Opinion
No. 5-165 / 04-0846
Filed April 28, 2005
Appeal from the Iowa District Court for Dallas County, Peter A. Keller, Judge.
Charles H. Peterson appeals the custody provisions of the district court's decree dissolving the parties' marriage. AFFIRMED.
Andrew B. Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellant.
Carrie L. O'Connor of Iowa Legal Aid, Des Moines, for appellee.
Heard by Mahan, P.J., Zimmer, J., and Beeghly, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Charles H. Peterson appeals the district court's decree dissolving the parties' marriage. He contends the district court erred in awarding primary physical care of the parties' three children to the respondent, Elizabeth A. Peterson. We affirm.
I. Background Facts Proceedings.
Charles and Elizabeth were married on July 3, 1994. They have three children: Brittany, born March 6, 1995; Joshua, born August 12, 1998; and Carlee, born October 21, 1999. In January of 2000 the parties agreed that Charles would stay at home with the children while Elizabeth worked full-time. In May of 2003 Elizabeth began to suspect that Charles was physically abusing the children while she was away at work. She testified at trial that the children informed her on more than one occasion that Charles had been abusive to them. On June 3, 2003, Elizabeth left the parties' home in Iowa and moved the children to Oregon. Charles filed a petition for dissolution of marriage on June 11, 2003. Following a hearing, the district court dissolved the parties' marriage on May 11, 2004. Elizabeth was awarded primary physical care of the children subject to Charles's visitation rights. Charles appeals.
Elizabeth also had teenage son from a previous relationship, Wally Mersch, Jr., who was not involved in these proceedings.
Charles denied ever abusing the children.
The parties resided in Oregon prior to their move to Perry, Iowa in July of 1999. In addition, the record indicates Elizabeth's extended family resides in Oregon.
II. Standard of Review.
Dissolution of marriage decrees are reviewed in equity. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). Our standard of review is therefore de novo. Iowa R. App. P. 6.4. In such cases, we examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). In doing so, we give weight to the fact findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Primary Physical Care.
Charles avers the district court erred in awarding Elizabeth primary physical care of the parties' children. He contends he should have primary physical care of the children because Elizabeth will not foster his relationship with them. In assessing an issue of child custody, the controlling consideration is the best interests of the children. In re Purscell, 544 N.W.2d 466, 468 (Iowa Ct.App. 1995). The court determines placement according to which parent can minister more effectively to the children's long range best interests. In re Marriage of Buttrey, 538 N.W.2d 322, 324 (Iowa Ct.App. 1995) (citing In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984)). The court's objective is to place the children in the environment most likely to bring them to a healthy physical, mental, and social maturity. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996). 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).
Charles contends the district court placed too much emphasis on the allegations of abuse against him because the statements presented during the hearing were hearsay. He further argues the court failed to give enough weight to the custody evaluator's testimony that the children would not be in danger if they were to live with or have extended visits with their father. Upon our de novo review of the record, we conclude, as did the district court, that Elizabeth is better able to minister to the children's educational, medical, and daily needs. Throughout the parties' marriage, even though Charles stayed home with the children during the day, Elizabeth was primarily responsible for the children's daily care. Although the record reflects that Charles cares deeply for his children, his ability to minister effectively to them on a full-time basis is questionable. We reject his assertion that the district court improperly weighed the testimony introduced at trial. In its order, while the district court acknowledged the children had reported allegations of physical abuse by Charles to five individuals, the court specifically declined to make a finding of abuse. Further, it is clear that the district court considered the testimony from the custody evaluator. The custody evaluator testified during trial that the incidents of physical abuse were likely isolated and the result of poor choices made by Charles during a stressful period. The district court acknowledged this conclusion in its order, but ultimately concluded, as do we, that Elizabeth could minister most effectively to the long-range interests of the children.
We further note the record as a whole does not support Charles's contention that Elizabeth will not foster his relationship with the children. Charles points out that Elizabeth absconded with the children to Oregon in 2003 and granted him only limited contact with the children until he instituted a contempt action against her in January of 2004. However, the evidence introduced at trial, including Charles's own testimony, revealed that since the resolution of the contempt action on February 17, 2004, Elizabeth has complied with the court's order and allowed Charles to have visitation with the children. Based on the foregoing, we agree with the district court's conclusion that the children's best interests would be better served by awarding primary physical care of the children to Elizabeth. Accordingly, we affirm the decision of the district court.
After reviewing the testimony and evidence in the case, the district court denied Charles's request to hold Elizabeth in contempt.