                   IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0452
                             Filed September 27, 2017


MARC RUDEN,
    Plaintiff-Appellee,

vs.

KYRA PEACH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      Kyra Peach appeals the district court’s judgment on Marc Ruden’s petition

to establish paternity, custody, visitation, and support of their child. AFFIRMED

AS MODIFIED, AND REMANDED WITH DIRECTIONS.




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

Des Moines, for appellant.

      Jamie A. Splinter of Splinter Law Office, Dubuque, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Kyra Peach appeals the district court’s judgment on Marc Ruden’s petition

to establish paternity, custody, visitation, and support of their child.       She

contends granting her physical care of the child is in the child’s best interests.

Both parties request an award of appellate attorney fees.

       I. Background Facts and Proceedings.

       Kyra met Marc when she interviewed for an internship with Marc’s

employer, IIW Engineering. The part-time internship began in January 2014. At

the time, Kyra was a student in an engineering program and was in a relationship

and living with Jeremy Peach. Marc was married.

       After Kyra earned her engineering degree in the spring of 2014, she

moved to Dubuque, where she lived with Jeremy and began working full-time at

IIW. IIW assigned one of its employees to act as Kyra’s mentor. After that

employee left the company, IIW assigned Marc to be Kyra’s mentor. Because

her work went through Marc, Kyra viewed him as her boss.

       Marc began to pursue and initiated a romantic relationship with Kyra.

They began an affair sometime during the summer of 2014. Kyra ended her

relationship with Jeremy.    By October, the affair ended.      Kyra resumed her

relationship with Jeremy, and they became engaged to be married. Marc and his

wife separated and eventually divorced.

       After the affair ended, Kyra learned she was pregnant and informed Marc.

Initially, the two maintained a friendly relationship, but Kyra perceived Marc to be

persistent in his attempts to resume a romantic relationship with her, which made

her uncomfortable at work. After IIW assigned Kyra a new mentor, she believed
                                          3


Marc began to treat her differently in the workplace. She resigned from IIW in

February 2015 due to the tension and stress she felt at work. Marc did not

contact Kyra after she left IIW.

        Marc filed a paternity action shortly before the child’s June 2015 birth.

Because Kyra and Jeremy were planning to marry in July, Kyra gave the child

Jeremy’s surname, which Kyra also assumed upon marrying him. Initially, the

child’s birth certificate did not name the child’s father, though Kyra later had

Jeremy’s name added as the child’s father.            Paternity testing eventually

established that Marc is the child’s father.

        Marc began having visits with the child in July 2015. In September 2015,

the district court entered a temporary order placing the child in Kyra’s care and

providing Marc visits with the child each Tuesday and Thursday, as well as

alternating weekends.      After Kyra was hired as a wastewater engineer in

Baraboo, Wisconsin, she sought permission to relocate the child to Wisconsin

and to modify the temporary visitation schedule to accommodate her anticipated

move.

        Marc wanted extended visits with the child, including overnight visits.

Because Kyra was practicing attachment-style parenting, including breastfeeding

and co-sleeping, she opposed overnight visits until the child was older but agreed

to lengthen Marc’s daytime visits.      After a hearing in April 2016, the court

modified temporary custody and visitation to alternate care of the child between

the parties for three consecutive nights at a time.

        The matter came to trial in November 2016, and the district court entered

its judgment the following month. The court placed the child in Marc’s physical
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care and continued the three-day rotation of custody between the parties until the

child reached the age of three, at which point Kyra was granted visitation on

alternating weekends and an overnight visit every Wednesday. Also, once the

child reached age three, “if either parent is intending to take the child on an

extended vacation, they shall be entitled up to seven days of uninterrupted time

for out-of-town travel each month of the summer, which are June, July and

August (first two weeks only.)” (Emphasis in original.)        Kyra filed a motion

seeking to enlarge and amend the court’s findings and modify its judgment, the

bulk of which the court denied.

       II. Scope and Standard of Review.

       We review the district court’s custody determination de novo. See Mason

v. Hall, 419 N.W.2d 367, 369 (Iowa 1988) (stating the appellate court reviews

custody determinations made in paternity actions de novo). Although we may

give the district court’s fact finding weight, they are not binding on us.      See

Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995).          This includes

credibility findings. See id.

