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finding approximation factor favored neither parent where, prior to separation, mother had first been primary caregiver for a period of years, followed by father for a period of several months
Summary of this case from Johnson v. HirschfieldOpinion
No. 5-796 / 05-0318
Filed February 15, 2006
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
A father appeals the district court's order placing physical care of the parties' two minor children with the mother. REVERSED AND REMANDED.
Robert S. Gallagher of Gallagher, Millage Gallagher, P.L.C., Davenport, for appellant.
Patrick J. Kelly, Bettendorf, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
A father of two children appeals a district court order placing physical care of the children with their mother. We reverse and remand.
I. Background Facts and Proceedings
Donald Arguello and Carolyn Harkins are the unmarried parents of Caitlin, born in 1995, and Zachery, born in 2001. The parents lived together for eight or nine years before separating in late 2003. Following their separation, Donald assumed physical care of the children. He subsequently filed an application for a determination of paternity and for resolution of physical care and other issues relating to the children. The district court granted Carolyn physical care of the children and this appeal followed.
II. Physical Care
The criteria governing physical care determinations are the same whether the parents are dissolving their marriage or have never been married to each other. Jacobson v. Gradin, 490 N.W.2d 79, 80 (Iowa Ct.App. 1992); Hodson v. Moore, 464 N.W.2d 699, 700 (Iowa Ct.App. 1990). Those criteria are well-established and will not be repeated here except to note that the focus is on the best interests of the children. Iowa Code § 598.41(3) (2005); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
Donald contends the record does not support the district court's findings that (1) Carolyn was Caitlin's primary caregiver prior to the parties' separation and had been the primary physical caretaker most of Caitlin's life and a good portion of Zachery's life, (2) during the three to four week period after Carolyn received notice of the present action, there was concern that Donald might not return the children to her, and (3) Carolyn matured significantly in the year prior to the court's decision. We will address each of these contentions.
1. Primary Caregiver.
In assessing who should serve as physical caretaker, we consider whether one parent has historically been the primary care giver, although this factor is not controlling. In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct.App. 1996).
The district court found that Carolyn was the children's primary caretaker both before and after Zachery's birth, and gave "considerable weight" to this finding. The record reveals, however, that for six years before Zachery was born both parties worked full-time and shared equally in the parenting of Caitlin. It was only after Zachery was born in 2001 that the parties decided Carolyn would stay home with the children. While it is undisputed Carolyn subsequently served as primary caretaker for approximately two years, it is also undisputed that Donald took over this role in late 2003. Carolyn conceded that he cared for the children approximately seventy percent of the time until at least June 2004. Because both parties actively parented the children, we conclude this factor does not favor Carolyn.
Donald testified they split child-care responsibilities on an equal basis. Carolyn essentially agreed with this testimony, stating "we did both split the responsibilities when Caitlin was small."
2. Return of Children.
After Donald filed this action, Carolyn came to Donald's trailer park to retrieve the children. By all accounts, the confrontation was emotional but non-violent. Ultimately, Carolyn left with the children and denied Donald access to them for three weeks and four days.
Carolyn testified she did so because she had "no guarantee that he was going to return them." Donald argues there is no factual support for this assertion. The record in fact reflects Donald told Carolyn he was advised not to let her have contact with the children after he filed the petition. However, he is correct that his past conduct provides no hint that he intended to deprive her of contact. In the nine months preceding the filing of the petition, Donald assumed physical care of the children with the consent of Carolyn. During that time, he afforded her liberal overnight visitation. And, when Carolyn came to get the children after the petition was filed, he let them go with her. This factor, therefore, does not militate in favor of granting Carolyn physical care of the children.
3. Carolyn's Maturation.
In granting Carolyn physical care, the district court acknowledged a period of instability in her life but noted she had matured by the time of trial. We agree that Carolyn showed a measure of stability at the time of trial; she was "unofficially" engaged to a man with whom she was living and had maintained a job for several months. However, her new-found stability does not require us to ignore the previous turbulence in her life.
Carolyn had a relationship with a man while she was living with Donald, and she became pregnant with this man's child shortly after the parties' separation in 2003. She subsequently lost a job due to excessive absenteeism and became unable to pay the rent for her apartment.
Carolyn moved into a temporary transitional residence for women. In the ensuing three months, her child was born, she gave it up for adoption, and she moved in with a second man she had begun seeing.
