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IN THE COURT OF APPEALS OF IOWA No. 8-678 / 08-0129 Filed December 17, 2008 NICHOLAS R. DIETZ, Petitioner-Appellee, vs. TAMMY MCDONALD, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Chickasaw County, Lawrence H. Fautsch, Judge.

Tammy McDonald appeals the district court ruling on Nicholas Dietz's petition to establish paternity, custody, and visitation regarding the parties' child. AFFIRMED.

Gary J. Boveia of Boveia Law Firm, Waverly, appellant. Margaret C. Callahan of Belin, Lamson, McCormick, Zumbach, and Flynn, P.C., Des Moines, and Craig G. Ensign, Northwood, for appellee.

Heard by Vogel, P.J., and Mahan and Miller, JJ.

2 MILLER, J. Tammy McDonald appeals the district court's ruling on Nicholas Dietz's petition to establish paternity, custody, and visitation regarding the parties' child. She contends the court erred in (1) ordering graduated visitation that ultimately results in joint physical care; (2) establishing Nicholas's child support obligation by imputing income to Tammy; (3) determining the amount of Tammy's trial attorney fees Nicholas was required to pay; and (4) failing to require Nicholas to reimburse Medicaid for prenatal, birth, and postnatal expenses. Tammy also requests an award of appellate attorney fees. We affirm. I. BACKGROUND FACTS AND PROCEEDINGS. The record reveals the following facts. Tammy and Nicholas are the

parents of Maverick, born in September 2006. At the time of trial Tammy and Nicholas were each twenty-nine years of age and had never been married, either to each other or to another. The parties met and began dating in early 2005. Tammy had a child, Morgan, born in August 1997, from a previous relationship. We note that Morgan had been in Tammy's physical care throughout Morgan's life and was flourishing in her care. When the parties met, Tammy was working at a nursing home as a licensed practical nurse (LPN). Shortly thereafter, in May 2005, she began Tammy earned

working for Covenant Medical Clinic as a phlebotomist.

approximately fifteen dollars per hour at the nursing home and approximately eleven dollars per hour at Covenant. She owned her own home when the parties met.

3 Effective January 1, 2005, Nicholas had become a fifty-percent owner of the combined family farming/dairy operation through the establishment of a limited liability company (LLC) called "Eagle View Dairy." The formation of the company was part of Nicholas's father's estate plan for passing the family farming operation to Nicholas. Eagle View owns and provides the care for Nicholas also farms

approximately 135 dairy cattle and 300 stock cattle.

approximately 700 acres, 240 of which are in Eagle View Dairy, LLC. The entire Eagle View operation has a net worth of approximately $1.4 million dollars, and Nicholas has a personal net worth of approximately $752,000. In October 2005, Nicholas moved out of his apartment and into a mobile home on the family farm. He suggested to Tammy that she move into the home with him and try working on the farm to see what farm life was like, in case they ever decided to marry. Tammy left her employment at the medical clinic and moved from the home she owned to move in with Nicholas and begin working on the farm, with the belief they eventually would marry. Nicholas agreed to pay Tammy $1,000 per month and pay for any other expenses she incurred. There is a dispute regarding why Tammy initially did not have health insurance when she began working on the farm. She blames Nicholas for failing to procure it, while he states he told her it was her responsibility to set up the insurance and he would just pay for it. Tammy became pregnant with Maverick in December 2005 while the parties were living together. After Tammy became pregnant, Nicholas procured and paid for health insurance for her and her daughter Morgan, but the insurance did not cover expenses related to Tammy's preexisting pregnancy. Nicholas

4 testified that if Tammy would have acquired insurance in October 2005, as he suggested, such expenses would have been covered by the insurance. The parties' relationship did not survive long after Tammy's move to the farm. In light of shared concerns Nicholas asked Tammy to move out of the trailer in late February of 2006 and she did so. Nicholas offered Tammy some money for her expenses when she left and gave her a check for $4,000. Tammy quit working on the farm when she moved out. Instead of going back into nursing she decided to become a massage therapist and began training for such a career. Tammy testified she chose to change careers

because she felt it would be easier for her to maintain a reduced and/or flexible schedule as a massage therapist, which in turn would facilitate her ability to raise Morgan and the child she was then expecting. She further stated she believed that once she was established as a massage therapist she could do as well financially as she could as an LPN. Nicholas accompanied Tammy to several of her doctor's appo intments while she was pregnant with Maverick. He also went to Lamaze classes with her, although they apparently only went to two of those classes because Tammy was having a hard time with them. In addition, Nicholas took Tammy shopping shortly before Maverick was born to buy the supplies necessary for the baby's first days. He was with Tammy in the delivery room in September 2006 when Maverick was born, spent the night in the hospital with her, and when the time came drove them home from the hospital. Nicholas continued to pay Tammy's and Morgan's insurance up until at least February of 2007.

