Opinion
No. 1-010 / 00-0070
Filed March 14, 2001
Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.
The petitioner appeals the child custody and visitation provisions of the parties' dissolution decree. Petitioner argues the district court erred in: (1) awarding respondent physical care of their minor child; (2) denying her motion for new trial; and (3) failing to amend its findings of fact and conclusions of law to grant her extended summer and holiday visitation. Petitioner requests an award of appellate attorney fees. AFFIRMED AS MODIFIED.
Anjela A. Shutts of Whitfield Eddy, P.L.C., Des Moines, for appellant.
Patrick L. Wilson, Marshalltown, for appellee.
Heard by Sackett, C.J., and Zimmer and Miller, JJ.
The Petitioner Lisa Kay Buckendahl appeals the child custody and visitation provisions of the parties' dissolution decree. Lisa argues the district court erred in: (1) awarding the Respondent Erik Matthew Thompson physical care of their minor child; (2) denying her motion for new trial; and (3) failing to amend its findings of fact and conclusions of law to grant her additional summer and holiday visitation. Lisa requests an award of appellate attorney fees. We affirm as modified.
I. BACKGROUND FACTS
Erik and Lisa were married on October 2, 1996. They have one child, Jacob, who was born in North Carolina on June 13, 1997. Lisa and Erik were both twenty-seven years of age at the time of trial. Lisa was employed at Helping Hands in Marshalltown, earning $8.50 per hour. Erik was employed at Burke Marketing in Nevada, earning $ 11.20 per hour. At the time of trial the parties were alternating Jacob's care every three days between Marshalltown and Nevada, but both agreed this was disruptive for Jacob and it was not in his best interest to continue that arrangement.
Both Erik and Lisa received Bachelor of Science degrees from Iowa State University in hotel/restaurant and institutional management in 1994. A year after graduating Erik joined the United States Army and he and Lisa were married approximately a year after that. After the parties were married Lisa found out she was pregnant and moved from Iowa to Erik's duty station in North Carolina. Lisa did not receive prenatal care during her first trimester while she was in Iowa, however after moving to North Carolina she received appropriate care. One of the reasons Lisa stated at trial for her move to North Carolina was because she was having trouble making ends meet in Iowa.
Erik was scheduled to be discharged from the Army in November of 1998. However, approximately five months before he was to be discharged he and Lisa learned they had thirty days to vacate their rental property because is was being sold. At that point they decided Lisa would return to Iowa and live with Erik's mother, Joyce Thompson, until Erik was discharged.
Erik came home on leave in October of 1998 and it appears from the record this is when problems surfaced in their marriage. It was at this time Lisa informed him she was attracted to other men. Erik was unaware at that time that the other man Lisa was attracted to was his mother's common law husband, his stepfather, Rick Thompson and that Lisa and Rick had become romantically involved. Rick and Joyce were separated at the time and have subsequently divorced. Rick and Joyce are the parents of Elizabeth, who was thirteen at the time of trial.
Erik was discharged from the army on November 20, 1998 and returned home to Iowa on that date. When he arrived at his mother's residence he was told that Lisa was at Rick's house. Erik went to Rick's house and confronted Lisa about his suspicions concerning her relationship with Rick. Lisa admitted having a romantic relationship with Rick. As a result Erik asked her to leave his mother's house, which she did, leaving Jacob with Erik and Joyce.
Lisa filed a petition for dissolution in November 1998. The main issue at trial concerned Jacob's physical care. Lisa maintained she was Jacob's primary caregiver both while they lived in North Carolina and when she returned to Iowa, up until the parties' separation. She asserted Erik assaulted her on at least one occasion and refused to take Jacob to the doctor when he was ill. Lisa further alleged Erik has a drinking problem and has used illegal drugs in the past. She also asserts that at times during the parties' separation Erik prevented her from exercising visitation with Jacob. Lisa also voiced concerns with Erik's choice of daycare provider for Jacob.
Erik denied assaulting Lisa and noted that her affair with his stepfather, Rick, continued up to and including the time of the trial. He further alleged Lisa was the one with the drinking problem, a problem he asserted was exacerbated by her taking her prescription medication for depression while consuming alcohol. Erik argued he is more mature and stable than Lisa, and could provide Jacob with a better home. He also voiced his own concerns regarding the daycare provider Lisa utilizes for Jacob.
The district court ordered joint custody of Jacob, granting Erik physical care of Jacob after concluding Erik was the parent better able to care for Jacob. The court further ordered Lisa to pay monthly child support of $298 and set up a visitation schedule for the parties.