Meanwhile, Donald cared for the children, facilitated visitation with their mother, and maintained his long-term employment as an electrician. After the petition was filed, and despite Carolyn's decision to temporarily deprive him of contact with the children, he reached an agreement with Carolyn to rotate physical care of the children on a weekly basis. His maturity and stability during this period of turmoil stand in marked contrast to Carolyn's behaviors.
The parties disagree on the amount of visitation Carolyn exercised during this period, with Donald stating she had the children once or twice a week and Carolyn testifying she saw them three or four times per week.
Notably, Carolyn continued to show signs of irresponsibility while the action was pending. During the weeks she had physical care, she was consistently unable to get Caitlin to school on time. She conceded this fact but attempted to minimize its significance. We view this failing less sanguinely. School is important and Carolyn was charged with getting her child there on a timely basis.
We conclude placement of the children with Donald would better serve their interests. In reaching this conclusion, we recognize custody decisions are very difficult and district courts are generally in the best position to make them. Jones v. Jones, 251 Iowa 1148, 1156, 104 N.W.2d 449, 454 (1960). Having said that, we note that our decision is based on the evidentiary record as well as the absence of credibility findings to which we would need to give weight. In re Marriage of Rebouche, 587 N.W.2d 795, 797 (Iowa Ct.App. 1998). For these reasons, we reverse.
As Carolyn has not prevailed, she is not entitled to attorney fees.
REVERSED AND REMANDED.
Zimmer, P.J., concurs; Miller, J. dissents.
I respectfully dissent.
The trial court stated that each of the parties had given the court some cause for concern regarding their parenting abilities, and noted Carolyn's earlier loss of two jobs, her recent failures to get Caitlin to school on time, and her "past immaturity" in the choice of boyfriends. It nevertheless found that, aside from the school tardiness issue, during the last year Carolyn had matured significantly, stabilized her employment situation, and created a stable and appropriate home for the children. The court gave considerable weight to the fact Carolyn had been the primary caretaker during most of Caitlin's life and a good portion of Zachery's life, and had done a very good job in that role. The court concluded that the children's physical care should be placed with Carolyn, subject to liberal visitation in Donald.
"Because child custody and support are matters triable in equity, our review is de novo." Wilker v. Wilker, 620 N.W.2d 590, 594 (Iowa 2001) (quoting In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997)). Although not bound by the trial court's findings of fact in equity cases, we must give weight to them. Iowa R. App. P. 6.14(6)( g). In close cases in particular we give weight to the trial court's findings. See In re Marriage of McDowell, 244 N.W.2d 238, 239 (Iowa 1976) (holding, upon finding operative facts in equipoise, the scales tipped by the rule giving weight to trial court's findings); In re Marriage of Burkle, 525 N.W.2d 439, 442 (Iowa Ct.App. 1994) (stating that in close cases we give weight to the trial court's findings). "In assessing a custody order, we give considerable weight to the judgment of the district court, which has had the benefit of hearing and observing the parties first-hand." In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997); In re Marriage of Kleist, 538 N.W.2d 273, 278 (Iowa 1995) (same).
I find the decision regarding physical care in this case to be extremely close, with the evidence in or very near equipoise. Donald's appeal is based largely, if not entirely, upon challenges to certain findings of fact made by the trial court that underlie its physical care decision. Those challenges lack merit.
Donald first claims the trial court erred in finding that "For a three to four week period right after [Donald] filed the pending action . . . [Carolyn] was concerned that [Donald] might not return the children to her." Immediately preceding the time period in question the children had been staying with Donald somewhat more than one-half of the time and visiting Carolyn. Carolyn called Donald to let him know she had received "the paperwork" and to discuss picking the children up for a scheduled weekend of visitation. Donald told her she could not pick the children up, as he had been advised she should not be in contact with the children. He did not say who had so advised him. Carolyn ultimately went to Donald's residence and, after a rather emotional confrontation, Donald did reluctantly allow her to take the children.
The undisputed facts are that Donald told Carolyn he had been advised she should not have contact with the children and could not pick them up for visitation. The essence of the trial court's finding is that for the ensuing three to four weeks Carolyn was concerned that if she returned the children to Donald he would not thereafter let her see them. This finding is fully supported by facts in the record that are essentially undenied and unrefutted. Donald's claim the trial court erred in making this challenged finding is without merit.
