Opinion
No. 3-554 / 02-1174
Filed August 13, 2003
Appeal from the Iowa District Court forWarren County, David L. Christensen, Judge.
Mark Davis appeals the district court's decree dissolving the parties' marriage. AFFIRMED AS MODIFIED AND REMANDED.
Robert Benton of Stuyvesant Benton, Carlisle, for appellant.
Timothy Duffy and Jeanne Johnson, Des Moines, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Mark Davis appeals the district court's decree dissolving the parties' marriage. He contends the district court erred when it awarded physical care of the parties' minor child to Michelle Davis. Michelle requests appellate attorney fees. We affirm as modified and remand.
Background Facts and Proceedings. Mark and Michelle were married on September 7, 1991. They are the biological parents of Max, born February 15, 1993. Michelle also has two children from a previous marriage, Alex and Brooke. At the time of the dissolution hearing, Brooke was fifteen years old, and Alex was twelve years old.
Mark was forty-seven years old at the time of the dissolution hearing. He is a graduate of Des Moines Technical High School and currently works for Delavan as an electron beam welder. He earns approximately $17.29 per hour. At the time of the dissolution hearing, Michelle was thirty-five years old. She is also a high school graduate and currently works as a bartender and food server at Johnny's Italian Steakhouse. She earns approximately nine dollars per hour.
Michelle filed a petition for dissolution in November 2001. The matter proceeded to trial on April 25, 2002. The district court entered its decree on June 24, 2002. The decree awarded physical care of Max to Michelle and ordered Mark to pay $536 per month for child support. Mark was awarded the marital residence subject to a lien in favor of Michelle, and Michelle was ordered to vacate the premises. Mark appeals.
Standard of Review . We review actions tried in equity de novo. Iowa R.App.P. 6.4. After reviewing the dissolution decree, we find the district court did not set forth a statement of facts to guide us as to the reasons why Michelle was granted physical care of Max. Our duty in this case is to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage ofDieger, 584 N.W.2d 567, 568 (Iowa Ct.App. 1998).
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). In determining which parent should be granted physical care, we consider a number of factors, including the child's needs and characteristics, the parties' 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). Siblings should not be separated without good and compelling reason. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994). Siblings should not be denied the benefit of constant association except when their best interests require it. Id. Physical Care. Our de novo review of the record leads us to conclude that Max's best interest would be served by awarding Mark physical care. The most telling testimony in the record comes from two witnesses, who undisputedly were Michelle's best friends. Diana Farnum has known Michelle since they were teenagers, and the two talked on a regular basis. Diana testified about several conversations she had with Michelle regarding her staying out all night drinking and leaving Mark home with the kids. On one occasion, Michelle let Brooke spend the night at a boy's house because she was at a bar and too drunk to pick her up. It is clear from the evidence that Michelle did not know the boy or his family. Diana further stated it was common for Michelle to mix prescription pills with alcohol. In fact, Michelle drove a school bus with the kids in it after having a shot of Demerol for a migraine. When Michelle arrived home, she collapsed on the front lawn and then slept for fifteen hours. Brooke had to hold a mirror under her nose to see if she was still breathing.
Charlene Kruse was Michelle's best friend in the community, and the two talked on a daily basis. She testified Michelle drinks excessively and at times mixes prescription pills with alcohol. Charlene stated she felt Michelle put herself first before anybody else. When the two were together, Charlene would ask Michelle if she needed to get home to take care of the kids and Michelle would state that the kids "were old enough to fend for themselves and that Mark was at home to handle any problems and that she always had her cell phone if they needed to get a hold of her." She also testified that Michelle was co-director of the youth church group and she showed an R-rated movie at the youth group lock-in. Several parents were concerned about Michelle's ability to be an appropriate leader for the group and, as a result, Michelle lost her position. Charlene also stated Michelle left Max home alone on several occasions. There was also an incident in which Michelle brought Max to church when he was very ill with strep throat and left him alone in the choir room while she went to the kitchen to prepare food for the youth group. On another occasion, Max was home alone after school, and Mark had to call the sheriff to pick the child up because he was frightened.
This is one of those rare cases where the child's best interests require separation of siblings. It is clear that Michelle puts her own welfare ahead of Max's well-being. Therefore, we conclude Max should be placed with the parent most likely to foster a healthy physical, emotional, and social environment. That parent is, without a doubt, Mark. We also note for the record that Max stated a preference to live with his father because he thought his dad would take better care of him.
Accordingly, we modify the decree previously entered by the district court to award physical care of Max to Mark. We find the record insufficient to decide the issues of child support and visitation. We therefore remand the case to the district court for entry of further orders consistent with this decision.
Attorney Fees. Michelle 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 Michelle's request for appellate attorney fees.