Opinion
No. 5-924 / 05-0891
Filed February 1, 2006
Appeal from the Iowa District Court for Bremer County, Paul W. Riffel, Judge.
Vance Gaede appeals from the order which granted Jessica Wenger physical care of their daughter. AFFIRMED.
Dale E. Goeke of Hagemann Goeke, Waverly, for appellant.
James S. Updegraff, West Union, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Vance Gaede appeals from the order which granted Jessica Wenger physical care of their daughter, Naomi Gaede. We affirm.
Background Facts and Proceedings.
Vance, who was twenty-five years old at the time of trial, and Jessica, who was twenty, were not married when Naomi was born in 2002. The parties did live together at a home owned by Vance's parents for a period of time after Naomi's birth, but separated when she was approximately eight months old. After their separation, Jessica lived with her parents for a time and then moved to a rented house in Fairbank, while Vance moved to a farmhouse near Tripoli.
Since their separation, the parties have been sharing physical care of Naomi whereby Naomi would spend one week with Vance and the next week with Jessica. A variety of witnesses testified that Naomi is a normal, well-adjusted child, and has no serious mental or physical problems.
On March 30, 2004, Vance filed a petition to establish paternity, custody and child support. Following a short trial in January 2005, the district court entered a decree which terminated the previous informal shared care arrangement. The court granted the parties joint legal custody of Naomi but allocated her physical care to Jessica. The court further granted Vance specified visitation and ordered him to pay child support. Following the denial of Vance's post-trial motion, in which he claimed that Jessica had failed to disclose the full extent of her "problems with alcohol abuse," Vance filed this appeal. Scope of Review.
We urge both parties to comply with Iowa Rule of Appellate Procedure 6.14(5)( b), which requires that any unpublished cases, which are cited in the briefs, must be copied and attached to the brief.
Our review of a custody order is de novo and our primary consideration is the best interests of the child. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Guardianship of Knell, 537 N.W.2d 778, 780 (Iowa 1995). In assessing a custody order, we give considerable weight to the judgment of the district court, which has had the benefit of hearing and observing the parties first-hand. Kleist, 538 N.W.2d at 278.
Naomi's Physical Care.
On appeal, Vance asserts the court should have granted his request for a shared physical care arrangement. He maintains that the prior, informal arrangement should not have been upset, that the new arrangement severely limits his contact with Naomi, and that the order is not in Naomi's best interests.
In child custody cases the first and governing consideration is the best interest of the child. Iowa R. Civ. P. 6.14(6)( o). The critical issue in determining the best interests of the child is which parent will do better in raising the child; gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa 1985). The criteria set forth in In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974), should be applied.
Joint physical care, although once disfavored in our case law, see In re Marriage of Roberts, 545 N.W.2d 342, 343 (Iowa Ct.App. 1996), has been sanctioned by our legislature as a viable option under our dissolution statute. Iowa Code 598.41(5) (2003) ("Joint physical care may be in the best interest of the child, but joint legal custody does not require joint physical care."). "The criteria governing custody decisions are the same regardless of whether the parties are dissolving their marriage or are unwed." See Montgomery v. Wells, ___ N.W.2d ___, ___ (Iowa Ct.App. 2005) (citing In re Purscell, 544 N.W.2d 466, 468 (Iowa Ct.App .1995)). Our legislature has further provided that:
If joint legal custody is awarded to both parents, the Court may award joint physical care to both joint custodial parents upon the request of either parent. If the Court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
Here, the court stated:
Shared physical placement as proposed by Vance is not in the long term best interest of Naomi nor is it feasible under the circumstances herein. The parties live and work in different counties and school districts. They do not communicate well with each other regarding matters pertaining to their child. The parties lived together only briefly and during that period Vance was both physically and verbally abusive toward Jessica. Under the circumstances herein the Court concludes Naomi's best interest would be better served by awarding primary physical placement to Jessica. While both parties have actively cared for Naomi since their separation, the record reflects that Jessica is better suited to be the child's custodian and would be more prone as the custodial parent to support and encourage Naomi's relationship with Vance as the noncustodial parent. Vance's threatening and controlling behavior directed not only toward Jessica but also toward her acquaintances raises serious questions as to his suitability to be Naomi's custodian and also as to his ability to encourage the child's relationship with Jessica in the event he would be her custodial parent.
We find the district court's justification for denying joint physical care in lieu of granting Jessica physical care to be persuasive and well-supported in both the record and our case law, and we therefore adopt those findings as our own. The district court's elucidation of reasons reveals that it considered the fact that Naomi would be approaching school age in the near future, and that the parties live in different school districts making joint physical care less than a favored arrangement. The court also considered pertinent character traits of both parties including the unrebutted testimony that Vance has a history of aggression toward Jessica. It determined that Jessica would better foster a relationship with Vance as the non-custodial parent. These considerations not only weigh and account for the factors outlined in Winter, 223 N.W.2d at 166, they also satisfy Iowa Code section 598.41(5)(a)'s requirement that findings of fact be made before denying one party's request for joint physical care. Accordingly, we find no compelling reason to modify the district court's determination that an arrangement by which Jessica serves as Naomi's physical caretaker, while allowing Vance liberal visitation, most effectively serves Naomi's long-term best interests.
Post-trial Motions.
Following the entry of the decree, Vance filed a motion for new trial and to reopen the record. He asserted that Jessica had not testified completely about a certain incident in which, while intoxicated, she drove a vehicle resulting in an accident. He also generally argued that the visitation granted in the decree was inadequate, that child support should be recalculated, and that denial of his request for joint physical care was not in Naomi's best interests. On appeal, Vance first generally claims that insufficient evidence was presented at trial to warrant the decree that was entered. He also re-asserts that, because Jessica did not testify "fully and completely" about her alcohol abuse, a new trial should be ordered.
We first reject Vance's assertion that the decree was entered based on inadequate evidence. While he complains that what was originally scheduled for a two-day trial concluded after only a one-half day trial, he fails to recognize his role in the trial's brevity. While he complains that there was no pretrial discovery, no attorney appointed to represent Naomi's interests, no home studies conducted, and no parenting or psychological evaluations offered, it was his obligation to develop the record as he felt was needed. There is nothing in the record which would indicate Vance was in any way prevented from fully litigating his contentions or presenting such evidence.
Furthermore, we reject his claim the district should have granted a new trial based on Jessica's alleged failure to fully disclose certain alcohol-related incidents. A review of the court's decree reveals it took into account one alcohol-related incident when it observed "Jessica has on occasion not exercised good judgment with respect to consuming alcohol and driving which has resulted in the loss of her driving privileges but such conduct never placed Naomi at risk." At the trial, Jessica admitted that she had lost her license after she was pulled over for speeding and a breath test revealed that she had a blood alcohol content over .02. While Vance suggests a second incident occurred, unbeknownst to him, in the fall of 2004, this could have been discovered "with reasonable diligence" prior to trial. Accordingly, this is not the type of "new evidence" as would warrant a new trial. See Iowa R. Civ. P. 1.1004(7). We therefore affirm the post trial rulings, as well as the district court's decree.
Costs on appeal are assessed to Vance.
AFFIRMED.
Mahan, J., concurs; Sackett, C.J., dissents.
I dissent.
This sparse record does not support changing the shared primary physical care arrangement the parties structured for their daughter. The arrangement has worked well as the majority acknowledges witnesses testified Naomi is a normal, well-adjusted child and has no serious mental or physical problems.