                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0769
                               Filed May 2, 2018


IN RE THE MARRIAGE OF JAMES BENJAMIN MERTZ
AND COLLEEN SHERREE HASSLER

Upon the Petition of
JAMES BENJAMIN MERTZ,
      Petitioner-Appellee,

And Concerning
COLLEEN SHERREE HASSLER,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Kossuth County, Don E. Courtney,

Judge.



      A mother appeals the provision of a dissolution of marriage decree granting

the father physical care of their child. AFFIRMED.



      Tammy Westhoff Gentry and Gina Messamer of Parrish Kruidenier Dunn

Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.

      Matthew G. Sease of Kemp & Sease, Des Moines, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

         A mother appeals the provision of a dissolution of marriage decree granting

the father physical care of their child.

I.       Background Facts and Proceedings

         Colleen Hassler and James Mertz had a child in 2012 and married the

following year. The child lived in Ankeny with Hassler for the first six months of

her life. Then, Hassler and her twin children from an earlier marriage moved into

Mertz’s home in Algona. The arrangement was short-lived.

         In 2014, Mertz petitioned for a dissolution of the marriage. The proceedings

dragged on for two-and-a-half years.

         Initially, Mertz obtained an order restraining Hassler from moving from

Algona. The order was later lifted, and Hassler moved to Ankeny to be closer to

her family and to take advantage of the broader employment market. The district

court granted her temporary physical care of the child, subject to visitation with

Mertz.

         Several months later, Mertz moved to Ankeny to be closer to his child. In

light of the move, he asked the court to modify the temporary order and grant the

parents joint physical care of the child. The district court denied the request but

afforded him a midweek visit in addition to the previously scheduled alternate

weekend plan. Mertz participated in the visits and took advantage of unscheduled

visitation time afforded by Hassler.

         At trial, both parents sought physical care of the child. Mertz alternatively

asked for joint physical care, a request he later withdrew. Following trial, Mertz

filed motions to reopen the record, based on various circumstances. The district
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court granted certain motions and considered the evidence in making the physical

care decision.

       In a detailed ruling, the district court began by finding that both Hassler and

Mertz “actively cared for the child before and since the separation” and “contributed

to” the child’s development into “a healthy, happy, and friendly child.” The court

also commended Hassler’s “generous allowance” of additional summer visitation

to Mertz and her facilitation of FaceTime contact with Mertz.           But the court

expressed concern with “the failure of the parties to communicate, show each other

mutual respect, and the degree of conflict between them.” The court cited the

parents’ dueling complaints to the department of human services, complaints that

proved unfounded. Ultimately, the court was more troubled by Hassler’s negative

behaviors, “often in the presence of the child[],” than by Mertz’s conduct. The court

stated:

       Of particular concern to the court is how a young child is led to
       believe that her father did not want her for Christmas or how the
       young child learned to refer to her father as a loser. This and the
       constant accusations of infidelity and the use of obscenity around the
       child are contrary to the principle that the relationship with James
       should be supported.

The court concluded Mertz would “better support the relationship” with the other

parent and granted him physical care of the child. Hassler appealed.

II.    Physical Care

       “Physical care” involves “the right and responsibility to maintain a home for

the minor child and provide for the routine care of the child.” Iowa Code § 598.1(7)

(2014). One of the factors for consideration is whether “each parent can support

the other parent’s relationship with the child.” See id. § 598.41(3)(e); In re Marriage
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of Hansen, 733 N.W.2d 683, 696 (Iowa 2007) (conceding “Iowa Code section

598.41(3) does not directly apply to physical care decisions” but stating factors

were relevant to determining joint physical care).

       Hassler contends, “The objective evidence shows [she] went above and

beyond to promote E.M.’s relationship with her father.”        We agree.    Hassler

fostered the child’s relationship with Mertz by granting unscheduled visitation time

and by facilitating electronic contact. But she also disparaged Mertz in front of the

child, interjected criticisms of Mertz during FaceTime conversations between Mertz

and the child, and referred to Mertz by his first name in speaking to the child. As

the district court stated, these behaviors did not go unnoticed by the child, who

began using terminology beyond her ken.

       The district court credited Mertz’s testimony on this issue. We give weight

to the credibility determination, in light of our inability to see and hear the

witnesses. See In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). On

our de novo review, we conclude the district court acted equitably in granting Mertz

physical care of the child.

       In reaching this conclusion, we have considered Mertz’s allusions to

Hassler’s mental health, which Hassler argues were beyond the pale. We agree.

At his attorney’s behest, and without medical evidence, Mertz used incendiary

language to describe Hassler’s emotional state.            His inappropriate and

unsupported characterizations carry no weight in our review of the physical care

decision.

       We also have considered the bond the child shared with her fifteen-year-

old half-siblings. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa
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1993). We do not doubt the existence of a bond among the siblings. But a parent’s

refusal to support the relationship of the child with the other parent can override

the sibling bond in a physical care determination. See id. (concluding custodial

parent’s interference with noncustodial parent’s visitation rights provided adequate

ground for change of custody, notwithstanding separation from half-sibling). In any

event, Hassler coordinated her weekend visitation schedules to facilitate contact

among the siblings, mitigating concerns that the bond would be weakened.

       Finally, and most critically, we have considered Hassler’s role as primary

caretaker. Hansen, 733 N.W.2d at 700 (“In making [a physical care] decision, the

factors of continuity, stability, and approximation are entitled to considerable

weight.”). The court acknowledged this role but concluded “there would be little

effect on the child of disrupting the existing custodial status because of the liberal

visitation allowed the non-custodial parent and the geographical location of the

parties.” We concur in this assessment.1

III.   Appellate Attorney Fees

       Hassler seeks an award of appellate attorney fees. Because she did not

prevail, we decline her request. See In re Marriage of Okland, 699 N.W.2d 260,

270 (Iowa 2005).

       AFFIRMED.

       Bower, J., concurs; Danilson, C.J., dissents.




1
  Hassler makes a fleeting reference to increased visitation. The court afforded her liberal
visitation, including alternating weeks during the summer. Equity does not demand an
even more liberal visitation plan.
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DANILSON, Chief Judge (dissenting)

       I respectfully dissent. I do not believe physical care should be determined

by weighing which parent was more critical of the other. Neither parent’s conduct

towards the other was above reproach. In fact, Mertz’s trial testimony was highly

critical of Hassler. It is not unusual for the stress of the separation to impact the

parties and their ordinary demeanor. The district court concluded both parents

were suitable parents, Hassler was very generous with visitation with Mertz, and

the child was thriving in the care of Hassler. I agree. Additionally, the parties’

child, E.M., has a strong relationship with Hassler’s twin daughters from a prior

relationship, one of which resides with Hassler. The presumption that siblings,

even half-siblings, should not be separated provides further support to award

physical care to Hassler. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476,

480 (Iowa 1993). I would reverse and award physical care and appellate attorney

fees to Hassler.
