                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0791
                               Filed May 15, 2019


LINDSAY MOSES,
     Petitioner-Appellant,

vs.

ZACHARY RAY ROSOL,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Grundy County, George L. Stigler,

Judge.



      Petitioner appeals the award of shared physical care of the parties’ minor

child. AFFIRMED.



      Lana L. Luhring and Shanna Chevalier of Laird & Luhring, Waverly, for

appellant.

      Heather A. Prendergast of Roberts, Stevens & Prendergast, PLLC,

Waterloo, for appellee.



      Considered by Doyle, P.J., Tabor, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                          2


BLANE, Senior Judge.

       Lindsay Moses (Lindsay) appeals the district court’s award of shared

physical care of the parties’ one-and-a-half-year-old child, L.R. She contends the

shared physical care decision is not supported by the trial record, asserting

Zachary Rosol (Zach) does not have the means to transport L.R. due to the

suspension of his driver’s license, lacks recognition of L.R.’s special needs, and is

unable to communicate appropriately with Lindsay concerning L.R. Lindsay also

contends that the “best interests of the child” standard should recognize a special-

needs criteria. Finally, Lindsay contends the trial judge did not comply with the

rules of civil procedure when he failed to make factual findings in writing to support

the ruling. Based upon our review, we affirm.

       I.     Factual background.

       At trial, Lindsay was twenty-eight years old and residing in a home she is

purchasing in Dike, Iowa. She obtained a college degree from the University of

Northern Iowa and works at the Cedar Falls Community Credit Union as a loan

officer. She primarily works in an office in Cedar Falls but works in Waverly on

Thursdays. Her hours are typically 9:00 a.m. to 5:00 p.m., but she is also required

to work alternating Saturdays. Lindsay was previously married and has a child,

D.B., who at the time of trial was five years old and attended kindergarten in the

Dike-New Hartford school district. Lindsay has shared physical care of D.B. with

his father on a two day/two day/three day (weekend) rotation.

       Zach is also twenty-eight years old. He has a college degree from Upper

Iowa University in criminology where he wrestled collegiately. For the past five

years he has been employed at Union Tank Car in Waterloo. He cleans, repairs,
                                          3


and welds rail cars. His work schedule is Monday through Friday from 7:00 a.m.

to 3:30 p.m., with some overtime. He can be required to work weekends. His work

hours can be flexible if he gives timely notice to his foreman. Zach moved into an

apartment in Evansdale, Iowa, a few weeks before the trial, where he is close to

work and L.R.’s daycare.

        Lindsay and Zach were in a two-year relationship and resided in Lindsay’s

home in Dike. Near the end of their relationship, Lindsay and Zach had L.R., born

in August 2016, who was approximately one and a half years old at the time of

trial. Shortly after L.R.’s birth, Lindsay and Zach ended their relationship, and Zach

moved out of Lindsay’s home. L.R. was diagnosed as having severe hearing loss.

His pediatrician referred L.R. to the University of Iowa Hospitals and Clinics, and

after testing he underwent bilateral cochlear implant surgeries in the latter part of

2017.

        Before L.R. was born, Zach was convicted twice of operating while

intoxicated (OWI). These convictions resulted in suspension of Zach’s driving

privileges until September 22, 2020. He obtained a temporary restricted license

(work permit) that allows him to drive to and from work and L.R.’s day care. He

completed the OWI probations on September 22, 2017. However, a week or so

before discharging his probation, Zach was arrested for driving while barred. That

charge was still pending at the time of the custody trial, and its impact on his future

driving status was unknown. Zach also participated in mixed martial arts fights to

help with his financial obligations but suffered a broken hand and no longer

engages in this sport.
                                            4


         After Lindsay ended her maternity leave, the parties utilized Zach’s sister-

in-law, Shannon Foote,1 who also lives in Evansdale, for L.R.’s daycare. At trial,

both Lindsay and Zach agreed that Shannon should continue to provide the

daycare because she is “family,” loves L.R., and provides the care for free.