Lisa filed a combined motion requesting that the trial court reopen the record and/or amend or enlarge its findings and conclusions or order a new trial. In her motion Lisa sought amendment of the decree to place physical care of Jacob with her. She argued the court should have placed more weight on the fact she had been and continued to be Jacob's primary caregiver, the court did not consider the written report of the child's attorney, the court relied too heavily on the report and custody recommendations of Dr. Roland, the visitation schedule established by the court was unjust, and the amount of child support she was ordered to pay was incorrect. She sought to have the record re-opened or a new trial granted on the basis that the testimony of a witness, Andrew LaValley, concerning Erik's role in obtaining military housing benefits while living on base had been incorrect.
Norma Meade was Jacob's court-appointed attorney. She submitted a written report to the court prior to trial. Counsel agreed prior to trial the court would consider Ms. Meade's written report but because no custodial recommendation was made therein she would not need to participate in the trial.
Dr. Carroll Roland, a licensed clinical psychologist, conducted a child custody evaluation upon the agreement of both parties and testified at trial regarding his findings.
The court denied Lisa's motion for the most part and reaffirmed that physical care of Jacob should be with Erik. The district court did, however, amend the decree to provide that she have visitation on Jacob's birthday in even-numbered years and to decrease the amount of child support Lisa was to pay per month to $242. It also corrected a few minor factual errors.
In denying the motion the court noted it had taken the guardian ad litem's (child's attorney's) report into account but that the information in that report was very similar to more detailed testimony presented at trial. The court also found it did not place too much weight on Dr. Roland's report because of the substantial amount of time Roland had spent on the case, Roland's expertise in custody evaluations, the fact both parties had submitted to the evaluation process, and the observations of the court at trial confirmed Roland's observations and conclusions. Finally, the court denied Lisa's motion for new trial based on what had apparently changed from a claim that Sergeant LaValley had testified incorrectly regarding military housing benefits to a claim that Erik had testified untruthfully regarding them. The trial court found Lisa had testified at trial regarding Erik's alleged untruthfulness and had an opportunity at trial to prove Erik was not entitled to the living assistance he received but had failed to do so.
Lisa appeals from the trial court's rulings and requests an award of appellate attorney fees. Lisa filed a motion on July 6, 2000 seeking to have stricken that portion of Erik's appeal brief which requests summer visitation be modified on appeal. Lisa argues the request is not appropriate as Erik did not file either a cross appeal or a motion to enlarge in the trial court. On July 19, 2000 the supreme court ordered that Lisa's motion to strike be submitted with this appeal.
II. SCOPE AND STANDARDS OF REVIEW
In this equity case our review is de novo. Iowa R. App. P. 4. 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. 14(f)(7). This is because the trial court has a firsthand opportunity to hear the evidence 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 our decision must be based on the particular facts and circumstances before us. Id.
III. MERITS
A. Physical Care
Jacob's best interests are paramount in our decision and the objective is to place him "in the environment most likely to bring [him] to healthy physical, mental, and social maturity." Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). The critical issue in determining the best interests of children is which parent will do better in raising them; gender is irrelevant, and neither parent should have a greater burden than the other. In re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct. App. 1996).
There are numerous factors to be taken into account when determining which parent should serve as the long-term primary caretaker of the child in a divorce. In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct. App. 1997); seeIowa Code § 598.41 (1999). We give some factors greater weight than others, and the weight ultimately assigned to each factor depends on the particular facts of each case. Daniels, 568 N.W.2d at 54; Will, 489 N.W.2d at 397. 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).
Although not controlling due consideration is given the fact one parent has been the historical primary caregiver during the marriage. In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App. 1996). Greater primary care experience is one of the many factors the court considers in making physical care determinations, but it does not ensure an award of physical care. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996).
Moral misconduct is a factor to be considered in a child custody determination. In re Marriage of Burkle, 525 N.W.2d 439, 442 (Iowa Ct. App. 1994). However, we do not consider this factor alone. In re Marriage of Hornung, 480 N.W.2d 91, 93 (Iowa Ct. App. 1991). Further, this factor is weighed most heavily only in cases where the misconduct occurred in the presence of the children. In re Marriage of Grandinetti, 342 N.W.2d 876, 879 (Iowa Ct. App. 1983).
Lisa contends the trial court erred in awarding physical care of Jacob to Erik. She argues the trial court should have placed more weight on the fact she was Jacob's primary caretaker prior to the parties' separation, the court gave too much weight to Dr. Roland's report, and the court "failed to incorporate into its ruling the findings by the [attorney for the child]."
We recognize Lisa's role as Jacob's primary caretaker prior to the parties' separation. We also recognize that the primary reason Erik was less involved in this responsibility was the nature of his work and the hours he worked while in the military. After Erik was discharged from the army he returned home, became a caretaker for Jacob, and obtained employment that allowed him to work flexible hours in order to spend more time with Jacob and provided full medical benefits for Jacob.
