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noting “the child custody evaluation is simply a recommendation to the district court and is not binding on the court”
Summary of this case from Flick v. StoneburnerOpinion
No. 2-782 / 02-0698
Filed January 15, 2003
Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.
Ritchie Avenarius appeals from the district court's decree dissolving the parties' marriage. AFFIRMED.
Jeffrey Trannel of Hughes Trannel, P.C., Dubuque, for appellant.
Robert Sudmeier of Fuerste, Carew, Coyle, Juergens Sudmeier, P.C., Dubuque, for appellee.
Heard by Mahan, P.J., Vaitheswaran, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).
Ritchie appeals from the district court's decree dissolving the parties' marriage. Specifically, he contends the district court erred when it: (1) granted physical care of the parties' children to Rachel; (2) established the visitation schedule; (3) refused to credit him with the lot on which the marital home was built; (4) divided certain household items in contravention of the parties' pretrial agreement; and (5) ordered a different due date for payment of child support from that established in the temporary order. Rachel requests appellate attorney fees. We affirm.
Background Facts and Proceedings. Ritchie and Rachel were married on May 11, 1996. They are the parents of Alexis, born January 28, 1998, and Brandon, born on November 29, 1999. The couple resided at 3100 Ideal Lane in Dubuque, Iowa. The marital home was built on a lot carved out from the Avenarius family farm in 1996.
Ritchie, thirty-eight years old, graduated from high school and is currently employed by Consolidated Freightways. He earns approximately $44,974 per year. Rachel, thirty-two years old, earned a degree in business administration from Kirkwood Community College. She worked in various shipping jobs until the birth of Brandon when the parties decided she would remain at home to care for the children. In September 2001 Rachel began working part-time for UPS. At the time of trial, she was laid off. She earned approximately $7956 per year.
At trial, each party testified the other had been physically abusive, at times in the presence of the children. After hearing several witnesses testify on each party's behalf, the district court found Ritchie had physically assaulted Rachel on two separate occasions. On one occasion, when Rachel was pregnant with Brandon, Ritchie broke into the parties' bedroom and punched her on the hip with a closed fist while she was laying on the bed. On another occasion, Ritchie pulled Rachel's hair while she was holding Alexis. After Rachel put Alexis to bed, Ritchie assaulted her again. He was intoxicated at the time. The district court also found Ritchie has a substance abuse problem. He drinks in the presence of the children. One time, Ritchie urinated outside the parties' home within view of the children. He also became intoxicated at a wedding reception and mooned Rachel's family.
This is not to say Rachel is without her faults. She admitted to slapping Ritchie on the face in February 2001. In order to restrain her, Ritchie grabbed her forearms. On April 6, 2001, the parties became involved in an argument which led to Rachel's arrest for domestic assault and child endangerment. Ritchie contends Rachel hit him while he was holding Alexis. Rachel denied hitting him, and Alexis told police that Ritchie had hit her mother. Subsequently, the State dismissed the charges against Rachel due to insufficient evidence.
Following this incident, the Department of Human Services (DHS) commenced an investigation. DHS attempted to interview Rachel but was unsuccessful as her attorney advised her not to speak to DHS while criminal charges were pending. DHS completed a child protective assessment summary on May 4, 2001, with a conclusion of founded child abuse. A notice of this finding was sent to the Avenarius home where Rachel no longer lived. Rachel claims she never received this notice and the first time she became aware of this finding was a few days prior to trial. Ritchie testified he received copies of the notice for himself and the two children but not Rachel's copy.
The district court requested Lutheran Social Services to complete a child custody evaluation. Lutheran Social Services filed a report one week prior to trial recommending joint custody with joint physical care, and adherence to the visitation schedule the parties had followed prior to trial. Under that schedule Rachel cared for the children during the weekdays and on Sundays, and Ritchie cared for the children on weekday evenings and on Saturdays. Until the parties' separation, Rachel was the primary caregiver. At trial, Tina Nauman, operator of Grandview Methodist Preschool, testified Rachel is more involved than Ritchie in Alexis's preschool activities. She stated Rachel had attended many events at the preschool and all conferences while Ritchie had attended none. Ms. Nauman also testified Ritchie appears to be more concerned with the appropriateness of Rachel's actions than what is in Alexis's best interests.
A decree of dissolution of marriage was granted on March 5, 2002. The district court awarded physical care of the parties' children to Rachel. Ritchie was ordered to pay $747 per month in child support for two children and $508 per month when only one child is eligible. Further, the district court divided the parties' personal property in accordance with their pretrial agreement. Ritchie received approximately $3300 in personal property while Rachel received $4850. The district court also concluded Ritchie should not receive a credit for the value of the lot on which the marital home was built. Ritchie appeals.
