Opinion
No. 4-466 / 03-1978.
September 9, 2004.
Appeal from the Iowa District Court for Johnson County, Thomas M. Horan, Judge.
The father appeals from the district court decree that established physical care of the parties' child. REVERSED AND REMANDED.
James Carlin and Catherine Cartee of Gomez, May, Cartee Schutte, Davenport, for appellant.
Michael McCarthy of McCarthy, Lammers Hines, Davenport, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Thomas Cannon appeals from the district court decree that awarded "joint physical care" of Hayley Cannon to Thomas, Hayley's father, and Tami Robertson, Hayley's mother. Thomas asserts he should be awarded sole physical care of Hayley. We agree, and reverse the district court's physical care award. We also remand this matter to the district court for the establishment of visitation and support.
I. Background Facts and Proceedings.
Hayley Cannon was born to Thomas Cannon and Tami Robertson in June 2000 in Iowa City. Thomas and Tami had been involved in a relationship during the ten years leading up to Hayley's birth. Although the parties dispute when the relationship ended, it appears any romantic entanglement ended several months after Hayley's birth.
Thomas has been married to Julie Cannon for over twenty years. The couple has four children of their own, as well as custody of a nephew. Thomas is a self-employed contractor and has an average net income of over $4,000 per month. Tami is not married, but has three other children from prior relationships. Her youngest, Wesley, was approximately ten when Hayley was born. In the year leading up to and the year following Hayley's birth, Tami worked for MCI WorldCom, netting roughly $1,500 per month.
Initially, Thomas did not believe Hayley was his child, and refused to recognize her as such. Accordingly, in October 2000 Tami filed a petition to establish paternity. In March 2001 genetic testing established that Thomas was Hayley's father, and in October 2001 the district court entered a decree establishing Thomas as Hayley's father, and setting a support obligation. The issues of custody, physical care, and visitation were not addressed in the decree.
In April 2002 Thomas filed a petition, amended in May 2002, seeking legal custody and physical care of Hayley. At approximately the same time Tami left her job at MCI WorldCom and she, Hayley, and Wesley moved to Missouri to live with Tami's sister. In June 2002 Tami and children left Missouri for South Carolina, where they stayed, for two or three months, with a man Tami had met in Missouri. Tami then moved to Appleton, Wisconsin in September or October 2002. Tami and the children moved in with Tami's brother, and Tami obtained a waitress job.
In October 2002 Thomas filed an application for temporary visitation. In November Thomas was awarded daytime visitation every other weekend, to be exercised in Appleton. Thomas did not exercise his visitation rights until December 2002. Shortly thereafter, Tami and the children moved out of her brother's home and into their own apartment. Tami also left her waitress job.
Thomas did not exercise his visitation again until February 2003, which he used to have Hayley evaluated by a psychologist. In March 2003 Thomas filed an application for temporary custody of Hayley. In its April order the district court denied Thomas's request for temporary custody, but did increase his visitation to ten days each month. At the end of April Tami obtain an accounting job earning $9.00 per hour, with a raise and benefits after three months. Thereafter Thomas exercised the majority of this visitation, up to the time of the October 2003 hearing on custody, physical care, visitation, and support.
At hearing the district court was presented with sharply conflicting testimony on a number of pertinent issues. For instance, Thomas asserted that Tami blocked his attempts at visitation and that she failed to keep him informed of her whereabouts. Tami, on the other hand, insisted that she never interfered with Thomas's rights to his child, and that she kept Thomas informed of her location despite her moves. Tami also asserted that she and Thomas had engaged in a long-term, ongoing affair that continued well after Hayley's birth, while Thomas characterized the affair as occurring on only two extended occasions during the ten-year period, and insisted he and Tami were not romantically involved following Hayley's birth.
Both Thomas and Tami corroborated some of their own testimony with that of other witnesses. In Tami's case, however, much of her testimony was directly contradicted by medical records, records of the Department of Human Services (DHS), and testimony from a DHS worker. In many instances Tami asserted that, to the extent the evidence conflicted with her testimony, it was simply in error, or the person attesting to the information had lied.
In its October 2003 decree, the district court did not resolve any disputed factual issues, nor did it make any credibility findings. It simply made findings of ultimate fact that joint custody and "joint physical care" were in Hayley's long-term best interests. In light of its "joint physical care" award, the court calculated the child support obligation each party would have if the other parent had been awarded physical care, and then offset one against the other to arrive at a net obligation in Thomas. The court also set a rather specific physical care arrangement. However, the court's schedule does not in fact constitute or approach what might reasonably be seen as a joint physical care arrangement. See Iowa Code § 598.1(4) (2001) (defining "joint physical care" for dissolution of marriage and domestic relations cases). Rather it awarded Thomas alternating weekends, and set an equally-divided holiday schedule. The remaining times — every week and every other weekend — Hayley remained in Tami's physical care.
The court specifically rejected the recommendation of the guardian ad litem that Thomas receive sole legal custody, stating such an arrangement was not in Hayley's long-term best interests, and would not preserve her relationship with each parent.
Thomas appeals. He asserts that Hayley's interests would be best served if he were awarded her physical care.
II. Scope and Standards of Review.
We conduct a de novo review of decisions regarding physical care. Iowa R. App. P. 6.4; In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We examine the entire record and adjudicate rights anew rights on those issues properly presented. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999). Although not bound by any of the district court's fact findings, we give them considerable weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)( g). Here, however, where the trial court made no findings of evidentiary facts and no credibility assessments, this court must rely on the printed record to determine relevant facts and the credibility of witnesses.
