Opinion
No. 5-300 / 04-1855
Filed June 15, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Appellant Andrew Thomas Johnson appeals the district court's decision placing primary physical care of his two sons with appellee Sue Ann Howard. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
Thomas Schlapkohl of Brick, Gentry, Bower, Swartz, Stoltze, Schuling Lewis, P.C., Des Moines, for appellant.
Todd Elverson of Elverson, Vasey Peterson, L.L.P., Des Moines, for appellee.
Heard by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Appellant, Andrew Thomas Johnson, appeals the district court's decision placing primary physical care of his two sons, Cameron, born in 2001, and Seth, born in 2003, with their mother, appellee, Sue Ann Howard. Andrew contends that he, not Sue Ann, should have been given primary physical care. He further challenges the visitation, child support, and award of attorney fees to Sue Ann. We, as did the district court, find Andrew to be the more stable of the two parents. For this and other reasons we reverse the custody decision and award Andrew primary physical care and remand to the district court to determine visitation and child support. We affirm the award of attorney fees.
Our review is de novo. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). This court must examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Bonnette, 492 N.W.2d 717, 720 (Iowa Ct.App. 1992). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Marriage of Kunkel, 546 N.W.2d 634, 635 (Iowa Ct.App. 1996). We base our decision primarily on the particular circumstances of the parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). The interests of the children are the primary consideration. See Vrban, 359 N.W.2d at 424. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41(3) (2003), in Weidner, 338 N.W.2d at 355-56, and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The issue is which parent will do better in raising the child; gender is irrelevant and neither parent has a greater burden than the other in attempting to gain custody in a dissolution proceeding. In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App. 1991); In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct. App. 1985). We give consideration to each parent's role in child raising prior to a separation in fixing primary physical care. See In re Marriage of Love, 511 N.W.2d 648, 650 (Iowa Ct.App. 1993); In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct.App. 1992). Though we do not award custody based on hours of service for past care, we attempt to determine which parent will in the future provide an environment where the child is most likely to thrive. In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993).
The critical issue is which parent will do the better job of raising the children over the long term. See Weidner, 338 N.W.2d at 359; Winter, 223 N.W.2d at 165; Ullerich, 367 N.W.2d at 299. The parent who has the ability to do the better job of raising the child or children during their minority is the parent who should be granted custody. See Vrban, 359 N.W.2d at 424.
Andrew and Sue Ann have never married. They had a three-year relationship. During most of that time they lived together in a mobile home on an acreage. In September of 2003 they separated and Sue Ann went to live with her parents, taking the children with her. In November of 2003 temporary physical care of the children was given to Andrew. Sue Ann was given visitation. The temporary custody order provided that if one parent were not able to care for the children during their custodial time the other parent had first option to care for them. As a result Sue Ann, to her credit, generally cared for the children while Andrew worked. Sue Ann was ordered to pay temporary child support of $107 a month.
Once the temporary order was issued it appears the sharing and transfer of the children worked well in the ten or more months between the time of the temporary order and the trial. Both Andrew and Sue Ann are good parents and they care about their children. The difficult question is who will do a better job of raising them.
After Sue Ann moved from Andrew's home to the home of her parents, she stayed there in the year between her separation from Andrew and the trial. Sue Ann works evenings in a bowling alley. She has made no plans for independent housing other than to say at trial that she planned to look for a townhouse if she were awarded the primary physical care of the children. She had made no effort to obtain full-time employment or better her employment opportunities. She had no plans to meet the children's need for child care should she find employment.
Andrew was married at the time of the hearing. He was employed and had been employed for some time as a journeyman electrician making about twenty-nine dollars an hour. He had nearly finished building, primarily by himself, a 2000 square feet house on the acreage which he would move in to as soon as the septic system for the house was approved. He had child care arrangements, intending to take the children to a child care facility where his wife works.
The parties have each attempted to paint the other parent in a bad light. Sue Ann contends Andrew is controlling, possessive and jealous. Andrew contends Sue Ann is lazy and unmotivated. The district court made findings that supported both Sue Ann and Andrew's complaints about each other. The court found Andrew overbearing and rigid, especially in his relationship with Sue Ann and her family. The court found Sue Ann to have shown little motivation to further her employment and address the corresponding need for child care and that, although she appeared to be making progress, she still exhibits some of the immaturity and lack of motivation she exhibited when she and Andrew lived together.
The district court seemed to tip the scales in Sue Ann's favor finding Andrew has serious issues as concern his ability to support and foster an independent relationship between Sue Ann and the children. In arriving at this conclusion the court considered problems that arose between the time Sue Ann left Andrew's home and the temporary custody order was entered and further focused on what it references as an offhanded remark made by Andrew during his testimony. With reference to the remark, the district court said:
When asked what type of visitation arrangement would be appropriate for Sue Ann if he were to be awarded primary physical care, he first said what ever the court felt appropriate would suffice but that `Sue Ann would have to ask for more.'
In our de novo review we find Andrew clearly has been the more responsible parent. Sue Ann lacks focus and ambition. While she loves her children, one has concern how, without Andrew's help, she can structure a life for them. She has relied heavily on her parents despite the fact she has had problems with them.
The district court is correct in considering Andrew's attitude towards Sue Ann's place in the children's lives. The Iowa courts do not tolerate hostility exhibited by one parent to the other. In re Marriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct.App. 1998); In re Marriage of Rosenfeld, 524 N.W.2d 212, 215-16 (Iowa Ct.App. 1994). In Rosenfeld, we addressed a situation where parents sought to put the other parent in an unfavorable light and considered it a factor in modifying a custody award. Rosenfeld, 524 N.W.2d at 215. Other cases have addressed similar complaints under other circumstances. See In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct.App. 1991). The hostile conduct need not come only from the custodial parent. Furthermore, a failure to cooperate with the other parent after an initial award has been made can result in a transfer of primary physical. Udelhofen, 444 N.W.2d at 476; Rosenfeld, 524 N.W.2d at 215.
We consider, as the district court found, that Andrew may have been too controlling on custody and visitation issues prior to the entry of the temporary order. We do not condone this behavior but consider Andrew's behavior during that time period not in isolation but as part of the overall picture. Once a custodial order was entered Andrew appears to have respected it in all respects. His life has direction and focus. He is better equipped to care for the children. We reverse the award of primary physical care and name Andrew the primary physical custodian. We remand to the district court to establish visitation and child support.
Andrew contends Sue Ann should not have been awarded $2,500 in attorney fees because she did not show evidence of attorney fees until a post trial motion though she asked for them in her initial pleading. We find no basis to this argument. The district court did not abuse its discretion in awarding attorney fees. In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct.App. 1998). We affirm on this issue.
We award no appellate attorney fees. Costs on appeal are taxed one-half to each party.