                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1111
                              Filed April 15, 2020


GREGORY PAUL KARWAL,
    Plaintiff-Appellant,

vs.

JODI LYNN BROOKSHIRE-BAILEY,
      Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cass County, Margaret Popp Reyes,

Judge.



      A father challenges the district court’s ruling on his petition to establish

paternity, custody, support, and visitation. AFFIRMED AS MODIFIED.



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

Des Moines, for appellant.

      P. Shawn McCann of McGinn, Springer & Noethe, Council Bluffs, for

appellee.



      Considered by Bower, C.J., and Greer and Ahlers, JJ.
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GREER, Judge.

       Greg Karwal appeals the district court ruling on his petition to establish

paternity, custody, support, and visitation. Greg argues the court erred by granting

Jodi Brookshire-Bailey physical care of their minor child, declining to split

uncovered medical expenses equally between the parties, and determining the

child’s surname. Jodi requests attorney fees. We modify the district court order

on the uncovered medical expenses and the child’s surname and affirm the

modified district court order. We decline to award appellate attorney fees.

       I. Background Facts and Proceedings.

       Greg and Jodi began dating in the fall of 2016. Soon after, they moved in

together and Jodi found out she was pregnant. Greg was not supportive of the

pregnancy, and they broke up. Their child, B.R.B., was born in June 2017.

       On July 20, 2017, Greg petitioned to establish paternity, custody, support,

and visitation. He asked for sole legal custody and physical care of the child. He

also asked the court to impose permanent child support and medical support

obligations; to add his name to the child’s birth certificate; and to change the child’s

surname to Karwal.

       On August 31, the State filed a child-in-need-of-assistance (CINA) petition

for B.R.B. after it was reported to the Iowa Department of Human Services (DHS)

that Jodi had tried to harm the child in utero. Jodi has consistently denied any

allegation of harm.     In addition to this CINA action, Jodi consented to the

termination of her parental rights to two older children in separate juvenile court

proceedings.
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       On September 6, the district court took judicial notice of B.R.B.’s pending

CINA case to stay the paternity proceedings until the CINA case was resolved or

until the district court was granted concurrent jurisdiction.

       In the ongoing CINA case, the juvenile court removed the child from Jodi’s

care in November and ordered placement in foster care. By January, the child

transitioned to Greg’s care, and Jodi was given visitation. Her visitation with the

child continued to increase until the parties had shared physical care before the

trial on this matter.

       The district court was granted concurrent jurisdiction on June 7, 2018, and

lifted the stay on this case. At that point the case progressed through the district

court resulting in a trial.

       During the March 8, 2019 trial on the petition, Greg asked the court to take

judicial notice of three juvenile court case files, including B.R.B.’s CINA case. The

other two juvenile cases involved Jodi’s two older children and did not involve

B.R.B. Jodi’s counsel objected. The court took “notice that those files do exist”

but continued,

       If there are exhibits or particular pieces of information or rulings in
       those cases that we need to make a part of this record, what I would
       say is I’ll just hold the record open at the end of today’s proceeding
       as those are developed through the evidence in today’s hearing and
       we can utilize those or upload those as exhibits or take a particular
       notice of individual exhibits in those cases or rulings in those cases
       in this matter. So, I won’t take judicial notice of the files and
       everything in them. I will take notice that they do—that those cases
       are, in fact, cases that involve the same or some of the same parties
       in this case, and we’ll see where the evidence goes and what other
       individual exhibits or information and rulings we need to take notice
       of in this case.
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       At trial the court heard testimony from: Greg; Jodi; Karen Mailander, the

guardian ad litem from the CINA case; Jordan Vetter, a Family Safety, Risk, and

Permanency (FSRP) worker; MarJean Pedersen, the DHS caseworker; Brittany

Karwal, Greg’s wife; Stephanie Kinzie; Mark Foegen, a Court Appointed Special

Advocate volunteer; and Eric Bailey, Jodi’s husband. These witnesses offered

details about parts of the juvenile cases.

       At the end of the trial, the court appeared to take a different approach to the

juvenile court cases and stated,

       I believe what I said was I would take judicial notice of the files. If
       there was a final order in there, I would take judicial notice of that. If
       you want the court to consider a specific order on a specific day, I’d
       prefer that it were uploaded as an exhibit similar to the September
       21st order.

