Summary
noting the a history of domestic abuse might give rise to a rebuttable presumption of sole custody but that, in the decision over physical care, it is a significant factor to consider as opposed to a presumption
Summary of this case from In re Marriage of WielandOpinion
No. 4-132 / 03-1259
April 28, 2004.
Appeal from the Iowa District Court for Hardin County, William J. Pattinson, Judge.
Wife appeals from the dissolution decree awarding physical care of the parties' children to their father; husband cross-appeals from the economic provisions of the decree. AFFIRMED.
Larry Johnson of Walters Johnson, Iowa Falls, for appellant.
Dorothy Dakin of Kruse Dakin Law Office, Boone, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Laura Mulford appeals from the physical care provisions of the parties' dissolution decree. Steven Mulford cross-appeals from the economic provisions of the decree. We affirm the district court.
I. Background Facts and Proceedings.
Laura and Steven were married in 1995. This was the third marriage for Laura and the second marriage for Steven. The parties have two daughters, Piper Noel Mulford, born in 1997, and Saylor Lauren Mulford, born in 1999. The couple separated in April 2002 when Laura left the marital home. Laura filed a petition to dissolve the marriage on April 25, 2002. She moved to Florida with the children the following month, where she and the children took up residence in her parent's home.
At the time of trial, Laura was thirty-three years old. She continued to reside in Florida in her parents' home, and was earning approximately $200 per month performing home-based medical transcription. Laura hoped to develop a home-based medical transcription business that would eventually yield $10,000 to $12,000 in annual income. At the time of trial Steven was thirty-two years old, and employed as director of nursing and assistant administrator of the Ellsworth Community Hospital in Iowa Falls. He also coached wrestling at Iowa Falls High School. His gross annual income was $52,000.
The district court dissolved the parties' marriage by decree entered June 13, 2003. In the decree, the court granted the parties joint legal custody, and awarded physical care of the parties' children to Steven. Laura was ordered to pay child support in the amount of $103 per month, and sixteen percent of all uncovered medical expenses. The net property division ordered by the court slightly favored Laura. In addition, Steven was ordered to pay $1,500 towards Laura's trial attorney fees.
Laura appeals. She contends the district court erred when it failed to award her physical care. On cross-appeal Steven challenges the court's calculation of child support. He also claims the court's property division was inequitable, and contends the district court erred in requiring him to pay a portion of Laura's attorney fees.
II. Standard of Review.
Our review of this equitable proceeding is de novo. Iowa R. App. P. 6.4. We give weight to the district court's findings of fact, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). This is because the district court had a first-hand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
III. Physical Care.
Laura contends the district court's decision to award physical care to Steven is not in the best interests of the children and is not supported by the record. In any custody determination, the primary consideration is the best interests of the children. Iowa R. App. P. 6.14(6)( o); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). The court's objective is to place the children in the environment most likely to bring them to healthy, physical, mental and social maturity. Murphy, 592 N.W.2d at 683.
In considering what custody arrangement is in the best interests of the children, the court is required to consider the factors set forth in Iowa Code section 598.41(3) (2001). In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). These statutory factors and the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), are appropriately considered in determining the award of physical care. The critical issue in determining the best interests of the children is which parent will do better in raising the children; gender is irrelevant, and neither parent should have a greater burden than the other. In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996). Prior cases are of little precendential value and we must tailor our decision to the unique facts and circumstances before us. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). With these principles in mind, we now address the parties' contentions regarding primary physical care.
We begin our discussion on a positive note. Despite the parties' current criticisms of one another, it is apparent that both Laura and Steven love their children and are committed to their happiness and well-being. The parties also share some positive characteristics. Both are above average intellectually. Both are energetic and imaginative in caring for their children. Both clearly have the ability to meet their children's day-to-day needs. By all reports, the parties' children are comfortable and bonded with both their parents. A custody evaluator described the children as "attractive, healthy appearing, bright and developmentally normal or better in every way."
The focus of Laura's argument on appeal is that the district court did not give adequate weight to evidence of domestic abuse by Steven and its impact on the children. As both parties requested joint legal custody, the court was not required to make a finding as to whether there existed a "history of domestic abuse" which would give rise to a rebuttable presumption of sole custody. See Iowa Code § 598.41(2). However, pursuant to Iowa Code section 598.41 and our case law, domestic abuse is a significant factor to be considered when determining which parent should receive physical care. See In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.App. 1997). As we have said before, domestic abuse is in every respect dramatically opposed to a child's best interest. Id. at 55.
