Opinion
No. 3-691 / 03-0410
Filed October 29, 2003
Appeal from the Iowa District Court forPolk County, Scott D. Rosenberg, Judge.
Wendy Walker n/k/a Wendy Meinhold appeals the district court's decree dissolving the parties' marriage. AFFIRMED AS MODIFIED.
Becky Knutson of Davis, Brown, Koehn, Shors Roberts, Des Moines, for appellant.
Debra Hockett Clark, Des Moines, for appellee.
Heard by Mahan, P.J., Eisenhauer, J., and Hendrickson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Wendy Walker n/k/a Wendy Meinhold appeals the district court's decree dissolving the parties' marriage. She contends the district court erred when it: (1) awarded primary care of the parties' minor child to John; (2) failed to make an equitable distribution of the parties' property; and (3) ordered her to pay $3000 toward John's trial attorney fees. Wendy alternatively argues the district court should have awarded her six weeks of summer visitation. John requests appellate attorney fees. We affirm as modified.
Background Facts and Proceedings. Wendy and John were married on November 29, 1997. They are the biological parents of Camryn, born March 6, 1999. The couple met following Wendy's graduation from pharmacy school while she was completing an internship at Osco Drug and John was working there as a warehouse clerk. Soon after the couple married, they mutually decided John would quit work and go to school full-time. After Camryn was born, the parties further agreed that John would stay at home with her and Wendy would continue to work full-time outside the home.
At the time of the dissolution hearing, Wendy was twenty-eight years old, and John was thirty-one years old. Currently, Wendy is employed by Mercy Hospital in Des Moines, Iowa, as a pharmacist, and she earns approximately $4007 per month. John presently works at the Women's Correctional Facility in Mitchellville, Iowa, and he earns approximately $2043.75 per month. Wendy filed a petition for dissolution in January 2002. Shortly thereafter Wendy moved out of the marital home and began residing with Brett Harris. Brett is thirty years old and is a member of the United States Navy. He presently is assigned and stationed in Des Moines until August of 2005 with an option to stay here.
A decree of dissolution of marriage was granted on October 29, 2002. Wendy and John were awarded joint legal custody of the parties' minor child with primary care granted to John. In making its decision, the district court stated:
In looking at the evidence in this case, the Court finds that the attributes necessary for a joint physical care arrangement are not present. The communication lines between Petitioner and the Respondent are not good. Indeed, the Respondent was not even aware of the Petitioner's home address, phone number and business phone number. All he had was the Petitioner's cell phone number. The Petitioner has attempted to paint a picture of the Respondent as a totally inadequate parent, who has contributed nothing to the development, health, and welfare of their child. She has even resorted to depicting the Respondent as a sexual deviant who perhaps poses some danger to Camryn. Such accusations are either blatant exaggerations of the facts or totally ignore the facts and the conclusions to be drawn therefrom.
In summary, the court finds that the Respondent is in the better position to have the primary physical care of Camryn at this time due to his demonstrated ability to not only properly care for the child but to consider the child's needs first without attempting to diminish or demean the relationship of the Petitioner with Camryn. That is not to say that the Petitioner is not a good parent. On the contrary, the court finds that the Petitioner is a very loving parent who has helped to stimulate the development of the child, Camryn. However, the Respondent has demonstrated a greater dedication to this effort over a longer period of time with more focus on Camryn's needs rather than on his own needs.
Wendy was ordered to pay $745.39 per month in child support. The court also ordered her to pay $200 per month in alimony for a period of one year. In addition, she was also ordered to pay John's attorney fees. On January 2, 2003, Wendy filed a motion to modify or enlarge the district court's ruling pursuant to Iowa Rule of Civil Procedure 1.904(2). The district court modified Wendy's child support obligation to $805.23 per month and reduced the amount she was required to pay toward John's attorney fees to $3000. Wendy appeals.
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).
Primary Care. Wendy maintains the district court erred in awarding John primary care of Camryn. Specifically, she tries to paint John as an inadequate parent who has contributed nothing to the development, health, and welfare of their child. The critical issue before us is the best interests of the child. Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct.App. 1998). This must, of necessity, be the first and governing consideration in our discussion. Id. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41 (2003); In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). This decision requires selection of a custodial parent who can minister more effectively to the long-range best interests of the child. Winter, 223 N.W.2d at 167. The objective should always be to place the child 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). Each custody decision is based on its own particular facts. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
Both parents love Camryn and are capable of providing a good home. However, we conclude the district court properly awarded John primary care of Camryn. After an extensive review of the testimony presented at trial, the district court found and we agree:
The evidence shows that the primary caretaker of the child from the time of her birth has been the Respondent. Although the Petitioner attempted at trial to show that the care given by the Respondent to the parties' child has been deficient, the evidence is quite clear that the care given by the Respondent to Camryn has been more than adequate. . . .
