Opinion
No. 6-015 / 05-0409
Filed March 29, 2006
Appeal from the Iowa District Court for Muscatine County, Mark Smith, Judge.
Barry Donovan appeals from the modification of his dissolution decree. AFFIRMED.
John E. Wunder of Wunder Law Office, Muscatine, for appellant.
Helen McAninch of Wehr, Berger, Lane Stevens, Davenport, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Barry Donovan appeals from the modification of the joint physical care arrangement provided for in the dissolution decree. We now affirm.
I. Background Facts and Proceedings.
Barry and Lisa Donovan are the parents of Chelsea and Dallas Donovan. The dissolution decree entered on May 24, 2000 awarded the parties joint custody and joint physical care of both children. Barry was ordered to pay monthly child support to Lisa in the amount of $558.20 and to maintain health insurance for the children.
The initial child support payment was calculated based on Barry's yearly income of $57,880 and Lisa's yearly income of $21,056.
In late 2003, Lisa sought review of the child support obligation and Barry resisted the request. Thereafter, on January 23, 2004, Lisa sought to modify the custody provisions of the parties' dissolution decree, seeking physical care of both Chelsea and Dallas. Barry, in turn, filed his own petition to modify the decree, seeking physical care of both children. Barry subsequently sought a contempt order against Lisa for failing to require Chelsea to visit Barry on scheduled dates. All of the above matters were set for hearing before the district court on January 18, 2005.
At the hearing, both Barry and Lisa argued that the other party was interfering with custodial arrangements stipulated in the dissolution decree. Lisa claimed Barry was an unfit custodian based on several allegations of sexual impropriety involving the children. Lisa noted that Chelsea frequently refused to go to Barry's home for scheduled visitation, and when Chelsea did capitulate, she would always request a friend to accompany her for safety reasons. Lisa testified that Barry was the root of the parties' failure to communicate, noting that he often failed to return correspondence concerning the children, and on occasion would arrive early to pick the children up for scheduled visits or return them later than planned.
Chelsea testified concerning several inappropriate sexual comments allegedly made to her by Barry. She also claimed that Barry would walk into the bathroom while she was showering, and would lay down with her in bed while she was sleeping — both of which made her extremely uncomfortable. Barry was also alleged to have had sexual relations with a girlfriend while Dallas was present in the home. Lisa testified that Dallas claimed to have witnessed the act. We note, however, that a subsequent investigation into these incidents by the Department of Human Services stated that these allegations were unfounded.
Barry, in turn, testified that Lisa would screen his telephone calls concerning the children and on several occasions failed to include him on decisions concerning the children's physical care. Barry also claimed that Lisa sabotaged his relationship with the children by disparaging him openly in front of them. Barry testified that it was Lisa's permissive household rules juxtaposed with his own more structured parenting style that caused Chelsea to avoid visits with him. Barry also claimed that Lisa's string of five different boyfriends since the dissolution set a poor example for the children.
Barry testified that Lisa took Chelsea to several therapists to discuss her privacy concerns with regard to Barry, and that Barry, as a joint physical care custodian, was not involved in the decision. Barry claimed Lisa "shopped" for and ultimately found a therapist that would believe the allegations of sexual impropriety. Barry claimed he was denied input on decisions concerning which church the children would attend.
The district court concluded that although both parents were capable of parenting the children "if they did not have to deal with the other," the joint physical care arrangement was unworkable from its inception. The court found the parties' inability to communicate or cooperate in furtherance of the children's best interest constituted a substantial change of circumstances. The court further found Barry (1) exposed the children to "hostile phone conversations," (2) spoke "poorly of Lisa to the children," (3) exerted excessive control over Chelsea, and (4) frustrated scheduled visits.
Although the court found none of the allegations of Barry's sexual improprieties was supported by substantial evidence, and expressed concern that Lisa had involved the police "several times for instances that did not warrant police intervention," the district court allocated the physical care of the children to Lisa. This decision was made primarily because of Chelsea's alienation from her father and the fact that the court did not wish to separate the two children from each other. The district court noted its preference to keep the children together: "It would appear that [the children's] relationship with each other has survived the chaotic behavior of their parents, and the Court does not wish to harm this relationship."
The district court dismissed Barry's contempt claim for failure of proof and ordered Barry to pay child support in the amount of $956 per month.
The child support payment was based on Barry's annual income of $60,000, and Lisa's annual income of $36,108.
Following the denial of his motion to reconsider, Barry now appeals, contending the district court erred in allocating physical care of the children to Lisa. He also asserts the district court abused its discretion in (1) allowing two witnesses for Lisa despite a tacit agreement between counsel that these witnesses would not be called, and (2) refusing to allow Barry's girlfriend to offer rebuttal testimony.
II. Scope and Standard of Review.
We review all modifications of dissolution decrees de novo. Iowa R. App. P. 6.4.; In re Marriage of Benson, 545 N.W.2d 252, 253 (Iowa 1996). The district court is charged with making physical care determinations in accordance with its assessment of the children's best interest. Iowa Code § 598.41 (2003). We "accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity." In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996).
