Opinion
No. 5-918 / 05-0657
Filed February 15, 2006
Appeal from the Iowa District Court for Story County, Carl D. Baker, Judge.
Bradley A. Huisman appeals from the decree dissolving his marriage. AFFIRMED.
Eric Borseth, Altoona, for appellant.
Stephen Terrill of Terrill, Martens Hulting, Ames, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Respondent-appellant Bradley A. Huisman appeals from the decree dissolving his 1994 marriage to petitioner-appellee Melissa J. Huisman. He contends (1) Melissa should not have been granted primary physical care of the parties' three children, rather, they should be in the parties' joint primary physical care or in his primary physical care; (2) the district court did not make an equitable division of the parties' assets and liabilities; and (3) the district court should have ordered Melissa to amend her tax return to comport with the provisions of the dissolution decree. We affirm.
Our review is de novo. Iowa R. App. P. 6.4. We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses. Iowa R. App. P. 6.14(6)( g). We are not bound by these determinations. Id. We base our decision primarily on the particular circumstances of the parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).
We first address Bradley's claims concerning care of the parties' three children: Nathan, born in 1995, Kelcey, born in 1996, and Nicholas, born in 2002.
In dissolving the marriage the district court awarded Melissa primary physical care. In doing so it rejected Bradley's position that he and Melissa should share custody or in the alternative that Bradley should be the primary care parent.
The focal questions are: (1) was there a basis for the district court to reject shared primary physical care, and if so, (2) then which parent will do the better job of raising the children. In re Marriage of Riggert, 537 N.W.2d 789, 791 (Iowa Ct.App. 1995); In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App. 1991).
Bradley contends the parties have the ability to work together so that joint primary care is workable, that he supports Melissa's relationship with the children, and that the parties have successfully shared the children's care during the parties' separation. He contends that initially Melissa was the primary care parent, but after Kelcey was two years old Melissa began working nights and weekends as a certified nursing assistant and he assumed primary care of the children evenings, nights, and mornings. He contended he is actively involved in the children's lives, he is the parent who has had the most contact with the two older children's school, and that two of their teachers testified and supported his claim for custody.
Melissa contends the district court should be affirmed. She contends she has always been the primary care parent and the children lived with her during the parties' ten-month separation before the dissolution hearing.
In awarding Melissa primary physical care and in denying joint physical care the district court relied in part on: (1) a finding Bradley was dishonest with Melissa with respect to financial transactions, (2) a determination Bradley inappropriately handled a telephone call from Nathan recorded on Bradley's answering machine in a way that showed Bradley was more concerned about gaining an advantage over Melissa than he was supporting her relationship with the children, and (3) a finding Melissa has not demonstrated manipulative behavior, which indicates she will support Bradley's relationship with the children.
Bradley first contends the district court should not have rejected his request for joint physical care and that if we do not award joint physical care he should be named the primary custodian.
Iowa Code section 598.1(4) (2005) defines joint physical care as:
4. "Joint physical care" means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, providing routine care for the child and under which neither parent has physical care rights superior to those of the other parent.
Bradley was awarded joint legal custody and requested joint physical care. The Iowa Code makes it incumbent on the court in rejecting a request for joint physical care to make certain findings as are spelled out in Iowa Code section 598.41(5)(a), which provides:
If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. Prior to ruling on the request for the award of joint physical care, the court may require the parents to submit, either individually or jointly, a proposed joint physical care parenting plan. A proposed joint physical care parenting plan shall address how the parents will make decisions affecting the child, how the parents will provide a home for the child, how the child's time will be divided between the parents and how each parent will facilitate the child's time with the other parent, arrangements in addition to court-ordered child support for the child's expenses, how the parents will resolve major changes or disagreements affecting the child including changes that arise due to the child's age and developmental needs, and any other issues the court may require. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
(Emphasis supplied).
