Opinion
No. 5-712 / 05-0248
Filed November 23, 2005
Appeal from the Iowa District Court for Mills County, J.C. Irvin, Judge.
Diana Sayers appeals from the child custody provisions of the decree dissolving her marriage to Shane Sayers. AFFIRMED.
Bryan D. Swain and J.C. Salvo of Salvo, Deren, Schenck Lauterbach, P.C., Harlan, for appellant.
Suellen Overton of Overton Law Office, Council Bluffs, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Diana Sayers appeals from the child custody provisions of the decree dissolving her marriage to Shane Sayers. She contends the district court erred in granting physical care to Shane. Shane requests an award of appellate attorney fees. We affirm.
I. Background Facts and Proceedings.
Diana and Shane began living together in 1995. Their son, Draven, was born in March of 1996, and they were married June 15, 1996. A daughter, Madison, was born in February of 2003. The family lived in Malvern.
During the marriage, Shane worked as a hired hand on his family's farm. In 2000, he worked an extra job at Pella windows for a short time, but left because he desired to spend more time with his family. Shane then worked for his uncle as a driver at Dinklage Oil. After four years, he returned to working at the family farm. Shortly before trial, Shane began working for McAllister and Company. Diana has worked for Glenwood Resource Center since 1998. At the time of trial, she was resident treatment supervisor.
The parties first separated in 2000. A petition for dissolution of marriage was filed, but was later dismissed at the request of the parties.
In April 2004, Shane learned Diana had past extramarital affairs. The parties again separated and Diana moved out with the children. She moved to Council Bluffs and lived with her father and then in an apartment for a short time before moving back in with her father. Diana hopes to move to Glenwood where she is employed. After the marital home was sold, Shane moved to rural Hastings. He hopes to return to Malvern.
Diana filed for dissolution of marriage on May 24, 2004. A temporary order issued in July 2004 gave the parties shared physical care. Trial was held in January 2005, with the primary issue being physical care of the children. In its decree, the district court granted Shane physical care of the children.
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).
In determining which custody arrangement was in the best interest of the children, the district court found as follows:
The decision as to the award of physical custody in this case is a close call. As indicated, each parent is able to properly parent and care for the children. Shane has provided a substantial role in caring for the children since their infancy. He has a strong support system. He is stable. The children have friends and are familiar with and happy in their school and daycare setting in Malvern. It would not be in their best interest to disturb this setting.
The court then granted Shane physical care of the children. Diana contends physical care of the children should be placed with her.
The testimony presented by the parties and their witnesses is in substantial conflict. Each party asserts they were the primary caregiver during the marriage. Shane argues his flexible work schedule allowed him more time with the children, and that Diana's work hours required him to perform the majority of the child rearing. Diana argues she was the primary caretaker of the children, and that since their separation, Shane has failed to bathe the children, wash their clothes, or help Draven with his homework.
Another conflict arises over which party is more stable. Shane points to Diana's extramarital affairs and her social activities to show he is more responsible and stable. Diana argues Shane has a gambling problem that caused the family financial difficulties during the marriage. Testimony was also received regarding a few instances in which Shane drank to excess. Diana argues that Shane's work history demonstrates he is not stable. Shane counters that, unlike Diana, his emphasis was on his family, not his career.
Next, Diana claims Shane has harassed her since they separated, calling her as many as fifteen to twenty times a day. Diana estimated that ninety percent of these conversations did not relate to their children. Diana also received in the mail a picture of her and a man with whom she had an affair. Her face was scratched out in the picture. Diana admits that Shane's harassment of her subsided after several months, but argues "his hostility to her was unabated at trial."
Finally, Diana implies Shane has been acting in an effort to turn her children against her or her choice to live in Council Bluffs. She cites as evidence the fact that Draven inexplicably became fearful that Council Bluffs was a dangerous place one month after moving there. She contends Draven refuses to play outside and sleeps with a knife and toy gun under his pillow. Her speculation is that Draven's fears originated with Shane.
In its findings of fact and conclusions of law, the district court notes the importance of credibility determinations. It stated:
In cases such as this, the court's findings and order are based on the firsthand observation of the parties and the witnesses. The demeanor and conduct of the witnesses often say as much as the words they utter. Credibility determinations must necessarily be based on the appearance and presentation a witness makes.
Such credibility determinations are especially important in a case such as this, where so much of the parties' testimony and their witnesses' testimony is in conflict. Such findings help our court resolve these contradictions and we find them to be invaluable. Unfortunately, the district court made no explicit credibility findings here. Because of its statement that its findings were based on its credibility judgments, this court could assume the district court found Shane to be more credible.
Upon de novo review, we agree the parties are both capable and loving parents. We agree with the district court that the decision to grant physical care in this case is a close call. While this court is troubled by the accusations of Shane's harassment of Diana, Diana admitted this behavior has subsided as Shane has begun to move forward with his life. We conclude there is no credible evidence that Shane has caused Draven's fear of living in Council Bluffs.
Granting Shane physical care allows the children to remain in the area they have lived their entire lives. It enables Draven to stay in his school district and allows Madison to stay with the only childcare provider she has known. Draven and Madison also have access to a Shane's family, with whom they have closely bonded. In a close case such as this one, this is enough to tip the scales in Shane's balance. Accordingly, we affirm the district court's grant of physical care to Shane.
Shane's mother cared for Draven the first four years of his life.
IV. Appellate Attorney Fees.
Finally, Shane contends Diana should pay his appellate attorney fees. An award of attorney fees rests within the court's sound discretion and the parties' ability to pay. In re Marriage of Mrkvicka, 496 N.W.2d 259, 262 (Iowa Ct.App. 1992). We decline to award Shane his appellate attorney fees. Costs of the appeal are taxed to Diana.