Opinion
No. 4-063 / 03-1747
Filed February 27, 2004
Appeal from the Iowa District Court for Allamakee County, James L. Beeghly, Judge.
Respondent appeals from the child custody and support provisions of the decree dissolving the parties' marriage. AFFIRMED.
David McManus of Glasson, Sole, McManus Pearson, P.C., Cedar Rapids, for appellant.
Marion Beatty of Miller, Pearson, Gloe, Burns, Beatty Cowie, P.L.C., Decorah, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Lisa Sivesind appeals from the child custody and support provisions of the decree dissolving the parties' marriage. She contends the district court erred in awarding primary care of the parties' minor son to Jeffrey Sivesind. She also contends the court erred in calculating the amount of child support she is required to pay. Both parties request an award of appellate attorney fees. We affirm.
I. Background Facts and Proceedings.
Jeffrey and Lisa were married in Bakersfield, California on August 30, 1996. They have one child, Lief, born in April 1994.
Jeffrey was previously married. He has three children from the marriage: Eric, age twenty-four; Kristin, age twenty-three; and Nicholas, age thirteen. Jeffrey pays $427.00 per month in child support for Nicholas.
In 1976, Jeffrey began employment as a police officer with the Bakersfield Police Department. He left the department in 1996 after being diagnosed with post-traumatic stress disorder and depression resulting from chronic exposure to morbidity and mortality in his work. Jeffrey has also had problems with compulsive gambling and abuse of alcohol. Jeffrey is currently in recovery for both those problems. Jeffrey had a mild relapse of depression and anxiety in January 2003.
While visiting an uncle in Iowa, Jeffrey found his depression and anxiety was improved. In August 1999, Jeffrey moved to Iowa. Lisa and Lief followed him in September or October.
Jeffrey currently works full-time at Luther College, delivering mail on campus. He works from 7:30 a.m. until 4:30 p.m. during the work week. In 2001, he earned $31,003.00 from his CALPERS pension and $14,045.00 from Luther College.
Lisa also was previously married. There were no children born of the marriage. Lisa does have two children from a prior relationship: Greg and Amber. Those children lived with Jeffrey and Lisa until their move to Iowa.
Lisa and Jeffrey met while Jeffrey was executing a search warrant at Lisa's residence. The search resulted in drug charges being filed against Lisa. However, Lisa obtained treatment for drug addiction and has not used drugs since the early 1990s.
In February 2003, Lisa was involved in an automobile accident, which resulted in a series of migraine headaches and required emergency room care for eighteen out of twenty days. At the time of trial, she had not obtained employment in Bakersfield, California. In 2001, she earned $7,068.00.
Jeffrey filed a petition for dissolution of marriage in May 2003. After being served with the petition, Lisa made arrangements to have Lief sent to California. Within one day of Lief's departure, Lisa was served with an injunction to prevent her from removing Lief from Iowa. Lief returned to Iowa on July 1 and began classes in Waukon in August.
Following trial, the district court granted Jeffrey primary care of Lief, finding he was better able to provide for his long-term care than Lisa. Lisa was granted six weeks of consecutive visitation with Lief in the summer, along with Lief's spring break and one half of his winter vacation.
II. Scope of Review.
We review a custody order de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). In doing so, we give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Id. at 51.
III. Primary Care.
The best interest of the children is our standard for deciding child custody. Iowa R. App. P. 6.14(6)( o); Murphy, 592 N.W.2d at 683. Our objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Id. at 683. In considering what custody arrangement is in the best interest of the children, we consider statutory factors. Iowa Code § 598.41(3) (2003). All these factors bear upon the "first and governing consideration" as to what will be in the best long-term interest of the child. 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. In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992).
The district court found both Lisa and Jeffrey to be capable of providing reasonable, competent care for Lief. However, the court concluded Jeffrey is better able to provide for Lief's long-term care. The court cited to the testimony of Jeffrey's family and coworkers in which he was described as stable, responsible, considerate, reliable, and competent.
