                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0413
                             Filed October 28, 2015


SEAN PATRICK RYAN,
     Plaintiff-Appellee,

vs.

JESSICA S. WRIGHT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cass County, Richard H. Davidson,

Judge.



      Jessica Wright appeals the district court’s order establishing joint legal

custody, subject to Sean Ryan’s liberal rights of visitation, to the parties’ two

minor children.     ORDER AFFIRMED; REMANDED FOR ADDITIONAL

FINDINGS.



      Earl B. Kavanaugh and Jaclyn M. Zimmerman of Harrison & Dietz-Kilen,

P.L.C., Des Moines, for appellant.

      Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for

appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
                                         2


VOGEL, Presiding Judge.

      Jessica Wright appeals the district court’s order establishing joint legal

custody, subject to Sean Ryan’s liberal rights of visitation, for the parties’ two

minor children, J.A.W. and J.P.W. She asserts the parties entered into a legally

binding and enforceable contract when orally agreeing that Ryan would act

merely as a sperm donor, rather than as a birth father with parental rights. We

conclude the district court properly found Wright failed to meet her burden

showing a contract had been established regarding Ryan’s relinquishment of any

parental rights. With respect to legal custody, the record demonstrates it is in the

children’s best interests for the parents to be granted joint legal custody;

moreover, the visitation schedule set forth by the district court is appropriate to

continue the strong bond between the children and their father. We remand for

the sole purpose of allowing the district court to enter an order establishing

Ryan’s cash medical support obligation based on the existing record. We decline

Ryan’s request for appellate attorney fees.

I. Factual and Procedural Background

      The district court found the following facts, describing the history of the

couple:

             Sean Ryan and Jessica Wright began dating in 1991, when
      both were residing in California and employed by Jessica’s father’s
      construction company. The parties’ intimate relationship continued
      for more than 20 years ending for the last time shortly after Sean
      filed his petition in this case. During their on again off again
      relationship, Sean and Jessica lived in California, Colorado,
      Arizona, New Mexico, and most recently, Iowa. The relationship
      was a rocky one, and their frequent attempts to share a home
      together, usually lasted no more than six to ten months before one
      or the other would grow tired of the relationship and move on.
                                         3


              However, they would remain apart for a while only to
       reconnect and renew their relationship some months later.
       Perhaps the longest period of time apart was the two and one-half
       years Sean served in prison in Arizona from July, 2003 to January,
       2006. It was during this period when Jessica alleges the two
       entered into an oral agreement for Sean to donate sperm allowing
       Jessica to have children.
              While incarcerated, Sean completed a number of programs
       including receiving his GED and receiving his certification in Level l
       Wastewater Treatment. Jessica visited Sean throughout his two
       and one-half years in prison as did Sean’s parents and siblings.
       Upon Sean’s release from prison, he moved into Jessica’s home
       and the couple once again renewed their relationship. Sean and
       Jessica had discussed having children at different times during their
       relationship and upon Sean’s release from prison, Jessica again
       raised the issue. Sean testified that the couple attempted to
       conceive children naturally in early 2006 but were unsuccessful.
       Sean went through fertility testing and was found to be fertile.
       Jessica also was tested, but according to Sean they were told she
       would have difficulty getting pregnant naturally.          Sean also
       described the couple’s attempts at fertility treatments as
       unsuccessful. When fertility therapy was unsuccessful, Sean and
       Jessica explored artificial insemination. The artificial insemination
       proved successful, and the parties’ daughter, J.A.W., was born [in]
       2007. The parties repeated the process, and J.P.W. was born [in]
       2008. Both children were born in the state of Arizona, but shortly
       after J.P.W.’s birth, the parties moved to Iowa to be closer to
       Jessica’s family. Her parents purchased a farm house on 25 acres
       where Jessica, Sean, and their two small children lived. After
       moving to Iowa, Jessica suggested she wanted a third child. Sean
       disagreed and believed they were tempting fate and thought they
       should stop with one boy and one girl. The disagreement as to
       whether to expand the family led to frequent arguments which
       resulted in Jessica asking Sean to move out of the family’s home in
       October of 2009.