The evidence further shows that the Petitioner has gone to great lengths to paint the Respondent as an inadequate parent and has also accused the Respondent explicitly and implicitly of such things as being a sexual deviant, violent, lazy, and mentally incapacitated due to his obsessive compulsive disorder. This court finds that the evidence is far from Petitioner's assessment. Rather, the evidence shows the Respondent to be an excellent father who very much has the needs of his child first and foremost in his mind before even his own needs.
Although the Petitioner has made many accusations as to the Respondent and his parenting abilities, the fact remains that most of these observations cannot be supported by any facts or personal knowledge on behalf of the Petitioner or any other person. The Petitioner is an extremely intelligent, hardworking, dependable person. However, it appears that most of the daily task of parenting has fallen to the Respondent.
The Petitioner even suggests that the parties child, Camryn, has learned to engage in obsessive-compulsive behavior from being around the Respondent too much. The evidence suggests that obsessive-compulsive behavior cannot be learned. It may be mimicked. But one cannot obtain obsessive-compulsive disorder from being in the presence of another person who has that malady.
In addition, John is more likely to assure Camryn will have an ongoing relationship with Wendy. In contrast, Wendy has not always shown a willingness to support John's relationship with Camryn. Wendy has not always informed John of Camyrn's activities, location of day care, and she has also failed to provide him with basic information such as her address, home phone number and business phone number.
Wendy also claims the district court should have disregarded the child custody evaluation prepared by Dr. Lopez-Dawson because it was biased and logically incoherent. In support of her argument, Wendy points out that Dr. Lopez-Dawson spent more time interviewing John. As the district court concluded, we find Wendy's accusation to be unsupported by the evidence in the record. Although Dr. Lopez-Dawson did spend more time with John during the initial interview, this does not rise to the level of bias. On cross-examination, Wendy even admitted that she had enough time with the evaluator. Further, we note Dr. Lopez-Dawson asked both parties: "is there anything else you need me to do? Anything else that you . . . any other procedures that you think that I need to conduct? Have I been thorough?" Wendy never requested additional time with the doctor or any additional procedures. She also gave the doctor a written statement that indicated she felt she was fair and thorough.
Wendy also raises several other complaints about Dr. Lopez-Dawson's evaluation. After carefully reviewing the record and Dr. Lopez-Dawson's evaluation, we find Wendy's claims to be without merit. Consequently, we find the district court properly considered the evaluation in making its custody decision.
Therefore, we conclude John will provide the environment most likely to bring Camryn to a healthy, physical, mental, and social maturity. Camryn's best interests are served by granting physical care to John. Accordingly, we affirm the district court on this issue.
Visitation. Alternatively , Wendy argues the district court should have awarded her six weeks of summer visitation with Camryn instead of three weeks. We agree. In establishing visitation rights, our governing consideration is the best interests of the child. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). In this regard, we have stated that, generally, liberal visitation rights are in the child's best interest. Id. Accordingly, we find the visitation should be modified to assure Camryn the opportunity for maximum continuing physical contact with both parents. Page ten of the dissolution decree should be modified as follows:
3. Petitioner shall have six weeks of uninterrupted summer vacation provided Petitioner gives notice to Respondent no later than May 1 immediately preceding. After three weeks of uninterrupted visitation, Respondent shall have an intervening weekend with the child on the same hours as set forth for Respondent in subparagraph 1 of the decree.Property Division. Wendy contends the property division was inequitable to her. She claims the court erred when it ordered her to pay seventy-five percent of the parties' marital debt. The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). Equitable distribution does not necessarily mean an equal division of property, nor does it mean a percentage division of the property. Id. In making this assessment, we consider the factors set forth in Iowa Code section 598.21. The determining factor is what is fair and equitable in each circumstance. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). With these principles in mind, we find the district court's distribution to be fair and equitable due to the disparity in income between the parties and the noneconomic contribution made to the marriage by John.
Trial Attorney Fees. Wendy contends the district court erred when it ordered her to pay $3000 toward John's trial attorney fees. A party does not have a right to an award of attorney fees; rather the district court uses its discretion to determine whether an award is appropriate. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). "Whether attorney fees should be awarded depends on the respective abilities of the parties to pay the fees and the fees must be fair and reasonable." In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct.App. 1997). After carefully reviewing the record, we conclude the district court did not abuse its discretion in ordering Wendy to pay $3000 toward John's attorney fees.
Appellate Attorney Fees. John seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the discretion of the court. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999). "We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court's decision on appeal." In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). We deny John's request for appellate attorney fees.
Costs on appeal shall be split evenly between the parties.