                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0203
                              Filed October 10, 2018


ROBYN BROWN,
    Plaintiff-Appellant,

vs.

LAYNE IRWIN,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Muscatine County, Thomas G.

Reidel, Judge.



       Mother appeals from a decree establishing paternity, custody, and support.

AFFIRMED AS MODIFIED AND REMANDED.



       Robert S. Gallagher and Peter G. Gierut of Gallagher, Millage & Gallagher,

P.L.C., Bettendorf, for appellant.

       Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office,

Davenport, for appellee.



       Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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McDONALD, Judge.

       Robyn Brown appeals from the district court’s ruling on her petition to

establish paternity, custody, visitation, and child support with respect to her child

L.I. In the challenged ruling, the district court established paternity of the child in

Layne Irwin, granted the parties joint legal custody of the child, granted the parties

joint physical care of the child, ordered visitation with the child, and ordered child

support. On appeal, Brown challenges the physical care determination.

       Our review is de novo. See Iowa R. App. P. 6.907; In re Marriage of Sullins,

715 N.W.2d 242, 247 (Iowa 2006). “We review the entire record and decide anew

the factual and legal issues preserved and presented for review.” Hensch v.

Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). However, “[w]e give weight to

the findings of the district court, especially to the extent credibility determinations

are involved.” In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007).

       The record reflects the following. Brown and Irwin met in 2014 in Kirksville,

Missouri. Brown resided in Kirksville and worked as a bartender. Irwin resided in

Davenport but spent time in Kirksville while working as an electrician on a project.

Irwin frequented the bar where Brown worked when he was in Kirksville. They

met, and they commenced a long-distance romantic relationship.

       The parties continued their long-distance relationship until shortly after L.I.’s

birth in July 2015. At that time, the parties decided Brown (and her two older sons

from prior relationships) would move to Iowa and the parties would reside together.

In anticipation of Brown’s move, Irwin purchased a home in Wilton, Iowa. Brown

and her three sons moved from Kirksville to Wilton into Irwin’s home.
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       The parties cohabited until May 2017. At that time, Brown filed the petition

at issue in this appeal, seeking physical care of L.I. Brown also filed a motion

seeking permission to move back to Kirksville with L.I. Without waiting for a ruling

on her motion, Brown vacated the family home and moved with all three children

back to Kirksville. Kirksville is approximately 180 miles from Wilton. Irwin sought

a temporary injunction to prohibit the move. The district court entered an order on

temporary matters directing the parties to alternate care of L.I. on a weekly basis

until the matter was resolved. The parties alternated care of the child as ordered

by the district court.

       After trial, the district court awarded the parties joint physical care of the

child on an alternating-week basis. However, the district court ordered the child to

attend school in Wilton and ordered Irwin to pay Brown’s relocation expenses. The

relevant portion of the order follows:

       [u]nder these circumstances, the Court finds that joint physical care
       shall be awarded to the parties. The parties shall continue to
       alternate weeks. The minor child shall attend school in Wilton, Iowa
       unless otherwise agreed upon by the parties. If Robyn relocates to
       the Wilton area, Layne shall provide Robyn $2,000 to assist with the
       move and the costs of a new residence. Layne shall provide this
       amount to Robyn within 10 days of the request. Robyn does not
       have to provide proof to Layne of any costs associated with the move
       or the new residence. When the parties live within thirty miles of
       each other, the party not exercising a one- week block of parenting
       time shall be entitled to a midweek visit from after school (4:00 p.m.
       in the summertime) until 7:30 p.m.

In effect, the district court ordered Brown to return to Iowa or to file a modification

petition before L.I. enrolled in school. The district court deemed this the best

resolution because of Wilton’s “excellent educational system,” state-assisted
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daycare programs, Brown’s oldest son’s ability to assist in daycare duties, and the

proximity of the parents to one another.

       With that background, we turn to the merits. This is an action to establish

paternity, custody, and care of a minor child between unmarried persons filed

pursuant to Iowa Code chapter 600B (2017). Our analysis with respect to who

should have physical care of the child is the same whether the parents are married

or unmarried. See Iowa Code § 600B.40 (providing the statutory criteria set forth

in section 598.41, for dissolutions of marriage, shall apply the chapter 600B

proceedings); Draeger v. Barrick, No. 15-1442, 2016 WL 1697083, at *3 (Iowa Ct.

