Opinion
No. 3-1003 / 03-1032
Filed March 10, 2004
Appeal from the Iowa District Court for Boone County, Ronald H. Schechtman, Judge.
Stacy Robertson appeals and Theresa Robertson cross-appeals the district court's decree of dissolution placing the couple's daughter with Theresa and their son with Stacy. Stacy also appeals the portion of the decree awarding alimony to Theresa. AFFIRMED AS MODIFIED AND REMANDED.
Susan Ekstrom of Ekstrom Burkey, Des Moines, for appellant/cross-appellee.
Dorothy Dakin of Kruse Dakin Law Office, Boone, for appellee/cross-appellant.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Stacy and Theresa Robertson married in 1994, approximately eleven months after the birth of their first child, Jordan. In 1997, they had another child, Michaela. Soon after Michaela's birth, the couple began having marital problems. These problems eventually prompted Stacy to seek a divorce.
The district court awarded Stacy physical care of Jordan and Theresa physical care of Michaela. The court also ordered Stacy to pay Theresa alimony. Stacy appealed these provisions of the dissolution decree. Our review is de novo. Iowa R. App. P. 6.4.
I. Physical Care
Stacy contends the district court acted inequitably in splitting physical care rather than awarding him physical care of both children. He points to Theresa's 1) mental health disorders, 2) history of "violence and irresponsibility," 3) substance abuse problems, and 4) tumultuous relationship with the children. Theresa counters that Stacy works excessive overtime and has his own substance abuse problems. Both parties also point to the sibling relationship in support of their respective positions.
A. Theresa
1. Mental Health History.
Theresa was diagnosed with panic disorder and major depression. Beginning in 1998 and continuing until early 2002, she cycled through periods of hospitalization followed by periods of betterment and regression. On a few occasions, Theresa had suicidal thoughts, although she testified she never had an "intent or . . . plan" to kill herself. A physician retained by Stacy to review Theresa's medical records opined that during this period "her stability was certainly in question." However, several months before trial, her treating psychiatrist testified that "this is the most stable I have seen her."
2. Violence.
Theresa also has displayed violent behavior. On one occasion, she was arrested for domestic abuse against Stacy and was required to attend batterer's classes. On another, she got into a fist fight with her mother in the presence of her children. On yet another occasion, she was in a fight that resulted in her receipt of a split lip and a black eye.
While Theresa testified that the batterer's program "changed my life for the better," the record reflects that, as recently as two months before trial, Theresa was taken to the hospital after she punched a door with her hand.
3. Alcohol Abuse.
Theresa drank alcohol at the same time she was on medication. This drinking got progressively heavier and more frequent. During the summer of 2001, Theresa took the children to the babysitter and stayed home from work to drink. On a few occasions, she was unable to pick the children up at the end of the day because she was too intoxicated to drive. In the fall of 2001, Theresa decided to seek alcohol treatment. Her initial efforts were unsuccessful. However, Theresa stated that she stopped drinking in April 2002 and no evidence was presented of a relapse after that date.
4. Interaction with Children.
According to Stacy and neighbors, Theresa's mental disorders caused her to sleep many hours each day and to become easily irritated with the children to the point of screaming and using profanity. Theresa conceded she had difficulty controlling her temper with her son, telling one health care worker that "I yell at [my son] because of depression, anxiety, [and] anger," and telling another, "7 yr. [old] son hates me because I yell at him." The second worker recounted that Theresa "recently grabbed spanked [Jordan] — scared the crap out of him — rarely spanks. . . ."
B. Stacy 1. Overtime.
Stacy is a plumber who held the position of foreman at the time of trial. He worked 7:30 A.M. to 3:30 P.M. five days a week and generally had an hour commute each way. Stacy had the option of working overtime and frequently did so. While Stacy's supervisor could not predict when Stacy would have to work overtime, he testified that "family comes first" when a conflict arises.
Stacy testified that overtime was "[t]otally optional" and he had "all the flexibility" he needed to accommodate child emergencies, given his position and past performance with the company. He stated that he prepared the meals ninety percent of the time and did the grocery shopping one hundred percent of the time. He also testified he had time to ride bicycles, play, and garden with one or both of the children.
2. Substance Abuse.
Stacy was convicted of operating a motor vehicle while intoxicated in 1995. A neighbor and a friend testified that Stacy consumed alcoholic beverages with them and another witness testified that he saw Stacy intoxicated at the Orange Bowl in January 2003.
Theresa recounted an incident when Stacy drove the family while intoxicated and initially refused to let her take over the driving. According to her, he was all over the road. She also recounted other incidents of intoxication and suggested at trial that his alcohol use had become a significant problem. Earlier, however, she told a health care worker that Stacy only drank "occasionally." This statement corroborated Stacy's trial testimony. A physician also testified that he "didn't get any indication there was excessive use from the questions [Stacy] was given and how he answered."