III. Physical Care.
We begin by noting that, while the district court set a support obligation consistent with joint physical care, the care schedule actually imposed by the court was tantamount to awarding Tami physical care, and granting Thomas regular visitation. In fact neither party requested joint physical care and, in light of the geographical distance between the parties and their past difficulty in acting in concert concerning their daughter, a true joint physical care arrangement would be impracticable if not actually unworkable. Thus, this court is essentially faced with the question of whether the responsibility for Hayley's physical care should be with Tami or with Thomas.
In determining which parent should be granted physical care, our overriding consideration is the child's best interests. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We consider a number of factors, including the child's needs and characteristics, the parents' abilities to meet those needs, the child's relationship with the parents and any siblings, the nature of each proposed home environment, and the effect of continuing or disrupting the child's current status. See In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974); see also Iowa Code § 598.41. Our goal is to select the environment most likely to cultivate a physically, mentally and socially healthy child. See Murphy, 592 N.W.2d at 683. While the child's physical and financial stability are important considerations, great emphasis is placed on achieving emotional stability for the child. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998).
There is no doubt that Thomas and his wife Julie can provide Hayley a stable home environment and financial security. More importantly, despite the lack of early interaction, Hayley seems well bonded with both Thomas and Julie, and has apparently been accepted by the couple's children. Thomas's primary failing, beyond the affair for which both he and Tami must be held responsible, is his early lack of interest in his daughter, his resistance to paying child support, and his initially minimal effort to obtain and exercise visitation. His actions require this court to carefully assess his motivations in seeking Hayley's physical care, and the level of nurturing Hayley would receive in his home. When we do so, we conclude the credible evidence indicates Hayley would receive love and emotional support from not only her father, but also her step-mother.
Thomas does overemphasize Hayley's developmental delays in an attempt to paint Tami as a dysfunctional and inept parent. Although Hayley has experienced some speech delays, and is clearly a restrained child, the greater weight of the credible evidence indicates that she does not suffer from serious developmental delays. We also believe Tami loves her daughter, as a general matter has Hayley's best interests at heart, and is capable of providing for Hayley's needs. We do not believe the evidence demonstrates, as Thomas suggests, that Hayley will come to some form of harm in her mother's care. However, the record does raise concerns about whether Tami can as effectively raise a physically, mentally and socially healthy child as can Thomas.
Tami has moved Hayley, in her young life, to three different states and at least four different residences. One of these moves involved a man whom, based on the record, it appears she had only recently met. She has also allowed her older children to stay at the residence of, if not actually in the care of, a person whom Tami herself describes as "the biggest drug deal dealer in Iowa City." More important, however, is evidence that, on occasion, Tami has been less than attentive to Hayley's care and needs.
Tami suffers from a depressive disorder. Once, when Hayley was still an infant, Tami was so disoriented that she left Hayley unattended in a car with two windows rolled down in a store parking lot for over a half-hour. Although Tami seeks to blame her actions on her medications, her version of events surrounding the incident is contradicted in many particulars by what appears to be non-biased evidence. In fact, Tami seeks to deny or recharacterize nearly every piece of evidence that casts a negative light on her care of Hayley, and does it in such a way as to indicate at least a high level of paranoia, and more probably a lack of truthfulness.
Medical records indicate that, after Hayley fell off the couch and broke her arm in November 2001, Tami did not seek medical attention for several weeks, as she was afraid she would be reported for abusing Hayley. When confronted with this evidence Tami insisted that the records were in error, that Hayley had actually broken her arm some three weeks later, and that she had never stated she was afraid to take Hayley to the hospital. When other evidence indicated Tami had engaged in questionable behavior regarding Hayley's medical needs or care, Tami asserted that either the records were wrong or that someone else was lying. In one instance Tami went so far as to suggest that the nurse making the record was in collusion with Thomas and Julie. However, she provided no credible explanation as to why much of this evidence would be in error, or why the persons making certain records or giving certain testimony would be motivated to lie. Based on our assessment of the record, we do not find Tami's denials and protestations of absolute blamelessness to be credible.
We are nevertheless mindful that Tami has been Hayley's primary caregiver and, for the first two years of Hayley's life, the child's only caregiver. We afford this factor significant consideration. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct.App. 1995). However, it is not the singular factor in determining which placement would best serve Hayley's interests. Id. We are also conscious of the fact that Hayley should be separated from her half-brother Wesley only for compelling reasons. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993). However, if separation might "better promote the long-term best interests of the children, then a court may depart from the rule." Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct. App. 1994).
Weighing all the evidence in the record, we conclude that Hayley's long-term interests are best served by being placed in Thomas's physical care. Although Tami has demonstrated a general ability to provide for Hayley's needs, Tami's past actions, and her unwillingness or inability to take responsibility for those actions, raise serious concerns about whether she can provide Hayley the nurturing and stable environment the child needs to achieve healthy physical, mental and social maturity. Despite Thomas's initial reluctance to be a part of Hayley's life, we believe he can provide that environment. Our conclusion is buttressed by the thoughtful recommendation of Hayley's guardian ad litem, who recommend that Thomas receive Hayley's sole legal custody, and thus her physical care as well.
This decision will separate Hayley from her half-brother and primary caretaker. Accordingly, Hayley's attachment to Wesley and Tami, and minimizing the stress to Hayley from a change in primary caretakers, must be given serious consideration in setting an appropriate visitation schedule. However, as with child support, that issue would be better addressed by the district court, in light of not only the existing record but any further evidence the parties might wish to present and the court might find appropriate to receive because of the passage of time since its decree.
IV. Conclusion.
We reverse the district's court's physical care award and place Hayley in the physical care of her father, Thomas. We remand this matter to the district court for the setting of child support and the establishment of an appropriate visitation schedule. On remand, the court may, but is not required to, consider further evidence on the issues of visitation and support.