App. Apr. 27, 2016).

       The Code defines “physical care” as “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). In making the physical care determination, we look to the factors set

forth in Iowa Code section 598.41(3) and enumerated in our case law. See

Marriage of Hansen, 733 N.W.2d at 696–700; In re Marriage of Winter, 223 N.W.2d

165, 166–67 (Iowa 1974). “Each factor, however, does not necessarily impact the

decision with equal force.” In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.

App.1997). In considering these factors, our “ultimate objective . . . is to place the

child in the environment most likely to bring him to healthy mental, physical, and

social maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). “The

controlling consideration is the best interests of the child.” Stieneke v. Sargent, No.

15–1643, 2016 WL 2745058, at *1 (Iowa Ct. App. May 11, 2016) (citation omitted).

The best interest of the child includes but is not limited to the opportunity for

maximum continuous physical and emotional contact with both parents, unless
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direct physical or significant emotional harm to the child may result from this

contact.

       Shared physical care is not a viable option under the circumstances

presented. The parties reside approximately 180 miles—approximately a three-

hour drive—away from each other. While the parties have managed to alternate

care on a weekly basis during the pendency of this proceeding, we question

whether such an arrangement is in the best interest of the child. Regardless, as a

practical matter, the ordered arrangement cannot continue indefinitely. The child

will age, enroll in school, become involved in extracurricular activities, and develop

friendships. The natural progression of things will make alternating residences on

a weekly basis not possible. The district court appeared to recognize as much

when it effectively ordered Brown to move to the Wilton area when the child

reaches school age. In short, the distance between the parties makes an award

of joint physical care impracticable, not in the best interest of the child, and

inappropriate. See, e.g., In re Marriage of Orr, No. 16-1772, 2017 WL 2183891,

at *2 (Iowa Ct. App. May 17, 2017) (stating an award of joint physical care is

“impracticable” when the parties lived two hours from each other); In re Marriage

of Albertsen, No. 16-1644, 2017 WL 4570478, at *3 (Iowa Ct. App. Oct. 11, 2017)

(“The distance, however, made a joint physical care arrangement unfeasible and

required the district court to choose one of two loving parents as a physical

caretaker.”); In re Marriage of Metcalf, No.06-0324, 2006 WL 3018228, at *1 (Iowa

Ct. App. Oct. 25, 2006) (“The current agreement of the parties—alternating

weeks—is unworkable when the parties reside in two different school districts with

approximately an hour drive in-between.”).
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       “When joint physical care is not [appropriate], the court must choose one

parent to be the primary caretaker, awarding the other parent visitation rights.” In

re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). We are guided by the

best interest of the child. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa

2015). “The critical issue is determining which parent will do a better job raising

the child; gender is irrelevant, and neither parent should have a greater burden

than the other in attempting to gain custody in an original custody proceeding.” In

re Marriage of Decker; 666 N.W.2d 175, 177 (Iowa Ct. App. 2003). Iowa long ago

abandoned the inference that the best interest a child is served if custody is

awarded to their mother instead of the father. See In re Marriage of Bowen, 219

N.W.2d 683, 688 (Iowa 1974).

       On de novo review, we conclude Brown should be awarded physical care

of the child with Irwin awarded liberal visitation. There are several considerations

in support of our conclusion.    First, Brown historically has been the primary

caregiver for the child at issue. See Hansen, 733 N.W.2d at 696 (“[S]tability and

continuity of caregiving are important factors that must be considered in custody

and care decisions.”); In re Marriage of Ford, 563 N.W.2d 629, 633 (Iowa 1997)

(considering parent’s status as primary caregiver). After the birth of the child in

Kirksville and prior to Brown’s move, Brown provided the exclusive care of the child

without assistance from Irwin. When Brown moved to Wilton, the parties agreed

Brown would have the caregiving responsibilities while Irwin would continue to

work outside the home. Brown took care of L.I.’s daily needs, including bathing,

diapering, clothing, feeding, and caring for the child. She did household tasks,

including cooking, cleaning, and laundry.     She scheduled the child’s medical
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appointments and took the child to the same. See, e.g., In re Marriage of Heitman,

No. 15–0631, 2016 WL 742816, at *5 (Iowa Ct. App. Feb. 24, 2016) (considering

which parent arranges medical and dental appointments as a relevant factor). The

child has thrived under the parties’ arrangement. “[C]ourts . . . typically afford[]

weight to the parent who has acted as the child’s primary caretaker in the past.”

