Opinion
No. 2-936 / 02-0865
Filed March 26, 2003
Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.
A father appeals from the portion of a dissolution decree that awarded physical care of the parties' child to the mother. AFFIRMED.
Andrew B. Howie of Hudson, Mullaney Schindler, P.C., Des Moines, for appellant.
Richard N. Tompkins, Jr., Mason City, for appellee.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
James Christopher Best (Chris) appeals the physical care provision of the decree dissolving his marriage to Erdie Lynn Calvert Best (Lynn), which awarded Lynn the care of the couple's child, Elizabeth. We affirm.
Background Facts and Proceedings . Chris and Lynn became romantically involved in 1992 or 1993, when both lived in South Carolina. Lynn had three sons from a previous marriage: Jason, born in 1979, John, born in 1982, and Jeffrey, born in 1987. In September 1993 Chris, Lynn and her sons moved to Florida. Chris and Lynn's daughter, Elizabeth, was born November 7, 1994. Just after Elizabeth's first birthday, Chris and Lynn separated, and Lynn and the children moved to Texas. Chris followed approximately ten months later, in late 1996. On March 23, 1997 the couple married. The family returned to Florida in 1999, and then, with the exception of Jason, moved to Iowa in 2000.
In March 2001 Chris and Lynn separated for the final time, and Chris filed a petition for dissolution of the marriage in July 2001. He requested the court award Elizabeth's temporary and permanent physical care to Lynn, and sought liberal visitation. On August 14, 2001, the court entered a temporary custody order. Although Lynn had argued Chris's alleged history of abuse and violence warranted that she receive sole temporary custody and physical care, and that Chris's visitation be supervised, the court awarded temporary joint custody, giving Lynn temporary physical care, and directing that Chris have specified, unsupervised visitation.
The next day, August 15, Lynn was offered a job in Texas, which would allow her to be near her mother, brother, and two oldest sons. She accepted the job several days later, and prepared to move to Texas with Elizabeth and Jeffrey during the weekend of September 1, 2001. Chris was not informed of the move, however, until August 31. According to Lynn's attorney, the last minute notice was an attempt to address his client's concerns about how Chris might react when he discovered Lynn and Elizabeth were moving back to Texas.
Lynn did move, and Chris was unable to exercise his visitation with Elizabeth on Sunday, September 2, 2001. He then filed a contempt application, alleging violation of the temporary custody order. Emphasizing Lynn's concerns about Chris's reaction to the move, the district court found Chris had failed to establish beyond a reasonable doubt that Lynn acted in willful violation of the order's visitation provisions. Chris then obtained leave to amend his petition, and requested that he be awarded Elizabeth's physical care.
By the time of the April 2002 final hearing, Elizabeth was seven years old. On the primary issue of physical care, each party offered evidence stressing his or her own positive qualities, while pointing out the faults of the other. Each blamed the other for Chris's limited contact with Elizabeth following the separation. Lynn's evidence, however, placed less emphasis on her own parental abilities than on her characterization of Chris as a violent and controlling husband and father.
Chris's primary independent witness was Dr. Mark Peltan, who had performed a custody evaluation involving Chris, Lynn and Elizabeth. Dr. Peltan made the "reluctant" recommendation that Chris be awarded physical care. His recommendation was principally based on a concern that Lynn might try to interfere with Chris and Elizabeth's relationship. Dr. Peltan concluded, however, that "[n]obody looks to be totally healthy. . . ." He noted Chris's tendency towards "mood lability," which he defined, in Chris's case, as difficulty in expressing, acknowledging and managing anger, with a tendency towards irritability and temper outbursts. He also observed indications of a controlling personality in Chris. Finally, he cautioned that Elizabeth would suffer "some trauma" if moved back into her father's care, given that the child's attachment to Lynn was "understandably powerful."
The district court found both Lynn and Chris clearly loved their daughter and had good intentions about any future parenting, but concluded neither had "established themselves to be a superior caretaker candidate." It noted Chris and Lynn were in similar financial positions, and that neither party's present living arrangement was ideal. Although Lynn was renting a three bedroom house, Elizabeth had been relegated to sleeping on the couch. Lynn's brother, who had been injured in a car accident, was convalescing in Elizabeth's bed. Lynn's mother had also moved into the home, in order to care for her son. While Chris lived alone, he rented an efficiency apartment. Consequently, during visits Elizabeth slept on a pull-out sofa bed and Chris slept on the floor.
Finding it was faced with parties of comparable parenting skills, the court relied on the preference of keeping siblings together. Determining there was no good and compelling reason to separate Elizabeth from her brother, it awarded Lynn physical care. However, the court strongly cautioned Lynn that unless her mother and brother vacated the house, and unless she began encouraging and fostering Chris and Elizabeth's relationship, modification of the decree might be appropriate. Chris appeals. He asserts Lynn's inability to advance his relationship with Elizabeth and Dr. Peltan's evaluation constitute good and compelling reasons for separating Elizabeth and Jeffrey.
Scope of Review . We conduct a de novo review of physical care awards. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Our overriding consideration is the child's best interests. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We defer to, but are not bound by, the district court's factual findings and credibility assessments. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997).
