Opinion
No. 1-1059 / 01-1150
Filed April 10, 2002
Appeal from the Iowa District Court for Fayette County, James L. Beeghly, Judge.
Andrea Kurth appeals from a ruling in a custody action granting physical care to Jayme Hurley. AFFIRMED AS MODIFIED AND REMANDED.
Gary Boveia of Boveia Law Firm, Waverly, for appellant.
Joseph Sevcik of Snow, Knock, Sevcik, Betterton Hinze, Cedar Falls, for appellee.
Heard by Mahan, P.J., and Miller and Hecht, JJ.
Andrea Kurth appeals from a ruling in a custody action granting physical care to Jayme Hurley. She contends the district court erred (1) in allowing Jayme to introduce taped telephone conversations between the parties; (2) in awarding physical care of the minor child to Jayme; and (3) in establishing an inequitable child support obligation. We affirm as modified.
Background Facts and Proceedings. Jayme Hurley and Andrea Kurth are the parents of Katelyn, born March 15, 1996. The parties were never married. Andrea became pregnant in June 1995, between her junior and senior year in high school. Both parties completed high school and graduated from Hawkeye Community College. In addition, Jayme completed a four-year degree at Upper Iowa University.
Andrea's parents invited Jayme to move into their residence when Katelyn was born. Katelyn's care initially was shared by Andrea, Jayme, Andrea's parents and Jayme's parents, and Andrea's parents provided financial support for the parties. After Andrea's graduation from high school, the parties moved to an apartment in Oran. Throughout this period they received assistance in the care of the child, but is clear the parties took primary responsibility for her care, sharing it equally. The parties separated in early June 1997 but maintained a supportive relationship until early 1999. At that time Jayme began dating Rachel Harper. Andrea protested Rachel's involvement in Katelyn's care. Andrea became very unreasonable following a visit with her attorney in late February 1999. She repeatedly exhibited anger toward Jayme and injected Katelyn into a custody struggle.
Appellate counsel did not give Andrea this advice.
In June 1999 Andrea filed an action for purposes of establishing Jayme's child support obligation and visitation rights. In September 1999 Jayme filed a separate petition seeking physical placement.
Trial commenced on June 6, 2001, and the district court entered a decree on June 11, 2001. Physical care of Katelyn was placed with Jayme, subject to reasonable visitation with Andrea. The court ordered Andrea to pay child support in the amount of $315 per month. Andrea appeals.
Admissibility of Audio Tapes. On evidentiary issues we review for an abuse of discretion. State v. Most, 578 N.W.2d 250, 253 (Iowa Ct.App. 1998). In order to show an abuse of discretion, one generally must show the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.
The district court admitted one exhibit consisting of twenty minutes of tape-recorded telephone calls between the parties. The court refused to admit an additional one hour and forty minutes of taped conversations and also refused to admit any typed summaries of the conversations.
"`[W]e grant the district court wide latitude regarding admissibility' and will reverse only where the losing party was prejudiced by an unreasonable decision." Kurth v. Iowa Dep't of Transp., 628 N.W.2d 1, 5 (Iowa 2001) (quoting State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998)). This is a custody case "in which the best interests of the children dictate that the rules of procedure be liberally applied in order that all probative evidence might be admitted." In re J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). The district court did not abuse its discretion.
Physical Care. Our review of a custody order is de novo, and our primary consideration is the best interest of the child. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Guardianship of Knell, 537 N.W.2d 778, 780 (1995). 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 firsthand. Kleist, 538 N.W.2d at 278. The controlling consideration in determining custody is the best interest of the child. Iowa R. App. P. 6.14(6)( o).
The criteria governing custody decisions are the same regardless of whether the parties are dissolving their marriage or are unwed. Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa Ct.App. 1994). "In determining which parent serves the child's best interests, the objective is to place the child in an environment most likely to bring the child to healthy physical, mental, and social maturity." In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). The court should make an award of custody which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents and which will encourage the parents to share the rights and responsibilities of raising the child. See Iowa Code § 598.41(1) (1999). To effectuate that policy, the court must consider the willingness of each party to allow the child access to the other. In re Marriage of Burham, 283 N.W.2d 269, 276 (Iowa 1979).
After careful consideration of all of the evidence, the district court concluded that Katelyn's physical care should be with Jayme. Upon de novo review of the record, we defer to the district court's credibility findings and reach the same conclusion.
Both parents love Katelyn and are capable of providing a good home. However, Jayme is in the best position to provide for the current and long-term care of Katelyn. In addition, Jayme is more likely to assure Katelyn will have an ongoing relationship with Andrea and all of their relatives. In contrast, Andrea has not always shown a willingness to support Jayme's relationship with Katelyn. Andrea protested Rachel being involved in the care of Katelyn. She has exhibited immaturity and poor judgment. Andrea has repeatedly exhibited anger toward Jayme. She even threatened to terminate all contact between Jayme and Katelyn until the case was settled. Even though Andrea complied with a temporary visitation order, she was not supportive of any additional contact between Katelyn and Jayme. In addition, she has unreasonably denied special requests of Jayme for additional visitation. The district court concluded, and we agree, Andrea has used Katelyn to inflict punitive measures against Jayme. Andrea's actions have negatively impacted Katelyn and her relationship with Jayme.
We conclude Jayme will provide the environment most likely to bring Katelyn to a healthy, physical, mental, and social maturity. Katelyn's best interests are served by granting physical care to Jayme. Accordingly, we affirm the district court's ruling.
Child Support. It is sometimes appropriate to consider earning capacity rather than actual earnings in applying the uniform guidelines. In re Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct.App. 1992). The relevant factors to consider in assessing earning capacity include employment history, present earnings, and reasons for failing to work a regular workweek. See Id.
In this case, Andrea contends the court erred in establishing her child support obligation by imputing income to her. Andrea was laid off from her job in November 2000 and elected not to seek employment. She was pregnant at the time and wanted to be a stay-at-home mom. In its ruling, the district court held that income should be attributed to her at the rate of her earning capacity. The district court found that Andrea's net monthly income was $1407. Andrea's monthly child support obligation was determined to be $315.
Before using earning capacity rather than actual earnings, a finding must be made by the court that the use of actual earnings would create a substantial injustice or that adjustments would be necessary to provide for the needs of the child. Bonnette, 492 N.W.2d at 722; Iowa Dep't of Human Servs. ex rel. Gonzalez v. Gable, 474 N.W.2d 581, 582-83 (Iowa Ct.App. 1991). In this case, the district court made no such finding; therefore, we will rely on Andrea's actual earnings to establish her child support obligation. However, the record contains conflicting evidence concerning Andrea's net monthly income. In addition, the district court made no finding as to Andrea's net income based on her actual earnings. We therefore remand to the district court to determine Andrea's monthly child support obligation consistent with this opinion.
The costs of the appeal are taxed equally to the parties.
AFFIRMED AS MODIFIED AND REMANDED.