5 Nicholas testified that several times during Tammy's pregnancy she threatened that she would "make it difficult" or "tough" for him to see the baby after it was born if, for example, he were to get a paternity test or if he did not get back together with her. W ithin a few days of Maverick's birth Tammy told

Nicholas she would not allow him to see Maverick until she had talked to a lawyer. She thereafter apparently relented and Nicholas began to see Maverick almost every day. However, Tammy would not allow Nicholas to see Maverick alone and in fact did not allow him to take Maverick out of her home until a temporary court order required her to do so in December 2006. During one of Nicholas's early visits to see Maverick he and Tammy d iscussed custody arrangements. Nicholas told Tammy he was interested in joint physical care as Maverick moved beyond the infant stage. Tammy told him that joint physical care was not an option and he should be satisfied with visitations every other weekend. Tammy agreed this conversation took place prior to Nicholas filing the present action. Nicholas filed his petition to establish paternity, custody, and visitation on September 28, 2006. Following this filing it appears the parties' communications and cooperation about Maverick deteriorated. Around mid-November Tammy decided she did not want to be present during Nicholas's visitations with Maverick. She told Nicholas that to see Maverick he would have to do so at a time when her mother could come to her home and supervise the visitation, and her mother would only be available four days a week from 6:00 p.m. to 8:00 p.m. Nicholas was offended by this arrangement and not readily available at this new time due to his farming responsibilities. Thus, he did not see Maverick from

6 approximately mid-November until the temporary order on December 12, 2006, established his right to unsupervised visitations with Maverick every Monday, Wednesday, and Friday from 8:00 a.m. until noon. This court-ordered temporary schedule remained in effect through trial in the fall of 2007. At Nicholas's request the court appointed Dr. Mark Peltan to conduct a custody evaluation. As part of his evaluation Dr. Peltan conducted psychological evaluations of both Tammy and Nicholas. Dr. Peltan found traits of concern with regard to each. He had some concern about Nicholas's "sense of entitlement," possibly from a relationship with an "overindulging mother." However, Dr. Peltan found Tammy's emotional stability to be more concerning, finding she "may tend to have wide mood swings occurring over long periods of time such as those that accompany manic depressive illness," and that her profile on certain testing was of the type "found among individuals who are intentionally trying to deceive persons who are evaluating them." Dr. Peltan stated that Tammy "could benefit both herself and her children" by involving herself in therapy. He recommended she seek counseling. healthier overall." Dr. Peltan ultimately recommended that the parties' current physical care arrangement continue to be modified as Maverick gets older, gradually giving Nicholas more time with Maverick until they eventually achieve "full" joint physical care. Among other things he recommended an alternating "four day-three In his summary he found that Nicholas "presents as

day/three day-four day schedule" from approximately the time Maverick is thirty months of age until he starts school. He also recommended Maverick not spend a full week apart from either parent until he is school age. At trial Dr. Peltan

7 testified that such phased-in joint physical care would be best because it generally has the best outcome for children, and was very favorable in this case because the parties live close together, live in the same school district, and had reported to him that they were able to communicate reasonably well about dayto-day issues. Tammy hired another custody evaluator, Dr. Hartson. He testified that in general he recommends graduated visitations culminating in joint physical care when dealing with a child as young as Maverick in order to provide for changes at different developmental stages of the child. However, Dr. Hartson testified that because he had not met with Nicholas it would be unethical for him to create a specific custody plan in this case. Thus, all of Dr. Hartson's testimony focused on general, rather than case-specific, concerns and polices regarding physical care arrangements for children. The district court adjudged Nicholas to be the biological father and awarded the parties joint legal custody of Maverick. After considering the

provisions of Iowa Code section 598.41 (2007) and the factors set forth in In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007), the court concluded physical care of Maverick should be placed with Tammy "with graduated visitation to [Nicholas] which will culminate in shared physical care." With regard to the issue of child support, the court accepted the child support computations Nicholas provided, including that Nicholas's annual gross income was $23,692.50, and imputed full-time minimum wage income to Tammy. Based on these amounts the court ordered Nicholas to pay $300 per month in child support prior to joint physical care and $68 per month after the graduation

8 to joint physical care was complete. On the issue of what amounts, if any,

Nicholas should pay to Tammy for prenatal and postnatal expenses under section 600B.25, the court concluded that the check Nicholas gave to Tammy in February 2006 was in excess of any such expenses. The court noted that all of the birthing expenses had been paid through governmental assistance. The

court also ordered that Nicholas "be allowed to take the child as a tax exemption for income tax purposes as long as he is current in his child support payments for the tax year in question," that he pay $3,642.23 toward Tammy's trial attorney fees, and that he pay the fees of Dr. Peltan, Dr. Hartson, and a mediator. Tammy appeals the district court order, claiming the court erred in (1) ordering graduated visitation that ultimately results in joint physical care; (2) imputing income to Tammy in establishing Nicholas's child support obligation; (3) determining the amount of Tammy's trial attorney fees Nicholas was required to pay; and (4) failing to require Nicholas to reimburse Medicaid for prenatal, birth, and postnatal expenses. attorney fees. II. SCOPE AND STANDARDS OF REVIEW. The parties agree that in this case, involving primarily the physical care of a child of unmarried parents, our scope of review is de novo. In such a review we examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g). This is because the trial court has a firsthand opportunity to hear the evidence Tammy also requests an award of appellate

9 and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). "Prior cases have little precedential value, except to provide a framework for analysis, and we must base our decision on the particular facts and circumstances before us." Id. III. MERITS. A. Physical Care.

Tammy first contends the district court erred in ordering graduated visitation that will culminate in the parties having joint physical care of Maverick. The court concluded that physical care of Maverick should be placed with Tammy for the present due in large part to his young age and the fact Tammy was breast feeding him, but that Nicholas should have graduated visitation with Maverick that will ultimately result in the parties having joint physical care. The only portion of the court's physical care determination that Tammy takes issue with is its culmination in joint physical care. Thus, we need address only the propriety of that portion of the court's decision. The criteria governing physical care determinations are the same whether the parents are dissolving their marriage or have never been married to each other. Jacobson v. Gradin, 490 N.W.2d 79, 80 (Iowa Ct. App. 1992); Hodson v. Moore, 464 N.W.2d 699, 700 (Iowa Ct. App. 1990). "Joint physical care" means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child. Iowa Code

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