Opinion
No. 3-813 / 03-0761.
Filed December 24, 2003.
Appeal from the Iowa District Court for Tama County, Stephen C. Clarke, Judge.
Connie Boldt appeals the custody and property division provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED.
Carmen E. Eichmann and Jeanne K. Johnson, Des Moines, for appellant.
Barry Kaplan and Kelley Bennett of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellee.
Heard by Mahan, P.J., and Miller and Eisenhauer, JJ.
I. Background Facts Proceedings
Kevin and Connie Boldt were formerly married. They have two children, Jesse, born in 1992, and Austin, born in April 1997. The parties lived in rural Tama County next door to Connie's parents, the Masons, on land given to them by the Masons. Some of the property's outbuildings were on land owned by the Masons.
Kevin was thirty-eight years old at the time of the dissolution hearing. He is employed as a sergeant with the Black Hawk County Sheriff's Department and earns about $42,000 per year. Kevin has suffered some short bouts of depression during his life. At the time of the hearing he was in good physical and mental health.
Connie was thirty-nine years old at the time of the hearing. She works out of the home as a medical transcriptionist, earning about $26,000 per year. During the last years of the marriage, Connie suffered from severe depression. She seldom left the house and slept much of the time. In March 2002 Connie had what she terms a "suicide gesture" where she took an overdose of prescription medicine. She was involuntarily committed for psychiatric treatment for eight or nine days. Connie voluntarily committed herself again in April 2002 for three days. Connie continues to take medication for her mental health problems.
The district court entered a dissolution decree for the parties on April 10, 2003. The court granted the parties joint legal custody of the children, with Kevin having primary physical care. The court's decision was based on the recommendation of Dr. Carroll Roland, a licensed psychologist who performed a custody evaluation, the testimony of Dr. Carl Aagesen, the parties' treating psychiatrist, and the court's observations of the parties. Connie was granted liberal visitation and ordered to pay child support.
The court divided the parties' assets to award each party his or her vehicle and pension. The court determined the marital home should be sold. In order to equalize the property division, Connie was awarded the first $38,864 of the net proceeds, with the remainder to be divided equally. Connie appeals, raising issues regarding primary physical care, visitation, property division, and attorney fees.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Primary Physical Care
Connie contends she should have been awarded primary physical care of the children. She asserts that she is over her depression and is now able to take care of the children. She believes Kevin has attempted to exploit her mental illness, and that he is not willing to support her relationship with the children.
The controlling consideration in child custody issues is the best interests of the children. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). The court determines placement according to which parent can minister more effectively to the children's long-range best interests. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984); In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). The court's objective is to place the children in the environment most likely to bring the children to healthy physical, mental, and social maturity. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
Connie admits that due to her mental illness, she withdrew from the family, which resulted in Kevin assuming most of the child care and household responsibilities. Thus, Kevin was the primary caregiver for several years, and he remains extremely active in the children's lives. He is involved in the children's schooling. Kevin involves the children in sports, camping and fishing. He has involved the children in the hobby of collecting model trains. The district court noted, "Kevin appeared to have a genuine care for each of his children. His testimony with respect to the children's interests and their individuality was detailed and reflected a depth of understanding with respect to each of his children." Dr. Roland also testified that Kevin's history of involvement with the children was "far beyond what I've normally seen in terms of involvement from working fathers."
On the other hand, Connie exhibits limited insight into her mental illness. The district court observed that "Connie does not fully accept her mental health diagnoses or the treatment that has been recommended." Connie believes her mental health problems and "suicide gesture" were Kevin's fault. On appeal, Connie still asserts that her marriage was the cause of her depression.
We note that Dr. Roland performed an extensive custody evaluation, and recommended placing the children with Kevin. Dr. Aagesen testified that Connie's depression had improved, but she was still taking medication for her condition. Finally, we give deference to the district court's observations of the parties. Based on all of these factors, we affirm the decision of the district court placing primary physical care of Jesse and Austin with Kevin.
IV. Visitation
Connie was awarded visitation on alternating weekends from Friday night until Sunday night, and each Wednesday from 5 p.m. until 8 p.m. She asks to have her weekend visitation extended until Monday morning, and to have overnight visitation each Wednesday.
The district court set forth a specific visitation schedule, but provided that the parties might agree to greater visitation. The two children in this case attend school, and we will not mandate overnight visitation which might interfere with their school schedules. See In re Marriage of Lacaeyse, 461 N.W.2d 475, 477 (Iowa Ct. App. 1990) (finding weeknight visitation is preferable when not disruptive to the children); In re Marriage of Ertmann, 376 N.W.2d 918, 922 (Iowa Ct. App. 1985) (same). The parties remain free to agree to additional visitation.
V. Personal Exemption
Connie asks to be allowed to claim one of the children as a personal exemption on income tax returns, if she is current on her support obligations by January 15 of the next year. The district court ordered:
Pursuant to the stipulation of the parties, each may claim one child as a personal exemption on state and federal income tax returns until only one child qualifies as a dependent. When that event occurs, the parties may claim that child in alternating years with the party having physical placement taking the first year. For any year in which child support is not current, the respondent may claim those exemptions.
We determine Connie must be current in her child support obligation by January 15 of the next year in order to claim one of the children as a personal exemption on her income tax. We modify the decree to make this change.
VI. Property Division
Connie contends the distribution of property was not equitable to her. She asserts that instead of ordering the sale of the marital residence, the court should have awarded the home to her and allowed her to pay Kevin his equitable share over a period of time. She also states that she was awarded appliances and furniture worth $4500, but points out that usually appliances stay with the home. Furthermore, Connie asks for a greater amount of the parties' assets due to her lower income.
The partners to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 325 (Iowa Ct. App. 2002). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct. App. 1998). The determining factor is what is fair and equitable in each circumstance. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App. 2001).
We find the property division is fair and equitable. The district court attempted to equalize the property division by awarding Connie the first $38,864 from the proceeds of the house. By selling the house, the parties will receive their share of the proceeds within a short period of time. Connie's proposal, to allow her to pay Kevin over a period of time, would necessarily mean Kevin would have to wait to receive his share of the equity in the house, which would not be equitable to him. We find no adjustment is necessary due to the award to Connie of the appliances in the house.
VII. Attorney Fees
Connie seeks attorney fees for this appeal. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court's decision on appeal. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). We determine each party should pay his or her own appellate attorney fees.
We affirm the district court on all issues raised in this appeal, except the provision regarding the personal exemptions, which we have modified as set forth above. Costs of this appeal are assessed to Connie.