Much of the evidence in this case concerns an incident which occurred on May 12, 2002, shortly after the parties separated and Laura filed her dissolution petition. Steven claims Laura initiated the incident by slapping him. Laura denies his claim. Regardless of whose version is correct, it is undisputed that Steven, while in a state of great emotional upset, pushed Laura, threw her down, and restrained her from escaping. Steven also took a knife from the kitchen and held it to his wrist threatening to kill himself. As a result of the incident, Steven pled guilty to simple misdemeanor domestic abuse assault.
The record reveals the district court gave careful attention to the issue of domestic abuse in addressing the question of physical care. Ultimately, the court concluded that Steven's behavior should not summarily eliminate him from consideration as the children's primary care taker. In reaching this conclusion the district court determined the parties' marriage did not involve a "`history of domestic abuse' wherein Steven was the sole aggressor," and that Steven's inexcusable behavior in assaulting Laura was in fact an aberration.
The court made its decision after considering not only the May 12 incident but allegations of prior altercations between the parties. The court noted none of the prior alleged incidents were reported to the police and only one, which occurred on March 8, 2002, during the breakdown of the marriage, was made the subject of a civil protective order. The parties disputed the events of March 8, which occurred while Steven and Laura were arguing at the home of Steven's father. According to Laura, Steven choked her and threw her down on the bed. According to Steven, he pivoted Laura around and down on to the bed after she attempted to slap him.
In considering the issue we, like the district court, give considerable weight to Steven's recent psychological testing and the related opinion of Dr. Arthur Konar, which indicated Steven has no predisposition to violence or suicide, but had "temporarily" broken down under the stress created by his failing marriage and the possible loss of his children. This view of Steven's personality and behavior was consistent with the testimony of colleagues and friends. Significant as well is the fact that Steven readily admitted to the incident, voluntarily cooperated with law enforcement, and has fully complied with the terms of his sentence, including batterer's education.
Although the court ordered both parties to undergo psychological testing, specifically a Minnesota Multphasic Personality Inventory and a "Psychological Evaluation," Laura failed to submit herself for testing.
We also give weight to the district court's conclusion that Laura's credibility is "suspect." The court made note of the opinion of Dr. David VanGorp, the physician who treated Laura after the May 12 altercation, which indicated Laura had attempted to exaggerate her injuries. The district court also discredited Laura's claim that Steven had in fact threatened her with a knife as this allegation, first made several months after the May 12 altercation, was absent from both police and medical reports made shortly after the incident.
Dr. VanGorp found no evidence of Laura's claims she had been drug by her hair or that her ears were torn. He also believed some of Laura's injuries were self-inflicted, and others were in fact the result of a rash. Dr. VanGorp went so far as to contact the Iowa Falls police department to suggest that nail scrapings be obtained, and a second examination scheduled to determine whether any of the injuries were old or dermatological in nature. Neither event occurred.
In light of the credibility determinations made by the district court, we concur in its assessment of the parties' relationship as "stormy"; one where Laura also engaged in acts of aggression, and both parties could "rise to anger when provoked or when things don't go their way." Provoking action by Laura in no way excuses Steven's behavior, and this court is not attempting to minimize the domestic violence. However, when a relationship contains mutual physical and verbal aggression, "a claim of domestic violence must not be used by either party to gain an advantage at trial, but should be reserved for the intended purpose — to protect victims from their aggressors." In re Marriage of Barry, 588 N.W.2d 711, 713 (Iowa Ct.App. 1998).
The district court gave extremely careful attention to all of the evidence in this case, and had the benefit of observing the parties during three days of trial. It concluded that the domestic violence perpetrated by Steven was isolated, and that he would never harm his children, be it intentionally, recklessly, or negligently. We too reach this conclusion. For the reasons that follow, we also concur in the district court's decision to award Steven physical care.
The district court expressed several concerns about Laura that find ample support in the record. The court found Laura to be less honest and forthright than Steven. She initially equivocated about the nature of her relationship with Wayne Killeen, and only after other witnesses indicated theirs was more than a platonic relationship did she admit the two had discussed marriage. In addition, after the parties separated Laura signed Steven's name to a loan application, without his knowledge, and secured a consumer loan in both their names. Finally, the court noted that, while it was not diminishing the domestic abuse that occurred on May 12, it believed Laura "attempted to transform the incident into a trump card on the custody issue."
