Opinion
No. 6-139 / 05-1358
Filed March 15, 2006
Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.
Katina Riemenschneider appeals the physical care provisions of the decree dissolving the parties' marriage. AFFIRMED.
James A. Clarity, III, of Clarity Law Office, Spirit Lake, for appellant.
Lonnie Saunders of Chozen Saunders, Spirit Lake, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Katina Riemenschneider appeals from the judgment and decree dissolving her marriage to Andrew Riemenschneider. She claims the trial court erred in placing the responsibility for the physical care of the parties' child, six-year-old Alex, with Andrew.
Our review in this equity action is de novo. Iowa R. App. P. 6.4. 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. 6.14(6)( g). 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).
In conducting our review we do note that the appellant's brief on appeal contains several factual assertions regarding matters which are not part of the record. A number of those factual assertions concern events alleged to have occurred after trial was concluded and the record closed. We are not permitted to consider matters which were not before the district court when it entered its judgment. See Iowa R. App. P. 6.10(1) (identifying the contents of the record on appeal); see also Alverez v. IBP, Inc., 696 N.W.2d 1, 3 (Iowa 2005) ("[A]ppellate courts cannot consider materials that were not before the district court when that court entered its judgment."); In re Adoption of Blanchard, 179 N.W.2d 441, 442 (Iowa 1970) (stating appellate court cannot consider evidence which was not presented in the trial court). Accordingly, we have not considered such factual assertions and express our disapproval of their inclusion in the appellant's brief.
In its written ruling the trial court made detailed, carefully-considered, and comprehensive findings of fact and conclusions of law. It carefully evaluated Alex's best interests in light of the parties' strengths and weaknesses, and appropriately considered the factors relevant to its physical care determination. We disagree with only a part of each of two of the court's findings, parts which have no bearing on the physical care decision. We otherwise fully agree with the court's findings, conclusions, and resulting decision. We therefore affirm the trial court. See Iowa Ct. R. 21.29(1)( a), ( d), ( e); (2).
The trial court found that Alex graduated from high school in 1995. It is clear from the context that the court meant Andrew.
In discussing Katina having denied Andrew contact with Alex for a period of some five months, the trial court referred to what it understood to be a contention by Katina that there had been allegations Alex had been sexually abused "by a girlfriend of one of [Andrew's girlfriend's] boys." The evidence shows, however, that the allegation, apparently summarily dismissed as unfounded after initial investigation, was that Alex had been sexually abused by Andrew's girlfriend's ten-year-old daughter.
We note that Katina asserts this court should consider joint physical care of Alex. In the trial court Andrew requested that if the court did not place Alex's physical care with him it should order joint physical care. Katina, however, strenuously objected to joint physical care. The trial court noted Andrew's alternative request for joint physical care but implicitly rejected it, concluding that Alex's best interest would be served by placing responsibility for his physical care with Andrew.
Andrew seeks an award of appellate attorney fees. After considering the relevant factors, see In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997), we award Andrew $750 in appellate attorney fees.