       That said, in the court’s May 23 ruling, the court again addressed the

juvenile court cases,

       The court takes notice of the juvenile court files, but no specific
       documents from those files will be considered in this matter unless
       offered as exhibits in this case. Additional exhibits from the juvenile
       court file were discussed at trial, but not admitted into evidence. The
       court stated that it would not take judicial notice of any specific
       documents from the juvenile court file that were not uploaded as
       exhibits in this matter. Greg’s counsel requested that the record
       remain open to allow him to upload Exhibits 2 through 4 into EDMS
       which the court notes have not yet been filed. The court directs
       Greg’s counsel to file those exhibits within five (5) days of the date
       of this order. If the exhibits are not filed, they will not be considered
       a part of the record in this matter.

       After considering all the evidence, the court ordered joint legal custody but

concluded that shared physical care was not in the child’s best interest. The court

granted Jodi physical care. Then the court awarded Greg liberal visitation of every

other weekend, every Wednesday from 6:00 p.m. until Thursday at 6:00 p.m., four
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weeks of summer visitation, and traded holidays between the parties. As for

uncovered medical expenses, in spite of a mediation agreement splitting these

costs equally, the court ordered the parties to split these “expenses in proportion

to their respective net incomes (60% for Greg and 40% for Jodi).” The court

ordered the child’s surname changed to “Karwal” or “Brookshire Karwal” but

directed the parties to agree on which one.

         Disputing the rulings, Greg filed a motion for stay, motion to reconsider, and

motion for new trial, which were denied. Greg appeals. In his designation of

appendix on appeal, Greg seeks to submit filings not only from B.R.B.’s juvenile

court case but also from the other two juvenile court cases. Jodi objects to

including these documents in the appendix and to any reference to these

documents in Greg’s appellate brief.

         II. Standard of Review.

         “Generally, in paternity actions, we review issues ‘ancillary to the question

of paternity, such as support,’ de novo.” Markey v. Carney, 705 N.W.2d 13, 19

(Iowa 2005) (quoting Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996)); see also

Iowa R. App. P. 6.907. We give weight to, but are not bound by, the district court’s

credibility determinations. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa

2015).

         III. Analysis.

         We must first address whether we will take judicial notice of the prior

juvenile court cases, including the documents from those cases Greg submitted in

his designation of appendix. We will then address the merits of Greg’s appeal and

Jodi’s request for appellate attorney fees.
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       A. Judicial Notice. Greg argues the district court took judicial notice of all

three juvenile court files.    Yet the court’s decree suggests otherwise.           So,

alternatively, Greg argues we should take judicial notice of these cases and

consider the documents from these cases on our review.

       Iowa Rule of Evidence 5.201(b) provides:

       The court may judicially notice a fact that is not subject to reasonable
       dispute because it:
               (1) Is generally known within the trial court’s territorial
       jurisdiction; or
               (2) Can be accurately and readily determined from sources
       whose accuracy cannot reasonably be questioned.

       A court “[m]ay take judicial notice on its own,” but “[m]ust take judicial notice

if a party requests it and the court is supplied with the necessary information.” Iowa

R. Evid. 5.201(c).    “The court may take judicial notice at any stage of the

proceeding,” including on appeal. Iowa R. Evid. 5.201(d); State v. Washington,

832 N.W.2d 650, 655 (Iowa 2013). “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.’” Washington,

832 N.W.2d at 655–56 (quoting Leuchtenmacher v. Farm Bureau Mut. Ins. Co.,

460 N.W.2d 858, 861 (Iowa 1990)).

       Here, the district court knew that Jodi had her parental rights terminated to

two other children. Even so, Jodi objected to the district court taking judicial notice

of the entirety of the prior juvenile court case files. The court agreed and, more

than once, instructed Greg to submit as exhibits any documents from the prior

juvenile court cases he wished the court to consider in making its ruling. While the

court’s statements at the end of the trial seem to contradict its original ruling, the
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court clarified its original position in its written ruling. The court held the record

open for five days after entering the order to allow Greg to submit documents he

believed were relevant.

       And Greg made available some juvenile court materials. He limited those

juvenile court documents filed to: Exhibit 1, the September 21, 2018 permanency

order from B.R.B’s CINA case; Exhibit 2, a hospital record for the incident

underlying B.R.B.’s CINA case; Exhibit 4, the adjudicatory and temporary removal

order from B.R.B.’s CINA case; Exhibit F, the motion to retain jurisdiction in

B.R.B.’s CINA case; and Exhibit G, the juvenile court’s ruling on the motion to

retain jurisdiction. Plus the court admitted an affidavit of the adoptive mother of

Jodi’s two older children as well as two therapy notes involving the older children.

