Opinion
No. 3-696 / 03-0862
Filed November 17, 2003
Appeal from the Iowa District Court for Sac County, Joel E. Swanson, Judge.
Tod A. Haney appeals challenging the custodial and child support provisions of the decree dissolving his marriage to Peggy S. Haney. AFFIRMED AS MODIFIED AND REMANDED.
James Van Dyke of Van Dyke Werden, P.L.C., Carroll, for appellant.
Joseph Halbur, Carroll, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Tod A. Haney appeals challenging the custodial and child support provisions of the decree dissolving his marriage to Peggy S. Haney. Tod contends that he, not Peggy, should have been named the primary physical custodian of their three children. He further contends that the district court should have considered his farming losses in computing his child support obligation. The parties reached a stipulation approved by the district court as to division of property. Only issues of the allocation of specific debts and child custody and support were litigated. Child support is the only economic issue we are asked to address on appeal. We affirm as modified and remand.
Our review is de novo. In re Marriage of Vrban, 359 N.W.2d 420, 425 (Iowa 1984). This court must examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Bonnette, 492 N.W.2d 717, 720 (Iowa Ct.App. 1992). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Marriage of Kunkel, 546 N.W.2d 634, 635 (Iowa Ct.App. 1996). 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 the children are the primary consideration. See Vrban, 359 N.W.2d at 424. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41(3) (2003), in Weidner, 338 N.W.2d at 355-56, and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The issue is which parent will do better in raising the child; gender is irrelevant and neither parent has a greater burden than the other in attempting to gain custody in a dissolution proceeding. In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App. 1991); In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct.App. 1985). 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).
Tod and Peggy were married in 1985. At the time of the dissolution hearing on April 17, 2003, they were thirty-nine and thirty-six years old. Their daughters Holley and Alexa were sixteen and fourteen respectively and their son Dustin was six.
Save a period of about a year and a half that Peggy stayed home to care for the children and Tod's aging grandparent, both Tod and Peggy have been employed outside the home during the marriage. Tod's parents, who live close to the couple now, have assisted with child care during the last eight years the parties have lived in Sac County. Before that time the parties lived in eastern Iowa and Peggy's mother gave help with their care.
At the time of trial Tod was a route man for Schwan's Sales Enterprise Inc. He had an annual salary in 2002 of $38,353.86. He worked fifty-five hours a week. Peggy was a manager for a hog confinement facility owned by Iowa Select, and she worked forty-five to fifty hours a week. She had an annual salary in 2002 of $28,816. In addition, the parties had a livestock and a small farming operation on the thirty-five acres where they resided. They show the farming as Tod's business and showed a loss on the farm in 2002 of $34,837. The also showed a capitol loss on three cows of $2,550. The loss resulted from the fact the majority of the personal property and livestock of the farming operation was sold after the parties' separation. The children continue to have 4-H livestock which at the time of trial was on the acreage where Tod lived with the two girls.
Peggy left the family home with Dustin in November of 2002 to be, as she testified, with a boyfriend. She found housing in Lake View with her boyfriend. The girls remained with their father. Dustin, though he remained with his mother, was delivered on school days to his father's home before seven o'clock in the morning where he ate breakfast with his father and sisters and took the bus to school. His sisters frequently picked him up after school. These custodial arrangements were still in place at the time of trial six months after the parties separated.
Just two weeks before trial Peggy moved to Ida County. Apparently she no longer lived with her boyfriend but appears to still maintain a relationship with him. She testified she does not plan to marry him. Her home was in a different school district than where the children attended school. She said she wanted the children to continue in the same school district because they were happy there. She thought the children could continue in their current school through open enrollment. She had made no inquiry about the requirements for the children to stay there. The record contains no evidence the children can remain in the same school district.
The district court found Peggy was the primary caretaker when the children were younger while Tod spent time away from the family. The court found since the parties' separation Tod provided the children with more direction and assistance. The district court also found that since Peggy elected to leave the family home Holley did much of the housework and she and her father engaged in conversations concerning Peggy. The court found that Tod has placed the children in the middle and that Alexa follows Holley's lead. The court criticized Tod for not taking the "Children in the Middle" class and for calling his two daughters to testify over their mother's objection and found his calling them to testify to be a continued attempt to involve the children in their parents' dispute. The court named Peggy as the primary physical custodian and fixed specific visitation for Tod after he had completed a "Children in the Middle" class. Tod was ordered to pay $840.20 a month as child support to reduce to $702.98 for two children and $479.08 for one. He was also ordered to maintain health insurance on the children. He was given the tax exemption for Holley and Alexa.