Lisa contends the district court erred in granting Jeffrey physical care of Lief. She argues she is better suited to be primary caretaker because of Jeffrey's mental health issues. She also contends she should have primary care of Lief because she was his primary caretaker.
The physical and mental health of each parent is a factor to be considered in determining which parent is better suited to minister to their child's long-term best interests. Winter, 223 N.W.2d at 166. Here, both parents have had health problems. Jeffrey suffers from post-traumatic stress disorder, which has caused him depression and anxiety. It has also manifested in drinking and gambling problems. Lisa also suffers from depression, as well as back pain and migraine headaches. Both parties have sought treatment with mental health professionals and treat their depression with medication.
Jeffrey's mental health difficulties stem from his employment as a police officer. As a result, he receives disability benefits from his former employer. Since Jeffrey terminated his employment as a police officer in 1998, he has only had one mild episode of anxiety and depression. He no longer experiences difficulties with alcohol or gambling, although he continues to occasionally indulge in both. The psychiatric nurse practitioner who continues to treat Jeffrey wrote in a letter dated August 20, 2003:
In the time that I have known Mr. Sivesind, he has consistently voiced appropriate concern for the welfare of his son. He has expressed a desire for his son to experience a relaxed environment, which he perceives could be provided in Iowa. Mr. Sivesind has presented sound of mind, and not at risk of hurting self or others. I have been touched by his compassion and sensitivity. Based on my work with him, I believe he will provide consistent reliable parenting to his son, providing for his son's physical, emotional, educational and spiritual needs.
We conclude Jeffrey's mental health is not a concern in his ability to parent Lief, and does not militate in favor of granting Lisa physical care.
Lisa also argues she is better suited to be Lief's primary caretaker because she was his primary caretaker during the marriage. However, the parent who has been the primary caretaker of the children during the marriage will not necessarily be designated by the court to be primary caretaker at the time of the divorce. In re Marriage of Burkle, 525 N.W.2d 439, 441 (Iowa Ct. App. 1994). More important there is Jeffrey's ability to provide Lief with stability. Although Lief spent the first five years of his life in California, he has lived in Iowa the last five years. Lief has attended the same school in the Allamakee Community School District since enrolling in kindergarten. Lief is performing above average academically and has fostered friendships with his peers. Lief has also been involved in a great deal of extracurricular activities in Waukon. Lief's paternal grandparent's reside in Waukon, as well as his great uncle.
The testimony presented at trial portrays Jeffrey as a hard-working, competent, caring father. Those who had observed both Lisa and Jeffrey with Lief testified Jeffrey was more patient with the child. Apart from Lisa, no witnesses testified regarding any concerns about Jeffrey's ability to parent Lief. Furthermore, Lisa's action of placing Lief on a plane to California after the dissolution petition was filed indicates an unwillingness to support a relationship between Lief and his father. We find no error in granting Jeffrey primary care of Lief.
IV. Child Support.
Lisa contends the district court erred in ordering her to pay $159 in child support per month. She contends that under the child support guidelines, her child support should be $50 per month, assuming her salary is $7068, her salary for 2001.
Although she did not have employment at the time of trial, Lisa testified she could earn between $7.50 and $10 per hour as a florist. Additionally, Lisa was awarded $400 per month in alimony for twenty-four months. In the child support guidelines worksheet, the district court set Lisa's income at $14,560. We find no error in so doing. Accordingly, we affirm the district court's order requiring Lisa to pay $159 per month in child support.
V. Appellate Attorney Fees.
Finally, the parties request an award of appellate attorney fees. An award of attorney fees rests within the court's sound discretion and the parties' ability to pay. In re Marriage of Mrkvicka, 496 N.W.2d 259, 262 (Iowa Ct. App. 1992). We decline to award either party appellate attorney fees.