We note the trial court and parties referenced the details of the juvenile cases

many times during the trial.      Yet ignoring the guidance in the decree, Greg

submitted no other documents from the juvenile court files.

       Under these circumstances, we decline to take judicial notice of the prior

juvenile court cases or any of the documents Greg included in his designation of

appendix that he did not submit to the district court as exhibits during and after

trial. We will conduct our de novo review based on the record made at trial and

without regard to the documents Greg submitted in his appendix that the trial court

did not consider.

       B. Physical Care. Greg argues the district court erred by granting Jodi

physical care of the child. According to Greg, the district court gave too little weight

to the concerns about Jodi’s parenting and overlooked that he was the superior

parent.
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       “Once it is decided that joint physical care is not in the best interest of the

child[], the court must next choose which caregiver should be awarded physical

care.” In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). “The parent

awarded physical care is required to support the other parent’s relationship with

the child.” Id. We “must examine each case based on the unique facts and

circumstances presented” and give “considerable weight” to “the factors of

continuity, stability, and approximation.” Id. Another important consideration is

“the degree of communication and mutual respect.” Id.

       After considering the applicable law and the specific facts of this case, the

district court noted it was a “tough call” but concluded that Jodi should have

physical care of B.R.B. and Greg should have liberal visitation. The court found

that although Greg had been the child’s primary caregiver since January 2018,

Jodi’s visitation had increased to the point that, at the time of trial, the parties were

sharing care. The court found continuity of care for the child weighed equally in

favor of both parents.

       After considering Jodi’s history, the court addressed the prior concerns with

Jodi’s parenting, noting, “By all accounts Jodi has cooperated with DHS and taken

steps to improve her life and her parenting skills during the pendency of the juvenile

court case involving B.R.B.” The court found Jodi’s testimony that she did not try

to harm the child in utero credible.

       But at the core, the court found that the current level of conflict between the

parties weighed against shared care and also weighed against awarding physical

care to Greg.    The court granted physical care “to Jodi because she openly

acknowledges the importance of BRB’s relationship with Greg and is more likely
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to foster an on-going relationship between Greg and BRB.” In contrast, the court

noted that Greg believed he was the superior parent, did not respect Jodi, and was

not supportive of her relationship with the child. The court found Greg had trouble

cooperating and communicating with Jodi, noting,

       The court is concerned that Greg was critical of Jodi throughout the
       trial and unwilling to acknowledge any positive efforts made by Jodi
       despite testimony showing otherwise. Greg and Jodi have differing
       parenting styles, but the court finds Jodi more willing to compromise
       and cooperate with Greg than Greg is with Jodi. The court fears that
       Greg’s animosity toward Jodi may ultimately affect his ability to act
       in BRB’s best interest as evidenced by the number of complaints
       involving DHS between these two parents.

       We agree with the district court’s decision to grant Jodi physical care of

B.R.B. While Greg loves and is bonded with the child and provides him with

excellent care, the trial court heard and saw the witnesses and made specific

findings supported by the evidence. See In re Marriage of Brown, 778 N.W.2d 47,

50 (Iowa Ct. App. 2009). That said, we agree with the district court’s evaluation

that Jodi’s acknowledgement of Greg’s strengths as a parent and Greg’s lack of

respect toward Jodi make Jodi the preferable physical caregiver. We affirm the

district court’s award of physical care.

       C. Visitation. Greg argues that if we affirm the district court’s physical care

award, we should modify the visitation award to give him visitation for half of the

summer. Interestingly, Greg now requests more visitation for himself than he was

willing to give Jodi if he were the physical caregiver.

       The court awarded Greg visitation every week from Wednesday at 6:00 p.m.

to Thursday at 6:00 p.m., every other weekend from Friday at 6:00 p.m. to Sunday

at 6:00 p.m., and four weeks in the summer in two-week stretches. These are
                                          10


guidelines, and parents can agree to expand time beyond any court ordered time.

See In re Petition of Holub, 584 N.W.2d 731, 733 (Iowa Ct. App. 1998) (noting that

successful parenting involves setting aside petty differences to act in the child’s

best interest).   But here we find the visitation parameters in the child’s best

interests and decline to disturb the district court’s visitation award.

       D. Uncovered Medical Expenses. Greg challenges the district court’s

decision to split the child’s uncovered medical expenses sixty percent–forty

percent instead of fifty–fifty as the parties agreed in the mediation agreement.