Tod contends he is the better parent. He argues that the district court impermissibly held against him the fact he called his two older daughters to testify. He contends the district court failed to give the proper weight to the children's testimony and failed to consider Peggy's two affairs that took her away from the children and which the children learned about from people in the community. He also contends Peggy's unsuitability as a parent is shown by her threatening Holley that if she testified Peggy would not serve as a chaperon for an upcoming trip Holley was taking to Washington D.C. He also argues that Peggy's decision to leave her two daughters with him and live with a boyfriend indicates she does not give the interests of the children priority. He further advances that by leaving the children with him they would not have to move to a new home and a new school district and risk Holley loosing her title as Sac County Pork Queen. All three child at this point have been in the Wall Lake View Auburn school district. They began attending there about eight years ago.
We first consider Tod's argument the district court impermissibly held against him the fact that he called his daughters to testify and had the trial judge given the proper weight to the girls' testimony he would have found Tod to be the better parent.
Tod correctly points out that the district court is required to consider with a number of other factors in determining custody "Whether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity." Iowa Code § 589.41(f) (2003). We look to the dictates of section 598.41(f) and controlling case law in assessing the weight that should be given to the children's preference.
Holley testified and stated both that she wanted to live with her father and she did not want to live with her mother. Holley was born in December of 1986. She testified she had been chosen Sac County Pork Queen which required that she stay in the county to keep her title. She further testified she was involved in 4-H and was on the County Council and was Vice President and she was involved in leadership and citizenship and helped with Clover Kids, which is related to 4-H, every other Tuesday. She said she had good grades and a medical problem she had was improving. She testified she chose to stay with her father when her mother moved out. She said her mother's priorities have been work and her boyfriend. She said her mother had an affair or two and she learned of the affairs herself. She said her mother was getting home late or leaving early and her aunt and uncle told her about the first affair. Holley said she learned of the second of her mother's affairs herself because her mother was always on the telephone with a man. Holley said if the man called and she answered he would hang up. When specifically asked, Holley clearly stated she wanted to live with her dad and not her mother.
Alexa testified she was having trouble with her grades but she always did. Alexa was fourteen years old. She was satisfied with where she was living and did not request to go with her mother.
In deciding how much weight to give the preference, the following factors should be considered: (1) the children's respective ages and education levels; (2) the strength of their preference; (3) their intellectual and emotional make-up; (4) their relationship with family members; and (5) the reasons they give for their preference. In re Marriage of Anderson, 509 N.W.2d 138, 142 (Iowa Ct.App. 1993); In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct.App. 1987); In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct.App. 1985).
Holley is sixteen years old. While the dissolution statute makes no provision for a child whose parents are divorcing to pick a home at a certain age, we note that Holley would have a right statutorily to pick a guardian and a conservator and be required to consent to her adoption. Holley is in high school. Her preference is strong and according to her testimony was a decision she made when her parents separated and from which she has not wavered. Her testimony contradicted her mother's testimony that she did not take the girls because she could not find a house large enough for three children. Holley is a good student, involved in activities, holds a part-time job and assumes responsibilities at home. Holley does not express anger towards her mother, although she does express disappointment that her mother would take time from her family to have two affairs and would threaten Holley with not chaperoning her trip if Holley testified. Holley also is unhappy with her mother's current boyfriend. The record gives little information about this man other than his first name and Peggy's testimony that he is employed and has not been convicted of a felony. In testifying Peggy gave the opinion that the children did not like her boyfriend because Tod turned the children against them.
Iowa Code 633.559 Preference as to the appointment guardian "any qualified and suitable person requested by a minor fourteen years of age or older. . . ."
Iowa Code Section 633.571 provides in applicable part preference as to appointment of conservator ". . . any qualified and suitable person requested by a minor fourteen years of age or older, . . ."
600.7 provides:
1. An adoption petition shall not be granted unless the following persons consent to the adoption . . .
d. The person to be adopted if that person is fourteen years of age or older.
In assessing the weight to be given to Holley's preference we also give weight to the concern of the district court that Tod, who does not want the divorce, has given Holley too much responsibility and talks to her too much about the disagreement between he and Peggy.
Considering the statutory provision and the applicable case law, we must give weight to the preference of all three children. In doing so we give more weight to the children's preferences than we would in a modification as this is an original custody determination. See In re Marriage of Jahnel, 506 N.W.2d 473, 475 (Iowa Ct.App. 1993). We give substantial weight to Holley's preference. It is a strong preference based on legitimate concerns. This is a primary custody consideration. Holley as the district court found is strong willed. She also is a mature child who has assumed responsibility for her younger siblings both before and after her parents' separation. There is no evidence in the six months they were in Tod's custody that the girls have had problems other than Alexa continuing to have a chronic problem with her school work. We give less weight to Alexa's preference but we do consider it. She does not make a direct choice but indicated that things were fine with her father. Because of Dustin's young age we give even less weight to Peggy's testimony that Dustin wants to live with her.
