Opinion
No. 2-112 / 01-1206.
Filed July 3, 2002.
Appeal from the Iowa District Court for Davis County, DAN F. MORRISON, Judge.
Esparanza Maria Harrelson appeals from the child custody provisions of the parties' dissolution decree. AFFIRMED.
Anjela A. Shutts of Whitfield Eddy, P.L.C., Des Moines, for appellant.
R. Kurt Swaim, Bloomfield, for appellee.
Heard by SACKETT, C.J., and HUITINK and HECHT, JJ.
Esparanza Maria Harrelson (Hope) appeals from the portion of the parties' dissolution decree granting Jeffrey Jay Harrelson physical care of their three children. We affirm.
I. Background Facts and Proceedings.
Hope and Jeffrey were married on March 8, 1990. At the time of the marriage, Hope had custody of Bradley, her two-year old son from a previous relationship. During their marriage the parties had three children: Lougan who was born January 27, 1991, Lucas who was born November 23, 1993, and Jeffrey II who was born February 26, 1997. On August 3, 2000, Jeffrey filed a petition for dissolution of the marriage. Awaiting trial on the matter, the district court granted Hope temporary physical care of the children. Trial of the case commenced on May 2, 2001. Jeffrey filed an application to reopen the record, and additional evidence was received by the district court on June 13, 2001. Following a trial on the merits, the court granted the parties joint legal custody of the children and placed their physical care with Jeffrey. Hope appeals.
II. Scope of Review.
In this equity action, our review is de novo. Iowa R. App. P. 6.4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Marriage of Fynaardt, 545 N.W.2d 890, 892 (Iowa Ct.App. 1996).
In child custody cases, the best interest of the child is the first and governing consideration. Id., In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the child is which parent will do better in raising the child. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct.App. 1985).
III. Physical Care.
In granting Jeffrey the children's physical care, the district court found significant that Jeffrey remained in the four-bedroom marital house while Hope had moved from Bloomfield to Monroe to Knoxville and finally to Carlisle. In fact, Hope and the three children moved into a mobile home with her boyfriend and his son on May 2, 2001, the day the custody trial began. Hope failed to disclose this anticipated change of address either to the district court or Jeffrey on May 2, 2001. Indeed, she waited several days to even provide Jeffrey her new telephone number. Jeffrey's application to reopen the record was granted and evidence pertaining to Hope's new living arrangements was presented to the district court.
Hope contends the living arrangements with her boyfriend were temporary and forced upon her because of a sewer backup in her Knoxville apartment and unavailability of alternative living arrangements in the area. We find Hope's attempt to conceal her cohabitation with a boyfriend and the continuation of the living arrangement at least through June 13, 2001, as an indication that she did not perceive it as temporary.
The district court found the children's best interests would be served by placing them in their familiar family home, in close proximity to extended family members. The court expressed concern Hope could not provide them the stability or space the children need, and felt she exercised poor judgment by failing to emphasize the best interests of the children in choosing a living environment for them.
On our de novo review of the record, we agree with the district court's decision to grant Jeffrey the physical care of the children. Both Jeffrey and Hope are capable, loving parents. However, the stability and continuity Jeffrey offers the children persuade us he should be granted their physical care. Jeffrey remains in the large family home in which the children were raised. Hope, on the other hand, has moved a number of times, eventually residing with the children in a mobile home with her boyfriend, Matt Scholl, and his son. Matt certainly did not describe his relationship with Hope as a long-term relationship. In fact, Matt testified he and Hope were still "kind of getting to know each other" at the time of trial. Accordingly, we share the trial court's concern about the stability of Hope's living arrangement with Matt.
A number of witnesses testified about positive aspects of Jeffrey's character and parenting abilities. Doran Bollman, a family therapist and friend of Jeffrey's, testified and described Jeffrey as an exceptionally caring, nurturing person. He expressed his high regard for the care he had witnessed Jeffrey giving the children. Other witnesses testified Jeffrey possesses a reputation for honesty and has laudable character. We credit such testimony and consider it a factor in our conclusion that Jeffrey should be granted the children's physical care.
In addition, granting physical care to Jeffrey will enable the children to be in close proximity to their extended family, including Hope's parents and other relatives. Jeffrey's mother testified of her commitment to move in with Jeffrey and care for the children while he is at work. Although Jeffrey worked the night shift at the time of trial, he intends to bid for and obtain a day job at his current employment within six months.
Based on the considerations mentioned above, we affirm the trial court `s decision to grant Jeffrey physical care of the children.
IV. Preferences of the Children.
During trial, Hope asked the court to speak with Lougan. The court declined the request. On appeal, Hope maintains the court erred when it declined to interview Lougan and refused to take into account the wishes of the children. When a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment, his or her wishes, though not controlling may be considered by the court, with other relevant factors, in determining child custody rights. In re Marriage of Bowen, 219 N.W.2d 683, 689 (Iowa 1974).
We first note Jeffrey's counsel first asked the court if it wished to interview the children. Hope did not join in this request. However, Hope later asked the court to interview only ten-year-old Lougan. Although the court declined the request to interview Lougan, Hope was allowed to testify about Lougan's apparent preference to remain in her physical care. Thus, evidence was presented regarding Lougan's custodial preference. See In re Marriage of Burham, 283 N.W.2d 269, 276 (Iowa 1979) ("The preferences of minor children, while not controlling, are relevant and cannot be ignored in a child custody case."). Furthermore, Hope does not suggest what additional relevant information the district court could have obtained from the child in an interview. Accordingly, we reject Hope's assertion "the trial court refused to even learn what the wishes of the children were." We find no abuse of discretion in the district court's refusal to interview Lougan.
V. Attorney Fees.
Both Jeffrey and Hope request an award of appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct.App. 1987). 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 trial court's decision on appeal. In re Marriage of Starvecic, 522 N.W.2d 855, 857 (Iowa Ct.App. 1994). In consideration of these factors, we award no attorney fees on appeal.
AFFIRMED.