Bradley contends the findings used by the district court to deny joint physical care are unfounded and not relevant to the custody determination. He contends the district court was not correct in finding that Melissa was the primary care parent. We agree with Bradley that the record reflects he assumed substantial responsibilities for the children during the marriage. During the time the couple lived together, he cared for the children while Melissa worked nights and weekends, and the arrangement continued during the separation period. He further correctly points out that his mother, father, and his extended family in the area are close to the children. His parents have provided help to Melissa and Bradley in caring for the children.
Bradley contends the district court did not give sufficient weight to the testimony of two teachers and a school counselor who were familiar with the children and his relationship with the children. The teachers testified Bradley was a good parent who was capable of assuming primary physical care and that he has been more involved with the children's school than has Melissa.
Bradley questions Melissa's ability to control the children, most particularly Nathan. Nathan was diagnosed as having attention deficit disorder. Melissa testified that Nathan has had problems since his father moved out. She lets Nathan sleep with her at times. Bradley also contends Melissa is controlling in nature.
Melissa contends, and the district court found, that she has always been the primary care parent. She points to the testimony of her twin sister's husband, who testified that he and his wife spent considerable time with Bradley and Melissa and that during those times Melissa cared for the children but Bradley did not. Melissa also contends Bradley is domineering and controlling. She contends he has been financially irresponsible.
In denying shared care and granting Melissa primary physical care, the district court also found Bradley had not been honest with Melissa in financial transactions. Bradley, who filed bankruptcy near the time of marriage, admits he has been financially irresponsible and has attempted to live beyond his means and that the couple is insolvent. He contends Melissa, despite her testimony to the contrary, was aware of the situation and it was not entirely his fault. Melissa puts the entire blame for their financial situation on Bradley and contends she was unaware of their overspending until at or near the time of their separation. She testified that Bradley took out credit cards in her name without her knowledge. Melissa filed for bankruptcy about the time of the separation and testified that Bradley set it all up for her and pushed her into it. Her brother-in-law, a CPA, testified she was the better parent, and also testified (1) Bradley showed him how he got credit cards in Melissa's name without telling her what he was doing, and (2) Melissa was unaware of the parties' bad financial situation until shortly before she and Bradley decided to separate. The district court's finding Bradley was dishonest with Melissa about financial transactions is supported by the record.
Bradley also contends the district court unfairly considered his handling of the tape recording of Nathan's problems with his mother. The tape from Bradley's answering machine was of Nathan complaining about the way Melissa treated his homework and telling his father that he gave him more help than did his mother. Bradley did not talk to Melissa about it, but did introduce it at trial. We agree with the district court that if Bradley were concerned about Nathan, he should have discussed the issue with Melissa at the time, rather than waiting to spring it on her at trial.
The district court was correct in denying Bradley's request for joint physical care.
The next question is whether the district court was correct in awarding Melissa primary physical care. In determining primary physical care we look at each case on its own facts to decide which parent can "minister more effectively" to the long-range interest of the children. In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974). Gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody in an original custody proceeding. See In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct.App. 1985). We look to the factors set forth in Winter, 223 N.W.2d at 166-67. We give consideration to a parent's role in child-raising prior to a separation in fixing physical care. See In re Marriage of Love, 511 N.W.2d 648, 650 (Iowa Ct.App. 1993); In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct.App. 1992).
The district court noted, "Melissa's demeanor at trial reflected a mother who was patient, calm, and concerned about insuring that the children have a relationship with both parents."
We agree with the district court's decision that Melissa is the better parent. We affirm the district court's denial of shared physical care and affirm the award of primary physical care to Melissa.
Bradley next challenges the economic provisions of the decree, contending too much debt was allocated to him.
