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IN THE COURT OF APPEALS OF IOWA No. 9-766 / 09-0436 Filed December 30, 2009 JENNIFER WIDDEL, Plaintiff-Appellant/Cross-Appellee, vs. NATHAN KANNEGIETER, Defendant-Appellee/Cross-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Bremer County, Colleen D. Weiland, Judge.

Plaintiff appeals the district court's decision granting defendant physical care of their minor child, and defendant cross-appeals the visitation provisions of the paternity decree. AFFIRMED.

Teresa A. Rastede of Dunakey & Klatt, P.C., Waterloo, for appellant. Dale E. Goeke of Goeke & Goeke, Waverly, for appellee.

Considered by Vaitheswaran, P.J., and Mansfield, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

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ZIMMER, S.J. Jennifer Widdel appeals from the district court's decision in a paternity action granting Nathan Kannegieter primary physical care of their minor child. She also contends she should have been awarded trial attorney fees. Nathan has cross-appealed seeking changes in the visitation provisions of the decree and a change in the child's surname. We affirm the decision of the district court. I. Background Facts & Proceedings

Nathan Kannegieter and Jennifer Widdel lived together for a period of time, but never married. Jennifer became pregnant in the fall of 2007. Nathan reacted very negatively to the news that Jennifer was expecting. According to Nathan, he was upset because Jennifer stopped taking birth control pills without informing him of her decision. He testified that he and Jennifer had agreed they were not ready to have children and Jennifer would use birth control and not get pregnant while they were cohabitating. Jennifer was very hurt by Nathan's

reaction to her pregnancy. The parties ended their romantic relationship and stopped living together in November 2007. The circumstances surrounding the parties' breakup have colored their subsequent interactions with each other. The parties continue to feel they cannot trust the other, and they have difficulty communicating. After Nathan and Jennifer separated, Jennifer moved in with her mother in Waverly, while Nathan moved to Fort Dodge, about two hours away from where Jennifer was living. Nathan had limited involvement with Jennifer during the

remainder of her pregnancy; however, he was present in the hospital when the

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parties' daughter, Alisyn (Ali), was born in June 2008. Prior to Ali's birth, Nathan asked Jennifer to consider a shared physical care arrangement. His requests were rejected. As the district court noted, both of these parents are "clearly infatuated" with Ali. Both parents provide Ali with excellent care. Both parents live in

appropriate homes and have a stable lifestyle. Neither parent exposes Ali to unreasonable risks or health hazards. Both parents surround Ali with family and friends who assist with her care; however, neither parent delegates their primary caretaking responsibility to a third party. After Ali was born, Nathan made requests for parenting time so his daughter could spend some time with him and his family. Jennifer either denied these requests or would only permit Nathan to visit the child in her home, while she was present. Jennifer was breastfeeding and stated the child could only go to Fort Dodge with Nathan if she accompanied them. As a result, Nathan's

contact with the Ali was much more limited than he would have preferred. His requests for less restrictive visitation were denied. On July 14, 2008, Jennifer filed a petition to establish paternity, custody, care, visitation, and support. Nathan's answer to the petition sought joint

physical care of Ali. Jennifer stopped breast feeding her daughter about three weeks before a hearing on temporary matters was held on September 8. At the hearing, Jennifer took the position that Nathan's visitation should be supervised and requested that any visitation take place in her father's home.

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On September 11, 2008, the district court granted the parties temporary joint physical care, with the parties alternating care on a weekly basis. The court concluded there was no evidence that Nathan was unsuited as a parent. The court further found "no evidence shows that Jennifer is especially experienced with babies other than her recent care of Alisyn. In whole, both parties appear to be responsible young people who are motivated to parent by a love for their daughter." month.1 Jennifer is twenty-nine years old and in good health. She is employed at Allen Memorial Hospital in Waterloo as a medical secretary and phlebotomist. She recently received a promotion and will be working in the lab section of the Emergency Room, where she will receive $12.85 per hour. Jennifer continues to live in a mobile home with her mother. She shares a bedroom with Ali. Jennifer works several different shifts. The earliest requires her to leave home at about 4:30 a.m. The latest allows her to return home at about 5:00 p.m. Jennifer uses a childcare provider for her daughter during work hours. Jennifer's mother works at John Deere. She assists Jennifer in caring for Ali. She leaves for work at about 5:30 a.m. and usually drops her granddaughter off at her childcare provider before going to work. Nathan was ordered to pay temporary child support of $529 per

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Jennifer appealed the temporary physical care order to the Iowa Supreme Court, and sought a stay of the order. The supreme court determined a stay was not required. The court also denied Jennifer's request for an interlocutory appeal. Procedendo was issued. After the case was returned to district court, Jennifer filed a motion seeking the recusal of the judge that signed the temporary physical care order. That motion was denied.