       Kyra argues this court should not defer to the district court’s findings

concerning the parties’ credibility, claiming the court’s “implicit bias against Kyra

is evidenced from the trial record and the court’s ruling.” She cites a portion of

the court’s findings of fact in which the court found Kyra’s claim Marc created a

hostile work environment at IIW were not credible. The district court’s adverse

credibility finding was based, in part, on purported exhibitionist behavior by Kyra

during a break in the trial.
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       Kyra filed a motion asking the district court to enlarge and amend its fact

findings.    In it, she complained about the court’s reliance on “ex parte

extrajudicial resources” in its findings, explaining:

       The court’s reference to [Kyra] being seen by court personnel
       during a break in the trial is not on the record. The court did not
       bring the incident to the attention of the parties or their counsel
       during the trial. [Kyra] has not had a chance to rebut the court’s
       allegations. [Kyra] and her attorney were not aware of these
       allegations until they read the Judgment filed December 21, 2016.
       The statement made by the court is inflammatory, not based on the
       trial record, and should not be considered by the court as it came
       from an ex parte extrajudicial resource. [Kyra] requests that the
       sentence, “In fact, during one of the breaks in the trial, she was
       seen by court personnel in the courtroom with her shirt up and her
       breasts exposed” be deleted from the Judgment and not
       considered by the court.

       In denying Kyra’s request, the district court asserted it “has the ability to

make observations of everything that goes on in the courthouse during a trial.”

The court asserted that it carefully watched the parties conduct toward each

other, their attorneys, and their witness. Based on these observations, the court

concluded:

       [Kyra]’s conduct during the trial once again shows her complete
       disregard for those around her. While the break occurred when the
       observations were made of [Kyra], there were male workers within
       the courthouse and the courtroom maintaining the new heating and
       cooling system. They had been walking in and out of the
       courtroom, and this fact was very clear to all within the courtroom.
       That was the reason the issue was raised with the court. In fact,
       [Kyra]’s attorney was in the courtroom when her conduct occurred.

       It is well settled that a factfinder may “take into account the conduct and

appearance of the witness on the witness stand” in determining the facts. See

Bauer v. Reavell, 260 N.W. 39, 47 (Iowa 1935). A witness’s demeanor while

testifying—as perceived through the witness’s “carriage, behavior, bearing,
                                           6


manner and appearance”—is part of the evidence, and factfinders “may, and

indeed they should, take into consideration the whole nexus of sense

impressions which they get from a witness.” Dyer v. MacDougall, 201 F.2d 265,

268-69 (2d Cir. 1952). However, the court here went beyond its observations of

Kyra during her testimony—and even during the course of the trial. The conduct

cited by the trial court, though alleged to have occurred in the courtroom, took

place outside of trial altogether. By relying on conduct outside the record in

making its credibility determination, the court became a witness. See Kovacs v.

Szentes, 33 A.2d 124, 125-26 (Conn. 1943) (stating the trial court, by reciting its

observation of the parties and their conduct during trial in its findings, made itself

an unsworn witness to material facts without the defendant having any

opportunity to cross-examine, offer countervailing evidence, or know upon what

evidence the decision would be made); Dworkis v. Dworkis, 111 So. 2d 70, 74

(Fla. Dist. Ct. App. 1959) (“The effect of a trial judge’s observation of a party’s

manner and demeanor in the court room should be limited to its bearing on the

credibility to be accorded to the party’s testimony given under oath; and such

observations by the judge should not be the basis for findings by the court on

disputed facts, to the contrary of that party’s position, because in so doing a

judge may be said to have made himself a witness, unsworn and not cross-

examined.”). A judge cannot function as a witness because it is inconsistent with

the impartiality expected of the court. See Iowa R. Evid. 5.605; State v. Gardner,

661 N.W.2d 116, 118 (Iowa 2003) (noting a judge may function as a witness

without actually taking the stand to testify).
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       [I]t runs against the grain of fairness to say that the same judge
       may consider his own crucial testimony and recollection rebutting
       petitioner’s claim and simultaneously pass upon the credibility of all
       witnesses in weighing the evidence. A member of the judiciary has
       no peculiar competence in factual recollection of unrecorded
       events. . . . A party should be permitted to test a judge’s
       recollection, as a witness presenting factual material testimony, as
       he would any other witness upon cross-examination.

