Opinion
No. 4-238 / 03-1524
May 26, 2004.
Appeal from the Iowa District Court for Bremer County, Paul W. Riffel, Judge.
Heather Kress appeals from the child custody provisions of the district court order dissolving her marriage to Robert Kress. AFFIRMED.
Kellyann Lekar of Roberts, Cohrt, Stevens Lekar, P.L.C., Waterloo, for appellant.
Gerald Carney, Waverly, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Heather Kress appeals from the child custody provisions of the district court order dissolving her marriage to Robert Kress. She contends the district court erred in granting Robert physical care of their daughter. We affirm.
I. Background Facts and Proceedings.
Robert and Heather met in Dubuque in 1996. They began residing together in Cedar Falls in 1997. Robert and Heather married in August 2000. Their daughter, Brooklyn, was born April 4, 2001.
Robert was twenty-eight years old at the time of dissolution. He is employed as a lab technician with Advanced Heat Treat, where he has worked for six years. He is currently earning $13.26 per hour, and works Monday through Friday from 7 a.m. until 3 p.m. His benefits include a 401(k) retirement plan and health insurance. Robert resides in Denver, Iowa.
Heather was twenty-four years old at the time of dissolution. She is a licensed certified nurse assistant (CNA). Heather has held numerous part-time jobs as a CNA. She is currently employed at Dubuque Nursing and Rehabilitation where she works twenty hours per week, earning $9.22 per hour. Heather resides in Dubuque.
In November 2002, the parties were arguing over visiting Robert's parents during Thanksgiving. Robert went to the bedroom, undressed, turned off the lights, and went to sleep. Heather turned the bedroom lights on and demanded he sleep on the sofa. The parties' accounts differ as to how a physical altercation ensued. Robert contends Heather jumped on him, threw the alarm clock in the living room, and he grabbed her by the biceps to prevent her from hitting and kicking him. Heather contends Robert grabbed her and tossed her around when she reached for the alarm clock to take it to the living room. The incident left bruises on Heather's arms and the police where called. Robert was later convicted of simple domestic assault.
Following the incident, Heather and Brooklyn moved to Dubuque and began living with Heather's parents. Robert filed a petition for dissolution of the marriage. He also filed an application for temporary visitation and was granted visitation every Thursday and alternate weekends.
After two months of living with her parents, Heather moved out after "butting heads" with her mother on a few occasions. Heather's mother told her to leave the home. Heather and Brooklyn lived in a homeless shelter for a week until Heather rented an apartment.
Robert regularly commuted from Denver to Dubuque to exercise visitation with Brooklyn. Heather refused to allow Robert's parents or sister to assist in bringing Brooklyn to Denver for the scheduled visitations. Robert obtained an order to allow his family to assist in Brooklyn's commute.
Trial was held in May 2003. Robert testified the principle problem with the marriage was Heather's hatred toward his family. According to Robert, Heather called his family evil and refused to allow Brooklyn to see his parents or sister. Heather did not want Robert's family to attend Brooklyn's baptism, and after they were invited, called and told them not to come to her first birthday party. Testimony from Robert's family buttressed his claim.
Heather testified she does not get along with Robert's family and that his mother is very controlling. She and Robert fought frequently about his family and whether he was putting "his family" before "their family." Heather maintains it was stressful for Robert to visit his parents and he told her she did not have to take Brooklyn to see them.
In August 2003, the district court entered a dissolution decree, in which Robert was awarded physical care of Brooklyn. The court found both parties to genuinely love Brooklyn, but concluded Robert is the more stable and responsible parent. The court also found Robert was more likely to encourage contact between Brooklyn and Heather than Heather would encourage contact between the child and her father, as Heather had restricted Brooklyn's contact with Robert's family.
II. Scope of Review.
We review a custody order de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). 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.
III. Physical Care.
The best interest of the children is our standard for deciding child custody. Iowa R. App. P. 6.14(6)( o); Murphy, 592 N.W.2d at 683. 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) (2003). 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). These 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).
