Opinion
No. 2-282 / 01-1630.
Filed August 14, 2002.
Appeal from the Iowa District Court for Calhoun County, WILLIAM C. OSTLUND, Judge.
The father appeals the trial court's ruling placing physical care of the parties' two children with their mother. AFFIRMED.
Colin McCullough of McCollough Law Firm, Sac City, for appellant.
Kurt Pittner, Fort Dodge, for appellee.
Considered by HABHAB, PETERSON, and SNELL, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
This appeal challenges the district court's order awarding the physical care of two children to their mother, Lisa Stone. Upon our de novo review, we affirm this decision.
Lisa Stone, respondent-appellee, and Michael Stone, petitioner-appellant, were married on September 7, 1985. Two children were born of their marriage. Their son, Logan, was born November 1, 1984; their daughter, Aspen, was born April 20, 1988. The physical care during most of their lives has been provided by their mother.
Our review is de novo. Iowa R. App. P. 6.4. We give weight to the findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). Our major concern is the best interests of the children in the environment most likely to bring the children to healthy physical, mental, and social maturity. Lambert v. Lambert, 418 N.W.2d 40, 42 (Iowa 1988).
Mike was thirty-six years old at the time of trial. He has an eleventh grade education, is a trained mechanic, and works as an owner-operator truck driver for Smithway Motor Express. Prior to separating, Mike would generally be gone most of the week while trucking and returned home on weekends. Recently, he worked within 200 miles from home and was usually home daily.
Lisa was thirty-eight at the time of trial and attended two years of college. She worked at a grocery store. The parties had been married fifteen years.
Both children testified outside the presence of their parents and expressed a preference to live with their father. Logan stated he had lived with his father since April 2001 in the home of his paternal grandfather. Aspen resided with her father for three weeks before trial.
The marriage has been marked for years by physical and mental acrimony. Both parties admit to excessive drinking of alcohol. There is evidence that Lisa's excessive drinking was a factor in the children's choice of custody. Aspen also felt slighted by her mother who would leave her for a week or more with relatives or friends. This and excessive drinking led to a loss of respect for her mother by Aspen.
Mike's difficulties appear even more traumatic. Throughout the marriage he has shown a violent temper. He has physically abused Lisa many times. She charged him with domestic assault six times. He pled guilty once; the other charges were withdrawn by Lisa. Witnesses, other than Lisa, testified to seeing bruises on Lisa. Mike broke Lisa's wrist on one occasion and spent time in jail in California for assaulting Lisa.
He has a history of leaving the family. Twice he left Lisa with the children for an affair with another woman. Mike admitted to going absent without leave (AWOL) when in the U.S. Army and was arrested by the military authorities. On this occasion he took all their money with him, leaving Lisa three months pregnant and with their three-year-old son. On many occasions, Mike has demeaned Lisa in front of the children and engaged in considerable verbal abuse of Lisa.
Lisa has been the primary caretaker throughout the marriage. Lisa took the children to church; Mike did not go with them. There is an obvious lack of testimony from Mike's family members in his support. Terry Brown, who worked with Mike, and Terry's wife, testified favorably for Mike. Their relationship with Mike was limited in time, however, since they have known him only after the parties separated.
The children's preferences in custody matters is of importance but is not controlling. In re Marriage of Fynaardt, 545 N.W.2d 890, 893 (Iowa Ct.App. 1996); In re Marriage of Sires, 506 N.W.2d 813, 815 (Iowa Ct.App. 1993). One reason for this is that we are not aware of all the factors that influence a minor's decision.
Of great importance in awarding custody is the fact of domestic abuse. In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.App. 1997). The record of abuse of Lisa by Mike is of long duration with little redemptive features in his treatment of his children.
Our review leads us to the same conclusion reached by the trial court. The decision placing physical care of the children is affirmed. Costs are assessed to appellant.
AFFIRMED.