Opinion
No. 4-385 / 03-0720.
August 26, 2004.
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
A mother appeals from the visitation provisions of a district court decree establishing paternity, custody, support, and visitation. The father cross-appeals from a provision of the decree awarding the mother certain property. AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL.
D. Raymond Walton of Beecher Law Offices, Waterloo, for appellant.
David Roth of Gallagher, Langlas Gallagher, P.C., Waterloo, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Todd Winter and Wendy Fehr are the unmarried parents of Sable, born January 12, 2002. Todd filed an application to establish paternity, custody, child support, and visitation in July 2002. In its March 2003 decree granting the petition the district court awarded Todd and Wendy joint legal custody, awarded Wendy Sable's physical care, and awarded Todd specified visitation. Wendy has appealed, asserting that a portion of the visitation schedule, specifically weekday overnight visitations, is not in Sable's best interest. Todd challenges a portion of the decree that requires him to turn certain property over to Wendy, asserting the court was without jurisdiction to make the award.
Upon our de novo review of the visitation issue, Iowa R. App. P. 6.4, we agree the weekday overnight visitation provision should be eliminated. However, when we review the property question for the correction of errors at law, In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995), we conclude any error has been waived.
Turning first to the visitation issue, we note the district court awarded Todd regular visitation at the following times: each Tuesday evening from 6:00 to 8:30 p.m.; each week from 6:00 p.m. Thursday to 5:00 p.m. Friday; and every other week from 9:00 a.m. Saturday to 6:00 p.m. Sunday. The court further provided that, when Sable reached the age of two, the Thursday overnight visitation would be expanded and merged with the weekend visitation, so that on those weeks when Todd has weekend visitation with Sable he would receive visitation from 6:00 p.m. Thursday until 6:00 p.m. Sunday. The court also set a specific visitation schedule for summers, holidays, the birthdays of the parties and Sable, and Father's and Mother's Days.
Wendy urges this court to eliminate the Thursday overnight visitation. She contends that the Thursday overnight visitation is overly disruptive and not in Sable's best interest because of the locations of the parties' residences, Todd's work schedule, and Sable's young age. We must agree. There is no doubt Sable would benefit from maximizing contact with Todd, and that is in fact a primary goal when awarding visitation. See Iowa Code § 598.41(1)(a) (2001). However, the overriding consideration must be Sable's best interests. In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.App. 1994) ("Although liberal visitation is the benchmark, our governing consideration in defining visitation rights is the best interests of the children, not those of the parent seeking visitation."). Upon review of the record we conclude that any benefit to Sable from the limited hours of interaction provided by the weekday overnight visitation would be outweighed by the disruption that visitation would cause.
Todd and Wendy live in separate towns, some twenty-five miles apart. After Todd would pick Sable up at Wendy's residence at about 5:00 p.m. on Thursdays, and drive home to his residence, only about three hours would remain before Todd would put Sable to bed. Moreover, Todd works on Fridays, and for most of that day Sable would be cared for by Todd's mother rather than spending time with Todd. As Todd begins work at 6:30 a.m., he would need to awaken Sable at about 5:00 a.m. on Friday mornings in order to have enough time to transport her to his mother's residence and still arrive at work on time. Since Todd would bear the responsibility of returning Sable to Wendy's residence by 5:00 p.m. on Fridays, any interaction he would have with Sable after work would be largely limited to the time spent transporting her in the car.
Wendy presented testimony from a mental health counselor that indicated this type of overnight visitation was not in the best interest of a child as young as Sable. Daniel Gates, a family counselor and "Children in the Middle" instructor, testified that children under the age of two have difficulty in handling confusion and change, and should not be absent from their primary home for extended periods of time. He stated that for children as young as Sable overnight visitations should be avoided or, at most, limited to one night.
"Children in the Middle" is a class for divorcing parents with minor children, and seeks to educate the parents as to the effects the divorce will have on the children.
If circumstances were different — if Wendy and Todd lived in the same town, if the Thursday overnight visitation provided Sable and Todd with longer or more constant periods of interaction, and if Sable were older — we might conclude some form of weekday overnight visitation would not be contrary to Sable's best interests. However, as previously noted we believe minimizing disruption and possible confusion and upset in a child, particularly a child of Sable's tender years, must take precedence over awarding a parent time with his child in excess of what is otherwise reasonable visitation. We also have concerns about the level of disruption the Thursday overnight visitation might cause once Sable begins school.
We have no fear that eliminating the Thursday overnight visitation will result in harm to Todd's relationship with Sable. The remainder of the visitation schedule, which Wendy does not contest, provides Todd and Sable generous and meaningful amounts of time with each other. The record also indicates that Wendy will make reasonable efforts to comply with requests from Todd for additional, unspecified visitation.
Accordingly, we modify the decree in this matter to eliminate Todd's weekly visitation with Sable from 6:00 p.m. Thursday to 5:00 p.m. Friday. When Sable has reached the age of two, which she has by the time of this decision, Todd's every-other-weekend visitation shall begin at 5:00 p.m. on Fridays.
We now turn to Todd's request that this court vacate a portion of the decree wherein the district court ordered Todd to "turn over" to Wendy an all-terrain vehicle (ATV), and required Wendy to promptly register the ATV in her name. Wendy and Todd had jointly purchased the ATV for Sidney, Wendy's daughter from a previous relationship, and registered it in Todd's name. Todd asserts the court was without subject matter jurisdiction to make the award. However, this question is not one of subject matter jurisdiction, the power of the court to deal with a class of cases to which a particular case belongs, but of the district court's authority. See In re Estate of Falck, 672 N.W.2d 785, 789-90 (Iowa 2003) (discussing distinction between jurisdiction and authority).
Unlike subject matter jurisdiction, "an impediment to a court's authority can be obviated by consent, waiver or estoppel." State v. Mandicino, 509 N.W.2d 481, 482-83 (Iowa 1993); see also Folkers v. Britt, 457 N.W.2d 578, 580 (Iowa 1990) ("Where the parties to an action proceed to try an issue not raised by the pleadings, it is generally deemed to have been properly raised and is included in the case."). Here, the record reveals that Todd agreed the ATV belonged to Sidney and the court could order it returned, provided his name was removed from the title. We conclude the record adequately demonstrates Todd's consent to the court's order. Accordingly, we decline to modify that portion of the court's decree.
The costs of this appeal are assessed to Todd.