Opinion
No. 1-1045 / 01-0489.
Filed February 20, 2002.
Appeal from the Iowa District Court for Bremer County, JOHN S. MACKEY, Judge.
Scott Alan Kirchoff challenges the visitation provisions ordered by the district court and attorney fees. AFFIRMED.
Paul Demro, Cedar Falls, for appellant.
Kellyann Lekar, Waterloo, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
The marriage of petitioner-appellant Scott Alan Kirchoff and respondent-appellee Kelly Jean Kirchoff was dissolved by the district court on February 28, 2001. The parties by agreement were named joint legal custodians of their three children, then nine, seven and five, and Kelly was named as the parent having primary physical care. In the dissolution the district court addressed only issues of visitation and attorney fees. Scott was given visitation. The district court ordered that Scott be prohibited from consuming alcohol during visitation, that the visitation was to be supervised by his parents or another mutually agreed-upon supervisor, and that Kelly provide all transportation arrangements for the visitation. The district court also ordered Scott to pay $1,000 towards Kelly's legal fees. Scott contends that (1) his visitation should not be supervised, and (2) he should not have been required to contribute to Kelly's legal fees. We affirm.
CHALLENGE TO SUPERVISED VISITATION. Scott contends there is no basis to order that his visitation be supervised and that such a requirement denies him meaningful contact with his children.
We review de novo. Iowa R. App. P. 4. Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court's findings of fact, but we are not bound by them. Iowa R. App. P. 14(f)(7).
Scott is a joint legal custodian. This gives him rights to his children as well as responsibilities. In re Marriage of Westcott, 471 N.W.2d 73, 75 (Iowa Ct. App. 1991). Scott correctly argues that as a joint legal custodian, he has the right to continuing physical and emotional contact with his children and is entitled to share the rights and responsibilities of raising them. Rights and responsibilities of legal custodians of a child include, but are not limited to, equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction. See In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
As the parent having primary physical care, Kelly has an obligation to put her personal biases aside and work with Scott to see that his visitation schedule incorporates the children's educational and social needs and provides for their safety. See Westcott, 471 N.W.2d at 75.
Kelly sought restrictions on visitation, contending that Scott (1) has drunk alcohol in the car with the children present, (2) becomes violent when he drinks, (3) was charged with and pled guilty to having an open container of alcohol in his car, (4) was charged with having dangerous weapons in his car, (5) has taken the children to a bar, (6) allows his girlfriend to take care of the children, and (7) has allowed his girlfriend to drive the children to Minnesota. She further contends that the children are concerned about their father's drinking.
In restricting Scott's visitation the district court found Scott had failed to follow an earlier court order prohibiting him from consuming alcohol when the children were visiting, and that therefore supervision of visitation was necessary.
In the earlier order the judge concluded, "It would be in the children's best interest to restrict Scott's consumption of alcoholic beverages while exercising visitation." The court then ordered that, ". . . during the pendency of the action Scott shall refrain from consuming alcoholic beverages while exercising visitation with the parties' minor children."
It is obvious that Scott loves and cares for his children. He has been involved in their lives. He was current with his temporary child support. He has a good employment record and is a respected citizen in the community. Scott should have the opportunity to have frequent and meaningful contact with his children. The visitation times established by the district court provide him that opportunity. The requirement that his visitation be supervised does, by the nature of that requirement, limit this opportunity. A noncustodial parent who is a joint legal custodian should, under most circumstances, be allowed the same privileges during a visitation period as those enjoyed by the parent having primary physical care unless there is a showing that certain restrictions are necessary for the children's physical or emotional health.
The question, then, is whether the children are at risk if Scott's visitation is not restricted. Scott has been gainfully employed by Wonder Bread for over thirteen years. He has never been fired or disciplined in the Wonder Bread job. He is a member of a union and has been elected by fellow members to sit in contract negotiations and represent their interests. He is a member of the Readlyn Fire Department. He fishes, camps and hunts.
Scott was arrested for having an open container in his car after a fire department meeting. He was given a breath test, which showed he was below the legal limit. Following this arrest, he was evaluated by Pathways Behavioral Services. Pathways Behavioral Services said Scott did not appear to have a substance abuse problem and made low-risk drinking choices. They also found that he had good family support and a good work history. The dangerous weapons found in his car were fish filet knives. He testified that he was not aware it was illegal to have them in his car, and that he was given a deferred sentence.
Scott lives with his girlfriend who manages a bar. There was evidence that Scott had taken the children to the bar. There was evidence that the children complained to their mother and a counselor that they did not like Scott's and his girlfriend's smoking and drinking. There was evidence that a childcare provider was concerned Scott had been drinking once when he picked up the children. Scott does not deny having taken a drink before driving but contends he does not drive if he is intoxicated.
The question is whether Kelly is an over-concerned parent who is unreasonable in her requests, or whether Scott's behavior presents a danger to the children if they are not supervised while in his care. The question is not easily answered. The district court heard the parties testify and viewed their demeanor. Giving the required deference to the district court's findings, we affirm on this issue.
CHALLENGE TO ATTORNEY FEE AWARD. Scott contends he should not have been ordered to pay towards Kelly's attorney fees. An award for attorney fees is not a matter of right but rests with the court's discretion and depends on the parties' respective financial circumstances and ability to pay. In re Marriage of Eastman, 538 N.W.2d 874, 877 (Iowa Ct. App. 1995). The district court did not abuse its discretion in ordering Scott to pay a portion of the fees. We award no appellate attorney fees. Costs on appeal are taxed to Scott.
AFFIRMED.
ZIMMER, J. dissents.
I respectfully dissent. Upon de novo review of the record, I see no need for the restrictions placed on Scott's visitation.