However, it requires Lindsay to drive from Dike to Evansdale to drop him off at

Shannon’s and to drive from her work in either Cedar Falls or Waverly to pick him

up. This childcare arrangement is to continue until L.R. is three years old, when

he is eligible to start a preschool program in the Dike-New Hartford school district.

Zach agrees that L.R. should attend the same school as his half-brother, D.B. in

the Dike-New Hartford district, and Zach intends to move to Dike to facilitate this

arrangement.

         L.R. is a healthy child other than his hearing deficiency, cochlear implants,

and its impact on his language and speech development. He is receiving services

from Area Education Agency, the University of Iowa, and speech therapy. It is

anticipated an Individualized Education Plan will be implemented when he begins

attending school. Lindsay has taken classes to learn sign language. L.R. is also

learning sign language, and this is one manner in which they communicate. L.R.

is being gradually retrained to hear and identify sounds so that he can also learn

to talk. The speech therapist instructs L.R.'s caregivers how to teach him to

associate sounds and words so that they have meaning and lead to an ability to

talk.

         Other specific facts related to the issues will be set out below.



1
    Shannon is married to Zach’s brother, Denver Foote.
                                           5


       II.    Procedural background.

       On September 16, 2016, approximately one month after L.R. was born, and

while still living with Zach, Lindsay filed her petition to establish paternity, custody,

visitation and child support. She requested physical care of L.R. Zach filed his

answer and requested shared physical care of L.R.             Simultaneously with his

answer, Zach filed an application for hearing on temporary matters requesting that

the court enter temporary orders in regard to placement and visitation while also

requesting shared physical care.        On January 4, 2017, the court entered a

temporary order placing L.R.’s physical care with Lindsay and awarding Zach

visitation. Lindsay was also authorized to select alternative day care if she desired.

       On April 3, 2018, the parties filed the required pretrial stipulation with the

court, agreeing on joint legal custody but not agreeing on physical care. Trial was

held on April 4 and 5. Following the close of evidence, the trial judge dictated his

findings into the record with the parties and counsel present. The court made

certain credibility findings, including that Zach had made significant changes in his

life since L.R.’s birth and that Lindsay possessed a great deal of animosity towards

Zach related to their failed relationship and may benefit from counseling. But, the

court found the parties were able to communicate when it came to L.R.’s care and

determined shared physical care was in L.R.’s best interest.           The court then

directed Zach’s counsel to prepare the order since the court had determined that

the shared care order should provide that Lindsay’s care of L.R. correspond with

her care of D.B. The proposed order was submitted for review to Lindsay’s

counsel. On April 11, Lindsay filed an “Objection to Proposed Decree” with the
                                           6


court. On April 13, the court filed the order placing L.R.in the shared physical care

of the parties among other rulings. Lindsay then filed a timely appeal of the order.

       III.   Discussion.

       A. Failure by trial court to make written findings pursuant to Iowa Rule
          of Civil Procedure 1.904(1).

       Lindsay points out that the trial judge’s dictated findings of fact into the

record does not comply with Iowa Rule of Civil Procedure 1.904(1), which requires,

“The court trying an issue of fact without a jury, whether by equitable or ordinary

proceedings, shall find the facts in writing, separately stating its conclusions of law,

and direct an appropriate judgment.” Zach points out, on April 11, Lindsay filed a

document entitled “Objection to Proposed Decree.”2 The document is not a motion

to enlarge or amend findings as provided in Iowa Rule of Civil Procedure 1.904(2).

Our court has previously addressed a similar situation:

       We are hampered in our review of this case because the district court
       made no findings of fact from which its spousal support order is
       presumably based. Under Iowa Rule of Civil Procedure 1.904(1) the
       district court was required to find the facts in writing and separately
       state its conclusions of law. However, [respondent] did not address
       this deficiency nor did he preserve error by filing a rule 1.904(2)
       motion asking the district court to enlarge its findings. Nevertheless,
       we review orders granting temporary spousal support in dissolution
       of marriage cases de novo. Therefore, we have a duty to examine
       the record in its entirety and adjudicate the rights and issues
       presented by the parties based on that record.

