Opinion
No. 2-550 / 01-1690
Filed October 30, 2002
Appeal from the Iowa District Court for Cerro Gordo County, Paul W. Riffel, Judge.
Lori Godwin appeals from an order granting physical care of the parties' child to Darrell Alitz. AFFIRMED.
Steven Vanden Berg of Torgerson Vanden Berg Law Offices, P.C., Mason City, for appellant.
Jacqueline Conway of Laird, Heiny, McManigal, Winga, Duffy Stambaugh, P.L.C., Mason City, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
Lori Godwin appeals from an order granting Darrell Alitz physical care of their son Spencer. We affirm.
I. Background facts and proceedings.
Lori and Darrell, although never married, lived together for approximately six years and are the parents of Spencer who was born on April 21, 1996. In September of 2000, while still living with Darrell, Lori met her current husband, Robert Godwin, through a chat room on the Internet. Robert is in the navy and stationed in California. Their relationship progressed to frequent phone conversations, and in December of 2000, Lori and Darrell separated. In March of 2001, Lori traveled to California and met Robert. Lori and Robert later returned to Iowa and, according to Darrell, planned to move Lori and Spencer to California without telling Darrell. Accordingly, Darrell filed an application to determine custody and physical care, and an application for temporary injunction. The district court entered an order enjoining Lori from removing Spencer from Iowa.
The custody matter came on for trial on June 27, 2001. During the trial, Darrell made an oral motion that the testimony of Althea Tate Rohrer, a licensed social worker hired as an expert by Lori, be excluded under Iowa Rule of Civil Procedure 1.508(3), which requires parties to identify experts thirty days prior to trial. The court sustained the motion and precluded Rohrer from testifying at trial. Following the trial, the court granted the parties joint custody of Spencer, but granted his physical care to Darrell. The court later denied several post-trial motions made by Lori, including a motion to reopen the record. Lori appeals.
II. Standard of review.
Our review in this matter is de novo. Iowa R.App.P. 6.4; see also In re Marriage of Miller, 532 N.W.2d 160, 162 (Iowa Ct.App. 1995). We are not bound by the district court's findings of fact, but do give them deference because the district court had the opportunity to view first hand the demeanor of the witnesses when testifying. See In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). The controlling consideration in child custody cases is always the best interest of the children . In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa Ct.App. 1998).
The objective should always be to place the child in the environment most likely to bring that child to healthy physical, mental and social maturity. See In re Marriage of Winter, 223 N.W.2d 165, 167 (Iowa 1974). The court should also consider the characteristics and needs of the child, the characteristics of the parents, the capacity and desire of each parent to provide for the needs of the child, the relationship of the child with each parent, the nature of each proposed environment, and the effect of continuing or changing an existing custodial status. Id. at 167. These criteria govern custody decisions, regardless of whether the parents are dissolving their marriage or are unwed. Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct.App. 1994).
III. Spencer's physical care.
Upon our de novo review of the record, we concur in the district court's conclusion Spencer's best interests will be served by granting Darrell his physical care. The district court noted its belief both parties sincerely love Spencer and are generally concerned with his well-being. We agree with this assessment. However, like the district court, we conclude a variety of factors tip the balance in favor of granting Darrell physical care of Spencer.
Lori undertook a relationship, initially via the Internet, with Robert. She traveled to California in March of 2001 to meet Robert and did not truthfully disclose her destination to Darrell. She stayed in California for nine days while Spencer remained in Iowa. Lori then returned with Robert to Iowa where Darrell saw them together in a moving van. Lori's plan to move to California with Spencer and Robert was obstructed when Darrell sought and obtained an injunction. At a hearing on March 27, 2001, Lori testified she intended to remain in Iowa if the district court ordered Spencer must remain here. The next day, however, she left Iowa with Robert and returned to California with Robert where they married on April 7, 2001. Lori claims to have missed her return flight to Iowa on April 8, and remained in California an additional week. We find Lori has placed Spencer in a position of importance secondary to her relationship with her new husband, Robert.
