Opinion
No. 5-647 / 04-2078
Filed November 9, 2005
Appeal from the Iowa District Court for Dickinson County, Joseph J. Straub, Judge.
Tracey Heitritter appeals the custody, visitation, and alimony provisions of the parties' dissolution decree. AFFIRMED.
Charles A. Coppola and Richard O. McConville of Coppola, Sandre, McConville Carroll, P.C., West Des Moines, for appellant.
Gregg L. Owens of Ladegaard, Maahs Owens, Spirit Lake, for appellee.
Heard by Mahan, P.J., Hecht, J., and Schechtman, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Tracey appeals from a decree of dissolution which awarded joint legal custody, but allocated physical care of their two children to their father, Keith. Accompanying issues are: (1) the applicability of a statute enacted while this matter was pending; (2) failure to provide additional visitation; and (3) insufficiency of the award of alimony to her.
I. Scope of Review.
Our review is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witness, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)( g). Prior cases have little precedential value, and our decision is based primarily on the particular circumstances of the parties presently before us. In re Marriage of Liebich, 547 N.W.2d 844, 848 (Iowa Ct.App. 1996).
II. Background Facts.
Tracey and Keith met in 1985. They were married in 1989 and were then residents of Minneapolis. They moved to Spirit Lake in 1991 to be closer to Tracey's recently widowed mother.
Tracey, age thirty-nine, has a four-year nursing degree from the University of Minnesota. Keith, age forty-two, is a graduate of Iowa State University. He is vice-president of a local bank, earning $70,000 annually. Tracey worked full-time at Lake's Regional Hospital until the birth of their oldest son, Jake, in July 1997. A joint decision was made for Tracey to reduce her work schedule to selected part-time hours. The birth of another son, Ben, followed in September 1999.
The parties separated in March 2003. Tracey moved to her mother's lake home, then to a nearby rental. They agreed to a shared care schedule wherein Tracey had the boys on Monday and Tuesday and Keith had them on Wednesday and Thursday, with alternate weekends and Sunday evenings. In February 2004, after this matter had been pending about seven months, Tracey filed an application for temporary primary care and possession of the marital home. After a contested hearing, the application was denied in May 2004. Their previously agreed shared care schedule was confirmed as the trial was but two weeks away at the time (though later continued to September 2004). The temporary hearing court found the custodial arrangement to be "working" and saw no need to change it for the brief period remaining prior to the then scheduled trial date.
III. Applicability of Statute.
We must first address Tracey's contention that the trial court concluded Iowa Code section 598.41(5)(a) (Supp. 2003) was applicable to this dissolution, thereby erroneously failing to consider a joint physical placement. Neither Tracey nor Keith requested joint physical care. Tracey reasons the district court would have mandated joint physical care were it not for its conclusion that the statute was applicable.
The subject statute was enacted by the 2004 General Assembly (H.F. 22, effective July 1, 2004). It was not made retrospective by its terms. It reads:
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.
This dissolution was pending on its effective date. Iowa Code section 4.5 provides that a statute is presumed to be prospective unless expressly made retrospective. However, the statutory rule was not intended to apply to remedial or procedural statutes. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 370, 375 (Iowa 2000). If a statute relates to a substantive right, it ordinarily applies prospectively only. Emmett County State Bank v. Reutter, 439 N.W.2d 651, 653 (Iowa 1989). If a statute relates to a remedy or procedure, it ordinarily applies both prospectively and retrospectively. Schmitt v. Jenkins Truck Lines, Inc., 149 N.W.2d 789, 791 (Iowa 1967).
In Schulz v. Gosselink, 260 Iowa 115, 118, 148 N.W.2d 434, 436 (1967), substantive law was defined as "[t]hat part of the law which creates, defines, and regulates rights . . ." Procedural law is "[t]hat which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a suit." Id.
The statute is clearly procedural; prior to and after its adoption, joint physical care could have been awarded. Iowa Code § 598.41(5). The new statute merely mandates that it be requested, which is a procedural requirement. It was designed to prevent that which has occurred here; an adverse decision generating a new request for the alternative of joint physical care. It provides a method to ask for the right and the machinery to use in doing so. In the pretrial written stipulation, Tracey requested primary physical care only, as did Keith. Each testified at trial that joint physical care was not appropriate for lack of stability reasons. Each continued to insist upon primary physical care in their respective post-trial briefs. In this appellate review, Tracey for the first time requests joint physical care as an alternate solution. That is not timely, with or without the statute.