In re Marriage of Allebach, No. 04-1850, 2005 WL 1965967, at *1 (Iowa Ct. App.

Aug. 17, 2005) (internal citations omitted). Even though Lindsay did not preserve

this error for appeal, we are to review the record de novo, which included the orally


2
 It stated: “COMES NOW Petitioner, Lindsay Moses, and in response to the proposed
Decree states that she objects to the Proposed Decree as it is unsupported by evidence
presented at Trial and contrary to the requested relief of either party.”
                                            7


dictated findings by the trial court. As rule 1.904(1) further states: “No request for

findings is necessary for purposes of review.” Although we encourage trial courts

to follow the rule, failure to do so does not prevent our de novo review, which

follows below.

         B. Whether shared physical care was in the best interest of L.R.

         An action for custody and placement is tried in equity and review is de novo.

Iowa R. App. P. 6.907. The appellate court is to give weight to the district court’s

findings of fact, especially with regard to witness credibility, but we are not bound

by those findings. Iowa R. App. P. 6.904(3)(g); In re A.M., 843 N.W.2d 100, 110

(Iowa 2014).

         In child custody cases, the best interest of the child is the first governing

consideration. Iowa R. App. P. 6.904(3)(o); In re Marriage of Vrban, 359 N.W.2d

420 (Iowa 1984). Iowa Code § 598.1(4) (2016) defines joint physical care as:

         an award of physical care of a minor child to both joint legal custodial
         parents under which 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, providing routine care
         of the child and under which neither parent has physical care rights
         superior to those of the other parent.

Iowa Code § 598.41(3) enumerates the factors the court must consider when

determining custody. See Iowa Code § 600B.40(2); In re Marriage of Weidner,

338 N.W.2d 351 (Iowa 1983); In re Marriage of Winter, 223 N.W.2d 165 (Iowa

1974).
                                          8


       The enumerated statutory factors are:

                a. Whether each parent would be a suitable custodian for the
       child.
               b. Whether the psychological and emotional needs and
       development of the child will suffer due to lack of active contact with
       and attention from both parents.
               c. Whether the parents can communicate with each other
       regarding the child’s needs.
               d. Whether both parents have actively cared for the child
       before and since the separation.
               e. Whether each parent can support the other parent’s
       relationship with the child.
               f. Whether the custody arrangement is in accord with the
       child’s wishes or whether the child has strong opposition, taking into
       consideration the child’s age and maturity.
               g. Whether one or both the parents agree or are opposed to
       joint custody.
               h. The geographic proximity of the parents.
               i. Whether the safety of the child, other children, or the other
       parent will be jeopardized by the awarding of joint custody or by
       unsupervised or unrestricted visitation.
               j. Whether a history of domestic abuse, as defined in section
       236.2, exist.

Iowa Code § 598.41(3).

       While the language of section 548.41(3) applies these factors to custody

determinations, our supreme court has determined that those factors are also

relevant in determining which physical care arrangement is in the best interest of

the child. See In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007). Further,

Iowa courts have consistently considered a non-exclusive set of criteria, as

articulated in the Winter case:

             1. The characteristics of each child, including age, maturity,
       mental and physical health.
             2. The emotional, social, moral, material, and educational
       needs of the child.
             3. The characteristics of each parent, including age,
       character, stability, mental and physical health.
                                          9


              4. The capacity and interest of each parent to provide for the
      emotional, social, moral, material, and educational needs of the
      child.
              5. The interpersonal relationship between the child and each
      parent.
              6. The interpersonal relationship between the child and its
      siblings.
              7. The effect on the child of continuing or disrupting an existing
      custodial status.
              8. The nature of each proposed environment, including its
      stability and wholesomeness.
              9. The preference of the child, if the child is of sufficient age
      and maturity.
              10.The report and recommendation of the attorney for the
      child or other independent investigator.
              11.Available alternatives.
              12.Any other relevant matter the evidence in a particular case
      may disclose.