We agree with the district court's assessment placing Spencer with Darrell will provide Spencer more stability. First, Darrell has exhibited more stability in employment. Other than short periods of unemployment, he has been steadily employed since he dropped out of high school in the tenth grade. Darrell provided health, dental, and vision coverage for Spencer through his employer. In contrast, Lori has been terminated from employment on multiple occasions because she failed to comply with her employers' attendance policies. At the time of the trial in this case, she was unemployed and was receiving unemployment benefits as a consequence of the most recent of these terminations.
Both Darrell and Lori have family in the Mason City area. Darrell has involved Spencer with his extended family, and will continue to do so as he will remain in the area. Lori's future residence appears less certain as she is married to a man who resides in California. Although she claims she will remain in Iowa to be near Spencer if Darrell is granted physical care, she plans to move to California if she receives his physical care. We believe Spencer will greatly benefit from support and companionship of his extended family in the Mason City area. Moreover, Lori's extended trips to California and the potential for her to move there with her husband make it likely that the benefits of extended family contact would be greatly diminished if Spencer's physical care were placed with Lori.
Lori contends she is better suited to provide Spencer's physical care because Darrell has a history of failing to support his children. Darrell has an older son, Joshua, from a prior relationship. Lori asserts that Darrell has failed to meet his support obligation to Joshua. Upon our de novo review, however, it appears that this support obligation has been been routinely satisfied from wage withholding since the early 1990's except for a very few months when Darrell was unemployed. Lori also asserts that Darrell demonstrated financial irresponsibility when he failed to pay temporary child support for Spencer during the pendency of this action. We have considered these assertions and find them to be without merit. Darrell's history of financial and employment responsibility compares quite favorably with Lori's.
Lori contends Darrell's ownership and use of pornographic videos and objects should be deemed clear evidence that she is the most appropriate provider of Spencer's physical care. Although we consider the presence and accessibility of such materials in the parties' home as we decide which parent is best suited to provide Spencer's physical care, the evidence on this issue does not overwhelmingly favor Lori. We find that she taped, marked and watched the videos with Darrell. To the extent that such materials were in the home and accessible to Spencer, she shares responsibility with Darrell.
Lori next asserts Darrell's criminal history should lead this court to grant her Spencer's physical care. In particular, she notes Darrell has been convicted of driving a motor vehicle while under the influence of alcohol. We note that he failed to file income tax returns for the years 1998 and 1999, was convicted on multiple occasions of driving while his license was suspended, and admitted violating the restrictions of a temporary restricted license. While this evidence of Darrell's past infractions gives us pause, Lori's history does not put her in a more favorable light. She also as been convicted of driving while under the influence of alcohol and driving while her license was suspended. In addition, she has a history of two assault charges and one theft charge. We find Lori's history of law violations is in equipoise with that of Darrell.
We have carefully considered all arguments raised by the parties on the physical care issue. We conclude that Spencer's best interests require that he be placed in the physical care of Darrell. Accordingly, we affirm the district court's decision on this issue.
IV. Exclusion of Rohrer's testimony.
Lori maintains the court erred in ruling Althea Tate Rohrer could not testify, or, in the alternative, the court should have granted a continuance to allow Darrell further time to prepare for Rohrer's expert testimony. Lori cites no authority for either of these propositions and we therefore consider them waived. See Iowa R.App.P. 6.14(1)(c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
V. Motion to Reopen Evidence.
Lori asserts the court erred in failing to grant her motion to reopen the record in order to consider "additional evidence regarding threats made by Darrell A. and other evidence not previously willing to be offered from relatives of Darrell A. regarding the best interests of S.A." However, Lori cites no authority, caselaw or statutory, in support of this position and we again deem it waived. See Iowa R.App.P. 6.14(1)(c).
VI. Attorney fees.
Both parties request an award of attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Hunt, 476 N.W.2d 99, 103 (Iowa Ct.App. 1991). Based on the needs of the parties and their abilities to pay, we award no attorney fees.