                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1164
                               Filed May 3, 2017


MANUELA BAKER,
    Plaintiff-Appellee,

vs.

MICHAEL R. JONES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Edward A.

Jacobson, Judge.



      A father appeals the decree that placed the parties’ child in the physical

care of the mother. AFFIRMED.




      Craig H. Lane, Sioux City, for appellant.

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

Des Moines, and Jacquelyn Johnson of Vonnahme Law, P.C., Sioux City, for

appellee.



      Heard by Doyle, P.J., and Tabor and McDonald, JJ.
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PER CURIAM.

       Michael Jones appeals the court’s decree that granted the parties joint

physical care of the parties’ five-year-old son until such time as Manuela

(Mandie) Baker relocates to Louisiana.        When Mandie relocates, the court

ordered the child to be in Mandie’s physical care subject to Michael’s visitation

during the summer and three-day weekends during the school year. Michael

contends the court should have granted him physical care of the child when

Mandie moves to Louisiana because all of the child’s support system is in Iowa,

including the child’s half-sibling. Because we agree with the district court that the

child’s best interests favor placing the child in Mandie’s physical care if and when

she moves to Louisiana, we affirm the district court’s decision.

I. Background Facts and Proceedings.

       Michael and Mandie are the parents of five-year-old E.J.          The parties

never married, but when their romantic relationship ended in 2014, the parties

agreed to joint physical care, alternating the care of E.J. on a weekly basis and

agreeing no child support would be paid by either party. In November 2015,

Mandie filed a petition to establish custody, visitation, and support because she

anticipated relocating to Louisiana for her employment and wanted to have

physical care of E.J. In response, Michael asked for the joint physical care to

continue and, alternatively, requested physical care of E.J. if Mandie relocates to

Louisiana.

       The case proceeded to trial in April 2016. The district court issued its

decision in June, concluding in light of Mandie’s proposed relocation,
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       joint physical care is not physically possible in this case and
       therefore is not appropriate. The court finds that although the
       parties have successfully shared joint physical care thus far in the
       child’s life, the primary caregiver in times of need and in times of
       crisis for the child has always been Mandie. Although the court,
       like Mike, has concerns that the move to Baton Rouge will disrupt
       the child’s life, Mandie appears to have taken into consideration
       every detail, and the court believes that as long as the child is with
       Mandie, the child will be fine. Children of such tender years are
       extremely flexible, and the court has no doubt that Mandie will give
       the child the attention needed to adjust to the move to Baton
       Rouge.
               The court awards primary care of the minor child to [Mandie]
       subject to visitation with [Michael]. The court awards joint physical
       care of the minor child on a week-to-week basis until [Mandie]
       moves, at which time, the court awards her primary physical care of
       the minor child.

The court granted Michael visitation from three days after the child begins his

summer break from school until one week before school resumes, though

Mandie was granted one weekend per month during June and July. The court

also granted Michael visitation every spring break and every extended weekend

during the school year when E.J. has a Monday or Friday off.           In addition,

Michael is allowed to exercise visitation with E.J. in Louisiana one weekend per

month and two weeks during the school year. The court also ordered Mandie to

pay for the cost of E.J.’s travel that she schedules for visitation.     The court

ordered Michael to pay child support but required Mandie to provide the health

insurance for E.J. since E.J. will be living with her in Louisiana.

       Michael asserts on appeal the district court should have granted him

physical care of E.J. in the event Mandie moves to Louisiana because neither
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Mandie nor the child has a support system in Louisiana and E.J. has a half-

sibling1 and other extended family in Iowa.

II. Scope and Standard of Review.

       While actions to establish or overcome paternity are reviewed for the

correction of errors at law, see Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996)

(citing Iowa Code §§ 600B.10, .41A(5) (2015)), decisions that are ancillary to the

question of paternity, such as “support, custody, [and] visitation” are heard in

equity, and our review is therefore de novo. See Mason v. Hall, 419 N.W.2d 367,

369 (Iowa 1988). Under a de novo review, we examine the entire record and

adjudicate anew the issues properly presented. In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007). While we are not bound by the district court’s

findings of fact, we give weight to those findings, especially with respect to the

credibility of witnesses in light of the court’s firsthand opportunity to hear the

evidence and view the witnesses. In re Marriage of Brown, 778 N.W.2d 47, 50

(Iowa Ct. App. 2009).

