Opinion
No. 2-045 / 01-1446
Filed February 20, 2002
Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.
Landry Dale appeals the district court decree granting physical care of the parties' minor child to Marcia Dale. AFFIRMED AS MODIFIED AND REMANDED.
Aaron Murphy, of McKinley, Folkers, Walk Murphy, Osage, for appellant.
John Bjornstad, of Bjornstad Law Office, Spirit Lake, for appellee.
Considered by Mahan, P.J., and Miller and Hecht, JJ.
Landry Dale appeals the district court decree granting physical care of the parties' minor child to Marcia Dale. Marcia requests an award of appellate attorney fees. We affirm as modified and remand.
Background Facts and Proceedings . Marcia and Landry were married on May 31, 1997. They are the parents of Joseph Dale (Joey) who was born on November 5, 1997. Marcia filed a petition for dissolution of marriage on August 22, 2000. The matter proceeded to trial on February 22, 2001. The district court entered its decree on August 14, 2001. Under the terms of the decree, Marcia was granted physical care of Joey subject to visitation by Landry. Landry appeals.
Standard of Review . We review actions tried in equity de novo. Iowa R. App. P. 4. We give weight to the findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 14(f)(7). When determining who should be the physical caregiver for a child, we seek to place the child in the environment most likely to bring him to healthy physical, mental, and social maturity. In re Marriage of Bartlett, 427 N.W.2d 876, 877 (Iowa Ct. App. 1988). As in any custody determination, our primary consideration is the best interest of the child. Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct. App. 1998).
Physical Care . The district court granted physical care of Joey to Marcia. The court stated that this was a close case and acknowledged that Landry and Marcia were "equally well qualified" to care for Joey. However, the district court found the determining factors weighing in Marcia's favor:
are the fact that Marcia has been the primary caretaker of Joey to this point in his life, as well as the fact the court has serious concerns about Landry being able to divide his time and attention between his job and providing care for Joey.
We disagree with this finding. First of all, the record does not leave us with any major concerns about Landry's ability to balance his time and attention between Joey and his employment. The district court notes that Landry's employer will work with him to modify his employment schedule. Secondly, this finding fails to take into consideration the extensive caregiver role that Landry exercised during the year leading up to the trial. For approximately eighteen to twenty weekends during the first half of the year 2000 Landry was Joey's primary caregiver. During these weekends, Marcia left on Friday afternoon and returned Sunday evening. Although some of this time was devoted to job training, it is clear that much of it also involved pursuing her relationship with Lane Schindler. The district court acknowledged that, on a number of these occasions, Marcia "failed to provide information concerning her whereabouts, and also failed to ever contact Landry to see how Joey was doing." More specifically, the record indicates that Marcia made no attempt to contact Joey over the July 4, 2000 weekend. In addition, she only called Landry once during a two-week visitation in August 2000. This contact came only after Landry e-mailed her requesting that she make contact. Thus, we conclude that the district court's heavy reliance on the fact that Marcia has been the primary caregiver is not justified under the record.
The record in this case provides additional concerns regarding Marcia's ability to assume physical care. At the time of trial, the relationship between Marcia and Lane Schindler progressed to the point where Schindler moved in with Marcia and Joey. Schindler has several convictions for both assault and domestic abuse assault. He was convicted of serious assault on March 4, 1987. On February 9, 1988, he was convicted of assault causing serious bodily injury. A conviction for assault causing bodily injury followed on April 10, 1992. Finally, he was recently convicted of two counts of domestic abuse assault on August 25, 1998. The record is clear that Schindler has served jail time and was ordered to attend a batterer's program. The 1998 incident involved an assault on his former girlfriend eight months after a breakup. Schindler stated he assaulted her because she attempted to walk away from him before he was done yelling at her.
It is clear from the record that Schindler's presence in the home is also a concern for parents who have children receiving daycare from Marcia. In addressing all of these concerns, the district court stated:
Since his convictions for domestic assault in 1998, Mr. Schindler has had no further arrests or convictions. He testified that he learned to better control his anger and has learned when to walk away from an argument. While Mr. Schindler's demeanor on the witness stand left the court with reservations as to whether he has indeed changed his ways, nonetheless there is nothing in the record to suggest otherwise.
The district court also noted Marcia's receipt of hardcore pornography from her friends as a factor to consider in making a placement determination in this case. However, the district court downplayed this evidence because Marcia testified she had stopped receiving pornography and for the additional reason that Joey was never placed in danger by these activities. We have reviewed the record and find receipt of this pornographic material should be given "serious consideration" in determining placement. In re Marriage of Pothast, 539 N.W.2d 199, 202-03 (Iowa Ct. App. 1995). We find the receipt of this material an exercise of poor judgment and a relevant factor in determining "appropriate parenting."
Finally, the record is instructive on the issue of each parent's ability to support Joey's relationship with the other parent. Marcia's testimony includes several statements, which are of concern when making such an analysis. The ability of each parent to actively support the other parent's relationship with the child is an important factor in deciding physical care. Iowa Code § 598.41(3)(e) (1999); In re Marriage of Manson, 503 N.W.2d 427, 429 (Iowa Ct. App. 1993). Our review of the record leads us to conclude that Landry has a better understanding of the need to support the other parent's relationship with the child than does Marcia.
In making a final determination in this case the district court stated:
The court acknowledges that the decision in this case as to who should be primary caretaker for Joey is close. Both Marcia and Landry have several strengths that make them good parents. However, both parties have their faults, as do all parents. While the matters discussed above have not yet affected Joey, the court is obviously concerned about what values Marcia may instill in Joey later in life. Balanced against this concern, however, is the fact Landry is actively involved in Joey's life, and therefore can "monitor" how he is doing. Should problems later develop, a modification of the custodial arrangement may be in order.
We disagree with the district court's conclusion that the decision in this case is close. Our de novo review of the record leads us to conclude that Landry should not be required to "monitor" the placement with Marcia. The decree entered by the district court should be modified to award physical care of Joey to Landry. Such an arrangement will insure that Joey is placed in the environment most likely to bring him to healthy physical, mental and social maturity. Bartlett, 427 N.W.2d at 877.
We modify the decree previously entered by the district court to award physical care of the minor child to Landry. We remand the case to the district court for entry of further orders consistent with this decision. This remand may be decided by the district court on the basis of the record as it now stands or any additional evidence that the district court, in its discretion, may require.
Appellate Attorney Fees . An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct. App. 1997). In determining whether to award 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 decision of the trial court on appeal. Id. We deny Marcia's request for appellate attorney fees.
AFFIRMED AS MODIFIED AND REMANDED.