                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0995
                             Filed March 11, 2015


BRANDON R. WATERS,
    Plaintiff-Appellee,

vs.

JENNIFER M. ALITZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Sherman W.

Phipps, Judge.



      A mother appeals a district court order granting physical care of a child to

the child’s father. AFFIRMED.



      Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant.

      Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for

appellee.



      Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, P.J.

       A mother appeals a district court order granting physical care of a child to

the child’s father.

       I. Background Facts and Proceedings

       Jennifer Alitz and Brandon Waters met in 2007 and began an on-again/off-

again relationship. Waters moved to Colorado where Alitz lived. The couple

separated within a few months and Waters returned to Iowa.

       Almost three years later, the couple reunited and moved in with Waters’s

parents in Iowa.       In 2012, they had a daughter, and in 2013 they again

separated.

       Waters petitioned for custody of the child. The district court temporarily

placed her with Alitz, subject to visitation with Waters. Alitz was subsequently

found in contempt for denying Waters visits.

       Following trial, the district court granted Waters physical care of the child.

Alitz appealed.

       II. Physical Care

           A. Judicial Notice

       As a preliminary matter, we must address the scope of our record. Alitz’s

main brief referred to a matter occurring after trial in another case. When Waters

pointed out the matter was not in our record, Altiz’s attorney argued we could

take judicial notice of it.

       Iowa Rule of Evidence 5.201(f) allows a court to take judicial notice of

adjudicative facts “at any stage of the proceeding.”             See also State v.

Washington, 832 N.W.2d 650, 655-56 (Iowa 2013) (“Judicial notice may be taken
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on appeal.”). However, “[t]he general rule is that it is not proper for the court to

consider or take judicial notice of the records of the same court in a different

proceeding without an agreement of the parties.” Id. (citing Leuchtenmacher v.

Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 861 (Iowa 1990)).

       There was no agreement of the parties, nor could there have been

because Alitz’s attorney did not reveal his intent to rely on the matter until the

appeal. No post-trial or post-judgment rulings were filed and Waters had no

opportunity to be heard on the citation or inclusion of this new information. See

Iowa R. Evid. 5.201(e) (“A party is entitled upon timely request to an opportunity

to be heard as to the propriety of taking judicial notice and the tenor of the matter

noticed.”). Under these circumstances, we decline to take judicial notice of the

matter.1 The record is limited to the evidence adduced at trial. Our review of this

record is de novo. Iowa R. App. P. 6.907.

           B. Analysis

       Our analysis of a physical care ruling is the same whether the parents are

married or unmarried. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988); see

also Iowa Code § 600B.40 (2013). In both instances, we focus on the child’s

best interests. Id. We give weight to the district court’s credibility findings but are

not bound by them. Iowa R. App. P. 6.904(3)(g).

       Those credibility findings are key in a case such as this, which is rife with

accusations and counter-accusations of misconduct. In particular, the district

court found Alitz “exaggerated” her accusations against Waters, “perhaps hoping

1
  We have considered State v. Freland, No. 13-0904, 2014 WL 1494953 (Iowa Ct. App.
2014), cited by Alitz. That opinion is inapposite because this court took judicial notice of
a Wisconsin statute, rather than a fact.
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to gain a tactical advantage in these proceedings.” The court determined her

behavior was “not in the child’s best interests,” showed “a consistent pattern of

attempted interference with the relationship between [Waters] and [the child],”

and was “indicative of [Alitz’s] desire to exclude [Waters] from the child’s life.”

Even though we lack the ability to observe witness demeanor, we discern

support for these findings and determinations in Alitz’s testimony, which we will

summarize below in the context of the pertinent statutory factors.

       We begin with the primary considerations in this case—whether Alitz

would communicate with Waters and support his relationship with the child. See

Iowa Code § 598.41(3)(c), (e).       One indicator is the parent’s willingness to

facilitate visitation. See Iowa Code § 598.41 (stating liberal visitation will “assure

the child the opportunity for the maximum continuing physical and emotional

contact with both parents after the parents have separated . . . and which will

encourage parents to share the rights and responsibilities of raising the child.”).

       As noted, Alitz was held in contempt for denying Waters visitation. Alitz

attempts to minimize her violations, pointing to confusion about the effect of a no-

contact order and advice from a department of human services employee.

However, Alitz admitted to knowingly disobeying a visitation order, and the

department employee she identified as advising her to do so denied making such

a statement.

       Equally troubling is the scorn with which Alitz viewed visitation, despite the

absence of any restrictions on visits. Specifically, Alitz testified it would be in the

child’s best interests to have “shorter visits and less overnights.” She cited the

child’s “extreme separation anxiety,” which “never improved” and the child’s “fear
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of [Waters] at exchanges, every single exchange, for the entire time.”          She

suggested the child “seiz[ed] up” during exchanges and “when [Waters] touches

her skin, she wails” and “starts screaming, crying out.” Later, she stated Waters

would “hurt” the child and would “continue to hurt her.” She said “[h]e does not

have control. He’s dangerous.” She also testified, “I never trusted Brandon with

[the child] when she was young. I never, and still don’t.” And, she said, “I did not

trust Brandon since the minute I delivered.” She acknowledged the court had

earlier changed the visitation schedule to reduce the number of exchanges and

admitted this improved the situation. But, she continued, “every time I get her

back, I still have a forty-eight-hour period of recovery.” She reiterated “overnights

are too much. . . . Brandon is a danger to himself and to anyone else that

spends too much time around him.”            These views were at odds with her

obligation to support Waters’s relationship with the child.

