Opinion
No. 2-186 / 01-0606.
Filed April 10, 2002.
Appeal from the Iowa District Court for Cedar County, Nancy Tabor, Judge.
The petitioner appeals the custody provisions of the decree dissolving the marriage. AFFIRMED.
Alan R. Bohanan, Iowa City, for appellant.
Bradley L. Norton of Norton Norton, Lowden, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
The sole issue in this appeal from an April 3, 2001 decree dissolving the marriage of Kyle and Casey L. Johnston is whether the district court correctly found Casey should be the parent with primary care of the parties' son, Koby, born in December of 1997. On appeal Kyle contends that he, not Casey, should have been awarded primary physical care. 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 question is always which parent will do the better job of raising the children . In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App. 1991). We look to the factors set forth in the case of 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, but we are not bound by these determinations. Iowa R. App. P. 6.14(6)( g). 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 Koby are our the primary consideration. See In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984); Neubauer v. Newcomb, 423 N.W.2d 26, 27 (Iowa Ct.App. 1988). In fixing primary physical care, we give consideration to each parent's role in child-raising prior to separation. 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).
Formerly Iowa Rule of Appellate Procedure 4.
Formerly Iowa Rule of Appellate Prodedure 14(f)(7).
At the time of Koby's conception, Casey was seventeen and Kyle was twenty years old. Both parents were immature. Their relationship was troubled, and they both had occasion during their time together to engage in behaviors that were destructive to their relationship and not in Koby's interest. The facts relating to these indiscretions were carefully set out in the district court's decree, and it would serve no useful purpose for us to reiterate them here.
Kyle and Casey separated in November of 2000. Following their separation they shared Koby's care, alternating weeks, weekends and Wednesday nights.
Our review of the record convinces us that both Casey and Kyle love their son. They have both matured and have Koby's interest at heart. Either party is capable of assuming primary physical care. Both have their strengths and weaknesses. They have nearly equal parenting abilities, and the decision as to which parent will be the better primary custodian is not clear from the written record.
Our review of the district court judge's decision convinces us that she, too, had difficulty determining who should be the primary-care parent. The district court ultimately decided in favor of Casey because she found that Casey was better able to foster a good relationship between Koby and Kyle than Kyle was between Casey and Koby. The district court found, "It is clear from the testimony of Kyle and his mother that they both harbor resentment and hurt feelings towards Casey and her family."' The court also said, "[A]n award of physical care to the father would result in an alienation of the child with its mother and her family. . . ." The court stated further, "[Casey] has further shown the best ability to foster the continuing contact of the child with his extended family including Kyle and his parents."
Kyle correctly argues that he comes from a stable family and that there are some concerns about certain members of Casey's family caring for Koby. However, the district court seemed convinced that Casey would protect her son. We also recognize that while the district court faults Kyle's mother for not supporting Casey's relationship with Koby, it is not necessarily easy for a grandparent to put aside personal feelings when he or she sees a grandchild at risk because of hostility between his parents.
However, the Iowa courts have been clear that the ability to support the other parent and not exhibit hostility or ill will toward them is an important factor to consider in making a custodial award. See In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.App. 1994). Other cases have addressed the same issue in a similar manner. See In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984 ); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct.App. 1991). The hostile conduct need not come only from the custodial parent. In Rosenfeld we considered the activities of the custodial father's current wife in affirming a district court decree modifying custody and transferring it to the mother. Rosenfeld, 524 N.W.2d at 215-16. In In re Marriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct.App. 1998), we looked at the conduct of the mother's parents in assessing a custody award.
Giving the required deference to the factual findings of the district court on its assessment of the situation, we concur with its opinion that Casey will be more prone to foster Kyle's relationship with Koby than Kyle would be in fostering Casey's relationship with Koby. This factor tips the nearly equally-balanced scales in Casey's favor, and we affirm the custodial award of the district court. Casey should be aware, however, that in doing so we are of the opinion that she will continue to support Koby's relationship with his father and his father's family.
Casey requests appellate attorney fees. The issues before the district court were numerous. Kyle only challenges the award of primary physical care. The issue was very close. We award no appellate attorney fees. Costs on appeal are taxed to Kyle.
AFFIRMED.