Opinion
No. 3-250 / 02-1581
Filed July 10, 2003
Appeal from the Iowa District Court for Hardin County, Michael J. Moon, Judge.
Kenneth Hodge appeals the child custody provisions of the decree dissolving his marriage to Tracy Hodge. AFFIRMED AS MODIFIED AND REMANDED.
Barry Kaplan of Fairall, Fairall, Kaplan, Condon Frese, Marshalltown, for appellant.
Larry Johnson of Walters Johnson, Iowa Falls, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Kenneth Hodge appeals from the custody provisions of the decree dissolving his marriage to Tracy Hodge. We affirm as modified and remand with instructions.
I. Background Facts and Proceedings. Kenneth and Tracy were married on February 14, 1992. Their son, Lucas, was born on September 15, 1992. At the time of trial, Kenneth was employed and living in a mobile home in Iowa Falls. Tracy was unemployed and living in the marital residence in Faulkner, Iowa. Both Kenneth and Tracy acknowledged they have problems controlling their drinking and controlling their behavior when they drink. During the parties' separation, Tracy was charged with public intoxication. Kenneth testified that he no longer drank, but admitted to having a beer the weekend before trial. Tracy alleged Kenneth physically abused her throughout the marriage, although she admitted that she was violent toward Kenneth as well. Kenneth testified that he regretted his violence toward Tracy, but felt their fights were usually instigated by Tracy.
After the parties separated, Tracy became involved with a man named Keith Grinder and allowed him to move into the home she shared with Lucas. She admitted using methamphetamines with Grinder on one occasion, which resulted in a founded child abuse report. When Tracy discovered Grinder was manufacturing methamphetamine in the garage and confronted him, he physically assaulted her, pushed her out of her car on the interstate, and threatened to have her killed if she contacted the authorities. Tracy was in such fear, she quit her job and took Lucas to Colorado. She did not notify Kenneth of her departure. When she returned a week later, she renewed her relationship with Grinder, apparently with the belief that he had quit using drugs and had taken a domestic violence class. However, approximately two days before trial, Tracy suspected Grinder was again using methamphetamines and claims to have ended her relationship with him for the second, and final, time.
Kenneth suffers from depression and is on medication to control it. After he and Tracy separated, a founded child abuse report was filed against Kenneth after Lucas observed him smoking marijuana.
Both parties reluctantly admit the other is a good parent. Tracy agrees Kenneth is a good father when he is not drinking, and Kenneth agrees Tracy is good mother when she not involved with drug-using, abusive men.
Lucas is, by all reports, a healthy, bright, and surprisingly well-adjusted eleven-year-old. The Department of Human Services worker investigating the child abuse reports testified that Lucas is one of the most level-headed and mature children he has encountered in his many years of work.
The district court awarded the physical care of Lucas to Tracy, citing Kenneth's fits of rage and depression. The court also noted that Tracy had ended her relationship with Grinder and had a broad based system of support in her extended family. Kenneth appeals.
II. Scope and Standard of Review. We review de novo custody and physical care decisions in a dissolution action. Iowa R.App.P. 6.4; In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We give deference to, but are not bound by, the findings of the district court. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). When determining which parent should have physical care of a minor child, our primary concern is the best interests of the child. In re Marriage of Riddle, 500 N.W.2d 718, 719 (Iowa Ct.App. 1993).
III. Discussion. After a de novo review of the record, we are convinced it is in Lucas's best interests to be placed with his father, Kenneth. While we have grave concerns about Kenneth's alcoholism and his violent behavior toward Tracy, we are equally concerned about Tracy's own tendency toward violence and her choice of partners who place her son's life and health at risk. We note that Kenneth claims he no longer drinks to excess and Tracy claims she ended her relationship with Grinder. Both of these are recent promises that we can only hope are genuine, for Lucas's sake. The scales, however, are tipped in Kenneth's favor because he is, and has been, steadily employed and can provide a stable living situation for Lucas. Tracy is unsettled. She is unemployed and looking for work in various locations, most of which would require a move and the upheaval of Lucas's life.
Accordingly, we modify the physical care determination of the district court and place Lucas with Kenneth. We remand to the district court for a determination of a suitable visitation schedule for Tracy and Lucas.