223 N.W.2d at 166-167.        When determining whether joint physical care is

appropriate, “our case law requires a multi-factored test where no one criterion is

determinative.” In re Marriage of Meierotto, No. 15-0047, 2015 WL 5968895, at *2

(Iowa Ct. App. Oct. 14, 2015) (citing Hansen, 733 N.W.2d at 697). Physical care

decisions rely on the same criteria regardless of whether the case involves a

dissolution of marriage or unwed parties. Jacobson v. Gradin, 490 N.W.2d 79, 80

(Iowa Ct. App. 1992).

      In applying these legal principles, we determine joint or shared physical care

is appropriate for these parties and in L.R.’s best interest. Although Lindsay

contends Zach is not a suitable custodian for the child, upon our review of the

record, we agree with the district court that both parties are suitable custodians.

Both are physically and mentally capable of providing for L.R.’s psychological and

emotional needs. Zach has matured and provides suitable care when L.R. is with
                                         10


him. We agree L.R.’s best interests are met by spending the maximum amount of

time with both parents.

       Lindsay contends that she and Zach are not able to communicate with each

other regarding L.R.’s needs. We do not find this supported by the evidence. The

parties primarily communicate by texting. A substantial amount of these texts were

admitted as an exhibit at trial. The primary conflict between these parties involved

the breakdown of their personal relationship.. The sheer volume of texts belies the

claim that they cannot communicate. Although many of these communications

related to their failed relationship, when required to discuss care arrangements for

L.R., we discern no significant difficulty communicating in a cooperative and

respectful manner.

       Our review also refutes Lindsay’s claim that Zach is disrespectful to her and

intimidating. We agree with the district court that as the parties move on from the

frustration of their failed relationship and focus on parenting L.R., their

communication will improve. One or two “cherry picked” examples by Lindsay of

troubled texting from the volume of texts between them does not outweigh what

we discern from our overall view of the text messages. As it is, the parties appear

currently capable of communicating satisfactorily with each other when it comes to

L.R.

       We further find that both parents have actively cared for L.R. since his birth.

Although Lindsay is opposed to joint physical care, each can support the other’s

relationship with L.R. The evidence does not show any concern in this case about

the parties’ physical safety from the other. Lindsay voices concern for L.R.’s safety

when with Zach due to his prior OWI convictions and license suspension, but the
                                             11


recent incident of driving while barred did not involve L.R. Testimony supports that

Zach is a loving and care-providing father to L.R. There is no evidence that L.R.’s

safety is at risk when with either parent. We agree with the district court that Zach

has been able to put his OWI issues behind him and make good decisions for L.R.;

the lingering licensing issues do not, in our view, overcome L.R.’s interest in

maintaining his relationship with his father.3 Zach has a limited license that allows

him to drive to and from work and daycare. For other excursions, Zach testified

he utilizes the help of family and friends. He also testified he intends to move to

Dike when L.R. starts preschool, which will alleviate some of these concerns.

       Lindsay argues that Zach is not as attentive to L.R.’s special needs as she

is and for this reason she is better suited to tend to him and entitled to physical

care. She points out that Zach initially resisted the cochlear implants, delayed his

approval, and has not been engaged with the speech therapist. However, other

testimony shows that Zach researched the proposed surgery of implants, provided

timely approval, was present for both surgeries, has attended over twenty-five of

L.R.’s doctor appointments, and provides appropriate care. Since Zach currently

resides in a school district different than Lindsay, the speech therapist was not

permitted to provide therapy at Zach’s residence and he was required to set that

up through the local school district.