As to the state and consistency of the relationship, the district court found Ryan’s

testimony to be more credible than that of Wright.

       In 2003, Ryan pleaded guilty to charges of aggravated assault with a

deadly weapon. He was sentenced to three years in prison, serving from 2003

until 2006. Ryan also testified he had substance abuse issues in the past, but

these issues were resolved during his time in prison. He asserted he has been
                                         4


sober since 2003, and the district court noted it appeared Ryan had “turned his

life around.”

       Legal bills were incurred due to Ryan’s criminal proceedings.           Wright

asserted that she paid these bills, as well as the associated criminal fines and

court costs. She claimed this was consideration for Ryan providing semen so

she could have children and that, though she wanted to help Ryan, they were not

romantically involved. Entered into evidence was a letter from Wright to Ryan, 1

dated August 8, 2003, that stated in part:

       If I do help you I want something in return. I don’t want a marriage,
       relationship, or anything like that. You have done a lot of damage
       and who knows if forgiveness will come. Anyway, I have something
       I want to talk to you about next time I come to see you.

       Ryan asserted the payment of the legal fees was from money the two

jointly owned. He further testified he did not remember the context of the letter

and that, rather than the letter requesting he donate sperm, the parties decided

to have children following his release from prison. The reason for the use of

artificial insemination, he stated, was because Wright could not become pregnant

naturally.

       After the parties separated in 2009, Ryan continued to regularly visit the

children and paid an agreed-upon child support of $1000 per month. On August

7, 2013, Ryan filed a petition requesting the district court establish custody, child

support, and visitation with regard to the children.      A contested hearing on

custody and a temporary visitation schedule was held on September 23, 2013,

and the district court ordered joint legal custody of the children, with temporary

1
  Other letters sent to Ryan were also entered into evidence. They detailed several
instances of Ryan’s associates engaging in threatening behavior towards Wright.
                                           5


physical care granted to Wright. The court also established a visitation schedule

and ordered Ryan to pay $1000 per month in temporary child support.

       Wright initially refused to comply with the temporary visitation order, and

Ryan filed an application for rule to show cause. Ryan also filed a motion to

appoint a guardian ad litem (GAL) for the children, which Wright resisted; a GAL

was appointed on February 10, 2014.2 On April 9, 2014, Wright requested, and

the court allowed, an amendment to her response. In her amended answer and

counterclaim filed May 2, 2014, Wright asserted Ryan should not be granted

parental rights due to an alleged oral contract the parties formed in 2003,

wherein Ryan relinquished his parental rights to donated semen, in exchange for

Wright paying his legal bills.

       A hearing on the parties’ claims was held on September 30 and October

1, 2014. At the close of the evidence, in an oral ruling, the district court found

Wright did not meet her burden establishing the existence of a contract. On

March 9, 2015, the court entered a decree ordering joint legal custody of the

children, with physical care granted to Wright subject to Ryan’s reasonable and

liberal visitation. It also established a visitation schedule, memorialized its oral

ruling that Wright failed to prove the parties entered into an oral contract, and—

by adopting the numbers set forth in Wright’s child-support-guidelines

worksheet—ordered Ryan to pay $967.07 each month in child support.

However, it made no mention of cash medical support. While the court noted


2
  At trial, the GAL testified she had no concerns regarding Ryan’s interactions with the
children. However, with respect to visitation, she stated she did not believe his
residence was suited for anything more than standard visitation, that is, every other
weekend and one night during the week, unless Ryan obtained a larger house.
                                          6


Ryan had shown Wright had been in violation of the temporary visitation order, it

found the contempt had been purged, and therefore, it declined to impose

sanctions. Wright appeals the court’s decree with regard to its ruling on the

contract issue, custody, visitation, and cash medical support.

II. Standard of Review

       This case was tried in equity; therefore, our review is de novo. See Iowa

R. App. P. 6.907. While we give weight to the findings of the district court,

particularly with regard to credibility determinations, we are not bound by them.

