Opinion
No. 3-330 / 02-1535
Filed August 27, 2003
Appeal from the Iowa District Court for Linn County, Amanda Potterfield, Judge.
Father appeals from the physical care and visitation provisions of the decree dissolving the parties' marriage. AFFIRMED AS MODIFIED.
Jeanne Johnson, Des Moines, for appellant.
John Hedgecoth, Cedar Rapids, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Richard Scott Mahoney (Scott) appeals from the physical care and visitation provisions of the decree dissolving his marriage to Vickie Chavee Mahoney (Vickie). We affirm the district court's award of physical care, but modify the terms of Scott's visitation with the couple's child, Cade.
Background Facts and Proceedings . Scott and Vickie Mahoney married in 1997. Their son, Cade, was born in February, 2000. The family moved to Cedar Rapids, Iowa approximately two months later. Scott was employed with General Electric Transportation Systems, Global Signaling (GE) and, by agreement of the parties, Vickie stayed home to care for Cade for the first year of his life. A dissolution petition was filed in March 2001, shortly after Cade's first birthday.
The parties separated in June, 2001. Vickie moved to Columbia, Missouri, near both her family, and Scott's. She eventually obtained a job in quality assurance for a textbook company. Scott remained in Cedar Rapids, continued to work for GE, and was promoted to a supervisory position. At one point Scott attempted, but was unable, to move to Missouri.
For a little more than a year the parties operated under a temporary care and visitation order. Under the order Vickie and Scott shared Cade's physical care, the child spending alternating weeks with each parent. Care was exchanged at a midpoint between Cedar Rapids and Columbia. Vickie, who serves in the U.S. Naval Reserves as an intelligence officer, arranged her weekend reserve duties around the visitation schedule.
In the July 2002 dissolution decree, the district court granted Vickie physical care of Cade, and awarded Scott scheduled visitation. Until Cade entered kindergarten, Scott was to have visitation for one seven-day period, and one forty-eight-hour weekend, each four weeks. Scott was also awarded six weeks of summer visitation, and the court set an alternating holiday visitation schedule. The court directed that the parties exchange care at a point midway between Cedar Rapids and Columbia, but anticipated that Scott's weekend visitation would occur in Missouri. Upon Cade entering kindergarten, Scott's regular monthly visitation was eliminated, his summer visitation was extended to eight weeks, and the holiday visitation schedule was slightly amended. The court further ordered that Scott could exercise additional, non-specified visitation in Missouri, so long as he provided Vickie one-week notice.
Following entry of the decree Scott filed a motion to reconsider pursuant to Iowa Rule of Civil Procedure 1.904(2). He sought amendment to the visitation schedule, because his employer had approved a transfer to Missouri. The district court denied the motion, noting that it was a request "to modify the visitation schedule on the basis of facts not included in the record. . . ." Scott now appeals, seeking Cade's physical care or, in the alternative, an increase in visitation. Scott argues a change to the visitation schedule should have been made by the district court in response to his rule 1.904(2) motion, and moreover is required to assure him maximum continuing contact with Cade.
Scope of Review . Our scope of review is de novo. Iowa R.App.P. 6.4. Although not bound by the district court's factual findings, we give them weight, especially when assessing witness credibility. Iowa R.App.P. 6.14(6)( g).
Physical Care . In determining which parent should be granted physical care, our overriding consideration is Cade's best interests. Iowa R.App.P. 14(6)( o). We consider a number of relevant factors, including Cade's needs and characteristics, and Scott's and Vickie's abilities to meet those needs, communicate with one another, and support each other's relationship with Cade. See In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992) (noting factors appropriately considered when deciding issues of physical care). While the child's physical and financial stability are important considerations, great emphasis is placed on achieving emotional stability for the child. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998).
In reviewing the record, it soon becomes clear that Scott and Vickie are both capable, involved, and loving parents. There is no doubt that each is able to minister to Cade's needs. Both are comfortably employed, and have suitable home environments. Although Scott worked long hours while he and Vickie were married, he now has a flexible schedule that allows him to work partially from home. Vickie too has a flexible work schedule. Each parent could provide Cade the love, physical care, and financial stability that he requires. There are several factors, however, that support granting Cade's care to Vickie.
At the time of final hearing Vickie was earning a $48,000 gross yearly salary, and Scott was earning a $85,000 gross yearly salary.
While the parties shared equally in Cade's upbringing for more than a year prior to the dissolution hearing, it was Vickie who was Cade's primary caregiver for the first sixteen months of his young life. While Scott's hard work during the marriage was for the benefit of his family, his schedule nevertheless required Vickie to perform the majority, and occasionally all, of the child care tasks. Although it is not the singular factor in determining which placement would best serve the child's interests, we give significant consideration to placing a child with the primary caregiver. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct.App. 1995).
Awarding care to Vickie also places Cade in close proximity to his maternal and paternal relatives, including Scott's parents. In contrast, neither Scott nor Vickie have familial ties in the Cedar Rapids's area. We can appreciate Scott's concerns about the ability of Vickie's mother to provide Cade adequate daycare. We nevertheless conclude that Cade will benefit from the proximity to all of his extended family, including his maternal grandmother.