Ruden v. Peach, 904 N.W.2d 410, 414–15 (Iowa Ct. App. 2017).

       Second, the record reflects Brown can minister more effectively to the

needs of the child. Brown has proven to be a good caretaker to her older two

children and to the child at issue. She has a more flexible work schedule to provide

care for the child. She has family support in Kirksville that can provide assistance

in raising the child. See, e.g., In re Marriage of Moyer, No. 11–1695, 2012 WL

2412075, at *4 (Iowa Ct. App. June 27, 2012) (collecting cases discussing

importance of proximity to support networks). There is no credible complaint

regarding her parenting ability.

       In contrast, Irwin’s work schedule is not as flexible. In addition, the record

reflects Irwin has a history of alcohol abuse and angry outbursts, which were

causes of the parties’ separation. Brown testified Irwin drank on a nightly basis

and would do so in front of L.I. She testified his temper would manifest itself in

front of the children, including an incident wherein Irwin struck one of Brown’s older

sons. On another occasion, Irwin lost his temper in a restaurant, yelled at the

restaurant staff, gave money to Brown, and left the restaurant.            On other

occasions, Irwin would become enraged at the slightest provocations and become

verbally abusive. To calm himself down, he would contact his parents. Brown’s

testimony was corroborated by other evidence. Irwin admitted to drinking every
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night. Irwin was twice convicted of operating while under the influence. He broke

his jaw in a bar fight. On another occasion, he became drunk, wrecked his vehicle,

and had his father pick him up and drive him home to avoid law enforcement. Irwin

admitted to striking Brown’s older son, but he insisted it was an instinctual reaction

to pain when the son struck Irwin’s jaw, which, as previously mentioned, was

broken in a bar fight. In a text message sent to Brown, Irwin acknowledged he

had an anger problem, stating “after last night I’ve come to the point I’m gonna go

to a doctor and get some help with my anger problem.”

        Irwin testified he has changed since the separation and has largely

abstained from drinking, doing so on rare occasions, and never when L.I. is under

his physical care.      His neighbor corroborated these claims.        However, Irwin

admitted he has not sought professional help for his alcohol and anger problems.

While Irwin’s changed behavior, if true, is in the best interest of the child, we cannot

wholly discount his recent past conduct. Irwin’s past conduct is troubling, and it

augurs against awarding him physical care when we are forced to choose between

two parents, as is the case here.

        Finally, awarding Brown physical care will allow L.I. to spend the maximum

amount of time with his siblings. Separation of siblings is disfavored. See In re

Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). The presumption of keeping

siblings together applies with equal force to half-siblings, as is the case here. See

In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986) (finding that the court’s

“strong interest in keeping children of broken homes together” applies “in cases of

half siblings . . .”)
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       On de novo review, we conclude Brown should be awarded physical care

of the child, Irwin should be awarded liberal visitation, and Brown should be

awarded child support in accord with the child support guidelines. We affirm the

establishment of paternity of L.I. in Irwin and remand this matter to establish an

appropriate visitation schedule considering the distance of the parties from each

other and to recalculate child support in accord with the guidelines. We do not

retain jurisdiction following remand.

       We address a final issue. The parties seek appellate attorney’s fees. An

award of appellate attorney’s fees is a matter within this court’s discretion. See

Iowa Code § 600B.26; In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App.

1997). The factors we consider include Brown’s need in making the request,

Irwin’s ability to shoulder the cost, and the merits of the appeal. See In re Marriage

of Maher, 596 N.W.2d 561, 568 (Iowa 1999). The factors here favor an award of

Brown’s attorney’s fees. She prevailed on the merits of her appeal. She has

annual income of $17,800. Irwin has annual income of approximately $80,900.

Brown has two other sons, while Irwin has no other children. Brown has a need

for appellate attorney’s fees, and Irwin has the ability to pay. For these reasons,

we award Brown appellate attorney’s fees in the amount of $5000.

       AFFIRMED AS MODIFIED AND REMANDED.