Heather contends the court erred in granting Robert physical care of Brooklyn because she has served as Brooklyn's primary care provider. She argues that granting Robert physical care will be detrimental to Brooklyn as she is settled and doing well with Heather. We note that the parent who has been the primary caretaker of the children during the marriage will not necessarily be designated by the court to be primary caretaker at the time of the divorce. In re Marriage of Burkle, 525 N.W.2d 439, 441 (Iowa Ct. App. 1994). Furthermore, the evidence here shows the parties split childcare duties during the marriage. Heather took care of Brooklyn while Robert worked first-shift hours. Robert then cared for Brooklyn in the evening while Heather worked the second shift. As the district court found, both parties are capable of attending to Brooklyn's day-to-day needs. Heather testified that Robert loves Brooklyn and Brooklyn was appropriately bonded to Robert. Heather had no concerns regarding Robert's ability to meet Brooklyn's needs. The evidence shows the disruption in Brooklyn's life by moving from Dubuque to Denver to live with Robert will be minimal. This court has no concerns regarding Robert's ability to appropriately parent Brooklyn.
Heather contends the court erred in failing to consider Robert's history of domestic abuse. A history of domestic abuse by one parent is a factor in making child custody determinations under Iowa Code section 598.41(3)(j). In assessing what is sufficient to constitute a history of domestic abuse, we weigh the evidence of abuse, its nature, severity, repetition, and to whom directed, not just count the number of incidents. In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997).
There is one reported incident of domestic abuse in the record. The parties provide differing accounts of how the incident took place. The district court found: ". . . Robert's testimony to be more credible with respect to the parties' marital relationship and the events which brought about a breakdown of that relationship." We give deference to the court's findings in this regard, as it had an opportunity to view the demeanor of the parties and evaluate them as custodians. In re Marriage of Cupples, 531 N.W.2d 656, 657 (Iowa Ct. App. 1995). There is no evidence in the record that Robert has ever exhibited violence or aggression toward Brooklyn. Heather herself had no concerns regarding Robert's ability to parent Brooklyn. Having fully considered the issue, we decline to give more weight to the domestic abuse incident in November 2002.
Heather contends the court erred in failing to note Heather's close proximity to her family. The district court found Robert's family was more supportive and able to assist him. Although Heather's family is closer in proximity to her than Robert's family is in proximity to him, Heather's relationship with her family is strained at times. This is evidenced by Heather's mother asking her to move out of their home after two months, requiring Heather and Brooklyn to live in a homeless shelter. Both Heather and her mother testified they "butt heads." In contrast, Robert's family has been very supportive of him, even assisting in commuting Brooklyn from Dubuque to Denver for visitation.
Finally, Heather contends the court erred in finding Robert was more stable because he had held the same job throughout the marriage. Heather contends she had to change jobs several times to maintain a second-shift job so that Brooklyn would not be in daycare. Although the parties' job history is taken into account, it is not the only factor in determining the parties' relative stability. Heather testified she has been offered several full-time positions, but does not feel emotionally ready for full-time employment. Heather also testified that she left her parents' home to live in a homeless shelter because she felt she was a burden on her family.
We conclude the district court properly awarded Robert physical care of Brooklyn. Heather's attitude towards Robert's family, her phone call to his sister in which Heather called the family evil, and her refusal to let Robert's family be involved in Brooklyn's life demonstrate her unwillingness to support a relationship between Brooklyn and Robert's family. Heather also wanted to deduct from Robert's summer visitation any extended visitation with Brooklyn over the 2003 Memorial Day weekend. We share the concerns of the district court regarding Heather's ability to foster a relationship between Brooklyn and Robert. In contrast, Robert has been polite and cordial with Heather's family. He exercised his visitation with Brooklyn regularly while Heather had temporary custody of her. Robert has shown himself to be a responsible parent.