       As for uncovered medical expenses, Iowa Court Rule 9.12(5) directs the

court that

       the custodial parent shall pay the first $250 per year per child of
       uncovered medical expenses up to a maximum of $800 per year for
       all children. Uncovered medical expenses in excess of $250 per
       child or a maximum of $800 per year for all children shall be paid by
       the parents in proportion to their respective net incomes.

       The parties agreed in a mediation scheduled about one month before trial

to split the uncovered medical expenses fifty-fifty, ignoring the court rule.

Settlement stipulations are a contract between the parties. In re Marriage of Jones,

653 N.W.2d 589, 593–94 (Iowa 2002). And the court recognizes the validity of

agreements resolving issues but “retains the power to reject the stipulation” if it “is

unfair or contrary to law.” In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996).

       Here the court determined the parties should split all uncovered medical

expenses with Greg paying sixty percent and Jodi paying forty percent, after Jodi

pays the first $250 of those expenses each year. In making this determination, the

court considered the parties’ income. Neither Greg nor Jodi works. Greg receives

$2000 per month in social security disability benefits and sometimes earns money
                                          11


by working on his parents’ farm. On his child support worksheet, Greg used the

minimum wage to calculate an annual income of $15,080. Greg used this income

during mediation when the parties agreed to split costs equally. However, the

district court used the $2000 monthly benefit amount to calculate Greg’s annual

income at $24,000. The court found that while Jodi was not working, she was

capable of earning minimum wage for an annual income of $15,080. It was this

difference in income that supported the court’s sixty–forty split for uncovered

medical expenses.

         Jodi argues that at trial she learned Greg made more than originally thought

and now the agreement is unfair. She champions the court’s decision. Yet Jodi

had counsel during mediation, the trial date was less than a month away, and she

entered a contract with Greg willingly. 1 The complaint she lacked the information

to meaningfully resolve the uncovered medical expense issue is unsupported in

the record. See In re Marriage of Briddle, 756 N.W.2d 35, 40–41 (Iowa 2008)

(enforcing mediation agreement even though wife asserted that husband

misrepresented his income where information refuting her allegation was available

to her). Moreover, at trial Jodi confirmed she remained in agreement with the

terms.

         Because the mediation agreement deviates from our court rule but still

remains equitable, we see no reason to not enforce the terms. See id. at 41–42

(enforcing mediation agreement even though court might condone a different

solution). We conclude the court should have enforced the mediation agreement


1 Certainly a month out from trial the parties should have the requisite information
to mediate the terms of a stipulation.
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on the uncovered medical expenses with Greg paying fifty percent and Jodi paying

fifty percent. We modify the district court ruling accordingly.

       E. Surname. The district court ordered that the child’s surname should be

changed to “Karwal” or “Brookshire Karwal,” but left it up to the parties to decide

between the two. The parties cannot agree on a surname.

       “When a parent unilaterally chooses a child’s name, the other parent may

request the court to examine the name issue.” Montgomery v. Wells, 708 N.W.2d

704, 706 (Iowa Ct. App. 2005). “[W]hen the court first entertains an action between

the parents to determine their legal rights and relationships with each other and

the child, the court may also consider the legitimacy of the child’s original naming

as part of its determination of the child’s legal status and custody.” Id.; see also

id. at 708–09 (listing factors to consider when determining a child’s last name).

Recently, “more courts have recognized the benefits of using a hyphenated

surname for a child whose parents live separately.” See In re Uker, No. 10-1829,

2011 WL 2420702, at *3 (Iowa Ct. App. June 15, 2011) (citing cases).

       This child is incredibly fortunate to have two loving parents who are actively

involved in his life. For that reason, we conclude the child’s surname should reflect

both parents. The child’s surname will be “Brookshire Karwal.”

       F. Appellate Attorney Fees. Finally Jodi requests a $5000 award of

appellate attorney fees. “In a proceeding to determine custody or visitation, or to

modify a paternity, custody, or visitation order under this chapter, the court may

award the prevailing party reasonable attorney fees.” Iowa Code § 600B.26. An

award of attorney fees is not a matter of right but is within the sound discretion of

the court. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). While Jodi
                                        13


prevailed on most of the claims on appeal, after considering the parties’ financial

circumstances, we decline to award Jodi appellate attorney fees in this case.

      IV. Disposition.

      For the above stated reasons, we affirm the district court order as modified.

The parties will each be responsible for their own attorney fees.

      AFFIRMED AS MODIFIED.