Id. (quoting Tyler v. Swenson, 427 F.2d 412, 415 (8th Cir. 1970)).

       We further note that the conduct the court relied on in making its credibility

determination took place outside the presence of the court itself. Rather than

basing its determination on behavior it witnessed directly, the court cited an out-

of-court statement of an unknown declarant made outside of the record, the

presence of the parties, and the presence of their attorneys.               Because the

statement itself is not contained in the record, there is no explanation beyond the

court’s vague summary as to what allegedly occurred. We have no context for

the behavior alleged.1       Under these circumstances, we have no basis for

deferring to the court’s credibility finding. In fact, as the statement relied on is not

contained in the record, it would be improper for us to do so. Cf. Hadley Mfg.

Corp. v. Amalgamated Clothing Workers, 108 N.L.R.B. 1641, 1644 (1954)

(declining to adopt credibility findings when it could not be determined whether

the determinations were made based on factfinders “objective appraisal of the

demeanor of witnesses on the stand . . . or on other entirely irrelevant factors

which are reflected in the injudicious statements appearing throughout” the
1
  Context is important. Even if the allegation is true and evidence of it had been included
in the record, this court is aware of situations in which such conduct is acceptable. For
instance, since 2000, Iowa law has permitted a woman to breastfeed her child in any
public place where her presence is otherwise authorized. See Iowa Code § 135.30A
(2015) (enacted by 2000 Iowa Acts ch. 1140, § 21). The presence of others during such
an act—male or otherwise—would not support the credibility finding made by the district
court.
                                          8

factfinder’s decision). See generally Penasquitos Village, Inc. v. NLRB, 565 F.2d

1074, 1084-89) (9th Cir. 1977) (Duniway, J., concurring in part and dissenting in

part) (outlining concerns regarding the reliability of credibility determinations that

are based on a witness’s demeanor).

       III. Child Custody.

       Our first and governing consideration in child custody cases is the best

interests of the child. See Iowa R. App. P. 6.904(3)(o). The goal is to place the

child in the care of the parent who is best able to minister to the child’s long-term

best interests. See In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974).

In making this determination, we consider the list of factors set forth in Iowa Code

section 598.41, along with other relevant factors. See Iowa Code § 600B.40; In

re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). We seek to place the

child in the environment most likely to foster physical and mental health, as well

as social maturity. See Phillips, 541 N.W.2d at 847.

       In determining what custody arrangement is in the child’s best interests,

the court must consider what arrangement

       will assure the child the opportunity for the maximum continuing
       physical and emotional contact with both parents . . . and which will
       encourage parents to share the rights and responsibilities of raising
       the child unless direct physical harm or significant emotional harm
       to the child is likely to result from such contact with one parent.

Iowa Code § 598.41(1)(a).       A “significant factor” in determining custody is

whether one parent has denied the child’s opportunity for maximum continuing

contact with the other parent without just cause.       See id. § 598.41(1)(c).     In

addition, the courts have typically afforded weight to the parent who has acted as

the child’s primary caretaker in the past. See Hansen, 733 N.W.2d at 696-97
                                            9


(noting the importance of affording children stability and continuity in determining

custody).

         The court’s custody determination seems premised primarily on its belief

that Kyra has obstructed Marc’s relationship with the child.                  Though it

acknowledged that Kyra has been the primary caregiver to the child, the court

declined to give this factor any weight because it believed Kyra

         created a false reality in this role since she has made every effort to
         keep [Marc] from having the child in his care until the court ordered
         a schedule. She avoided his involvement prior to and at the time of
         her birth. She avoided it after the child was born. She gave in and
         allowed contact but only under her and her spouse’s supervision.

We disagree with the court’s findings.2 It is clear that Kyra wished to raise the

child with Jeremy without Marc’s involvement and communicated as much to

Marc. However, Marc initially agreed to this arrangement or, at least, conveyed

to Kyra that he would honor her wishes. Marc never contacted Kyra after she

quit IIW, and believing that Marc was surrendering any claim of paternity to the

child, Kyra had no need to involve Marc in her life prior to the child’s birth. It was

not until she was served with the paternity action that Kyra had any indication

that Marc’s position had changed. Marc testified that in July, Kyra called to ask if

she and Jeremy could bring the child to Marc’s house for a visit, and Kyra

continued to provide Marc with visits before the entry of the temporary visitation

order.