Our review of the economic provisions of a divorce decree is de novo. Iowa R. App. P. 6.4. Before making an equitable distribution of the assets and liabilities of parties seeking a dissolution of their marriage, the court must determine all assets held in the name of either or both parties as well as the debts owed by either or both. See In re Marriage of Driscoll, 563 N.W.2d 640, 641-42 (Iowa Ct.App. 1997); In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct.App. 1994). The assets should then be given their value as of the date of trial. Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976); In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App. 1994). The assets and liabilities should then be divided equitably, not necessarily equally, after considering the criteria delineated in Iowa Code section 598.21(1). In general, the division of property is based upon each marriage partner's right to a just and equitable share of the property accumulated as a result of their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct.App. 2002).
The record indicates the couple has about $64,000 more in debt than they do in assets. Their motor vehicles are encumbered for more than they are worth. They purchased a house on contract from Bradley's grandmother for $70,000 in 2000. It is now valued at between $85,000 and $100,000. They yet owe Bradley's grandmother $62,353, and the unpaid balance draws seven and one-half percent interest and is payable at $550 a month. The house is also encumbered by three second mortgages totaling $72,242. The district court ordered Melissa to pay two of the mortgages totaling $48,134, believing from the evidence that she had not signed the third mortgage in the amount of $24,108, and determined the lack of her signature justified Bradley paying it. Bradley argued in his post trial motion that in fairness, that debt should be allocated to Melissa. The district court denied his request, and he makes the same request on appeal.
Apparently the encumbrances on the home exceed its worth by $35,000. The district court ordered Bradley to pay the $550 a month payment due his grandmother on the real estate contract. In addition it ordered Bradley to pay one-half of the real estate taxes on the home and one-half of maintenance expenses on expenditures over $300.
In assessing Bradley's argument we first assume (1) that Melissa remains in the house until the youngest child graduates from high school, which the district court found she could do, (2) that in the meantime both parties have made the required payments on obligations as the district court ordered, (3) and that at the time the house is sold it brings $100,000, which would then be divided between the parties. Should this happen, the result of the allocation of debt would be that Melissa has received about a negative $14,000 and Bradley has received a negative $48,803.
However if the house is sold earlier, the balance on the real estate contract Bradley is to pay and which at time of trial was $62,353 would be the first lien on the property and would have to be paid before the other three mortgages including the two that Melissa is required to pay. In a post trial motion Bradley asked, among other things, that the district court modify the decree with respect to payment of debt on the home and how the debts would be considered when the house is sold. The home may be sold earlier if both parties agree. The district court denied Bradley's request, finding the decree ordered each party to pay debts that are liens on the real estate and it would be problematic for the court to determine now what either party may owe the other if one or the other does not make principal reduction in that debt. An early sale is not out of the question, as Melissa said she may move to be closer to Mercy where she is studying to be a registered nurse.
Included in this amount are two debts that the parties said were separate debts. However we do consider them in assessing the distribution of debts.
Melissa cannot file bankruptcy in the near future because of her recent filing. Bradley may be able to file bankruptcy, however, he testified at length that he would not. Melissa is receiving a house to live in as a result of her payments and Bradley is not. Considering all these factors we affirm the district court on this issue.
The last issue we address is Bradley's claim that the district court should have sustained his post trial motion wherein he contended Melissa should have been ordered to file an amended income tax return because she took the children, Kelcey and Nicholas, as dependents for 2004, and the district court had provided Bradley could claim them. She did not take Nathan, whom she was allowed to claim. Melissa testified Bradley told her she could do it. The district court accepted her testimony as true and provided Bradley could claim two children thereafter. Giving the required deference to the credibility findings of the district court we affirm on this issue.
We deny Melissa's request for appellate attorney fees. While Bradley has a higher income than Melissa he is assuming substantially more debt.
AFFIRMED. Sackett, C.J. concurs in part and dissents in part; Vogel and Mahan, JJ., concur
I concur in part and dissent in part. I would place the children in Bradley and Melissa's joint primary care and remand to the district court to fix child support. In all other respects I concur with the majority opinion.
In denying Bradley's request for joint physical care the district court failed to make a finding as is required by Iowa Code section 598.41(5)(a), which provides:
If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
(Emphasis added).
