Opinion
No. 4-150 / 03-0369
April 28, 2004.
Appeal from the Iowa District Court for Polk County, John D. Lloyd, Judge.
Petitioner appeals the dissolution decree granting physical care of their minor child to Respondent. AFFIRMED.
Ryan Genest of Culp, Doran, Seidlin Genest, P.L.C., Des Moines, for appellant.
Michael Oliver of Oliver Law Firm, P.C., Des Moines, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Larissa Rasmussen appeals the dissolution decree granting physical care of the minor child to David Rasmussen. We affirm.
Background Facts.
David and Larissa were married on April 29, 2000. They have one child together, Madison, born March 5, 2000. The couple separated in November 2001; Madison remained in Larissa's care. On March 8, 2002, Larissa filed a petition for dissolution seeking physical care of Madison. Subsequently, David filed an answer also seeking physical care of the child. On May 31, the district court entered a temporary order granting the parties joint legal custody, Larissa physical care, visitation for David, and ordered monthly child support. Trial was held on January 23, 2003, and on February 3, the district court filed its ruling granting David physical care of Madison. Larissa appeals.
Scope of Review.
We conduct a de novo review of decisions regarding custody and physical care. Iowa R. App. P. 6.4; In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We give deference to, but are not bound by, the findings of the district court. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). This is particularly true regarding issues of credibility, given the district court's opportunity to directly observe witness demeanor. Id. Discussion.
Larissa argues that the district court erred in granting David physical care. Specifically, Larissa challenges the court's findings that David would provide a more stable environment, that she denied David visitation, and that she was less than candid at trial. David urges us to affirm the district court.
In its ruling, the district court stated,
[P]hysical care should be awarded to David. He appears to be more stable than Larissa, at least in terms of his living situation. . . . It seems likely that the present location of David's residence will remain stable while Larissa's is in flux.
The court also noted that "Larissa's lack of candor is an issue that helps tip the balance in favor of awarding primary physical care to David." While we give significant consideration to placing a child with the primary caregiver, it is not the singular factor in determining which placement would best serve the child's interests. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct.App. 1995). The goal is to select the environment most likely to cultivate a physically, mentally, and socially healthy child. See Murphy, 592 N.W.2d at 683. In meeting that goal the court considers a number of factors, including the child's needs and characteristics, the parents' abilities to meet the child's needs, the nature of each proposed home environment, and the effect of continuing or disrupting the child's current status. See Iowa Code § 598.41 (2001); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).
The evidence establishes that prior to the separation David was very involved in Madison's life. Larissa testified that David went to doctor's appointments with her during the pregnancy and was very supportive and attentive to her needs. After Madison was born, David was the parent to get up with her during the night. Larissa testified that David was the perfect father, even after the separation. When the district court granted Larissa temporary physical care of Madison, David took advantage of all scheduled visits, even requesting more time, and began paying child support.
The district court's concern with Larissa's stability arises from her living situations since the time of separation. Larissa and Madison continued to live in the family apartment after David moved out in November 2001, but were evicted in July 2002 for nonpayment of rent. Larissa and Madison then lived for approximately five and one-half months with a girlfriend of Larissa's. At the time of trial, Larissa and Madison were living with Larissa's mother; however, Larissa testified that the situation was only temporary and hoped to move when the weather warmed up. David moved as many times as Larissa, but at the time of trial he was living in an apartment with his girlfriend, Becky, and the situation appeared stable. While the number of moves the parties make can be an indicator of a more general instability, it can also be a direct consequence of the emotional and economic turmoil caused by the separation of the parties. See generally In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998) (discussing emotional and environmental stability). Here it appeared to be just one of many factors considered by the district court in determining the more suitable parent to serve the best interests of Madison.
Larissa asserts that the district court incorrectly found she denied visitation to David prior to the entry of the temporary order. David had little contact with Madison from December 2001 to March 2002. Larissa submits that she initially refused to allow Madison to visit the home David lived in with a friend immediately following the parties' separation because the home had been raided and a methamphetamine lab was found in a shed on the property. David lived at the home for a month and a half but moved to a motel when the meth lab was discovered. He was not involved in the subsequent criminal investigation. David explained that he requested visits with Madison from Larissa but Larissa placed too many conditions on him and he became discouraged. After the temporary order was entered, Larissa permitted visitation as ordered and David became active in Madison's life again, even requesting additional visitation from Larissa. In the temporary order, David was also ordered to pay child support which he had not paid during the initial separation. While the record reflects David has paid child support since the order, the payments have not always been made in a timely fashion. David claims it is because he is paid on an irregular basis; Larissa asserts that he places his other expenses ahead of Madison's needs. On the date of trial, David's monthly child support payment was twenty-two days late.
As for Madison's physical needs, there was testimony regarding Larissa's ability to maintain Madison's hygiene. Madison has had head lice on three occasions, apparently contracting the lice from day care. David was the first to notice and treat Madison for the lice despite Madison being in Larissa's primary care. Madison also spent a couple of days in the hospital for a kidney infection which may have been caused by deficient hygiene while in Larissa's care but the origin was not clearly established. David testified that most times Madison was clean and presentable when he picked her up but there were times that she was filthy.
What appears to be the most significant factor in the district court's decision to place Madison in David's care, was Larissa's lack of credibility in several particulars. When testifying about her current living situation Larissa stated it was just her, Madison, and her mother living in her mother's home. However, she failed to mention her mother's boyfriend, who has several OWIs, also lived in the residence. Also, Larissa's testimony regarding the renewal of the lease on the apartment she formerly shared with David was not forthcoming. She first testified that she renewed the lease in April 2002 and only her and Madison's name was on the lease, not David's. In fact, David's name strategically remained on the lease when Larissa renewed it. There was evidence that Larissa told the apartment manager that David was out of town and would sign it when he returned, although Larissa denies making this statement. Another instance of her lack of candor relates to the affidavit of service for the eviction notice. According to the affidavit, notice was served on David Rasmussen, or a male believed to be David, at 7:30 a.m. on July 19, 2002. However, it was not David and Larissa testified that no man was living with her at that time and that the eviction notice was left on her door and not personally served. The district court did not accept Larissa's explanation and faulted her not for the substance of her statements but rather for the court's dismay with her repeated lack of candor.
This is not an obvious case of one parent being more capable of raising the child than the other. Both parents are loving and have the capabilities to parent Madison on a full-time basis. However, we defer to and share the district court's concern of Larissa's lack of candor at trial and further agree David appears to offer greater stability for Madison. Because our de novo review falls in line with the district court's assessment of the evidence, we affirm the grant of physical care to David.
Costs are assessed one-half to each party.