Having said that, we recognize that deciding custody is far more complicated than asking children what parent they want to live with. In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981); In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct.App. 1985). Children's preferences, while not controlling, are relevant and cannot be ignored. In re Marriage of Burham, 283 N.W.2d 269, 276 (Iowa 1979). Numerous other statutory factors enter into our consideration. Both parents work more than forty hours a week at their jobs. Working schedules would indicate that Tod is with the children in the morning, some times he is able to be home for supper, but his job is not completed until about nine o'clock at night. He stays out on Wednesday nights but is attempting to decrease his workload and moderate a schedule that was enlarged to increase the family income while the couple yet lived in the same household. Tod's father, who lives close to Tod's home, testified he is available to help the children when they need it. He testified he and his wife have helped care for all three children during the marriage.
Peggy contends while she leaves early, she is finished with work and home close to four o'clock. However, a review of the record indicates that this is not always the case. Tod's father, who watched the children, testified there were times Peggy would not return until later in the evening. Holley testified that when her parents lived together some nights her mother would not get home until late, especially when she had load out and would call and say she was not going to be home until eight or nine o'clock. Holley testified that her mother's priorities in the past two years had been her work and her boyfriend. She also testified during one affair her mother would leave early in the morning.
Peggy by her own admission has had two affairs. The first was with a man named Judd. That affair lasted about six months, and during that time she would sometimes leave home at 3:30 or 4:00 in the morning.
Though Peggy complained at trial about Tod's attitude towards the children prior to the separation, she was willing to put her need to live with her current boyfriend before that of her children when she left the family home and left the two girls living there. She also was willing to leave Dustin at Tod's home every school morning for Tod to feed and get on the school bus.
We share the district court's concern that Tod did not take the "Children in the Middle" course though ordered by the district court to do so. Yet we recognize he has been most cooperative in seeing that the two children in his care have contact with their mother. He has worked a satisfactory arrangement with Peggy so that he cares for Dustin in the morning and is able to see the child at frequent intervals. The fact this arrangement has worked is to the credit of both parents. The district court correctly was concerned that Tod was talking to the children, especially Holley, too much about his problems with her mother. But we must recognize Peggy has brought on some of these problems herself. Holley learned in the community and from relatives about her mother's affairs which have upset her a good deal. Tod admitted he may have talked to Holley about her mother's situations too frequently. He also admitted he does not want the children around Peggy's current boyfriend. He has not testified to his specific reasons. The girls do not like him and they too have not given specific reasons for their dislike.
If a parent seeks to establish a home with another adult, that adult's background and his or her relationship with the children becomes a significant factor in a custody dispute. In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct.App. 2003). There are two reasons for this: (1) because of the place the companion will have in the child or children's lives, and (2) not less significantly, because the type of relationship the parent has sought to establish and the manner he or she has established it is an indication of where that parent's priority for his or her children is in his or her life. Id. Peggy has failed to give us the information to asses whether Tod and the children have a valid challenge to her choice of companion. We have no choice therefore to assume the girls have a valid reason for not liking him and we give their feelings in this regard weight.
The record would support leaving the two girls in Tod's primary physical care and awarding Dustin's primary physical care to Peggy. In doing so we recognize there is a presumption that siblings should not be separated. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994). Split physical care is generally opposed because it deprives children of the benefit of constant association with one another. Will, 489 N.W.2d at 398. The rule is not ironclad, however, and circumstances may arise which demonstrate that separation may better promote the long-range best interests of children. Id. Good and compelling reasons must exist for a departure. In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993). We have concern about the girls' feelings towards Peggy's boyfriend. They have fared well in their father's care and are old enough to adjust their lives to his work schedule. While it is apparent that up to this time Peggy has used Tod and the girls to supply care for Dustin, Tod's current working hours would make it difficult for him to care for Dustin without his daughters' help. Both parents have jobs that take them away from the home for an extended period and make it difficult for either party as a single parent to care for all three children. We do not suggest bonding with siblings is not important but this cannot be viewed in isolation. There is at least eight years age difference between the girls and Dustin. There is no evidence that Dustin has a concern about Peggy's current boyfriend.
We affirm the placement of primary physical care of Dustin with Peggy, we modify to award primary physical care of Holley and Alexa to Tod. We remand to the district court to hold a hearing and to determine the parties' current earnings and fix child support. We award no appellate attorney fees. Tod and Peggy are both employed and have the means to pay their own fees and neither was totally successful in this appeal. Court costs on appeal are taxed one-half to each party.