       We recognize Waters was the subject of a domestic and child abuse

complaint leveled by Alitz—a complaint the Department of Human Services

investigated and deemed founded.         The incident, which occurred during a

visitation exchange, was documented by Alitz on her cell phone, snippets of

which were introduced at trial. Those snippets captured Waters as he attempted

to reach towards Alitz with the child in his arms.       Alitz told the department

investigator Waters’s aim was to obtain and destroy her cell phone.           In the

process, she reported, Waters scratched her fingers and bruised her shin.

       There is no question Waters let his temper get the best of him in a highly

fraught situation. We do not condone his avoidable decision to risk the safety of

his child and of Alitz. But, as the author of the child abuse report observed,
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“[w]atching this film, this writer hoped this was a rare and isolated example of

custody exchange.” Upon our review of the record, we trust it was. To the extent

Alitz relied on this incident to label Waters dangerous and untrustworthy, we

concur in the district court’s finding that Alitz’s “characterizations of petitioner’s

behaviors are exaggerated.” See In re Marriage of Forbes, 570 N.W.2d 757, 760

(Iowa 1997) (“It is for the court to weigh the evidence of domestic abuse, its

nature, severity, repetition, and to whom directed, not just to be a counter of

numbers.”); In re Marriage of Ford, 563 N.W.2d 629, 632-33 (Iowa 1997) (stating

“evidence of domestic abuse does not trump the other statutory and common law

factors.”).

       Those characterizations were not limited to her trial testimony. In a letter

seeking to intervene in Waters’s appeal of the founded child abuse report, she

wrote Waters “terroriz[ed] this infant” and was a “high risk to” the child. She

asserted the child had been “under ongoing abuse & neglect at the hands of her

father for almost a year,” was “at risk for severe lifelong damage to her

development both emotionally and physically,” was “in DIRE need of protection

from her father” and was “not being given the proper protection from further injury

or death.”

       This language could only be construed as hyperbole.                At trial, a

department representative testified there was no longer an open case involving

this child because the department determined it “could reach safe case closure

through the work that” had been done with Alitz and Waters, and no more

services were necessary.       The department’s work on behalf of the family

included an on-site inspection of both parents’ homes.          The employee who
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inspected Waters’s home found him to be an appropriate person to care for his

daughter. Indeed, the department found a subsequent complaint by Alitz against

Waters to be unfounded. In sum, the department laid to rest any concerns about

the fitness of Waters as a parent.

       Based on this record, we agree with the district court’s finding of Alitz’s

“adamant lack of interest in supporting the relationship between [the child] and

her father as demonstrated by her overall conduct both before and after these

proceedings began.”

       This finding is further supported by Alitz’s responses to questions about a

potential move to Colorado. When asked if she had “immediate plans” to move,

she responded, “I have no ‘immediate plans.’” Moments later, she stated she

and Waters never intended to raise the child in Iowa, she owned a home in

Colorado, she had a “wonderful job there,” she “love[d] the state,” and she had “a

lot of family out there.” While she claimed she would seek court approval before

making a move, her previous decision to flout the court’s visitation order raises

doubts as to whether she would abide by her promise. We conclude Alitz’s

failure to communicate and support Waters’s relationship with the child militated

in favor of granting Waters physical care.

       The most significant countervailing consideration was Alitz’s role as

primary caretaker of the child.       See Iowa Code § 598.41(3)(d). However,

“[s]uccessful parenting . . . implicates far more than a parent’s ability to attend to

the daily details of raising a child.” In re Marriage of Kunkel, 555 N.W.2d 250,

253 (Iowa Ct. App. 1996). “The parent awarded physical care must also possess

those parental attributes that are consistent with the obligations inherent in a joint
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custody arrangement.       Most notable among these is the ability to set aside

understandable resentments and act in the best interest of the child.”           Id.

Because Alitz showed herself to be incapable of setting aside her animosity

towards Waters, her role as primary caretaker is not dispositive.

       On our de novo review, we conclude the district court acted equitably in

granting Waters physical care of the child. In reaching this conclusion we have

found it unnecessary to rely on the opinion of Waters’s expert—an opinion Alitz

challenges on appeal. That said, the district court acted well within its authority

in giving weight to the opinion, which was rendered after interviewing Alitz as well

as Waters and after obtaining the results of psychological testing. See Nicolou v.

Clements, 516 N.W.2d 905, 909 (Iowa Ct. App. 1994) (“[C]ertainly [experts’]

testimony must be accorded weight, but their final conclusions are not binding on

the trial of fact nor on the appellate courts.”).

       III. Appellate Attorney Fees

       Both parties request appellate attorney fees.       An award rests in our

discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Waters

is the prevailing party but because Alitz was unemployed at the time of trial, we

decline his request to have her pay a portion of his appellate attorney fees.

       AFFIRMED.
