Opinion
No. 2-533 / 02-0010
Filed October 16, 2002
Appeal from the Iowa District Court for Montgomery County, James Heckerman, Judge.
Respondent appeals from the physical care provisions of the parties' dissolution decree. AFFIRMED.
Ann Nielsen of Nielsen Nielsen, P.C., Corning, for appellant.
Craig Dreismeier of Reilly, Petersen, Hannan Dreismeier, P.L.C., Council Bluffs, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Steven Gibler appeals from the physical care provisions of the parties' dissolution decree. He also contends the trial court erred in including language in its decree pertaining to either parties' relocation outside the school district where they currently reside. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Steven and Gino began living together in 1984. They married in 1988. The parties have one child, Tyler, born in 1994. Gino has a seventeen-year-old son, Chris, from a prior relationship. Chris was residing at a juvenile home at the time of trial. The parties reside in Villisca, Iowa.
Gino did not graduate from high school but earned her GED and is currently employed at the Stanton Care Center as a licensed certified nurse assistant. She works from eleven in the evening to seven in the morning. Steven graduated from high school in New Market, Iowa and has been employed at NSK Precision Ball Company for a number of years in Clarinda. He works the day shift — seven in the morning until three in the afternoon.
Gino filed a petition for dissolution on December 29, 2000. The trial was held on September 7, 2001. Both parties sought primary physical care of Tyler. Following trial, the district court awarded the parties joint legal custody with Gino as the physical caretaker. The decree included extensive visitation rights for Steven. Steven appealed.
II. SCOPE OF REVIEW.
Dissolutions of marriage are tried in equity. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). Our standard of review is therefore de novo. Iowa R.App.P. 6.4. In such cases, "[w]e examine the entire record and adjudicate anew rights on the issues properly presented." In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998).
III. TYLER'S PHYSICAL CARE.
Steven claims he should have been granted primary physical care of Tyler. The best interest of the child dominates our consideration in child custody cases. In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct.App. 1994). Numerous factors, enumerated in Iowa Code section 598.41(3) (2001), exist to supplement the best interest standard. See also In re Marriage of Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The critical issue in determining the best interests of the child is which parent will do better in raising the child into a healthy, content, and well-adjusted young adult. See In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App. 1991).
Steven claims primary physical care with Gino will not serve Tyler's best interest. He concedes that both parents are capable of providing adequate care for Tyler; however, he asserts that he can best nurture Tyler into adulthood.
Steven acknowledges that Gino is a good parent, but argues she lacks the stability to serve Tyler's best interest. In support of his argument, Steven points to Gino's mental health, work schedule, and extramarital affairs. Although Gino takes medication to address her depression and a thyroid condition, Steven is concerned that Gino requires above average sleep and that this could deprive Tyler of necessary care. An additional cause for concern, according to Steven, is the plan for Chris to live with Gino. Steven is concerned for Tyler's well being if he lives in the same home as Chris. In contrast, Steven claims he possesses the necessary stability for Tyler. He argues that he is well organized and mentally and physically fit. He also claims that his day shift at work puts him in a better position to care for Tyler. In sum, Steven believes he can better serve Tyler's best interest.
The record reveals Tyler was seven years of age at the time of trial and in second grade. By all accounts he is a personable, outgoing child and a good student. Both parents have played an active role in their son's life. Obviously, each parent shares a strong bond with Tyler. Tyler is close to the families of both parents.
The trial court gave no reasons in its decree for its decision to award primary care to Gino; however, upon de novo review of the record, we agree with the court's ultimate conclusion on the issue of primary care. Steven's role as a caretaker for Tyler increased after the parties separated. However, the record reveals Gino has been Tyler's primary caretaker during the marriage. The concerns Steven has expressed regarding Gino's medical conditions find little support in the record. Gino has been diagnosed with depression and has problems with her thyroid. She consults with her physician regarding her conditions and takes medications as prescribed. Neither condition has significantly interfered with her personal life or caused her to miss any work.
Steven has also expressed concerns about Gino's work schedule. Both parties will require the assistance of babysitters because of their work. We note that Gino's mother is available to assist her with Tyler's care. The record also reveals that Steven has a history of very controlling behavior toward Gino. We have considered Steven's other contentions and conclude no reason exists to change the trial court's ruling on the issue of physical care. Upon careful review of the record, we affirm on this issue.
In reaching this conclusion, we also note the decree provides Steven with extremely generous visitation. Under the terms of the court's decree, Tyler will reside with Steven for five months of the year and with Gino for the other seven months. When Tyler resides with Gino, Steven has visitation rights every other weekend and every Wednesday. When Tyler resides with Steven, the same is true for Gino. Neither party has challenged the visitation schedule established by the trial court on appeal. Although Gino is designated as Tyler's primary caretaker, he spends almost as much time with his father under the terms of the dissolution decree.
IV. CONDITIONAL VISITATION PROVISION.
The dissolution decree contains the following provision: "It is further ordered, if either party moves from the current school district, the Court may consider said move as grounds for a change in the visitation schedule." Steven suggests this provision encourages Gino to move from the current school district to change his visitation. He also contends the provision limits the scope of the court's review and implies that his extensive visitation rights are only temporary.
We have looked with disfavor upon decrees that allow future review of child custody without showing a change in circumstances. In re Marriage of Vandergaast, 573 N.W.2d 601, 602 (Iowa Ct.App. 1997) (citations omitted). Our supreme court has discouraged retention of jurisdiction to modify dissolution decrees without a showing of change of circumstances. In re Marriage of Schlenker, 300 N.W.2d 164, 165 (Iowa 1981). Trial courts should make final disposition of cases on circumstances then existing. Id. Rarely may a trial court depart from this rule. Id. We will not allow a departure from the normal standard of review unless there are facts justifying the departure. See In re Marriage of Hoag, 380 N.W.2d 8, 9 (Iowa Ct.App. 1985). A child needs a stable home and temporary provisions are rarely in the child's best interest. See Vandergaast, 573 N.W.2d at 603.
While we do not encourage provisions such as the one in issue, the language Steven objects to does not provide an absolute mandate to modify visitation without a showing of a change in circumstances. Despite the court's provision, a party seeking modification will still be required to show a change of circumstances has occurred since the entry of the initial decree. See In re Petition of Holub, 584 N.W.2d 731, 733 (Iowa Ct.App. 1998). The court's provision does nothing to change that standard. Accordingly, we find it unnecessary to strike this language from the decree.