Opinion
No. 3-778 / 03-0011.
Filed December 10, 2003.
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Petitioner appeals and respondent cross-appeals from the provisions of their dissolution decree. AFFIRMED.
James D. Hoffman of James D. Hoffman, P.C., Davenport, for appellant.
James T. Carlin of Gomez, May, Cartee Schutte, Davenport, for appellee.
Heard by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Paula Denger appeals, and Lance Denger cross-appeals, from the provisions of their dissolution decree. Paula contends the district court erred in granting Lance primary physical care of their minor children. Lance contends the district court erred in refusing to modify the decree to disestablish paternity of Paula's unborn child, conceived during the marriage. We affirm.
I. Background Facts and Proceedings. Paula and Lance were married in June of 1989 when Paula was nineteen years old and Lance was twenty-seven. At the time, Lance was working second shift at Alcoa as a laborer. Paula worked at Midwest Radio until the parties' first child, Brad, was born in March of 1991. A second child, Brandi, was born in July of 1992. Paula stayed home with the children until Brandi began school in 1997. In 1997, Lance was granted primary physical care of Christia, a daughter from a previous relationship.
In 1997 or 1998, Lance changed to a day shift at Alcoa and began attending law enforcement classes. In January 1999, Lance was hired as a police officer for the City of Davenport. He worked the second shift until the year 2000, when he began the day shift. Paula works full time as a receptionist for the Greater Davenport Board of Realtors.
Paula moved out of the family home in February 2002 and filed for dissolution of the marriage. The children lived with Lance until April 2002, when Paula was granted temporary custody of Brad and Brandi. Trial was held in October 2002. In the district court's December 2002 dissolution decree, Lance was awarded primary physical care of Brad and Brandi.
Lance brought a motion to modify judgment pursuant to Iowa Rule of Civil Procedure 1.1012, alleging the existence of newly-discovered evidence which could not have been discovered and produced at trial through reasonable diligence. He claimed Paula was pregnant, and because the child was conceived during the marriage, his paternity was presumed pursuant to Iowa Code section 252A.3(4) (2001). According to Lance's motion, the parties agreed that Damon Kingley would admit paternity to allow the court to modify the dissolution decree to disestablish Lance's paternity. At the same time, Lance filed a motion to reconsider pursuant to Iowa Rule of Civil Procedure 1.904(2), requesting the court order his Alcoa pension be divided pursuant to a Qualified Domestic Relations Order (QDRO). The motion to reconsider also requested Lance receive one income tax deduction for either Brad or Brandi, the parties divide out-of-pocket medical expenses based on income, and that Paula be responsible for all debt owed Blue Grass Savings Bank. In its order, the court directed the Alcoa pension be divided by QDRO and required Paula to pay twenty-five percent of out-of-pocket medical expenses. The court declined to further amend or modify the decree. It does not appear the court ever ruled on the motion to modify judgment pursuant to Iowa Rule of Civil Procedure 1.1012.
II. Primary Physical Care. Our review of dissolution decrees is de novo. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. Id. In doing so, we give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Id. at 51.
Paula contends the district court erred in granting Lance primary physical care of their children. The best interest of the children is our standard for deciding child custody. Iowa R. App. P. 6.14(6)( o); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Our objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Murphy, 592 N.W.2d at 683. In considering what custody arrangement is in the best interest of the children, we consider statutory factors. Iowa Code § 598.41(3) (2001). These factors are:
a. Whether each parent would be a suitable custodian for the child.
b. Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.
c. Whether the parents can communicate with each other regarding the child's needs.
d. Whether both parents have actively cared for the child before and since the separation.
e. Whether each parent can support the other parent's relationship with the child.
f. Whether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity.
g. Whether one or both the parents agree or are opposed to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.
j. Whether a history of domestic abuse, as defined in section 236.2, exists.
All these factors bear upon the "first and governing consideration" as to what will be in the best long-term interest of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984).
The statutory factors and the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), are appropriately considered in determining the award of physical care. In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). These factors include:
1. The characteristics of each child, including age, maturity, mental and physical health.
2. The emotional, social, moral, material, and educational needs of the child.
3. The characteristics of each parent, including age, character, stability, mental and physical health.
4. The capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child.
5. The interpersonal relationship between the child and each parent.
6. The interpersonal relationship between the child and its siblings.
7. The effect on the child of continuing or disrupting an existing custodial status.
8. The nature of each proposed environment, including its stability and wholesomeness.
9. The preference of the child, if the child is of sufficient age and maturity.
10. The report and recommendation of the attorney for the child or other independent investigator.
11. Available alternatives.
12. Any other relevant matter the evidence in a particular case may disclose.
Winter, 223 N.W.2d 166-67.
Upon de novo review, we conclude the district court properly granted primary physical care of Brad and Brandi to Lance. It is clear from the record that both parents love their children and are bonded with them. However, at this time it appears Lance is a more stable parent and can better assist the children in reaching healthy physical, mental, and social maturity.
Although Paula was the primary caretaker of the children in their early years, her actions over the past year demonstrate her priorities have changed. Her actions indicate she has put her own desires above her family's needs. While it is undisputed that Paula cares deeply for her children, we agree with the trial court's conclusion that she has shown a "lack of good judgment" and a "measure of immaturity" that reflects unfavorably on her fitness as primary physical custodian of her children.
In 2000, Lance changed from the second shift to a day shift at the Davenport Police Department. This has allowed him to be more active in his children's lives. Lance did demonstrate poor judgment when he interrogated Paula and some of her friends regarding his belief she was unfaithful to him.
Lance has primary physical care of Christia, with whom both Brad and Brandi are strongly bonded. By granting Lance primary physical care of Brad and Brandi, the children's lives will be less disrupted, and their sibling bond will continue to thrive. This is particularly important for Brad, who is described as suffering adversely from the effects of the breakup of his parents' marriage. In contrast, Paula's relationship with Christia is strained, and the children's relationship with Christia may not be as well supported if she were granted primary physical care.
Finally, a court-ordered custody evaluation recommended the parties be awarded shared physical care of the children, but if shared physical care could not be agreed upon, the evaluation recommended Lance be awarded primary care. We concur, and affirm the district court's grant of primary physical care to Lance.
III. Modification. Lance contends the district court erred in denying his motion to modify the dissolution decree to disestablish paternity of Paula's unborn child. Courts have considerable discretion in passing upon such motions, and we will not interfere unless abuse is shown. Claeys v. Moldenschardt, 260 Iowa 36, 45, 148 N.W.2d 479, 485 (1967).
Issues must ordinarily be presented to and passed upon by the trial court before they can be raised and adjudicated on appeal. H Z Vending v. Iowa Dept. of Inspections Appeals, 593 N.W.2d 168, 171 (Iowa Ct.App. 1999). We conclude the district court did not rule on this issue. Although Lance filed both a motion to reconsider pursuant to rule 1.904(2) and a motion to amend pursuant to rule 1.1012, the district court only issued an order captioned "ORDER PURSUANT TO RULE 1.904(2)." When a trial court fails to rule on an issue that has been properly raised, the party that raised the issue must file a motion with the court for ruling in order to preserve the issue for appeal. Id. Because Lance did not request a ruling from the court on his rule 1.1012 motion, this issue is not properly before us. However, the parties may litigate this issue in a separate action and their attorneys indicated to this court a willingness to amicably resolve this issue.