Opinion
No. 2-177 / 01-0227
Filed January 15, 2003
Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.
Sandra Brown appeals from the custodial and economic provisions of the parties' dissolution decree. AFFIRMED.
John M. Maher of John Maher Law Firm, P.L.C., Cedar Rapids, for appellant.
Gary J. Shea of Shea Law Offices, Cedar Rapids, for appellee.
Heard by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Sandra Brown appeals from the custodial and economic provisions of the parties' dissolution decree. She contends (1) the trial court erred in awarding Kevin Brown physical care of their two daughters, and (2) the trial court failed to correctly apply contract law to the parties' prenuptial agreement and engaged in construing the contract when there were no ambiguous terms to construe. We affirm.
I. BACKGROUND FACTS.
Kevin and Sandra Brown were married on March 23, 1996. They had lived together since October 1994. Sandra has three biological children, Jonathan, born February 25, 1985, Amanda, born December 5, 1989, and Kathleen, born December 16, 1996. Kathleen is the biological daughter of Kevin. Jonathan and Amanda have two different fathers. Kevin adopted Jonathan and Amanda on June 23, 1998. Approximately two weeks prior to the marriage, the parties entered into a prenuptial agreement.
Sandra moved out of the marital home in Mount Vernon with all three children in May 2000. They moved into a two-bedroom apartment in Cedar Rapids. Sandra drove the children to Kevin's home, where the children got ready for school. Kevin saw the children off to daycare and school, and then they returned to his home after school. Sandra would then pick them up and return them to her apartment.
Kevin filed a dissolution petition on May 18, 2000. He requested physical care of all three children. The district court awarded physical care of Jonathan to Sandra and physical care of Amanda and Kathleen to Kevin. It determined that the overall intent of the prenuptial agreement was that any property acquired by either Kevin or Sandra was to be considered separate, nonmarital property unless the parties otherwise designated it as joint property. It concluded that Sandra could not benefit from any increase in the value of Kevin's real estate, or his 401(k) or pension plans, which resulted from improvements and contributions made during the parties' four-year marriage. Sandra appeals. Kevin requests appellate attorney fees.
II. SCOPE OF REVIEW.
In this equity case our review is de novo. Iowa R.App.P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). 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. Iowa R.App.P. 6.14(6)( g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
III. PHYSICAL CARE.
Sandra contends the trial court erred in awarding Kevin physical care of Amanda and Kathleen. She argues the court failed to give appropriate weight to her stronger qualifications, greater experience, and stronger motivation in caring for the children, as shown by her history. She asserts the court failed to give proper consideration to the strong bond between Jonathan and his sisters.
Siblings should not be separated without good and compelling reasons. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994). Split physical care is generally opposed because it deprives the children of the benefit of constant association with one another. Will, 489 N.W.2d at 398. Siblings should not be denied this benefit except when their best interests require it. In re Marriage of Wahl, 246 N.W.2d 268, 270 (Iowa 1976). All factors bear upon the "first and governing consideration" as to what will be in the best long-term interest of the child. Will, 489 N.W.2d at 398.
We conclude that the split physical care arrangement here is in the best interests of all the children. The trial court noted that if not for Kevin's problems with Jonathan, this case would be easy and all the children would be with Kevin. We determine that primary care of Amanda and Kathleen should be with Kevin. Jonathan is older and has a poor relationship with Kevin. He will not be in the family home much longer, and thus it is less detrimental that he is separated from his siblings. Kevin's home is more adequate for the children. The girls will be able to remain in the same school system. Furthermore, Kevin has a strong network of people that he can rely on for support.
Sandra, on the other hand, has a history of questionable relationships. Jonathan's and Amanda's fathers have been involved in significant criminal offenses. Sandra is not a good role model for the children. As the marital relationship with Kevin deteriorated, Sandra reverted to putting her own interests ahead of the children. She stayed out late, or even all night, while Kevin cared for the children. She was involved in relationships with two other men while still married. One boyfriend stayed overnight at her apartment while the children were with her. The girls also stayed overnight with her at her boyfriend's house while he was present. Her history, both old and more recent, shows her lack of judgment and poor choices.
We conclude it is in the girls' best interests that Kevin be awarded physical care of them, and we find it is in Jonathan's best interests that Sandra be awarded physical care of him. We affirm the trial court on this issue.