3
  Evidence was presented of Zach’s arrest just before trial for driving while barred that was
pending and had not yet been resolved at the time of trial. Under our rules, on appeal we
are restricted to examining the record made at the trial. As much as we would like to know
what has transpired since the trial, and such knowledge could potentially help resolve
issues and move this matter and the parties along more expeditiously to a final resolution,
it is not within our purview. See In re Marriage of Rodasky, No. 16-1312, 2016 WL
7077920, at *1 (Iowa Ct. App. Dec. 2, 2016).
                                           12


       Lindsay has taken lessons to learn sign language and to help teach L.R.

signing so that he can communicate better. Zach has not done so. Due to L.R.’s

tender age at one and a half, it is unclear the extent to which this is currently useful.

It likely will be more so in the future. In learning sign language, Lindsay has shown

an extra degree of attending to L.R.’s special needs, which is commendable, but

we cannot say this alone tips the scale in her favor so as to override shared

physical care. Zach has shown sufficient concern and attentiveness to L.R. and

his special needs to justify a shared physical care arrangement.

       Having reviewed each of Lindsay’s arguments for physical care, we do not

find them adequate to override shared physical care with Zach as being in L.R.’s

best interest.

       C. Request for a special needs best interest standard.

       Lindsay contends the “best interests'” standard must be applied differently

to children with special needs and should include an assessment of the particular

child’s special needs because they require a higher level of collaboration between

the shared care parents. Lindsay asks us to adopt a “best interest of the special-

needs child” analysis. She argues the criteria to be applied in custody cases

should focus more on the special needs of the child than on the characteristics of

the parents when it involves a child with special needs. For this reason, she urges

us to adopt a standard that places the special needs of a child as the most

important consideration in determining physical placement of the child.

       We must decline Lindsay’s invitation for two reasons. First, she cites no

authority in support of such a rule. Under the appellate rules, cases are transferred

to the court of appeals for application of existing legal principles or if they are
                                         13


appropriate for summary disposition. Iowa R. App. P. 6.1101(3)(a), (b). As we

have previously found, it is not for our court to change existing legal principles. If

a separate criterion for determining the physical-care arrangement of children with

special needs is to be adopted, we must leave it to the legislature or the supreme

court. See Brooks v. Brooks, No. 03-1217, 2004 WL 240207, at *2 (Iowa Ct. App.

Feb. 11, 2004) (citing State v. Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994) (“We

leave it up to the legislature or our supreme court to establish new causes of action

even when they appear to have merit.”)).

       Second, the existing legal principles for determining who should care for a

child, as discussed in the Winter case, although not specific, appear to be

applicable and provide sufficient guidance as to children with special needs. See

In re Marriage of McIntosh, No. 98-1735, 1999 WL 823646 at *2 (Iowa Ct. App.

Oct. 15, 1999) (“In concluding [the father] should be awarded primary physical care

of [the child], we give considerable weight to the importance of his development as

a deaf child. [He] is a child with special needs.”) We are satisfied that the current

law encompasses consideration of the specific needs of a child with special needs.

       D. Appellee’s request for appellate attorney fees.

       On appeal, Zach requested appellate attorney fees. An award of appellate

attorney fees is within the discretion of the appellate court. Markey v. Carney, 705

N.W.2d 13, 26 (Iowa 2005) (citing In re Marriage of Ask, 551 N.W.2d 643, 646

(Iowa 1996), In re Marriage of Gaer, 476 N.W.2d 324, 326 (Iowa 1991)). Whether

such an award is warranted is determined by considering “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 trial court's decision on appeal.”
                                        14

Ask, 551 N.W.2d at 646. Considering these factors as applied to the facts of this

case, we do not think an award of appellate attorney fees is appropriate.

      IV.    Conclusion.

      Despite the trial court’s failure to comply with Iowa Rule of Civil Procedure

1.904(1) to file written findings, upon our de novo review of the record in this

appeal, we conclude the shared physical care ordered by the district court is in the

child’s best interest and should be affirmed. We are not at liberty to adopt a new

best interests standard in determining physical-care arrangements for children with

special needs, but we are able to make such a determination based upon the best-

interests standards available under existing statutory and case law. We deny the

request for appellate attorney fees.

      AFFIRMED.