As our review is de novo, we must consider all of the evidence presented, and we consider the opinions of expert witnesses as we do the other testimony. We give opinion testimony the weight we believe it deserves after considering such things as the expert's education, experience, familiarity with the case, reasons given for the opinion and interest, if any, in the case. In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App. 1994). The testimony of experts should be given weight, "but their final conclusions are not binding on the trier of fact nor on the appellate courts." Nicolou v. Clements, 516 N.W.2d 905, 909 (Iowa Ct. App. 1994). Moreover, credibility findings by the trial court are given weight because it has the advantage of hearing the evidence and observing the witnesses, and this important advantage is not forgotten on appeal. Will, 489 N.W.2d at 397; In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct. App. 1994).
We find the trial court did not give improper weight and consideration to the reports of Dr. Roland and Ms. Meade. Based on Dr. Roland's experience in the area, the time he spent with the parties, and the fact both parties agreed to the evaluation, his report was properly given consideration. Furthermore, we conclude the trial court did take the written report of the child's attorney into account, but because it contained evidence that was very similar to some of that presented at trial while being less specific and less detailed than that presented at trial simply did not refer to it in its ruling. The trial court said as much in ruling on Lisa's post-trial motions. The trial court is not required to specifically refer in its written ruling to every item of evidence it considers in making its determination.
We, like the trial court, find Erik has distinguished himself as the more mature and stable parent. In comparison, we find Lisa's decisions and choices demonstrate a certain lack of judgment, maturity and stability that is somewhat incompatible with the considerable responsibilities attending an award of physical care. Her decision to become involved in a romantic relationship with Erik's stepfather was destructive of the parties' marital relationship, Erik's personal relationship with his stepfather, and the business relationship the parties hoped Erik would have with his stepfather. There is also evidence that parenting Jacob is a higher priority for Erik at this point in time than it is for Lisa. We agree with the trial court that Erik's character and level of maturity appears more suitable for the role of primary caretaker at this point in time.
Both Lisa and Erik appear to be dedicated to the nurturing and upbringing of Jacob. Both parents appear capable of adequately caring for him. However, upon our de novo review of the evidence we agree with the trial court that Jacob's best interest will be best served by awarding physical care to Erik. We recognize this is a close case in light of Lisa's previous role as the primary caregiver. Yet in these close cases we give weight to the trial court's findings. See In re Marriage of Wilson, 532 N.W.2d 493, 495-96 (Iowa Ct. App. 1995) (citing In re Marriage of McDowell, 244 N.W.2d 238, 239 (Iowa 1976)).
We note that the fact Lisa will not be Jacob's primary caretaker does not mean Jacob will no longer enjoy the benefits of her parenting experience. Lisa, as Jacob's joint custodian, has the right to continuing physical and emotional contact with him and is entitled to share in the rights and responsibilities of raising him. Kunkel, 555 N.W.2d at 254.
B. Motion for New Trial
Our standard of review of a ruling on a motion for new trial depends on the grounds asserted in the motion and ruled upon by the district court. Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999); Vaughan v. Must, Inc., 542 N.W.2d 533, 542 (Iowa 1996). When the motion and ruling are based on discretionary grounds, we review for an abuse of discretion. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823 (Iowa 2000). But if the motion is based on a legal question our review is on error. Roling, 596 N.W.2d at 76. In discretionary matters, the trial court is accorded broad but not unlimited discretion. Id.
Lisa contends on appeal that evidence existed at the time of trial and at the time of the hearing on her post-trial motion that Erik did not testify truthfully about certain military benefits he received. Specifically, that he and his commanding officer were going to "doctor" the records so Erik could continue to receive his off-base housing allowance even though he had moved into the barracks. Lisa alleges this was a fraud committed on the court that put Erik's moral conduct into character and therefore based on Iowa Rule of Civil Procedure 244(b) the court should have vacated its decision and ordered a new trial.
We find the trial court did not abuse its discretion is denying Lisa's motion for new trial. Lisa broached the subject early in the trial by testifying that Erik and Sergeant LaValley had schemed to allow Erik to continue drawing an off-base housing allowance after moving into the barracks when Lisa and Jacob moved back to Iowa. However, she presented no additional evidence at trial to establish Erik's conduct was in fact improper. Sergeant LaValley testified that he had the authority to move a soldier into the barracks at any time without explanation, that it was commonplace to do so when a soldier was in a "transition phase out of the military" as Erik had been, and that when Erik had moved into the barracks he was still able to draw housing allowance "because he was in transition phase to get out of the military." The additional document Lisa presented with her motion for new trial appears to show when off-base allowances generally should end, however she has failed to offer any evidence, either at trial or afterwards, that a commanding officer does not have the power to vary from these standards in certain situations. Further, although Lisa asserts the document "outlines that `if a member is furnished government quarters at the permanent station', then BAQ is stopped at 2400 hours of the day `before the day quarters are assigned,'" the document in fact says "If member is furnished government quarters at the permanent station, adequate for the member and dependents," then BAQ is stopped at 2400 hours of the day before the day quarters are assigned. (Emphasis added.) There was no evidence presented that the barracks quarters furnished for Erik was adequate for Erik, Lisa and Jacob. We agree with the trial court that Lisa had the opportunity to prove Erik was not entitled to the living assistance he was receiving but she failed to do so. Therefore, we conclude the trial court did not abuse its discretion in denying her motion for new trial on these grounds.