The trial was two months after the date (July 1, 2004) when the legislation became effective. The dissolution decree was five months past the effective date. The parties, and the trial court, were aware of the amended statute prior to trial. It appears Tracey's detailed reliance on this issue is inappropriate. Iowa is one of many states holding that it is the law in effect at the time of the decree that governs. In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000) (relying on In re Marriage of Harless, 251 N.W.2d 212, 213 (Iowa 1977)). Although not precedent, it is persuasive that in In re Marriage of Kueter, No. 04-1352 (Iowa Ct.App. July 13, 2005), an unpublished opinion of this court, Sojka was cited as authority for the premise that "The law in effect at the time of the decree should govern." Harless, 251 N.W.2d at 213. The application of the statute by the trial court was, in fact, prospective in any event. Too, joint physical care remains disfavored if the parents are unable to cooperate and respect the other's parenting and lifestyles. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998).
But notwithstanding these issues, the district court addressed the joint physical care issue since it had been in place by the temporary custodial order. The district court found that it was not a long-term solution, lacked stability, and foresaw a lack of cooperation between the parents with a lessening of respect for the other's parenting skills as among the deterrents for joint physical care.
Accordingly, the trial court was correct in concluding that section 598.41(5)(a) was applicable in this custodial dispute. It related to procedure and its application was prospective as the decree post-dated the effective date of the statute.
IV. Physical Care.
In child custody cases the first and governing consideration is the best interest of the children. Iowa R. Civ. P. 6.14(6)( o). The critical issue in determining the best interests of the children is which parent will do better in raising the children; gender is irrelevant and neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding. 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), though time-worn, remains applicable.
Fortunately, our chore is to decide which of these capable and loving parents should be the primary caretaker, as their parenting skills seem almost in equipoise. Each child is in good health and is socially, emotionally, and educationally adept. They are described, without exception, as "terrific" kids. The parents each take them to Sunday School, participate in and support their recreational and social interests, attend their school activities and conferences, and enforce reasonably similar discipline.
The trial court determined Keith was more stable as he has maintained his present employment for several years, while Tracey has had several part-time sources of income. This included a children's hospital in Minneapolis and a traveling nurse position, when full-time employment was available at the local hospital. The trial court reasoned that Tracey's decision to forego full-time employment, allegedly to spend more time with the children, was suspect and contradicted by her choice to work several hours distant in Minneapolis and as a traveling nurse. Further stability emanated from Keith's significant ties to the community and with his two brothers and their children, who reside in northwest Iowa. Keith frequently involves the boys in community functions and family gatherings which they enjoy. Continuing familial relationships with collateral relatives is an appropriate factor to consider in custodial disputes. Lambert v. Everist, 418 N.W.2d 40, 43 (Iowa 1988). The environment offered by a custodial parent which includes extended family members is an appropriate consideration. In re Marriage of Burkle, 525 N.W.2d 439, 442 (Iowa Ct.App. 1994).
The district court determined Keith was the primary care provider in the year and a half preceding trial. This was based upon Tracey's frequent absences to the Twin Cities and a number of out-of-state vacations, including Las Vegas and Caribbean destinations. Though the trial court did find Tracey was the primary caretaker prior to separation, that fact does not assure she will be the custodial parent. In re Marriage of Kunkel, 546 N.W.2d 634, 635 (Iowa Ct.App. 1996). In contrast to Tracey, the record substantiates the finding that Keith took advantage of the joint physical care to spend as much time as possible with the children.
Tracey admits that Keith is a "good dad," supportive of the boys, and provides them with a "good home environment." Nor did she have any demonstrable concerns about his ability to parent. The reports of a psychologist and social worker, retained by Tracey, were not of significant weight since they were retained for the purpose of establishing custody in Tracey and neither had personal contact with Keith.