III. Physical Care.

       In child custody cases, our focus is on the best interests of the child, and

“[o]ur objective is ‘to place the child in the environment most likely to bring that

child to healthy physical, mental, and social maturity.’” Lambert v. Everist, 418

N.W.2d 40, 42 (Iowa 1988) (citation omitted). Our analysis to resolve the issue

of physical care is the same whether or not the parents of the child had been

married.   Id.   We consider the statutory factors listed in Iowa Code section


1
 Michael has visitation with E.J.’s half-brother, who is approximately the same age as
E.J., every Tuesday and every other weekend.
                                                5

598.41(3) and the factors listed in In re Marriage of Winter, 223 N.W.2d 165,

166–67 (Iowa 1974).            Lambert, 418 N.W.2d at 42; see also Iowa Code

§ 600B.40.

          Mandie testified she planned to relocate to Louisiana in the next couple of

months (by August 20162) because her position with her employer was ending

and she had been offered a position in her employer’s home office in Louisiana.

Mandie testified she was making considerably more money with this employer

than she had ever made with any other employer. The most she had made

before working for her current employer was $12.75 per hour.                        Her current

employment paid her $27.00 per hour, and the position in Louisiana would pay

$25.00 per hour plus a relocation stipend of $60.00 per work day for the first

year. She testified she contacted a staffing agency who informed her that there

were no Sioux City employment opportunities with comparable income based on

her education and experience. Mandie asserted the agency would not take her

resume. But the last time Mandie sent out a resume to locate other employment

opportunities in the Sioux City area was seven months before the trial.

          Michael asserts Mandie should have the burden to show that her decision

to relocate for employment out of state is in the best interests of the child. He is

concerned that as of the time of trial Mandie had not yet adequately planned for

the move, such as obtaining housing and locating schools. He contends Mandie

has no family or support system in Louisiana and all the child has ever known

and all the people the child loves, including a half-sibling, are located in Iowa.

Michael thus asks that we permit the child to remain in Iowa with him and the

2
    No stay of the district court’s physical care decision appears in our record.
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child’s extended family instead of being “uprooted and placed in a state and in a

life about which he knows nothing” with the hope that the child “will adapt to all of

these unnecessary changes when he should not be forced to do so.”

       It was clear to the district court, and it is clear to this court on appeal, that

if both parties intended to remain in the same geographic locality, joint physical

care would be a viable and appropriate option considering how well these parties

have communicated over the previous two years and the obvious respect each

one has for the other party as a parent. Unfortunately, with Mandie’s intended

job relocation out of state, joint physical care is no longer an option. Thus, the

question before the district court, and this court on appeal, is which party can

best provide for E.J.’s long-term best interests.

       All factors bear on the “first and governing consideration,” the
       court’s determination of what will be in the long-term best interests
       of the child. The critical issue in determining the best interests of
       the child is which parent will do better in raising the child; gender is
       irrelevant, and neither parent should have a greater burden than
       the other in attempting to gain custody . . . .”

In re Marriage of Shanklin, 484 N.W.2d 618, 619 (Iowa Ct. App. 1992) (citation

omitted).

       While the parties were together and after the parties separated, Mandie

has been the primary caregiver during times of the child’s illness and has been

the parent who has made all arrangements for the child’s care, treatment, and

activities. She has scheduled and attended all physician appointments, selected

all day care providers, and been the one to schedule activities such as swimming

lessons and tee ball.     Mandie testified the reason she had not yet located
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housing, a school, and medical providers in Louisiana at the time of trial was

because she was awaiting the court’s physical care decision.

       Mandie’s job in Louisiana offers work hours from 8:00 a.m. to 4:30 p.m.,

whereas Michael’s employment in Iowa has extended evening and weekend

hours, requiring him to rely on his parents to care for E.J. when E.J. is not in day

care or school. We acknowledge that “[s]iblings in dissolution actions should be

separated only for compelling reasons” and this “principle has also been

recognized as having application to half siblings.”       In re Marriage of Quirk-

Edwards, 509 N.W.2d 476, 480 (Iowa 1993) (internal citations omitted).

However, while living in Iowa, E.J. has contact with his half-brother approximately

six days a month due to the current visitation schedule for each child. While

reducing that contact will have an impact on both children, the court ordered

visitation agreement in this case could still result in the children having at least

monthly contact and more extensive contact during the summer.

       Upon our de novo review of the evidence presented by the parties in light

of the appropriate custodial factors, we agree E.J. should be placed in Mandie’s

physical care. We affirm the decision of the district court.

IV. Appellate Attorney Fees.

       Mandie requests an award of appellate attorney fees in light of her

obligation to defend the district court’s decision on appeal.

       Appellate attorney fees are not a matter of right, but rather rest in
       this court’s discretion. Factors to be considered in determining
       whether to award attorney fees include: “the needs of the party
       seeking the award, the ability of the other party to pay, and the
       relative merits of the appeal.”
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In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (citations omitted);

see also Iowa Code § 600B.26 (noting a court may award the prevailing party

reasonable attorney fees in a paternity action). After consideration, we decline to

award Mandie appellate attorney fees.

      AFFIRMED.
