Opinion
No. 3-064 / 02-1294
Filed March 26, 2003
Appeal from the Iowa District Court for Carroll County, Joel E. Swanson, Judge.
Appellant Roger Doty appeals the district court's ruling awarding primary physical care of the children to Amy Doty and the requirement to pay Amy's attorney fees. AFFIRMED.
Matthew Boles and Jane White of Parrish, Kruidenier, Moss, Dunn, Boles Gribble Cook, L.L.P., Des Moines, for appellant.
A. Eric Neu of Neu, Minnich, Comito Neu, P.C., Carroll, for appellee.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
This is a child custody dispute. Appellant Roger Doty and Appellee Amy Doty have two children: Regina, born on October 28, 1994, and Reno, born on January 1, 1997. The principal issue on this appeal is whether the district court should have awarded primary physical care of the children to Amy. Roger also contends he should not have been required to pay fees for Amy's attorney. We affirm.
We review de novo. Iowa R.App.P. 6.4 ; In re Marriage of Riggert, 537 N.W.2d 789, 791 (Iowa Ct.App. 1995); In re Marriage of Harris, 499 N.W.2d 329, 330 (Iowa Ct.App. 1993).
The parties were married on May 8, 2001. Before their son's birth and during their marriage until January of 2002 when Amy moved to her father's home, Roger and Amy lived with his parents. Amy attended school, and at the time of the dissolution she was working in a nursing home. She has earned a degree as a Licensed Practical Nurse (LPN). Roger, at the time of the hearing, was working at a packing plant in Perry. Amy had an apartment in Glidden. Roger was remodeling a house near his parents and had established a relationship with a woman who (1) was incarcerated for drug-related offenses, (2) was on probation, and (3) had three children whom the juvenile court removed from her care.
Roger contends he should have been awarded primary physical care because he provided the majority of the care for the children. He also contends he should have a new trial because he was not aware that Amy's attorney represented his girlfriend's children in the juvenile court proceeding that resulted in their removal from her care. Roger contends that as a result of this representation Amy's attorney learned about the charges against his girlfriend, that she had been in prison, and that her children were removed from her care. Roger contends this information would not have been available to him and this was newly discovered evidence. Amy contends that while Roger may not have known her attorney represented the children, he knew the information about his girlfriend. She also contends that the arguments he now makes were not made in the posttrial motion.
The district court, in awarding Amy primary physical care, determined there was little testimony that Roger supported Amy or his two children. It determined Roger's parents provided the majority of the support for the couple and their children, including providing financial support as well as caring for the children.
The court also found that both Roger and Amy had abused illegal substances in the past. Amy testified she no longer uses drugs, and the urinalysis she underwent as part of her employment was negative.
The question is always which parent will do the better job of raising the children. In re Marriage of Crotty, 584 N.W.2d 714, 717 (Iowa Ct.App. 1998); In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App. 1991). We look to the factors set forthin In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses. Iowa R.App.P. 6.14(6)( g). Yet, we are not bound by these determinations. Id. We base our decision primarily on the particular circumstances of the parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). The interests of these children are the primary consideration. Crotty, 584 N.W.2d at 717. We give consideration to each parent's role in child-raising prior to a separation in fixing primary physical care. See In re Marriage of Love, 511 N.W.2d 648, 650 (Iowa Ct.App. 1993); In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct.App. 1992). Though we do not award custody based on hours of service for past care, we attempt to determine which parent will in the future provide an environment where the child is most likely to thrive. In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993).
The couple lived with Roger's parents until January of 2002. Prior to that time it is fair to say that Roger's mother assumed the major responsibilities for childcare and housekeeping, and Roger's parents assumed the major part of the responsibility for the parties' physical and financial well-being. Roger and Amy accepted their help and did not seek to establish their own home. Roger and Amy both took advantage of their generosity and childcare assistance. Amy's return to school to obtain further education was softened considerably by having her financial needs met by Roger's parents. She became an LPN, and at the time of the dissolution hearing was employed in that capacity at an area nursing home. Roger did not finish high school. He had been working in the packing industry for about three weeks prior to the dissolution hearing.
Both parties have now established their own homes. Roger's home is close to his parents' in Coon Rapids, and one would assume if he were granted physical care he would continue to rely on them for childcare. He continues to rely on them for financial assistance, and the fact they would continue to have a presence in the children's life is a factor in favor of Roger's being awarded primary physical care. However, our inquiry does not stop there. We also look at relationships established by parents with people who will have an influence on the children's lives.
Before addressing this issue we look at Roger's next contention that the court should have granted a new trial because Eric Neu, Amy's attorney, had represented the children of Roger's live-in girlfriend in juvenile court, and consequently he had information concerning the girlfriend which was not available to Roger and his attorney.
Amy argues that Roger knew his girlfriend had been in prison, was on probation, and had had her three children removed from her custody by the juvenile court. Amy argues that while Roger may not have been aware of the representation, he was aware of the facts about his girlfriend. She also contends that the arguments now made were not raised on appeal.
To have a new trial as the result of newly discovered evidence one must demonstrate three things:
(1) the evidence is newly discovered and could not, in the exercise of due diligence, have been discovered prior to the conclusion of the trial;
(2) the evidence is material and not merely cumulative or impeaching; and
(3) the evidence will probably change the result if a new trial is granted.
Tullis v. Merrill, 584 N.W.2d 236, 242 (Iowa 1998); Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995).
Roger knew, or as a responsible parent, should have inquired to learn what his girlfriend's background was and whether she would be a proper person to be involved with his children's care. The type of friends and caregivers that a parent exposes his children to is a factor that is important in assessing whether that parent should be awarded custody. We consider the unfavorable evidence concerning Roger's girlfriend. The fact that it came out at trial does not justify a new trial because Roger, in the exercise of due diligence, had an obligation to discover this evidence. From Roger's testimony it would appear he probably was aware of these facts. We consequently deny his motion for new trial and consider the case on the evidence before us.
Amy has established her home near Glidden. She has bettered herself. We find no reason to disagree with the district court's decision to award her physical care.
Roger also contends that the district court should not have awarded Amy trial attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Miller, 532 N.W.2d 160, 163 (Iowa Ct.App. 1995). The court should make an attorney fee award which is fair and reasonable in light of the parties' financial positions. Id. To overturn an award, the complaining party must show the trial court abused its discretion. In re Marriage of Gonzalez, 561 N.W.2d 94, 99 (Iowa Ct.App. 1997). In deciding whether to award attorney fees on appeal, the court considers "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 Starcevic, 522 N.W.2d 855, 857 (Iowa Ct.App. 1994). The district court did not abuse its discretion in awarding attorney fees.