Opinion
No. 2-564 / 02-0458.
Filed August 14, 2002.
Appeal from the Iowa District Court for Dickinson County, DON E. COURTNEY, Judge.
A father appeals from the custody provisions of a dissolution decree, seeking primary physical care of his three children. AFFIRMED.
Scot Bauermeister of Fitzgibbons Law Firm, Estherville, for appellant.
Jack Bjornstad of Bjornstad Law Office, Spirit Lake, and John Sandy, Spirit Lake, for appellee.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Terry and Ginger Roghair married and had three children, Sara, born in 1987, Mitchell, born in 1989, and Jack born in 1991. When they divorced, the district court awarded Ginger physical care of the children. On appeal, Terry contends Ginger has a problem with alcohol and is unable to provide the children with a stable home. On our de novo review, we affirm.
In determining which parent should have physical care, our paramount consideration is the best interests of the children. In re Marriage of Blume, 473 N.W.2d 629, 631 (Iowa Ct.App. 1991). The key issues here are whether Ginger abused alcohol and whether, if she did, her alcohol consumption adversely affected her care of the children.
Ginger acknowledged she had a "slight" problem for which she was undergoing treatment but stated her alcohol use did not affect her ability to work and care for the children. She stated that she woke up at 6:00 A.M. to drive a school bus and introduced letters from school personnel attesting to her exemplary job performance. Ginger also testified that she was the person over the years who had attended to the children's daily needs, including their school and extracurricular activities.
The superintendent of schools attested "Ginger has been an excellent employee during these past four years. She is habitually on time, and a very good employee to work with. Students and parents have rated her highly for her bus driving abilities."
Ginger's testimony concerning her primary caretaking role is supported by the record and is a factor we consider in determining who should have physical care. See In re Marriage of Wilson, 532 N.W.2d 493, 494 (Iowa Ct.App. 1995) (noting factor may be considered but is not controlling). Given her job with the school district, Ginger was able to see her children during their school day. She regularly attended school and extracurricular activities and ensured their school performance was adequate. Although she had trouble getting one of her children to summer school in the months preceding the divorce trial, there was no evidence that the children had excessive absences during the regular school year. Terry, in contrast, spent several years as an over-the-road trucker, a job that limited his ability to play an active role in the children's lives.
At the time of trial, Terry was working as a dispatcher, a position which did not require any travel.
Ginger's testimony concerning her active and primary parenting role was corroborated by her roommate, a case worker with a social service organization. She opined that Ginger's alcohol consumption did not adversely affect her ability to care for the children, stating:
I think she does quite well. She makes sure that her kids are up, dressed, has breakfast. She makes sure they're to school on time. She makes sure that they have their homework done. She makes sure they have a way home, whether it be via me or her after school. She makes sure there's food in the refrigerator, supper on the table, and the kids have a set bedtime routine."
The roommate also testified Ginger was "right on the ball" with administering to her youngest son's diabetic needs. She opined that the children had "most definitely" bonded with Ginger and to remove them from their current environment would "be very difficult for them."
The district court gave substantial credence to the roommate's testimony. As we lack the ability to observe the witnesses, we give weight to this credibility assessment. Blume, 473 N.W.2d at 632. While it is true the roommate had been a friend of Ginger's for two or three years and therefore lacked the neutrality of a custody evaluator, the court treated her as a lay person with a credible opinion based on personal observation, not as an expert custody evaluator. Contrast In re Marriage of Rebouche, 587 N.W.2d 795, 799 (Iowa Ct.App. 1999) (noting that court-appointed custody evaluator inappropriately acted as advocate for father).
We recognize that the roommate's opinion is inconsistent with those of Ginger's relatives. Ginger's brother, for example, testified she used abusive language toward the children and frequently left them alone. He stated he did not think Ginger was capable of treating her youngest son's diabetic condition and recommended the children be placed with Terry. Ginger's sisters seconded this opinion. While the record does not reflect any ulterior motives for her relatives to testify as they did, we agree with the district court that they saw Ginger's interaction with the children less often than did her roommate. The roommate's testimony suggests Ginger's care of her children was appropriate in the two months preceding trial.
We also consider the preferences of the two older children to stay with their mother, as the children were mature enough to have their preferences considered. See In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct.App. 1985). However, we accord those preferences minimal weight as they were based on an erroneous belief that they would have to move away from the town in which they had grown up should they be placed with their father.
After the divorce action was filed, Terry made arrangements to move out of his parents' home in Minnesota where he had been temporarily staying and into a mobile home near his children so the children could remain in the same school district.
On our de novo review of the record, we agree with the district court's decision to place the children with their mother, but we note that Ginger is on a precipice. By all accounts, Ginger's alcohol use has gradually escalated over the years, with both health professionals and lay people expressing concern. The district court nevertheless placed the children with her because her alcohol use had "not yet" affected her ability to care for the children. This is a tenuous endorsement. We trust that Ginger will heed the district court's admonition to become actively involved with counseling. We also trust she will take advantage of Terry's commendable offers to assist with the children's care.
AFFIRMED.