Donald next claims the trial court erred in its findings that (1) "the evidence clearly demonstrates that [Carolyn] was [Caitlin's] primary care giver prior to [the parties'] separation" and (2) "[Carolyn] had been the primary physical caretaker during most of Caitlin's life and a good portion of Zachery's life." As a preliminary matter, concerning the first of these two items, the court did not in fact find what Donald asserts it found. It instead found that "[d]uring the time when Caitlin was their only child . . . [Carolyn] was her primary physical caregiver." This time period ended when Zachery was born in March 2001, some two and one-half years before the parties' late 2003 separation.
Turning to the merits of the two findings in question, I again find both to be fully supported by the record evidence. As to the first, both parties acknowledged that until Zachery's birth they had "shared" in Caitlin's care. However, when Donald was asked what care he provided for Caitlin he testified that he "tried to help Carolyn with the caring for her," and did so by changing diapers and doing laundry, and "shared in shopping," while Carolyn took care of Caitlin by doing "[d]iapers, laundry, care, cooking." He also testified that "Carolyn" always cared for the kids when we lived in Rock Island [the years in question] and I tried — and I worked too many hours." From this evidence the court reasonably could, as it did, find that until Zachery's birth Carolyn provided substantially more of Caitlin's care than did Donald. Donald's claim the trial court erred in making this finding is without merit.
As to the second of these two findings, the evidence shows without dispute that from Zachery's March 2001 birth until the parties' separation in late 2003 Donald worked outside the home, Carolyn did not, and Carolyn provided the very great majority of both children's care. After the parties' separation Donald apparently provided the majority of the children's care until June 2004, and perhaps until September 2004, although the parties dispute how much time the children spent with Carolyn during those time periods. The record viewed as a whole fully supports the court's finding that Carolyn was the primary caretaker during most of Caitlin's life and a good portion of Zachery's life. Donald's claim the trial court erred in making this finding is without merit.
Donald's final claim of error in the trial court's findings is that the court erred in finding that "during the last year [Carolyn] has matured significantly and has stabilized her employment situation and has created a stable and appropriate home environment for the children." The evidence shows without dispute that some five months before trial Carolyn began working "as a temp," apparently did well, and then became a permanent employee. The record shows she had for one year had an ongoing relationship with and lived with a man whom the trial court found appeared to be a responsible individual, appropriate with the parties' children as well as his own children from a previous marriage, with whom he had regular visitation. Once again the court's finding in question is amply supported by the record and Donald's claim the court erred in making the finding is without merit.
Donald's challenge to the trial court's physical care decision arguably should fail solely because it is based almost entirely upon challenges to findings of fact which, when given the weight to which they are entitled, should stand as fully supported by the record. However, other factors in the record also fully support the trial court's physical care determination.
First, in addition to being the children's primary physical caretaker Carolyn was also the parent who primarily provided Caitlin guidance and assistance with her school work. Donald testified that after Caitlin began school "Carolyn did take a few more steps . . . sitting at the table, helping her with her spelling and — more than I would." Second, the evidence shows that at times when Donald knew the parties were having financial difficulties and had missed one or more mortgage payments he nevertheless spent money on video games rather than applying the parties' income to outstanding financial obligations.
Third, Donald has had sufficient confidence in Carolyn's abilities as a caregiver for their children to agree that she, rather than he, should end out-of-home employment and provide full-time care for the children. Finally, some additional support for the trial court's finding that Carolyn has been much more involved with the children than Donald may be found in the fact Donald is even uncertain as to the year of Caitlin's birth and the date of Zachery's birth. The trial court found that Caitlin was born July 15, 1995, and Zachery was born March 20, 2001. These are the dates of birth alleged by Donald in his petition, at a time when he presumably had and had taken the time to do any research necessary to be correct. However, when asked for their birth dates during the January 2005 trial Donald stated under oath that Caitlin's birth date was "July 15, '96, I believe," and that Zachery's was "March 21, 2001, I believe."
The decision regarding physical care in this case is extremely close. However, if appropriate weight is given to the trial court's well-supported findings and considerable weight is given to its judgment, because it had the benefit of hearing and observing the parties first-hand, its physical care decision should be affirmed. I would affirm the trial court, and therefore respectfully dissent.