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Nathan is thirty years old and in good health.

In October 2008, he

accepted a position as a used car manager at a car dealership in Mason City. He earns $5000 per month, plus commissions. Nathan was still living in Fort Dodge at the time of trial, but planned to move to Clear Lake, a community near his employer. At Nathan's home in Fort Dodge his daughter has her own

bedroom. Nathan is engaged to Sheena. Sheena is twenty-two years old and has a degree in dental hygiene. During the weeks Nathan had physical care of his daughter prior to trial, Sheena moved into his home to help care for the Ali. Sheena planned to move to the Mason City area with Nathan. Like Jennifer, Nathan uses a childcare provider for Ali while he is at work. This case was tried to the court on February 11, 2009. Ali was seven and one-half months old at the time of trial. The district court issued an order on February 20, 2009, granting the parties joint legal custody of the child. The court determined joint physical care was not in the best interests of the child based on the geographical distance between the parties and "the continuing level of animosity and discordant communication between the parties." In considering physical care of the child, the district court found "both parties are in almost every way appropriate and beneficial caretakers." We

agree with this assessment. The court ultimately concluded that Nathan should have physical care because of Jennifer's continuing inability and unwillingness to support a parent-child bond between Nathan and Ali. The court found Nathan had made better and more generous attempts to communicate with Jennifer and that he better supported Jennifer's relationship with the child. The court

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concluded that Jennifer's difficulty in overcoming the anger she feels toward Nathan has adversely affected her ability to communicate with him about Ali. We believe the record supports all of the district court's conclusions. The court established a visitation schedule which provides that until the child attends preschool, Jennifer will have visitation every week from Friday at 7:00 p.m. until Wednesday at 10:00 a.m. If the child attends preschool,

Jennifer's visitation will be reduced to three full days on alternating weekends. Once the child is in school, Jennifer will have visitation on alternating weekends from Friday at 7:00 p.m. until Sunday at 4:00 p.m. In addition, Jennifer may exercise visitation on any day from 8:00 a.m. until 7:00 p.m., in Nathan's residential area, provided she gives forty-eight hours noticed to him.2 Jennifer was awarded visitation on alternating holidays. Also, once the child is in school, she may have visitation over one-half of the summer break and winter break, and all of spring break. Jennifer was ordered to pay child support of $274 per month. The court refused Nathan's request to give the child the surname of Kannegieter, as opposed to Widdel, which is on her birth certificate. The court ordered each party to pay his or her own attorney fees. Jennifer appeals the physical care provisions of the paternity decree. She also contends the court should have awarded her trial attorney fees, and she seeks appellate attorney fees. Nathan has cross-appealed, alleging the child's

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Before the child attends preschool, and if she attends preschool, this visitation time may not be exercised on a Wednesday.

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surname should be Kannegieter-Widdel. In addition, he asks to have the "any day" visitation provision in the decree eliminated or modified. II. Standard of Review

Issues ancillary to a determination of paternity are tried in equity. Markey v. Carney, 705 N.W.2d 13, 20 (Iowa 2005). We review equitable actions de novo. Iowa R. App. P. 6.907 (2009). When we consider the credibility of

witnesses in equitable actions, we give weight to the findings of the district court, but are not bound by them. Iowa R. App. P. 6.904(3)(g). III. Physical Care

Jennifer contends it would be in the Ali's best interests to be placed in her physical care. She claims Nathan had no real interest in the child until she stated she would be seeking child support. She states she was rightfully concerned about permitting Nathan to have visitation away from her home due to the limited interest he had exhibited before the child was born and immediately after the birth. Jennifer also finds fault in some of Nathan's actions regarding the child, such as switching the child's formula, taking the child to have two haircuts, and arranging to have the child baptized.3 Jennifer contends she is more stable than Nathan because he has changed jobs more frequently than she has, and he testified he would be moving soon after the paternity hearing. Jennifer also

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Nathan invited Jennifer to attend the baptism. She initially accepted the invitation, but later objected to the event. After Jennifer protested the baptism, the event was cancelled.

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asserts that Nathan's fianc

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