On my review of this record I believe that joint physical care is the best alternative for these three children. Bradley and Melissa are both good parents and care for their children. They have managed in recent years to schedule themselves so that in most instances one parent cares for the children while the other parent is employed outside the home. When the dissolution was filed they without court involvement put together a parenting plan where they shared care. The plan has worked well. There was testimony that both have been better parents since their separation.
I am, as was the majority and the trial court, concerned about the parties' financial situation and the fact that Bradley appears not to have been totally honest with Melissa about the family's finances. I do not believe under the circumstances here that should justify denying joint primary care. I cannot accept that Melissa was as unaware of the problems as she contends. She too enjoyed items the family could not afford. They both overspent on new cars, cruises, expensive jewelry, and remodeling their house. Melissa, as did Bradley, drove a new car encumbered for more than its worth. She signed bank notes with Bradley. She took an expensive cruise with Bradley shortly before their separation. When Bradley wanted a Rolex watch, Melissa demanded he buy her expensive diamond earrings first. If Melissa was not aware the family was overspending, she should have been.
I recognize Bradley is the more aggressive spouse, but that is not necessarily bad. He has been very involved in the children's school; Melissa has not. Bradley saw with his parents' financial assistance that Nathan got help from Sylvan Learning Center. Two teachers or former teachers of the children from the Nevada school district were subpoenaed to testify. One of the teachers, Patricia Long, a teacher for thirty-three years who had Kelcey in first grade, testified Bradley appeared for both parent teacher conferences, had lunch at school seven to eight times, and he is the parent who is more actively involved with his children. She noted his parents' support and said under the circumstances she would recommend that Bradley have primary physical care.
Nathan's second grade teacher, Terri Heiden, sees Bradley with the children at Sunday School. She noted that Bradley was at both parent teacher conferences, a field trip, and the children's music program. She said Melissa came only to the November conference and not to the March conference. She testified Bradley is more responsive and responsible. She testified he is caring and involved. She said Melissa would sign off that Nathan had done his homework but she did not feel Nathan had actually done it. She said Melissa only came to school after the dissolution began. She felt Bradley was the better parent in and out of school.
Bradley also subpoenaed the school counselor who said the children came to school well-dressed, they were well-liked, Nathan had problems with hyperactivity and allergies and Kelcey was well-adjusted.
It is in the children's best interest that their parents have joint physical care. Both parents are employed outside the home. Bradley has had the children's primarily care during the period Melissa works, a situation that has existed for a large portion of the marriage. Bradley has flexibility in his employment and testified he can structure his afternoons to be available to pick up the children from school and day care. Bradley has been involved with the children's school; Melissa has not.
Nathan has issues. Nathan has expressed considerable dissatisfaction with his mother, who believes the best way to comfort him is to have him sleep with her. Bradley, other than not immediately sharing the answering machine tape with Melissa, has supported the children's relationship with their mother. He has better control of Nathan than does Melissa and Bradley has worked in a positive way to resolve Nathan's issues. Melissa apparently intends to work the thirty-some hours she has worked at the Story County Hospital and in addition take nurses training in Des Moines. By sharing primary physical care the children will have more contact with Bradley at times that Melissa is absent from the home and from Nevada.
I would agree with the district court that Bradley should have shared the tape with Melissa. However Melissa recognized she had problems with Nathan and I do not believe sharing the tape would have made a noticeable difference in her relationship with the child. Furthermore I am reluctant in picking an isolated incident and putting too much emphasis on it.
Bradley does not want to remove Melissa from her children; he just wants to share the children. Bradley's first position is that he wants to share joint physical care with Melissa. This clearly shows he supports Melissa's relationship with the children. Melissa's position is that she should be the primary custodian despite the fact the parties have successfully shared the care of the children during their ten-month separation period.
These children have had and should continue to have both of their parents share in their care. I would modify and award the parties joint primary physical care and remand for the district court to consider child support.