Physical Care . In determining which parent should be granted physical care, we consider 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. In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The goal of the courts is to select the environment most likely to cultivate a physically, mentally and socially healthy child. Murphy, 592 N.W.2d at 683. Because we have a stated preference for keeping siblings together, children, whether full or half-siblings, should not be separated absent a good and compelling reason. In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993).
Upon review, we agree with the district court's physical care award. Chris and Lynn offer roughly the same financial stability, and both clearly love and have demonstrated an ability to parent their child. However, placement with Lynn provides several advantages that placement with Chris does not.
While neither party's home offered Elizabeth an ideal physical environment at the time of trial, the presence of Lynn's brother and mother appeared to be a temporary situation stemming from the brother's convalescence. Once they vacated the home, Elizabeth would again have her own room. In contrast, Chris's living situation was clearly inadequate, and he had made no concrete arrangements to obtain a larger dwelling.
Lynn also seems better equipped to meet Elizabeth's daily needs. From the limited record it appears Lynn has substantially more experience in providing Elizabeth's care, and it was she who undertook sole responsibility for that care during the couple's lengthy 1996 separation. Lynn also has more general parenting experience than does Chris. She has successfully raised two adult sons, and Jeffrey is doing well since the move to Texas.
Significantly, Lynn can offer Elizabeth an extended family structure. Elizabeth will be close to her brother John, with whom she shares a good relationship despite their age difference, her grandmother, and her brother Jason. Elizabeth also shares a close relationship with Jeffrey. If Elizabeth were placed with Chris, she would be deprived of her maternal relatives, and be no closer to her paternal grandparents, who live in Florida.
While Chris attacks Jeffrey's role in Elizabeth's life as that of a "pseudo-parent," it appears Jeffrey is doing little more than that which is often expected of a fourteen-year-old older brother. Because Lynn's job typically requires her to work 5:00 a.m. to 3:00 p.m., Jeffrey wakes his little sister and accompanies her the short distance to and from the school. As an outgrowth of an in-school mentor program, he also helps Elizabeth with her reading. We view Jeffrey's role in Elizabeth's life not as an abandonment by Lynn of her parental reponsibilities, but a benefit of awarding Lynn physical care. Although Chris also begins work before 6:00 a.m., and works until early to mid-evening, he has no mechanism in place to similarly facilitate Elizabeth's arrival at and return from school each day.
Separating Elizabeth from Jeffrey is justified only if it promotes her long-term best interests. In re Marriage of Harris, 530 N.W.2d 473, 474 (Iowa Ct.App. 1995). Based on the foregoing evidence, it would seem Elizabeth's long-term interests would be better served in her mother's care. Chris nevertheless argues separation of the siblings is justified, given Lynn's history of interfering in his relationship with Elizabeth, and her tendency to exaggerate and shade the truth.
We agree Lynn has done an inadequate job of fostering Chris and Elizabeth's relationship. It is clear she bears animosity towards the Chris, and has a poor track record of communicating and cooperating for Elizabeth's sake. However, without minimizing or condoning Lynn's past behavior, we find she has been more compliant than Chris would have us believe. We also note Dr. Peltan's assessment of Lynn, where he found she was "making efforts to develop healthier relationships and problem solving styles." In addition, while Lynn appears to have exaggerated the incidents of physical and emotional abuse, Chris does have anger and control issues, and bears partial responsibility for the animosity and lack of cooperation between the parties.
Any failure by Lynn to foster Chris and Elizabeth's relationship is a significant factor for our consideration. In re Marriage of Barry, 588 N.W.2d 711, 713 (Iowa Ct.App. 1998). However, it does not dictate that physical care be placed with Chris. See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct.App. 1998) (noting that in making a physical care determination, "[s]ome factors are given greater weight than others, and the weight ultimately assigned to each factor depends on the particular facts of each case"). The ultimate question is always which parent will do the better job in raising the child. In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct.App. 1998).
As is often the case, deciding between these two parents is not an easy task. Placement in each home has merit, and neither environment is clearly superior to the other. However, given Lynn's greater parenting experience, and her ability to provide Elizabeth with an extended family structure, we agree with the district court that Elizabeth's long-range interests are best served by being placed, with her brother, in her mother's care.
Nevertheless, we have long recognized a child's need to maintain meaningful relations with both parents. In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984). Such contact is of primary importance. See Iowa Code § 598.1(1) (2001) (defining best interests as including "the opportunity for maximum continuous physical and emotional contact possible with both parents"). We therefore join the district court in advising Lynn to foster and advance Chris and Elizabeth's relationship.
AFFIRMED. Eisenhauer, J. concurs, Sackett, C.J. dissents.
I dissent. Both parents have strengths and weaknesses. They each are a satisfactory parent for Elizabeth. Lynn's deceptive behavior with reference to James' chance to exercise visitation with his daughter convinces me that should Lynn retain primary physical care James will basically be foreclosed from being a part of Elizabeth's life. To place Elizabeth with James will assure that she retains ties to both of her parents. Consequently I would modify to name James primary physical custodian.