In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). To the extent we

are reviewing the district court’s finding as to the existence of a contract, our

review is for correction of errors at law. See Gallagher, Langlas & Gallagher v.

Burco, 587 N.W.2d 615, 617 (Iowa Ct. App. 1998).

III. Contract

       Wright first asserts the district court erred in finding she did not meet her

burden showing there was an oral contract in which Ryan agreed to relinquish his

parental rights. Furthermore, she contends that to the extent there is a contract,

it is valid and enforceable; moreover, public policy, as well as case law in other

jurisdictions, favors the conclusion that this type of contract is enforceable.

       With regard to the creation of a contract, our court has noted:

       The existence of an oral contract, as well as its terms and whether
       it was breached, are ordinarily questions for the trier of fact. To
       prove the existence of an oral contract, the terms must be
       sufficiently definite for a court to determine with certainty the duties
       of each party, the conditions relative to performance, and a
       reasonably certain basis for a remedy. Where a contract appears
       to exist, courts are reluctant to find it too uncertain to be
       enforceable. However, when the terms are not definite, courts are
       reluctant to impose reasonable terms on contracting parties.
                                            7

Id. (internal citations omitted).    A meeting of the minds, wherein each party

agrees to definite terms of the contract, is also necessary for a legally-binding

contract to form. See Schaer v. Webster Cnty., 644 N.W.2d 327, 338 (Iowa

2002) (noting that “mutual assent is based on objective evidence, not on the

hidden intent of the parties”).

       Given the facts of the case, we conclude the district court properly found

Wright failed to prove the parties entered into a contract, due to the lack of a

meeting of the minds.          The objective evidence—specifically, the parties’

agreement that they lived together, in addition to Ryan’s continual involvement in

the children’s lives—weighs in favor of a finding that Ryan did not intend to

relinquish parental rights. See id. We further give weight to the district court’s

observation that Ryan’s testimony was more credible and that the two parties

were in a relationship together—that is, Ryan did not intend to act as merely a

sperm donor. See Hansen, 733 N.W.2d at 690 (noting we give weight to the

credibility determinations of the district court).

       Furthermore, Wright’s testimony does not support the conclusion the

parties agreed to definite, clear terms; specifically, the following exchange

occurred:

               Q: When you discussed the issue of donating sperm and
       having four children, two boys, two girls . . . did you have any
       agreement? Was there any agreement or discussion between the
       two of you about how the children would be raised? A: I—we were
       not talking. I didn’t ask him to marry me. I didn’t ask him to help
       raise the children. I didn’t ask for child support. I told him none of
       that. I didn’t want any of that, and I told him I didn’t want any of
       that, didn’t want marriage, didn’t want—didn’t even know the words
       co-parent at the time.
               Q: And did he—did he seem like he wanted to—I mean, did
       he request that he be involved raising the children? A: No.
                                         8


            Q: Okay. So he—from your testimony, he agreed to what
      you asked of him? A: Yes.

Particularly when combined with the other evidence of the case, this testimony

does not establish that Ryan relinquished his parental rights when agreeing to

have children with Wright. Consequently, we agree with the district court Wright

did not meet her burden establishing by a preponderance of the evidence that a

meeting of the minds occurred such that a contract was created. See Schaer,

644 N.W.2d at 338 (holding a meeting of the minds must occur before a legally-

binding contract can be formed).

      Due to our conclusion that a contract was not formed, we need not

address the enforceability or public policy issues Wright presents to our court.

IV. Custody

      Wright also contests the district court’s award of joint legal custody. She

contends Ryan is a “fun uncle” rather than a parent, she has been the children’s

primary caretaker since birth, and she has made all decisions regarding the

children’s welfare without input from Ryan. Therefore, she claims the record

supports the award of sole legal custody to Wright, as opposed to the district

court’s conclusion—and Ryan’s request—that the parties should have joint legal

custody.