Theresa also testified that Stacy used illegal drugs. She introduced a picture of Stacy on the day Jordan was born to support her claim that Stacy was high on drugs that day. She also stated that she brought a drug dog into the house and the dog discovered marijuana seeds in an area of the home frequented by Stacy. Stacy responded to these allegations by eliciting testimony from his employer that he had never failed a drug test. He also introduced medical evidence recounting that he no longer used illegal drugs. Theresa countered by stating that Stacy took golden root seals to cover up his drug use.
C. Analysis
1. Jordan.
We believe the district court acted equitably in placing Jordan with his father. The family babysitter and a neighbor testified that Jordan often seemed nervous and jittery when Theresa was around or on the telephone. Over time, Jordan became defiant toward his mother and, according to his therapist, began having "explosive episodes," all directed toward her. While the therapist attributed these episodes to learned behavior from Stacy, Theresa's statements to health care workers suggest otherwise.
We recognize that Theresa's mental health problems appeared to be under control at the time of trial and she stated she had discontinued her use of alcohol for over a year. We also note that despite her volatile relationship with her son, therapy sessions revealed a close bond between the two. One therapist noted that Jordan "talks about everything in front of mom" and "steadfastly does not make choices between his parents."
Nevertheless, the record suggests Jordan shared an exceptionally warm relationship with his father. For example, a physician who evaluated a picture drawn by Jordan opined that it "suggests Jordan's close identification with his father." The record also suggests that Jordan would benefit from the consistency of Stacy's parenting style, given his own evolving mental health problems.
2. Michaela.
The record relating to Michaela's relationship with her parents is sparse. Unlike Jordan, there is no evidence Michaela experienced overt conflict with her mother. The physician who evaluated a picture drawn by Jordan noted Jordan's perception that his mother and sister were "tight." Additionally, a counselor testified that Michaela was "unambivalently attached to" Theresa. A therapist stated that Michaela "talks about her mom as far as being there to take her to classes and . . . they do activities together, [like] reading books and playing board games."
Despite this evidence of a close relationship between Theresa and her daughter, it appears Stacy had a similar relationship with Michaela. Four neighbors and the family babysitter who observed the children with their parents opined that Stacy had positive interactions with them and would be the better parent to both.
We conclude Stacy should have been awarded physical care of Michaela. He showed himself to be a stable and consistent caregiver and established that his overtime hours did not interfere with his parenting responsibilities. Although we are troubled by the evidence of Stacy's substance abuse, the record suggests he had discontinued his drug use and curbed his alcohol use at the time of trial.
In addition to the cited evidence, our conclusion is based on our reluctance to separate siblings absent compelling reasons. See In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994); In re Marriage of Wahl, 246 N.W.2d 268, 270 (Iowa 1976) (stating siblings should not be denied the benefit of constant association with each other except when best interests require it). There is abundant evidence that the children, just three years apart in age, participated in joint activities with their parents, from bicycle riding to trick or treating. They also lived together until the divorce. While hospital notes suggest Jordan "tended to act out particularly against his sister," there was evidence that this may have been due to his perception that Theresa was more partial to Michaela. In our view, this acting out is not a compelling reason to separate the children. In re Marriage of Fynaardt, 545 N.W.2d 890, 894 (Iowa Ct.App. 1996) (stating "[w]e do not find [parents'] situation to be so rare to require a deviation [from] the strong policy of our courts to avoid splitting custody of the children.").
II. Alimony
Stacy also challenges the court's award of alimony to Theresa in the amount of $400 per month for forty-eight months. He contends the award does not fit into any of the categories of alimony our courts have recognized. We disagree.
The district court determined that this award would "allow [Theresa] to adjust to being self-supporting." We have accepted this rationale as a basis for awarding rehabilitative alimony. See In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct. App. 1998). In addition, our highest court has stated that a rehabilitative alimony award may reflect "the disparity in the parties' relative needs and earning capacities upon the dissolution of their marriage." In re Marriage of Smith, 573 N.W.2d 924, 927 (Iowa 1998).
Theresa has a high school diploma and attended one year at the American Institute of Business. At the time of trial, she was working at a bank and a convenience store and was earning eight dollars per hour at each job. Theresa stated that she hoped to go back to school to be a beautician or a paralegal. A child support guidelines worksheet filed after trial listed her income as $14,768.00 relative to Stacy's $68,064.00. On this record, we conclude the district court acted equitably in awarding alimony. III. Appellate Attorney Fees
In light of our conclusion on physical care, we need not address Stacy's contention that the district court should have deducted the alimony award from his income in calculating his child support obligation.
Both parties request appellate attorney fees. An award of such fees is within our discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We have considered the parties financial circumstances and relative abilities to pay. We conclude neither party shall be awarded attorney fees.
IV. Disposition
We conclude Stacy should have physical care of both children. We accordingly modify that portion of the decree awarding Theresa physical care of Michaela. We remand for a re-determination of Theresa's child support obligation and visitation rights. We affirm the alimony ruling. Costs of this appeal are to be assessed one-half to each party.