IV. PRENUPTIAL AGREEMENT.
Sandra contends that the district court failed to apply appropriate principles of contract law to the interpretation of the prenuptial agreement. She argues the court improperly engaged in construing the agreement when there were no ambiguous terms to construe.
Prenuptial agreements are to be construed liberally to carry out the parties' intent. In re Marriage of Gonzalez, 561 N.W.2d 94, 96 (Iowa Ct.App. 1997). They are to be construed in the same manner as ordinary contracts. Id. Where, as here, the dispute centers on determining the legal effect of contractual terms, we engage in the process of construction, rather than interpretation. See Fausel v. JRJ Enters., Inc., 603 N.W.2d 612, 618 (Iowa 1999). "In the construction of written contracts, the cardinal principle is that the intent of the parties must control; and except in cases of ambiguity, this is determined by what the contract itself says." Iowa R.App.P. 6.14(6)( n).
The parties entered into a prenuptial agreement approximately two weeks prior to their marriage. Kevin's attorney drafted the agreement, and Sandra consulted with an attorney prior to signing it. The parties spoke of the agreement prior to signing it. Sandra has focused her argument on paragraph nine in the agreement, which states as follows:
In the event that the marital relationship is terminated by death or by legal proceedings, neither party to this Prenuptial Agreement shall make any claim of any kind or nature against the other party or against his or her estate. All income or increment resulting from or attributable to the separate property of each party shall be and remain the separate property of such party, unless such income or increment is placed in joint tenancy ownership, in which latter event the legal rights of each party in and to such jointly owned property shall be governed by the law of Iowa pertaining to joint ownership property.
She argues that the court erred in construing this paragraph. She seeks an additional property award of over $28,000, as a result of contributions by Kevin and his employer to retirement plans and Kevin's improvement of his real estate.
We disagree with Sandra's narrow focus on paragraph nine in her various contentions of trial court error. There are other paragraphs that are also helpful in determining the parties' intent. Paragraph four provides as follows:
Paragraph one contains the same provision pertaining to Sandra's rights to her present and future property.
KEVIN E. BROWN shall have full right and authority in all respects, the same as he would have if unmarried, to own, use, enjoy, manage, convey, mortgage, sell and dispose of all his present and future property and estate, of every kind and character, including the right and power to dispose of his property and estate by his Last Will and Testament.
Paragraph five provides as follows:
Paragraph two contains the same provision pertaining to Sandra's property.
SANDY J. BRADLEY releases to KEVIN E. BROWN and to his heirs and legal representatives all claim, right and interest, actual, inchoate, or contingent that she might have in respect to such property by reason of her marriage to KEVIN E. BROWN.
Paragraph seven provides as follows:
Each of the parties shall have the full right to own, control and dispose of his or her separate property the same as if the marital relationship did not exist, and each of the parties is to have the full right to dispose of and sell any and all real or personal property now or hereafter owned by either of them, without the other party joining, and a transfer by either of the parties shall convey the same title that the transfer would convey had the marital relationship not existed.
These paragraphs indicate that the intent of the parties was for each of them to maintain separate property, both that which existed at the time of the marriage and that which was acquired thereafter. Consistent with this intent the parties assumed responsibility for separate debts and expenses, maintained separate checking accounts, and placed no income or assets in joint tenancy ownership. The ownership of their separate property is discernable by the names in which it is held. We note that the three property items Sandra seeks part of are and always have been held in Kevin's name alone, two of them since before the parties' marriage. It has not been designated as joint property. Thus, the parties' intent, as set forth in their prenuptial agreement, is for Kevin to receive this property in the event of divorce. Sandra has no interest in it pursuant to the terms of the prenuptial agreement.
We affirm the trial court on this issue.
V. APPELLATE ATTORNEY FEES.
Kevin seeks an award of appellate attorney fees. We 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 trial court's decision on appeal. In re Marriage of Cooper, 524 N.W.2d 204, 207 (Iowa Ct.App. 1994). Considering these factors, we award Kevin $1000 in appellate attorney fees.
VI. CONCLUSION.
We conclude that Kevin was properly awarded physical care of Amanda and Kathleen, and that Sandra was properly awarded physical care of Jonathan. We determine that Sandra has no interest in Kevin's real estate and pension plans pursuant to the terms of the prenuptial agreement. We award Kevin $1000 in appellate attorney fees. We affirm the trial court's ruling.