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IN THE COURT OF APPEALS OF IOWA No. 6-745 / 06-0096 Filed October 25, 2006

Upon the Petition of AMY BLEVINS, Petitioner-Appellant, And Concerning DAVIS HEYWOOD, JR., Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Fremont County, J.C. Irvin, Judge.

Mother appeals from a district court order, judgment, and decree that awarded physical care of a child to its father and changed the child's surname. AFFIRMED.

Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellant.

Michael Gallner, Council Bluffs, for appellee.

Heard by Sackett, C.J., and Zimmer, J., and Hendrickson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 ZIMMER, J. Amy Blevins f/k/a Amy Neeman and Davis Heywood are the biological parents of Kassie Neeman n/k/a Kassie Heywood, born in 1997. Amy appeals from the district court order, judgment, and decree that awarded the parties joint legal custody of Kassie, placed the child in Davis's physical care, and changed Kassie's surname to Heywood. We affirm the district court. I. Background Facts and Proceedings. Amy and Davis have never been married to each other. Amy was

Kassie's primary caregiver from the child's birth until the district court awarded Davis physical care. Davis initially had visitation with Kassie every other

Saturday, but the visitation ceased after a few months. Shortly thereafter, Davis moved to Colorado. Other than one brief visit with Kassie when she was a year old, Davis did not have visitation with her until 2002. Amy contends Davis never contacted her to request visitation. Davis contends that Amy's frequent moves during the first few years of Kassie's life made it difficult to contact her regarding visitation and, moreover, that Amy ignored the requests for visitation she did receive. Amy and Davis eventually began relationships with, married, and had children with other individuals. Amy married Michael Blevins in 2002, and they have three children together. Davis married Wendy Heywood in 2004, and they have two children together. Wendy also has two children from a prior marriage. In 2001 Davis contacted Amy about resuming visitation with Kassie. In February of that year the Colorado District Court established a permanent child support obligation. The order, which listed Amy and Davis as co-petitioners,

3 stated that no request for back child support had been made. According to

Davis, he was not required to pay back child support because he provided the court with proof that he had provided Amy monetary assistance for Kassie during those periods of time he had been able to ascertain her location. Davis has complied with the terms of the child support order, including the requirement to provide health insurance for Kassie. However, after Amy

experienced some initial difficulties with Kassie's doctors accepting Davis's insurance, she ceased taking advantage of the coverage and instead relied on Medicaid. In 2002 Davis traveled to Iowa for a visit with Kassie. In 2003 Davis requested and received visitation with Kassie for seven weeks during the summer and one week during Christmas break. Colorado. The visitation was spent in

In 2004 Davis requested and received approximately a month of

summer visitation with Kassie, which was again exercised in Colorado. Davis also spoke with Kassie on the telephone once or twice a month. During at least part of the time Davis had to rely on Amy placing the phone calls, because Amy's home phone service has been shut off and she did not own a cell phone. In February 2005 Amy filed a petition for determination of legal custody, physical care, and visitation. In the summer of 2005 Davis exercised

approximately three months of visitation with Kassie. During this time a dispute arose over a doctor's appointment Amy had made for Kassie. Kassie, who suffers from simple absence seizures, had been scheduled to see her neurologist on July 7. The parties dispute whether Davis refused to return Kassie to Iowa for the appointment or whether Amy simply did not provide

4 Davis adequate notice that Kassie needed to be returned for the appointment. In lieu of the July 7 appointment, Davis had Kassie evaluated by a neurologist in Colorado. After Kassie indicated that she did not always receive both doses of her seizure medication, the neurologist prescribed a one-dose form of the drug. Since the change, Kassie has experienced fewer seizures. Amy's petition came before the district court in October 2005. At the time of trial Amy was twenty-seven years old, and her children with Michael were aged four years, twenty months, and one month. Amy was unemployed and staying home to care for the children, but had previously worked as a nurse's aide earning $11.50 per hour. Michael was employed as a forklift driver, earning $10 per hour. The family was also receiving government assistance in the form of food stamps and Medicaid. Amy's family was occupying a two-bedroom rental home, but was hoping to move in the near future. The new home would be the sixth residence Amy has occupied since Kassie's birth. At the time of trial Davis was thirty years old. His children with Wendy were five years old and two years old, and Wendy's two children were ten years old and eight years old. Wendy and Davis were also certified foster parents and had the care of two foster children, then aged eight and five. However, the foster children were in the process of being adopted, and Wendy and Davis stated they would stop providing foster care if Davis received Kassie's physical care. The family lived in a five-bedroom home Wendy and Davis purchased two years prior to trial. Davis was employed as a supervisor by an area apartment complex, a job he had held since 2000, earning $36,400 per year. He also operated a small construction business, which had not yet shown a profit.

5 Wendy, in addition to caring for the home and the children, worked as a house cleaner on a part- to full-time basis. In its December 2005 order, judgment, and decree, the district court noted it was "clear" that Davis should be awarded Kassie's physical care. The court recognized Amy's role as Kassie's primary caregiver and the limited amount of time Davis had spent with the child. However, the court found Davis's early visitation had been limited, at least in part, because his requests for visitation "went unheeded" by Amy. The court was also troubled by the fact Michael had admitted to drug use as recently as 2004, 1 and that he had been convicted of domestic abuse against Amy for an incident in October 2003. In addition, the court focused on the fact that Amy, Michael, and the children had "lived in a number of residences . . . in a variety of locations." The court determined Davis had demonstrated greater stability in his family life and his career and would be better able to provide for Kassie's emotional and economic needs. The court accordingly placed physical care with Davis, ordered that Kassie's last name be changed to Heywood, awarded Amy visitation, and ordered Amy to pay child support. The court directed the parties to pay their own attorney fees and taxed the costs of the action against Amy. Amy appeals. She asserts the court erred in awarding Davis physical care of Kassie and in ordering that Kassie's last name be changed to Heywood. She asserts the court further erred by failing to award her trial attorney fees and in ordering her to pay the costs of the action.
1

Although Amy and Davis both abused methamphetamine at the time Kassie was conceived, the record credibly indicates neither has used drugs since Kassie's birth.

6 II. Scope and Standard of Review. We conduct a de novo review of the district court's decision. Iowa Code

Download Upon the Petition of AMY BLEVINS, Petitioner-Appellant, And Concerning DAVIS HEY

Iowa Law