                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0460
                              Filed August 17, 2016


CHRISTOPHER FORTNER,
     Petitioner-Appellee,

vs.

STEPHANIE HOWE,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Sean W. McPartland,

Judge.



      Appellant appeals the district court’s ruling in this custody action awarding

appellee joint legal custody of their child, claiming the court failed to apply the

appropriate statutory analysis regarding domestic abuse in determining legal

custody; requests modification of the provisions of the decree establishing

visitation transportation, and in assessing court costs. AFFIRMED IN PART,

MODIFIED IN PART, AND REMANDED FOR ENTRY OF ORDER ON COURT

COSTS.



      Anne M. Laverty of Mullin & Laverty, L.C., Cedar Rapids, for appellant.

      Christopher A. Fortner, Cedar Rapids, appellee pro se.



      Considered by Mullins, P.J., McDonald, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                         2


BLANE, Senior Judge.

         Respondent/appellant Stephanie Howe appeals the district court’s ruling

awarding petitioner/appellee Chris Fortner joint legal custody of their child, J.E.H.

Respondent claims the district court failed to apply the appropriate statutory

analysis regarding domestic abuse in determining legal custody.            She also

requests modification of the provisions of the decree establishing visitation

transportation and assessing court costs. Based upon our de novo review of the

record and the district court’s thorough decree, we find the judgment should be

affirmed as to the joint legal custody and modified as to the assessment of court

costs.

   I. Standard of Review

         We review district court decisions regarding child custody de novo. Iowa

R. App. P. 6.907; McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010).

We are not bound by the district court’s fact findings. Id. However, because the

district court has the opportunity to listen to and observe the parties and

witnesses, we give weight to those fact findings, especially those concerning

witness credibility. Id. Our overriding consideration is the child’s best interests.

Id. We base our decision on the unique circumstances of each case. See In re

Marriage of Crotty, 584 N.W.2d 714, 717 (Iowa Ct. App. 1998).

         In making custody determinations, we apply the criteria found in Iowa

Code section 598.41 (2013). See Iowa Code § 600B.40. Our objective is to

place the child in the environment most likely to promote a healthy physical,

mental, and social maturity. In re Marriage of Hansen, 733 N.W.2d 683, 695

(Iowa 2007). The court must fashion a child-custody arrangement that will afford
                                            3


“the opportunity for the maximum continuing physical and emotional contact with

both parents” and “will encourage parents to share the rights and responsibilities

of raising the child unless direct physical harm or significant emotional harm to

the child, other children, or a parent is likely to result from such contact with one

parent.” Iowa Code § 598.41(1)(a); see also In re Marriage of Gensley, 777

N.W.2d 705, 714 (Iowa Ct. App. 2009).

      II. Trial Court Determination

         Following a trial, the court awarded the parties joint legal custody of their

minor child, J.E.H., born 2011. Stephanie was granted physical care of J.E.H.

subject to a visitation schedule jointly submitted by the parties.           Chris was

ordered to pay child support of ninety-nine dollars per month. Stephanie was

ordered to pay all court costs, except for Chris’s court-appointed attorney fees in

connection with contempt matters.

      III. Joint Legal Custody

         The district court made a finding that Chris abused Stephanie during their

relationship. We find such conclusion supported in the record and need not

repeat the factual basis here. The trial court awarded Stephanie physical care,

but despite the finding of domestic abuse, awarded joint legal custody to

Stephanie and Chris. Stephanie, citing Iowa Code section 598.41,1 contends the


1
    Iowa Code section 598.41 is made applicable here by Iowa Code section 600B.40:
         In determining the visitation or custody arrangements of a child born out
         of wedlock, if a judgment of paternity is entered and the mother of the
         child has not been awarded sole custody, section 598.41 shall apply to
         the determination, as applicable, and the court shall consider the factors
         specified in section 598.41, subsection 3, including but not limited to the
         factor related to a parent's history of domestic abuse.
                                         4


trial court failed to apply the statutory analysis required once a history of

domestic abuse is found. Further, she claims that if a proper analysis were

conducted, the presumption against joint legal custody would not be rebutted and

the statute would require an award of sole legal custody to her.

       The district court decree in this regard provided:

               In the best interests of the minor child here, the Court finds
       that joint legal custody is appropriate. Despite the fact that there is
       some history of domestic abuse in this matter, the parties each
       have participated constructively in the care of J.E.H., including in
       connection with her medical issues. Each of the parties clearly
       loves J.E.H. and J.E.H. clearly has bonded with each of her
       parents. As noted above, the Court finds that the undisputed
       evidence establishes that both parties have been supportive of
       J.E.H.’s relationship with the other parent; both parties
       acknowledge that the other party is a good parent to J.E.H.; and
       both parties acknowledged that it is important that J.E.H. continues
       to have a relationship with both parties. In the circumstances here,
       the Court finds and concludes that it would not be in J.E.H.’s best
       interest, and indeed would be a disservice to J.E.H., to conclude
       that joint custody is not reasonable and not in the best interests to
       the extent that the legal custodial relationship between J.E.H. and
       Chris should be severed.