We also give weight to the district court's assessment that Scott will not be able to communicate effectively with Vickie about Cade's needs, and its implicit conclusion that Vickie is best suited to facilitate Cade's relationship with all of the child's family members. The court's assessment was necessarily based on its observation of the demeanor and attitude displayed by all the relevant witnesses, including Scott and Vickie. See In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997) (noting that the appellate courts afford weight to the district court's findings and assessment, given the district court's opportunity to directly observe witness demeanor). Upon review we conclude the record supports the district court's determinations on these issues.
Scott is critical of the district court's finding that his family was overtly angry with Vickie, and thus would be less likely to support her involvement with Cade. Scott correctly points out that the primary question is whether one parent can support the child's relationship with the other parent, and not whether his family can do so. See Iowa Code § 598.41(3)(e) (2001). However, the attitude of Scott's family's towards Vickie has the potential to impact Cade's relationship with his parents, and is thus a relevant consideration in a physical care determination.
The ultimate goal in this case is to provide Cade the environment most likely to cultivate a physically, mentally and socially healthy child. See In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We concur with the district court that Vickie is best suited to this task.
Rule 1.904(2) . Scott argues the district court erred by denying his rule 1.904(2) motion for a change in visitation. We cannot agree. At the time the dissolution decree was entered, the facts before the district court established that, while Scott might be able to move to Missouri some time in the future, at the present time he had "no desire to leave [the Cedar Rapids's] area." Accordingly, the court found:
[Scott] hopes to stay in Cedar Rapids, which he believes to be a good place to raise his son and a good community in which to live. The evidence is unclear whether Scott's employment would permit him to live in Missouri.
The dissolution decree was entered based upon the above findings. It was only after the decree was entered that Scott took steps to secure a transfer to Missouri. Scott's request to alter the terms of the decree, based on a post-decree change of circumstances, is an improper attempt to revisit an issue based on facts not in evidence. See In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa 1995) ("Motions under rule [1.904(2)] are permitted so that courts may enlarge or modify findings based on evidence already in the record."); In re Appeal of Elliott, 319 N.W.2d 244, 247 (Iowa 1982) (holding rule 1.904(2) motion is an "inappropriate vehicle for reopening the record for additional evidence").
Visitation . The primary goal of visitation is to assure maximum continuing contact between the child and the non-custodial parent. Iowa Code § 598.41(1) (2001). Scott argues that three alterations must be made to the visitation schedule to assure such contact. In reviewing his requests, we are mindful that Cade's best interests remain an overriding consideration. Id.
Scott first seeks an increase in his regular pre-kindergarten visitation with Cade, and requests that his forty-eight hour weekend visit be extended to a full five-day period. This would increase his total regular visitation each four-week period from nine days to fourteen, and would closely approximate the one-week-on, one-week-off temporary shared physical care arrangement that existed prior to the dissolution hearing. As noted by the district court in the dissolution decree, Scott and Vickie agreed the temporary physical care arrangement was not in Cade's best interest. We concur, and similarly conclude that an increase to Scott's regular pre-kindergarten visitation would not be in Cade's best interest, particularly given the distance between Scott's home in Cedar Rapids and Vickie's home in Columbia. As it stands, the pre-kindergarten visitation schedule is adequate to assure Scott maximum continuing contact with his child.
Based on the facts established at trial, it must be presumed that Scott continues to reside in Cedar Rapids.
Scott also seeks to increase his visitation with Cade after the child enters kindergarten, and requests visitation every other weekend, as well as one midweek visit to occur from the end of the school day to 9:00 p.m. that same evening. We agree that the visitation schedule to be applied after Cade begins kindergarten, which provides for no regularly-scheduled visitation beyond holidays, school breaks and summer vacation, is currently too restrictive. Given the relative locations of the parties, and considering the disruption to Cade's schedule, we decline to grant Scott a midweek, evening visit. We do conclude, however, that Scott should be granted visitation with Cade every other weekend.
We are aware that the relative locations of the parties would seem to indicate the impracticability, or excessiveness, of such a visitation schedule. However, we, like the district court, anticipate that this weekend visitation will be primarily exercised in Missouri. Such an expectation is reasonable, given Scott's work flexibility, and the fact that he has extended family in the area.
Finally, Scott argues that he should be given visitation during any of Vickie's naval reserve drills that do not otherwise correspond with his visitation, and that he should be granted extended and open-ended visitation or, as he denominates it, temporary physical care, in the event Vickie is called to active military duty outside of Missouri. We conclude that neither type of alternate care is necessary to assure Cade maximum continuing contact with his father. We also note there is no indication in the present record that Vickie would be unable to continue in her role as Cade's physical caregiver should she be called to active duty.
Attorney Fees . Vickie seeks an award of reasonable attorney fees. Such an award is discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). We conclude that Vickie should be awarded $1000 in appellate attorney fees.
Conclusion . The physical care award to Vickie is affirmed. The visitation schedule is modified to provide that, after Cade begins kindergarten, Scott shall have visitation every other weekend, from 6:00 p.m. on Friday to 6:00 p.m. on Sunday. It is expected that the majority of such visitation will be exercised in Missouri, placing the burden of travel upon Scott, rather than Cade. Holiday visitation shall take precedence over any regularly-scheduled weekend visitation. Vickie is awarded $1000 in appellate attorney fees. The costs of this appeal are to be divided equally between the parties.