We review evidentiary rulings of the district court for abuse of discretion. Gamerdinger v. Schaefer, 603 N.W.2d 590, 594 (Iowa 1999). In doing so, we cede wide latitude to the district court in ruling on the admissibility of evidence. Kalvik ex rel. Kalvik v. Seidl, 595 N.W.2d 136, 140 (Iowa Ct.App. 1999). We refrain from disturbing the district court's evidentiary rulings unless there is a clear and prejudicial abuse of discretion. Carter v. Wiese Corp., 360 N.W.2d 122, 130-31 (Iowa Ct.App. 1984).
III. Discussion.
We begin by affirming the district court's conclusion that a modification of the joint physical care arrangement is required as a consequence of the parties' clear inability to set aside their personal differences and cooperate in the children's best interest. Barry takes particular issue with the district court's ultimate basis for allocating the physical care of both children to Lisa, claiming that it was Lisa who poisoned his relationship with Chelsea. He asserts in particular that Lisa's machinations engendered the claims of sexual abuse against him; and that those false claims effectively destroyed the trust necessary for a healthy relationship with Chelsea. Barry also blames Lisa's casual parenting of Chelsea as a source for Chelsea's preference to live with her mother. He urges us to minimize the weight assigned to the preference of a fourteen-year-old child with respect to the custodial arrangement.
Lisa conversely claims that "Barry still has no clearly defined rules for Chelsea," arguing that Barry is too demanding on Chelsea and arbitrary as a disciplinarian.
Iowa Code section 598.41(3)(f) (2005) requires us to consider "whether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition" to the arrangement arrived upon. Given Chelsea's age, we accord appropriate weight to her preference on the available physical care arrangements, but we note that this is only one factor among many upon which we determine which parent is better able to meet the best interests of the child. See In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981) (stating that "[c]hildren's expressed preferences are entitled to consideration but are not controlling," and that "deciding custody issues is more complicated than merely asking the children which parent they wish to live with"); see also In re Marriage of Jahnel, 506 N.W.2d 473, 475 (Iowa Ct.App. 1993) (concluding the child's stated preference is entitled to less weight in a modification proceeding than it would be accorded in an original dissolution proceeding).
After our de novo review of the record in this case, we understand the dilemma that faced the district court. Our primary inquiry must be which physical care environment will further the best interests of the children. We agree with the district court's determination that both parties are suitable parents. However, the animosity each bears toward the other has severely obstructed their ability to cooperate in promoting the children's healthy progress toward maturity. Evidence in the record establishes that both Barry and Lisa have been guilty of demeaning each other in front of the children, undercutting the respect that is so vital to successful parent-child relationships. We therefore conclude that Barry's actions have contributed in part to the breakdown of his relationship with Chelsea.
Lisa is self-employed and works out of her home. This fact affords Lisa greater freedom to play a positive role in the children's lives. The record establishes that Lisa, more than Barry, has been active in attending parent-teacher conferences on a regular basis, coordinating doctor's visits, and transporting the children to a variety of school and extra-curricular activities.
Given the nature of her business, we do not view the fact that she underreported her income for child support purposes as deliberate or dishonest, and as such we decline to hold the discrepancy against her, as Barry would have us do, in deciding the best interests of the children.
Barry contends, and Lisa concedes, that Lisa has previously made decisions affecting the children's lives without consulting Barry, including scheduling doctor's appointments and switching the children's orthodontist. We note, however, that Barry has failed to refute Lisa's contention that she always made these types of decisions during the marriage without Barry's input. Thus, although Barry clearly had a legal right to participate in such decisions before and after the marriage was dissolved, we are not persuaded that the post-dissolution perpetuation of Lisa's established pattern of decision making as to matters affecting the children's health requires a different allocation of physical care in this case.
Although Dallas appears to be happy in both parent's care, the record clearly establishes that, for whatever reason, Chelsea adamantly does not wish to remain under Barry's physical care. Barry's failure to nurture a healthy relationship with Chelsea makes his request for Chelsea's physical care unworkable at this time. Like the district court, we find Dallas and Chelsea have maintained a strong bond despite their parents' incessant in-fighting, and we conclude the preservation of this bond is of great importance. In fostering the children's best interest, our courts are slow to split up siblings, and we find no compelling reason in this case to depart from this important principle. Jones, 309 N.W.2d at 461; Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511, 517 (Iowa 1976).
Given (1) our finding that Lisa provides at least an equally nurturing environment for the children, (2) Chelsea's adamant preference to be placed in Lisa's physical care, and (3) the strong bond between Chelsea and Dallas that would be weakened if their physical care was divided between the parents, we affirm the district court's modification of the physical care arrangement.
We further conclude that the evidentiary rulings challenged by Barry caused him no prejudice, and are therefore without merit. Carter, 360 N.W.2d at 130-31. We note that the witnesses permitted to testify on Lisa's behalf, both of whom appeared on Lisa's witness list provided to Barry before trial, primarily testified concerning the sexual abuse allegations leveled against Barry. Barry's girlfriend, who was being called to rebut some of these allegations, was not permitted to testify. We find no prejudice resulted from either of these rulings because the district court concluded the sexual abuse allegations were unfounded. The district court did not credit the sex abuse allegations in the decision to modify the physical care arrangement, and neither do we. The district court's modification of the dissolution decree is affirmed.