      Regarding legal-custody determinations, our supreme court has stated:

      “Legal custody” carries with it certain rights and responsibilities,
      including, but not limited to, “decision making affecting the child’s
      legal status, medical care, education, extracurricular activities, and
      religious instruction.” Iowa Code § 598.1(3), (5) (2007). When
      parties are awarded “joint legal custody,” “both parents have legal
      custodial rights and responsibilities toward the child” and “neither
      parent has legal custodial rights superior to those of the other
      parent.” Id. § 598.1(3). In deciding whether joint custody is in the
                                          9


       best interest of a minor child, the court must consider several
       factors, including “[w]hether the parents can communicate with
       each other regarding the child’s needs” and “whether a history of
       domestic abuse, as defined in section 236.2, exists.”         Id.
       § 598.41(3).

In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007).

       The evidence in this case supports the district court’s award of joint legal

custody. It is in the best interests of the children to have both parents involved in

their lives and making the decisions regarding their care and well-being.

Furthermore, the record does not support Wright’s argument that the parties

cannot work together to effectively parent the children, particularly given their

relationship began in 1991, and they have adequately parented the children

since they were born. Moreover, the children are comfortable with each parent,

and recognize Ryan as their father.3 These facts support the court’s award of

joint legal custody. See Iowa Code § 598.41(3)(a)–(k) (2013) (governing the

considerations that must be taken into account when determining whether joint

legal custody should be awarded). Consequently, we affirm the court’s award of

joint legal custody.

V. Visitation

       Wright further claims the visitation schedule is not in the children’s best

interests.   She specifically takes issue with the district court’s order that the

children shall be in Ryan’s physical custody every other week during the

summer. She argues the GAL’s testimony, in which she stated Ryan’s residence


3
  Evidence showed Wrighthas instructed the children to refer to Ryan by names other
than “dad.” Ryan asserted the children used to call him “dad,” but now call him “buddy”
or “Sean,” which he does not like but has stopped correcting so as not to confuse the
children further about their family situation.
                                         10


was not suitable as more than a weekend place to stay, supports the conclusion

the children should remain with her; furthermore, the disruption in the children’s

schedules would be detrimental to them.

       Iowa Code section 598.41(1)(a) states a court should award “liberal

visitation rights where appropriate.”     When considering visitation rights, our

primary consideration is the best interests of the children; moreover, liberal

visitation is generally considered in their best interests. In re Marriage of Stepp,

485 N.W.2d 846, 849 (Iowa Ct. App. 1992). Unless there is a showing visitation

will in some way injure a child, visitation will not be prohibited. In re Marriage of

Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991).

       Upon our de novo review, we affirm the court’s visitation schedule. The

record supports the conclusion that this schedule is in the children’s best

interests.   Though it is small, the father’s home is sufficient to house them.

Moreover, there is no evidence that Ryan’s criminal history would negatively

affect the children’s interactions in his community, as Wright contends. There

are also no concerns regarding the adequacy of Ryan’s parenting skills or how

he interacts with the children. Rather, as the district court noted: “It is obvious to

the Court that both children have a strong bond with their father, and due to their

young ages and [Ryan]’s continued commitment to nurture his children, that bond

will only grow.” Therefore, we do not agree with Wright’s contention that the

children visiting Ryan every other week in the summer is not in their best

interests.   Consequently, we affirm the portion of the district court’s order

establishing the visitation schedule.
                                        11


VI. Cash Medical Support

       Wright’s final claim asserts the district court did not comply with the child

support guidelines when it failed to order Ryan to pay cash medical support for

the children. She asserts the guidelines establish that, due to the children not

receiving health insurance through either parent, Ryan should be responsible for

paying $260 each month in cash medical support. Ryan responds Wright failed

to preserve error on this issue.

       It is undisputed as of October 2013 the children were insured under the

state-sponsored public health insurance program, Hawk-I. At the hearing, Wright

testified the child support work sheets submitted to the district court did not

include calculations for medical support, due to the fact the children receive

coverage from Hawk-I. However, Wright’s responsive pleading prayed for the

court to address the health insurance premiums as well as the uncovered

medical expenses. Additionally, the amended child support guideline worksheets

Wright submitted on September 22, 2014, noted that $260 should be paid by

Ryan as cash medical support. The district court’s order did not address cash

medical support but did adopt Wright’s proposed guidelines regarding child

support.