Stephanie argues that the trial court did not specifically address the evidence that

rebutted the presumption created by the finding of domestic abuse.

       Even though the court may award joint custody under paragraph “a”,

section 598.41(1)(b) provides, “Notwithstanding paragraph ‘a,’ if the court finds

that a history of domestic abuse exists, a rebuttable presumption against the

awarding of joint custody exists.”     “A finding by the court that a history of

domestic abuse exists, as specified in subsection 3, paragraph ‘j,’ which is not

rebutted, shall outweigh consideration of any other factor specified in subsection

3 in the determination of the awarding of custody under this subsection.” Iowa

Code § 598.41(2)(c). In considering what custody arrangement under subsection
                                          5


2 is in the best interest of the minor child, the court shall consider the factors set

forth in Iowa Code section 598.41(3)(a)–(k).

       Our Iowa Supreme Court addressed the trial court’s implementation of

these code provisions in the case of In re Marriage of Ford, 563 N.W.2d 629

(Iowa 1997). In that case the appellant also contended that the district court

failed to specifically address points that rebutted the domestic abuse

presumption created by the legislature when it amended the statute. There, the

supreme court discussed such omission:

               The court also failed to discuss the significance of the
       evidence creating a rebuttable presumption against joint custody.
       See Iowa Code § 598.41(1)(b). These omissions, however, are not
       fatal under our de novo review. The record makes clear that the
       court gave careful thought to the domestic abuse issue and found
       that it was not significant enough to be the sole factor in
       determining custody of the children.
               The fact that the court did not specifically state it was
       following the new sections of the Code does not necessarily mean
       that it did not properly weigh the evidence. In its final judgment and
       decree of dissolution, the court weighed other factors in
       determining which parent should be awarded physical care. It
       noted that “the stability of each party over the past 15 months may
       be the differentiating factor between the parties” and “[t]he most
       recent activity of the parties, say, perhaps the last 28 months
       should carry more weight than activity by each of the parties
       committed five to eight years ago.”
               ....
               [Appellant] argues that under the amended language of
       section 598.41, evidence of domestic abuse essentially trumps any
       and all other factors that the court can consider in making custody
       determinations. We note, however, that evidence of domestic
       abuse merely creates a rebuttable presumption against joint
       custody. See id. § 598.41(1)(b), (2)(c). Thus, we must consider
       the evidence of domestic abuse, under the standard and scope of
       review as enunciated above, in determining if the presumption is
       rebutted and accordingly, whether that one factor should be
       determinative.
               ....
               Any evidence of domestic abuse does not . . . automatically
       and as a matter of law preclude joint custody. Rather, we must
                                          6


       consider the evidence in determining whether such a presumption
       is sustainable.
              ....
              Having determined that the evidence of domestic abuse
       does not trump the other statutory and common law factors, we find
       that the district court correctly awarded joint custody of the children.
       ...

Ford, 563 N.W.2d at 632-33 (first alteration in original).

       Under the Ford case, the district court is to analyze whether other factors

within section 598.41 establish that it is in the best interest of the child that joint

custody be awarded—thus rebutting the domestic abuse presumption. Id. at

632. Here, the district court was well aware of the presumption and found that

other factors warranted joint legal custody.       Although the trial court did not

itemize the section 598.41 factors, it obviously considered them and implicitly

found the presumption rebutted.

       Even though we find the district court did not err in its statutory analysis

involving domestic abuse in relation to legal custody, this court is obligated to

conduct a de novo review. In doing so, on our review of the record, we find the

district court’s conclusion was appropriate.

       The parties’ relationship started while Stephanie was not yet eighteen

years old and still in high school. Chris was approximately eight years older.

While living at home, Stephanie had a tumultuous relationship with her mother,

which resulted in her moving out. Stephanie first moved in with Chris, but after

some difficulties, she moved in with a high school friend and her mother. The

relationship was rocky, with Chris exhibiting a jealous, controlling nature.

Stephanie had moved out before the parties became aware that she was

pregnant.    After Stephanie found out she was pregnant, Chris rented an
                                          7


apartment and supported Stephanie while the two continued their off-and-on

relationship.

         Eventually, Stephanie could not tolerate Chris’s controlling, suspicious

treatment.      During the latter part of her pregnancy, Stephanie moved to a

maternity home in Spirit Lake, Iowa, where she received housing with pre- and

post-natal care and instruction. J.E.H. was born late summer of 2011. Shortly

thereafter, Stephanie applied for a domestic abuse protective order against

Chris, which was granted.2 Although there has been disagreement between the

parties at times, there has been no further evidence of domestic abuse by Chris

during the past five years.