The court further noted that Laura can also be physically aggressive when she chooses. Various witnesses described her as having a negative, aggressive, and confrontational personality. In addition, Laura, unlike Steven, appears to have a propensity to behave in a gruff and demeaning manner in her dealings with the children. Several witnesses also expressed concern that Laura treats the parties' younger child more favorably, and can be unnecessarily critical of the older child.
Moreover, Laura did not provide the court with a clear picture of the environment in which she will place the children should she receive primary physical care. The record reveals some very real concerns regarding Laura's immediate support system in Florida. In addition to some clearly inappropriate behavior by Laura's father, the record contains very little information about Wayne Killeen, other than his occasional drug use and conviction for possession. The lack of information about Killeen, and Laura's reluctance to be forthright about their relationship, is troubling. Given that the record indicates Killeen and Laura are involved in a significant relationship, it is likely that he will play an important role in the children's lives.
Laura's father, who was charged with care of his granddaughters at least two days a week, made several inappropriate statements to the girls, including ones demeaning Steven and the children's Iowa relatives.
On the other hand, the district court determined Steven had a number of positive characteristics, which were also amply supported by the record. The court concluded Steven was an active and involved father who interacted appropriately with his children. It noted that he is near relatives to whom, at least in the past, the children were close. The court also determined that Steven would better facilitate the girls' relationship with Laura than Laura would with Steven.
After carefully considering all the evidence, the district court concluded, "Steven will provide the most stable and wholesome atmosphere and an environment most likely to produce two emotionally secure, competent and independent adults." In this type of case, where either party would be a suitable parent, the district court's evaluation of the parties is particularly helpful. See In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993). After our de novo review of the record, we conclude the district court reached the correct conclusion. We accordingly affirm the district court's decision to grant joint custody with physical care of the children vested in Steven.
IV. Cross-Appeal Issues.
Steven raises three issues in his cross-appeal. He first challenges the district court's decision to order Laura to pay $103 per month in child support, and sixteen percent of uncovered medical expenses. The district court appears to have arrived at both figures by imputing annual income to Laura of $8,034 per year, which represented thirty hours of work per week at minimum wage. Steven claims Laura has a greater earning potential, and that her obligations should be accordingly increased. Upon our de novo review of the record, including Laura's present income of $200 per month, as well as her education and experience, we find no reason to disturb the court's child support award or uncovered medical expense allocation. As the district court mentioned, the level of child support is modifiable if circumstances change.
Steven next contends the court's property award was inequitable. The parties to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991). Iowa courts do not require an equal division or percentage distribution; rather, the determining factor is what is fair and equitable in each particular circumstance. Id. An equitable distribution must be made according to the criteria set forth in Iowa Code section 598.21(1).
The district court concluded that Laura should receive slightly more favorable treatment than Steven in the division of property and debts. The court explained its reasons for taking this approach. The court considered the disparity in the parties' current incomes and overall earning potential, the fact that Laura was assessed child support based on imputed income, and Laura's inability to service debt because of her limited education and work experience. Upon our de novo review of the record, we conclude the court's distribution was fair and equitable under the circumstances of this case.
Finally, Steven argues that the district court's award of $1,500 in attorney fees to Laura was inequitable. Trial courts have considerable discretion in awarding attorney fees. In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). Whether attorney fees should be awarded depends on the respective ability of the parties to pay. Id. In addition, the fees must be fair and reasonable. In re Marriage of Wilcoxson, 250 N.W.2d 425, 427 (Iowa 1977). To overturn the award, Steven must establish that the court abused its discretion. Geil, 509 N.W.2d at 743. Laura has significantly less income than Steven. Steven does not suggest that the fees charged were unreasonable. We find no abuse of discretion in the court's decision to award attorney fees to Laura.
V. Appellate Attorney Fees.
Steven also requests that he be awarded appellate attorney fees. Such awards are discretionary and 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). Upon consideration of those factors, we decline to award appellate attorney fees in this matter.
VI. Conclusion.
Having considered all the arguments before us on appeal, we affirm the district court's decree.