Standard of Review. Dissolution of marriage decrees are reviewed in equity. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). Our standard of review is therefore de novo. Iowa R.App.P. 6.4. In such cases, we examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). In doing so, we give weight to the fact-findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
Primary Physical Care. The critical issue before us is the best interests of the children. Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct.App. 1998). This must, of necessity, be the first and governing consideration in our discussion. Id. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41 (2001); In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). This decision requires selection of a custodial parent who can minister more effectively to the long-range best interests of the children. Winter, 223 N.W.2d at 167. The objective should always be to place the children in the environment most likely to bring them to a healthy physical, mental, and social maturity. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996). Each custody decision is based on its own particular facts. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
Ritchie contends the district court disregarded substantial evidence of Rachel's hostility toward him in the presence of the children. We disagree. While we note that both parties made disturbing allegations against each other, we also note the district court saw the parties and their demeanor at trial. The district court, after considering all of the evidence, chose to believe Rachel. In making its decision, the district court stated:
As is often the case during child custody trials, each party has painted a very dark picture of the other. The issue then becomes one of credibility. For the reasons set out below, this Court gives more credibility to the Petitioner and her witnesses than to the Respondent and his witnesses.
We conclude the district court properly considered all the evidence and decided Rachel was more credible.
Ritchie further claims the district court should not have disregarded the child custody evaluation prepared by Lutheran Social Services recommending joint physical care. First, we note the child custody evaluation is simply a recommendation to the district court and is not binding on the court. Secondly, the district court did not disregard the evaluation; rather, it was considered "the highest hurdle that the Petitioner had to overcome." After reviewing the evaluation, the district court concluded the evaluation was flawed for two reasons. First, the evaluation placed considerable weight on the founded child abuse report made by DHS. The reason Lutheran Social Services placed such emphasis on this finding was the fact Rachel did not acknowledge nor mention this in her interview. However, as the district court pointed out Rachel was not even aware of DHS's finding at the time of her interview because she had not received notice of this finding until a few days prior to trial. The notice was mailed to the marital home where Rachel no longer lived. The second flaw with the evaluation was that it gave no weight to Ritchie's substance abuse problem. Consequently, we find the district court considered the evaluation and properly concluded the evaluation was flawed in certain respects.
We also find no merit in Ritchie's other argument that the trial court improperly excluded the testimony of Lutheran Social Services evaluators. Ritchie, not the district court, requested Lutheran Social Services to prepare an additional recommendation in the event the district court wanted a sole physical custodian. We find the district court properly sustained Rachel's objection to this testimony on the basis of unfair surprise. We also note this recommendation was flawed for the same reasons as the initial recommendation.
Visitation. Ritchie contends the visitation schedule is too restrictive and, thus, not in the best interests of the children. The decree provides Ritchie with visitation on: (1) every other weekend, (2) every Wednesday night, (3) half of the holidays, and (4) four weeks during the summer. In establishing visitation rights, our governing consideration is the best interests of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). In this regard, we have stated that, generally, liberal visitation rights are in the children's best interest. Id. After carefully reviewing the visitation schedule, we find the schedule is not too restrictive and assures the children the opportunity for maximum continuing physical contact with both parents.
Property Division. The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). Equitable distribution does not necessarily mean an equal division of property, nor does it mean a percentage division of the property. Id. In making this assessment, we consider the factors set forth in Iowa Code section 598.21. The determining factor is what is fair and equitable in each circumstance. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). The distribution should be made in consideration of the criteria codified in Iowa Code section 598.21(1) (2001). Gifts and inheritances received prior to and during the marriage are the property of that party and are not subject to a property division unless the failure to do so would be inequitable to the other party. Iowa Code § 598.21(2) (2001).
Ritchie contends he should have received a credit in the amount of $40,000 for the lot on which the marital home was built. Both parties agree that Ritchie inherited a one-fifth interest in the lot and he was gifted the other four-fifths interest in the lot from his mother. However, Rachel contends it would be inequitable not to divide the lot under the circumstances of this case. We agree. Given the fact Ritchie took over $250,000 of inherited and gifted property from the marriage, we find it would be inequitable to Rachel to give him a credit for the lot.
Ritchie also contends the district court gave Rachel the Sony Spacemaker C.D. and oak patio door valance in contravention of the parties' pretrial agreement. We disagree. The dissolution decree provided:
All property shall be divided as set out in Defendant's Exhibits 11 and 12 and Petitioner's Exhibit 13 (Court Exhibit 3). The Respondent shall be required to turn over to the Petitioner any and all items that are in his possession which are set out in Petitioner's Exhibit No. 13 under the heading "Was to be there Saturday and was not."
We find exhibit 13 to be an amendment of respondent's exhibits 11 and 12. Thus, Rachel was properly awarded the Sony Spacemaker C.D. and oak patio door valance.
Due Date of Child Support. Ritchie contends the district court incorrectly established the due date for payment of child support under Iowa Code section 598.21(8) (2001). Specifically, he alleges the district court should not have changed the due date ordered in the temporary decree without a good cause determination. Iowa Code section 598.21(8) provides:
The periodic due date established under a prior order for payment of child support may not be changed in any modified order under this section, unless the court determines that good cause exists to change the periodic due date. . . .
Iowa Code § 598.21(8) (2001).
We find section 598.21(8) inapplicable because it pertains to modification orders not original decrees. Section 598.14 is the applicable provision in this case. It provides: "a temporary order continues until the action is dismissed or a decree is entered." Consequently, once the decree was entered on March 5, 2001, the temporary order was no longer in effect, and we find the district court did not err in establishing the due date.
Attorney Fees. Rachel seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the discretion of the court. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999). "We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court's decision on appeal." In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). Based on the facts of this case, we determine each party should pay his or her own attorney fees.