         Following J.E.H.’s birth, Stephanie returned to the maternity home in Spirit

Lake. In early 2012, she moved back to Cedar Rapids with J.E.H. and lived with

her father.      Stephanie applied for government aid and the Child Support

Recovery Unit (CSRU) required her to identify the putative father. Stephanie

initially named a person other than Chris as the father, but that proved to be

incorrect. Stephanie then provided CSRU with Chris’s name. During this time,

Stephanie acknowledges not allowing Chris to have contact with J.E.H., since

she was unsure whether Chris would be established as the father and then not

develop a relationship with the child. Chris continued to show interest in whether

he was the father. CSRU initiated an action for child support against Chris.3

Genetic testing confirmed Chris as J.E.H.’s biological father and a consent order

was entered in June 2012 establishing Chris’s paternity and setting his child

2
    Dickinson County Case No. DACV025008.
3
    Linn County Case No. DRCV075906.
                                          8


support and medical support obligations.        On September 10, 2012, due to

Stephanie’s resistance to Chris’s involvement with J.E.H., Chris filed the custody

and visitation petition.   Approximately one year after obtaining the domestic

abuse no-contact order, Stephanie applied for an extension of the order for

another year. Following a hearing, the Dickinson County court found no ongoing

basis for the no-contact order to be in place and denied the extension.

         In July 2012, Stephanie relocated to Denison, in northwest Iowa, to attend

Job Corps training. On March 22, 2013, the court entered a temporary order that

provided for Chris to start having supervised visits with J.E.H., followed by

weekend visitation with a pick-up and drop-off point halfway between Cedar

Rapids and Denison.        Stephanie’s only mode of transportation was the Job

Corps bus, which took her and J.E.H. to Grimes. An issue arose when Chris

asserted that this was not an appropriate halfway point and he failed to return

J.E.H.     This was eventually resolved by the court as were several related

contempt petitions.

         A second issue arose in August 2013, when Chris returned J.E.H. and

Stephanie observed what she claimed were suspicious bruises on her legs and

in the groin area. This was reported to the department of human services, which

investigated and had J.E.H. examined.         Chris’s explanation that the bruising

resulted from J.E.H.’s car seat was sustained by the medical exam and the

abuse claim was held to be unfounded.

         A third issue arose in early 2014, when it was discovered that J.E.H.

suffered severe hearing deficiency.      Both parties agreed that J.E.H. needed

surgery. Stephanie had J.E.H. seen at Boys Town Medical Center in Omaha,
                                        9


Nebraska, since that was the closest appropriate medical provider to her location

in Denison.    Chris sought to have the medical care and surgery provided at

University of Iowa Hospitals and Clinics, closer to his residence in Cedar Rapids.

This dispute was resolved by court order following a hearing, which allowed the

procedure and follow-up care to be provided in Omaha. As the district court

pointed out:

      As noted in the Court’s order entered May 5, 2014, the parties were
      in agreement at that time that each was seeking a surgical solution
      which would be in the best interests of the minor child; both parties
      agreed that the surgical options in Omaha and at the UIHC were
      sound and reasoned medical alternatives; and both agreed that
      either location for the surgery would result in one parent being
      located a substantial distance from the location of the surgery.

(Emphasis added.)     By the time of the surgery in July 2014, Stephanie had

completed the Job Corps training and relocated to Lisbon, Iowa, just east of

Cedar Rapids.    Because of some transportation issues, Stephanie ended up

driving Chris to Omaha for the surgery. Since the cochlear implant surgery, the

parties have disagreed on where J.E.H. should receive her continuing post-

surgery care. Stephanie wanted the care to continue in Omaha, despite the

travel distance from Cedar Rapids/Lisbon. She believed a continuity of care for

the one-year post-surgery period was preferential to transfer of care to the

University of Iowa Hospitals and Clinics.     Chris desired the care transferred

closer, to Iowa City, due to the round-trip travel time to Omaha for J.E.H. as well

as both Stephanie and him.

      These disputes between the parties have legitimate merit on both sides.

The parties also have points of agreement when it comes to their daughter.
                                        10


Based upon the evidence, including that surrounding these issues, the district

court concluded:

              All of the witnesses testifying testified that J.E.H. loves both
      of her parents very much and has bonded closely with each of her
      parents. The undisputed evidence also establishes that both of the
      parties love and nurture J.E.H.; that both parties have been
      supportive of J.E.H.’s relationship with the other parent; and that,
      despite the fact that there have been tensions between the parties
      related to the matters involved in this litigation, each of the parties
      generally has worked hard to keep J.E.H. out of the middle of any
      disputes and to avoid tension for J.E.H. in connection with any
      disputes between the parties.
              The demeanor of each of the parties during their testimony
      supports the substantive testimony and evidence that each loves
      and cares for J.E.H. Each of the parties lit up when talking about
      their time spent and activities with J.E.H., and each provided
      sincere and insightful detail with respect to their relationship with
      J.E.H. Both parties acknowledged that the other party is a good
      parent to J.E.H.; that it is important that J.E.H. continues to have a
      close relationship with both parties; and each of the parties has
      supported and testified they will continue to support the relationship
      of J.E.H. with the other party.