C. Visitation
In its decree, as amended by a ruling on Lisa's post-trial motions, the trial court established a visitation schedule. The times it ordered that Lisa would have visitation with Jacob included three weeks during the summer, New Years Day and Independence Day in even-numbered years and Memorial Day and Labor Day in odd-numbered years. The decree further provided that each year Lisa would have visitation the day after Thanksgiving and the day before Christmas. In her post-trial motions Lisa requested that summer visitation be for a four-week period and that the holiday visitation at Thanksgiving and Christmas times alternate as to the day before Thanksgiving, Thanksgiving Day, the day before Christmas, and Christmas Day. The trial court denied this request. Lisa asserts the trial court erred in not amending its ruling to allow her four weeks summer visitation and alternating Thanksgivings and Christmases.
Liberal visitation rights are generally in the best interest of the child. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App. 1992). The court is to order liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents, and which will encourage parents to share the rights and responsibilities of raising a child. Iowa Code § 598.41(1) (1999).
Under the trial court's visitation schedule Jacob would never be with Lisa on Thanksgiving or Christmas, the two holidays thought of by many as the two major holidays of the year. In its otherwise carefully considered, detailed and comprehensive rulings, the trial court made no finding that Lisa's request for visitation on one-half those two holidays was unreasonable or that granting the request would be unfair or inequitable to Erik or Jacob, and gave no reason for denying her request. We find her request concerning Thanksgiving and Christmas to be entirely reasonable, find that granting it will help to provide Jacob the opportunity for the maximum continuing physical and emotional contact with both parents, and modify accordingly. We further find that although the trial court would not have acted inequitably in providing for four weeks summer visitation, its order for three weeks is not inequitable. The parties are of course free to agree to additional summer visitation.
IV. MOTION TO STRIKE
The trial court's visitation order provides Lisa is to have visitation each Wednesday evening. Erik requests we modify visitation to allow him to have at least two consecutive weeks each summer without visitation by Lisa so that he may go on vacation with Jacob. Lisa has moved to strike this request from Erik's brief because he neither sought this relief by way of a rule 179(b) motion in the trial court nor cross-appealed.
We assume and expect that the parties, as parents and joint legal custodians, will communicate, cooperate and be reasonable in order to accommodate each other's schedules and needs, as well as Jacob's schedule, needs and best interests. Erik's request appears to be a reasonable request, one to which Lisa should readily agree. However, a party who has not appealed from an adverse portion of a judgment is not entitled to a more favorable decision in an appellate court on an appeal prosecuted by an adverse party. Prestype Inc. v. Carr, 248 N.W.2d 111, 121 (Iowa 1976); Randolph Foods, Inc. v. McLaughlin, 253 Iowa 1258, 1277, 115 N.W.2d 868, 879 (1962). Erik has not appealed or cross-appealed. We sustain Lisa's motion to strike and leave it to the parties to take appropriate steps to allow Erik and Jacob to spend reasonable amounts of vacation time together.
V. APPELLATE ATTORNEY FEES
Lisa asks for attorney fees for this appeal. Appellate attorney fees are discretionary. In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct. App. 1998). We find it was Erik who was obligated to defend the trial court's decision due to Lisa's appeal and he has in large part done so successfully. In addition, it appears from the record both parties are employed and sufficiently able to pay their own attorney fees. We conclude each party should be responsible for their own appellate attorney fees.
VI. CONCLUSION
Based on our de novo review of the entire record we conclude the trial court properly placed physical care of Jacob with Erik. We conclude the trial court did not abuse its discretion in denying Lisa's motion for a new trial based on Erik's alleged untruthfulness. We conclude a visitation schedule that would never allow Lisa and Jacob to be together on Thanksgiving or Christmas is not fully equitable. We amend the visitation schedule to provide that Lisa shall have visitation with Jacob from nine o'clock a.m. to nine o'clock p.m. on Thanksgiving Day and the day after Christmas in even-numbered years and on the day after Thanksgiving and Christmas Day in odd-numbered years. Lisa's motion to strike is granted and her request for appellate attorney fees is denied.
AFFIRMED AS MODIFIED.