Tracey maintained an intimate relationship with an adult male residing in a Minneapolis suburb. It started after separation and continued thereafter. It caused her to spend an abundance of time in that vicinity, over and above the hours she had worked in that area. There is evidence that these rendezvouses did not always occur when Keith had the boys. The district court found this conduct to be a misplacement of priorities by Tracey, with which we agree. Parenting does not cease when the children are with the other parent. Children have school, evening and weekend activities that may be attended or supported; circumstances or emergencies may develop needing both heads. There were times Keith was unable to contact Tracey by telephone regarding one of the boys. Affairs are by their nature clandestine. That becomes a complication if one's presence is needed or helpful. We do not infer that children need to be shadowed or continually smothered with attention, as parents need their time too. But one's whereabouts, within reason, should be known to the custodian to react to whatever "crises" may arise. When decisions are close, concerns about these occurrences loom justly significant.
After considering all the evidence, we agree with the trial court that the children's best interests will be served by awarding primary care to Keith. We acknowledge that the decision is tight in light of Tracey's positive role in the children's lives. Yet, in these close cases, we give weight to the trial court's findings. In re Marriage of McDowell, 244 N.W.2d 238, 239 (Iowa 1976); Burkle, 525 N.W.2d at 442. We note, in these situations, that the district court had the parties before it and was able to observe and evaluate the parties as custodians. In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct.App. 1996). Keith has shown he can provide the children with a stable environment and can tend to their long-range best interests. He has further demonstrated that he can support Tracey's continuing parental role as joint legal custodian with liberal visitation privileges.
V. Visitation.
The trial court awarded liberal and frequent visitation to Tracey with detailed minimal visitation absent an agreement. Depending upon the calendar, and when holidays and special occasions occur, the minimal schedule is around 128-130 overnights. The trial court reduced guideline child support by twenty-five percent (rather than fifteen percent), pursuant to the extraordinary visitation credit provisions of child support guideline 9.9.
Tracey takes heart from a passage in the dissolution decree which recites that "Tracey's visitation rights will be set out in detail later in the decree. Those visitation rights will provide for approximately 170 overnight visitations for Tracey so an adjustment in the amount of 25 percent of the gross support is applicable." She asks for a remand to set forth specific visitation for 170 overnights.
Tracey chose not to file an Iowa Rule of Civil Procedure 1.904(2) motion to enlarge and amend. But it is clear that a 170-day visitation schedule was not intended. The comprehensive and detailed list of visitation dates, by construction, shows an intent by the court to require only those specified times. A decree must be construed in its entirety, giving effect to that which is clearly implied as well as that which is expressed. Batlinger v. Sallee, 254 Iowa 561, 563, 118 N.W.2d 552, 554 (1962). By denying joint physical care, the court implied that it did not intend to require equal time between the parents, which 170 overnights would approximate. Further, a maxim of construction " expressio unius est exclusio alterius" means "the expression of one thing is the exclusion of another." Greenwood Manor v. Iowa Dep't of Public Health, 641 N.W.2d 823, 835 (Iowa 2002).
The twenty-five percent reduction in child support was not challenged by Keith in this court. We therefore do not address the apparent disparity between the reduction ordered and the one to which Tracey would otherwise be entitled.
VI. Alimony.
The district court awarded Tracey $250 per month for nine months as traditional alimony. It terminated due to Tracey's assertion that the youngest son would then be enrolled in school and she would be able to obtain full-time employment. Even though this review is de novo, we allow considerable latitude to the trial court in making these determinations and will disturb its ruling only when there was a failure to do equity. In re Marriage of Benson, 415 N.W.2d 252, 257 (Iowa 1996).
The deference to the trial court's determination is decidedly in the public interest. When appellate courts unduly refine these important, but often conjectural, judgment calls, they thereby foster appeals in hosts of cases, at staggering expense to the parties wholly disproportionate to any benefit they might hope to realize.
Id.
Tracey requests rehabilitative alimony in the amount of $1,000 per month for five years. Tracey is a college graduate. She admits to being employable at $22.50 per hour in Spirit Lake and $32.50 per hour in the Twin Cities. There is no need for retraining. Her record of earning indicates that she has never fully left the workforce.
The district court attempted to award an amount which would allow Tracey a comparable living standard, considering the property settlement awarded to her, her potential sources of income and estimated expenditures. This court will not tamper with those findings, minimal as that award may be.
VII. Conclusion.
The trial court correctly concluded that Iowa Code section 598.41(5)(a) was applicable and found that the children's best interest is served by granting physical care to Keith. We also affirm the visitation schedule awarded by the district court. Lastly, the alimony award is equitable under the circumstances.