissions by both parents establish that joint physical care

was not in the children’s best interests. See In re Marriage of Hansen, 733

N.W.2d 683, 698-99 (Iowa 2007) (noting that in determining whether a joint

physical care relationship is appropriate courts should consider the parents’

ability “to communicate and show mutual respect” and “the degree to which the

parents are in general agreement about their approach to daily matters”); see

also Iowa Code § 600B.40 (2011) (applying the same factors to custody

determinations of unmarried parents).

        We turn to the district court’s conclusion that Jamie rather than Sean

should have physical care of the children. The court reasoned, in part, that

Jamie was the children’s “primary physical caregiver, first as a stay-at-home

mom, and then during the more recent period when both parents were working
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outside of the home.” Hansen, 733 N.W.2d at 696 (“[S]tability and continuity of

caregiving are important factors that must be considered in custody and care

decisions.”). The record supports this reasoning.

       Sean acknowledged Jamie was a stay-at-home mom for four years, by

agreement of the parties. He also conceded that, in the six months preceding

the separation, she woke the children up and put them to bed and was the

person primarily responsible for preparing and serving meals and taking the

children to medical appointments. When questioned about those appointments,

he stated he “possibly attended one.”

       In granting Jamie physical care, the district court also stated Jamie “has

generally done a good job of keeping [Sean] informed as to the children’s

educational and healthcare developments and appointments.”           We find less

support for this finding than the finding that Jamie was the primary caretaker.

While Jamie notified Sean about medical appointments, she did not trust him

enough to consult with him about educational questions, such as where the

children would be schooled and what type of school they would attend. She

made these decisions unilaterally, knowing they were contrary to Sean’s wishes.

That said, Sean was equally mistrustful of Jamie, going so far as to record

visitation exchanges. This factor, therefore, does not favor either parent.

       Despite Jamie’s unwillingness to consult with Sean on major decisions

affecting the children, she recognized the importance of Sean’s relationship with

them and ensured that the children saw him regularly, even in the absence of a

visitation order. The only exception arose after Sean informally disavowed the

oldest child, a decision that he later acknowledged was hurtful. To protect the
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child from further emotional harm, Jamie disallowed visits for a period of time.

Later, those visits were reinstated.

       In the end, we conclude the district court acted equitably in granting Jamie

rather than Sean physical care of the children. We base our decision on Jamie’s

role as primary caretaker, her general willingness to facilitate the children’s

contact with Sean, and the district court’s finding that certain aspects of Sean’s

testimony were not credible. See In re Marriage of Fennelly, 737 N.W.2d 97, 100

(Iowa 2007) (giving weight to district court’s credibility finding).

III.   Exclusion of Supplemental Answers to Interrogatories

       At trial, Sean sought the admission of interrogatory answers he

propounded to Jamie. The district court admitted the answers.

       After trial, Sean’s attorney advised the court that she “failed to notice that

only the original answers from the first set had been included in [her trial]

notebook and not also the Supplemental Answers that she had submitted.” She

asked to have the additional answers admitted but stated if opposing counsel

“objects to their inclusion I understand.”

       Jamie’s attorney did object to the admission of the additional answers,

noting that she “would have absolutely questioned [her] client regarding her

answers to the same had they been included at the time of trial.”

       On appeal, Sean asserts the supplemental answers should have been

admitted because “[t]he record had not been closed at the time [he] sought to

include” them, there would be no prejudice to Jamie because “they were her

answers and she had not elected to update them,” and “[t]he first 24 [a]nswers
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came in without objection, and therefore last 7 were not subject to objection

either.”

       These assertions lack support in the record. First, the district court closed

the record at the conclusion of trial, stating, “I want to make sure that all the

exhibits that have been admitted are accounted for.” The only matter the court

relegated to post-trial consideration was “information that may be needed on

child support guidelines.” Second, Jamie’s attorney asserted that Jamie would

be prejudiced by the post-trial admission of the supplemental answers because

she would have no opportunity to be questioned about those matters. Finally,

Jamie’s attorney did in fact object to the admission of the first set of answers

when they were offered at trial, pointing out that they were irrelevant. While the

district court overruled the objection, the ruling does not mandate a conclusion

that the supplemental answers were relevant. See Herron v. Temple, 200 N.W.

917, 919 (Iowa 1924) (noting answer to interrogatory was “immaterial and

ineffective for any purpose”).

       We conclude the district court appropriately denied Sean’s belated request

to admit the supplemental answers to interrogatories.

IV.    Attorney Fees

       Sean contends the district court abused its discretion in awarding Jamie

$750 in trial attorney fees. Jamie counters that the attorney fee award should be

“increase[d].”

       The record reflects that Jamie incurred close to $10,000 in trial attorney

fees and had an outstanding balance of more than $5000 exclusive of trial time.

The district court ordered Sean to pay a fraction of these fees. See Iowa Code
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§ 600B.26 (authorizing award of fees to prevailing party). We discern no abuse

of discretion in the court’s ruling. See Markey v. Carney, 705 N.W.2d 13, 25

(Iowa 2005) (stating decision to award fees rests in discretion of court).

       Both parents seek appellate attorney fees. Sean is not entitled to fees

because he is not the prevailing party.      Jamie, as the prevailing party, was

obligated to defend this action, and earns significantly less income than Sean.

Accordingly, we order Sean to pay $1500 toward her attorney fee obligation.

       AFFIRMED ON BOTH APPEALS.