       “The doctrine of error preservation has two components—a substantive

component and a timeliness component.” State v. Krogmann, 804 N.W.2d 518,

523 (Iowa 2011) (holding a one-page resistance that stated there was no legal

basis for the State’s actions did not properly preserve error with respect to the

defendant’s constitutional claims). To preserve error on appeal, the party must

first state the objection in a timely manner, that is, at a time when corrective
                                            12

action can be taken, in addition to the basis for the objection. Id. at 524. The

court must then rule on the issue. Lamasters v. State, 821 N.W.2d 856, 864

(Iowa 2012). “If the court’s ruling indicates that the court considered the issue

and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’

the issue has been preserved.” Id. (quoting Meier v. Senecaut, 641 N.W.2d 532,

540 (Iowa 2002)).

          Given this standard, we do not agree Wright failed to preserve error.

Though her testimony is inconsistent with the exhibits presented at trial, there

was extensive evidence presented regarding the children’s health insurance.

Moreover, while the district court did not specifically rule on the cash-medical-

support issue, it nonetheless adopted Wright’s proposed child support guidelines

worksheets, which did include cash medical support. Combined with extensive

evidence of the children’s health insurance, the record demonstrates the court at

least considered the issue.4 See id. Consequently, we will address the merits of

this claim.

          Cash medical support is governed by Iowa Code section 252E.1A, which

states:

                 An order or judgment that provides for temporary or
          permanent support for a child shall include a provision for medical
          support for the child as provided in this section.
                 The court shall order as medical support for the child a
          health benefit plan if available to either parent at the time the order
          is entered or modified. A plan is available if the plan is accessible
          and the cost of the plan is reasonable.

4
  We note the better practice would have been to bring this omission to the attention of
the district court through a motion to amend or enlarge under Iowa Rule of Civil
Procedure 1.904(2). Nonetheless, because the child support guidelines require an order
regarding Ryan’s cash medical support obligation, it is incumbent upon our court to
address the issue.
                                          13


              ....
              If a health benefit plan is not available at the time of the entry
       of the order, the court shall order a reasonable monetary amount in
       lieu of a health benefit plan, which amount shall be stated in the
       order. For purposes of this subsection, a reasonable amount
       means five percent of the gross income of the parent ordered to
       provide the monetary amount for medical support or, if the child
       support guidelines established pursuant to section 598.21B
       specifically provide an alternative income-based numeric standard
       for determining the reasonable amount, a reasonable amount
       means the amount as determined by the standard specified by the
       child support guidelines.

Iowa Code § 252E.1A(1)–(3); see also id. § 252E.1(9) (noting that “the payment

to the obligee of a monetary amount in lieu of a health benefit plan . . . is an

obligation separate from any monetary amount of child support ordered to be

paid”); see also Iowa Ct. R. 9.12.

       Cash medical support is authorized under this statutory and rule scheme.

Therefore, the district court should have included this finding in its order

establishing child support.    We therefore remand for entry of an order that

establishes Ryan’s obligation with regard to cash medical support based on the

existing record.

VII. Appellate Attorney Fees

       Ryan asserts he should be awarded appellate attorney fees. An award of

appellate attorney fees is not a matter of right but rests within our discretion. In

re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994). When

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 decision of the trial

court on appeal. Id.
                                        14


       Pursuant to the child support worksheet, Ryan has an annual gross

income of $62,400, and Wright’s income is $31,200.               Based on these

considerations, we decline to award appellate attorney fees.

VIII. Conclusion

       For the foregoing reasons, we conclude no contract was formed in which

Ryan relinquished his parental rights. Moreover, the legal-custody determination

and the visitation schedule are in the best interests of the children; consequently,

we affirm this portion of the district court’s order. However, a finding with regard

to Ryan’s obligation for cash medical support should have been included in the

decree, and we remand on this issue so the district court may enter an order

based on the existing record.

       Costs on appeal are assessed to Wright.

       ORDER AFFIRMED; REMANDED FOR ADDITIONAL FINDINGS.
