Opinion
No. 1-473 / 00-1719
Filed November 28, 2001
Appeal from the Iowa District Court for Mahaska County, James Q. Blomgren, Judge.
The respondent appeals the child custody provisions of the parties' dissolution decree. AFFIRMED.
Ryan A. Genest of Borseth, Genest Suddreth Law Office, Altoona, for appellant.
Eric J. Palmer of Palmer Palmer, Oskaloosa, until withdrawal, then Zachery Simpson, Oskaloosa, and Michael P. Brice of Brice Smith, L.L.P., Oskaloosa, for appellee.
Heard by Huitink, P.J., Zimmer J. and Vaitheswaran, JJ.
Brian Pollpeter appeals from the physical care provision of his dissolution decree. He contends the district court should have awarded him physical care of the parties' children. We affirm.
I. Background Facts and Proceedings .
Brian and Karla Pollpeter were married in 1991. They have three children: Tyler, born in 1991; Allison, born in 1992; and Brock, born in 1995. The parties separated in October of 1999 following an incident that resulted in Brian's arrest and conviction for domestic abuse assault. Karla filed a petition for dissolution of marriage the following month. After the parties separated, the district court granted temporary physical care of the children to Karla and established a visitation schedule.
At trial, each of the parties asked to be designated the primary caretaker of their children. The district court's decree granted the parties joint legal custody and awarded Karla primary physical care of the children, subject to liberal visitation with Brian. Brian moved for enlarged findings of fact and conclusions of law pursuant to Iowa Rule of Civil Procedure 179(b). The district court denied the motion without comment. On appeal, Brian contends the district court improperly found a history of domestic abuse existed between the parties, since there was only one isolated incident of abuse. He also challenges the court's decision to award primary physical care of the children to Karla.
II. Scope of Review .
Our review of these issues is de novo. Iowa R. App. P. 4; see also In re Marriage of Miller, 532 N.W.2d 160, 162 (Iowa Ct.App. 1995). We are not bound by the district court's findings of fact, but do give them deference because the district court had the opportunity to view first hand the demeanor of the witnesses when testifying. Id.; see also In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).
III. Domestic Abuse Issue .
Brian contends the trial court gave improper consideration to his conviction for domestic abuse assault against Karla in making its custody determination. A history of domestic abuse by one parent is a factor to be weighed in determining child-custody. Iowa Code § 598.41(3)(j) (1999); see also In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). If the trial court finds a history of domestic abuse, there is a rebuttable presumption against awarding joint custody. Iowa Code § 598.41(1)(b). If the resulting presumption remains unrebutted, a history of domestic abuse is given greater weight than any other custodial consideration. Iowa Code § 598.41(2)(c). A history of domestic abuse is not necessarily established by a single documented incident. Forbes, 570 N.W.2d at 759-60. In assessing what is sufficient to constitute a history of abuse, we weigh the evidence of abuse, its nature, severity, repetition and to whom it was directed, not just count the number of incidents.
As a result of the incident which occurred in October of 1999, Brian was charged with domestic abuse assault causing bodily injury, a serious misdemeanor. Following a jury trial, he was convicted of the lesser charge of domestic abuse assault, a simple misdemeanor. Brian was granted a deferred judgment, placed on probation for one year, and ordered to complete a batterer's education program. The parties separated after the October assault.
Brian contends the district court erred if it found a history of domestic abuse and by failing to find the presumption against an award of custody had been rebutted. Brian's argument regarding this issue is relevant only if the trial court actually invoked the rebuttable presumption against joint custody based upon its finding of a history of domestic abuse.
We agree with Brian that the trial court used language in its decree suggesting the October 1999 incident constituted a history of domestic abuse. However, other language in the court's decree convinces us the trial court either declined to apply the section 598.41(1)(b) presumption, or considered it rebutted.
Several reasons support this conclusion. First, the trial court awarded joint custody. Second, the court did not mention that Brian would bear the burden to rebut any presumption. Third, the court referred to Brian's abuse of Karla in 1999 as an "isolated event." Fourth, the court listed a number of mitigating factors demonstrating that Karla believed she and the children were safe from any further violence from Brian. Finally, the court described Brian as an excellent father and concluded it was in the children's best interests to have as much contact with him as possible. When the decree is read as a whole, it is apparent that the trial court either did not apply the presumption against joint custody, or considered it rebutted by the evidence. We find no merit in Brian's contention to the contrary.
Brian's brief also suggests that the isolated incident of abuse should not have been considered by the trial court in determining which parent should be awarded physical care of the children. We disagree. Domestic abuse has obvious relevance to the best interests of children. In re Marriage of Barry, 588 N.W.2d 711, 713 (Iowa Ct.App. 1998). The trial court properly considered evidence of domestic abuse as one of many factors relevant to the long-term best interests of the parties' children.
IV. Primary Physical Care .
In any custody determination, the primary consideration is the best interests of the children. Iowa R. App. P. 14(f)(15); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999) (citations omitted). 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. We identify numerous factors to help determine which parent should serve as the primary caretaker of the children in a divorce. See Iowa Code § 598.41(3); In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct. App. 1997) (citations omitted). These include the characteristics of the parents, as well as the capacity and desire of each parent to provide for the needs of the children. Id.
Brain contends he should have been awarded primary physical care of the children. He contends Karla has demonstrated significant instability in her personal and financial affairs. He argues he is better able to provide the children with a stable and moral home environment.
Brian and Karla were critical of each other in a number of respects during trial. The record confirms both engaged in some unfortunate behavior when their marriage began deteriorating. Despite this, it is evident that both parents are fully capable of serving as their children's primary physical caretaker. Both Karla and Brian are good parents who have, in most instances, placed their children's interests above their own. Both share a close and open relationship with their children.
After carefully considering the evidence, the trial court placed primary care of the children with Karla. In reaching its decision the court made mention of Karla's educational background, experience working with children, and history as the children's primary caretaker. The court also considered her patience and willingness to support Brian's continued relationship with the children. Although we find no serious deficiencies with Brian's ability to parent, we believe the trial court's decision to award physical care to Karla is supported by the record. In situations where both parents would prove effective caretakers, we believe the district court's findings on physical care are entitled to particular weight. The trial court had the parties before it, was able to observe their demeanor and was in a better position to evaluate them as custodians. In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993). After de novo review, we see no reason to reverse the trial court.
The dissolution decree is affirmed.
AFFIRMED.