2
  The district court’s judgment is replete with instances in which we disagree with its
characterization of the evidence. For instance, the court excoriated Jeremy for a history
of drug use while characterizing Marc’s act of driving “after drinking excessively,” which
resulted in his conviction for reckless homicide, as “an unfortunate accident that led to
his incarceration.” Rather than address each instance of disagreement, we address only
those factors most relevant to the custody determination while undertaking our de novo
review.
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         The district court faulted Kyra for attempting to move the child out of the

state. In our independent review of the record, we find Kyra’s attempt to move

out of the state was motivated less by a desire to remove Marc from the child’s

life than by a desire to use her engineering degree to provide for her family when

she was unable to find employment near Dubuque.3

         The district court also faults Kyra by finding the temporary visitation

schedule she agreed to “was of no benefit to [Marc] being able to bond with the

child since the child napped most of the time during the visits.” At the time the

temporary visitation schedule was entered, the child was only a few months old.

It appears that the child’s sleep schedule was typical for an infant. There is no

evidence to support a finding that the child’s naps during those visits were a

product of Kyra’s design to attempt to prevent Marc from forming a bond with the

child.

         The record shows the parties have differing views on how to raise the

child. Kyra firmly believes an attachment style of parenting will best serve the

child’s interests. Despite the myriad of evidence Kyra presented on the merits of

this parenting style, the district court viewed it as another vehicle by which Kyra

attempted to remove Marc from the child’s life.             Again, the record does not

3
   The district court stated it “suspects” that Kyra’s difficulty in obtaining employment near
Dubuque was due, in part, to the complaint Kyra filed with the Iowa Civil Rights
Commission. Even assuming this is true, we note that the act of opposing unlawful
treatment in the workplace by filing a civil rights complaint is a legally protected activity.
See Iowa Code § 216.11(2) (prohibiting discrimination or retaliation against anyone who
files a complaint under the Iowa Civil Rights Act). To attribute any fault to a complainant
for difficulty in obtaining employment based on the act of filing a civil rights complaint
would discourage others from opposing unlawful employment practices and would
therefore be contrary to the purpose of the Iowa Civil Rights Act. See Sommers v. Iowa
Civil Rights Comm’n, 337 N.W.2d 470, 473 (Iowa 1983) (noting one purpose of the Iowa
Civil Rights Act is “to eliminate unfair and discriminatory practices in . . . employment”
(quoting 1965 Iowa Acts ch. 121)).
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support this finding. Although Kyra strongly opposed overnight visits with Marc at

the child’s age because it was contrary to her parenting style, she never

interfered with Marc’s overnight visits after the district court modified the

temporary order. Moreover, Kyra testified that because the child had adapted to

overnight visitation with Marc, she no longer opposed them.

      Ultimately, we are presented with a choice between two parents who are

each capable of providing appropriate care for the child. Looking at the record

since the child was born, we find both parties are capable of cooperating to raise

the child and supporting each other’s relationship with the child, and we expect

both parties will continue to do so. However, we must determine which parent is

better able to minister to the child’s best interests. On one side, we have Kyra

and Jeremy, who have a long-term relationship and have been married since just

after the child was born. Jeremy provides care for the child as a stay-at-home

father while Kyra is at work. Kyra, who has practiced an attachment style of

parenting, has been the child’s primary caretaker and, as a result, has a close

bond with the child. On the other side, we have Marc, who is unmarried but can

rely on family members to care for the child while he works. The court’s modified

temporary order afforded Marc a more active role in caring for the child in the

months leading up to the trial. However, on the record before us, we find Kyra is

best suited to act as the child’s physical caretaker. Therefore, we modify the

judgment of the district court to place the child in Kyra’s physical care. We

remand to the district court to determine the issues of visitation and support

based on the present circumstances.
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      IV. Appellate Attorney Fees.

      An award of appellate attorney fees is discretionary.       See Markey v.

Carney, 705 N.W.2d 13, 26 (Iowa 2005).        In determining whether to award

appellate attorney fees, we consider “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.”          Id. (citation

omitted).

      We decline to award either party their appellate attorney fees.

      AFFIRMED AS MODIFIED, AND REMANDED WITH DIRECTIONS.