      Based upon our review of the record, each party is a suitable custodian.

J.E.H.’s psychological and emotional needs and development would suffer

without active contact and attention from both parents.              Although their

communication needs improvement, which each party recognizes, both parents

can communicate with each other regarding the child’s needs. Since the court

order allowing visitation, Chris has actively cared for J.E.H. and shows an

interest in continuing to be involved with her. Both parents testified they will

continue to support the relationship of J.E.H. with the other party.       J.E.H. is

strongly attached to each parent and a joint legal custody arrangement is

appropriate. The parties’ current residences are in fairly close proximity, is not a

problem and favors both parents’ involvement. Stephanie acknowledges that
                                         11


Chris provides appropriate care to J.E.H. while she is in his care during visitation,

and her safety with Chris is not a concern.

       Based upon our own review of the record, our de novo determination is

that joint legal custody is in J.E.H.’s best interest, the presumption based upon

prior history of domestic abuse is rebutted, and joint legal custody was properly

ordered by the district court and should be affirmed.

   IV. Transportation for visitation

       In her brief, Stephanie states that the transportation provisions for

visitation in the decree should be modified.         However, having made that

statement, neither Stephanie nor Chris discusses this issue further in their

respective briefs.   This court is left at this juncture to speculate on what

modifications are being requested, would be more beneficial, or would even work

without input from the parties. For this reason, we decline to modify the district

court decree and leave it for a later modification proceeding if either party finds

the current transportation arrangements unworkable.         This issue is deemed

waived. See Iowa R. App. P. 6.903(2)(g)(3).

   V. Court costs.

       Stephanie contends that the district court erred in requiring her to pay all

of the court costs related to this action other than the court-appointed attorney

fees which Chris incurred in the contempt actions. Court costs are generally

controlled by Iowa Code section 625.1, which provides, “Costs shall be recovered

by the successful party against the losing party.”      Nonetheless, in an equity

action the trial court has a large discretion in the matter of taxing costs and we
                                        12

will not ordinarily interfere therewith. Wymer v. Dagnillo, 162 N.W.2d 514, 519

(Iowa 1968).

       The district court did not give an explanation for the assessment of court

costs. The evidence in this case shows that at the time of trial, both parties had

approximately the same annual income.         Pay records submitted at trial and

attached to Child Support Worksheets indicated that Chris had earned $5,217.13

between June 26 and November 9, 2014, representing twenty weeks of work.

Extrapolating to fifty-two weeks, Chris would have $13,564.54 annual gross

income. Stephanie testified she earns $10.72 per hour, at twenty-five hours per

week, or $13,936.00 annually, but she expected to have her weekly hours

increased once she completed a probationary period.

       Stephanie argues that even though their annual incomes appear to be

equal, she is obligated to pay $600 per month in day care expenses for J.E.H.

When this factor is included in the analysis, she contends that Chris is in a better

position to afford the court costs and they should be assessed to him. This court

cannot agree. The payment of day care expenses is already included in the

calculation of child support which Chris is ordered to pay.       See Iowa Ct. R.

9.5(10) (“Actual child care expense while custodial parent is employed, less the

appropriate income tax credit.”)

       It appears the district court assessed court costs to Stephanie on the basis

of section 625.1, in that Chris prevailed on the primary issue in the custody trial,

receiving joint legal custody. This ignores the case law which grants the court

discretion in an equity action. It is more equitable to base the assessment in this

case on the parties’ respective incomes, which are approximately equal. The
                                        13


costs in this case should be assessed one-half to each party, with Chris

responsible for reimbursement of his court-appointed attorney fees in the

contempt proceedings.

   VI. Conclusion

       The district court did not incorrectly apply the statutory analysis regarding

the presumption when there is a finding of a history of domestic abuse. Upon de

novo review, we find the evidence rebutted the presumption, and the award of

joint legal custody appropriate. Finally, the case is remanded to the district court

for entry of an order assessing the court costs in this action one-half to each

party, except that Chris shall be responsible for reimbursement of his court-

appointed attorney fees in the contempt proceedings. All other provisions of the

district court’s Findings of Fact, Conclusions of Law and Orders Related to

Custody Matters filed on February 5, 2012 are affirmed. Costs of the appeal are

assessed equally to each party.

       AFFIRMED IN PART, MODIFIED IN PART AND REMANDED FOR

ENTRY OF ORDER ON COURT COSTS.
