Summary
finding the payment of cash installments as a part of property distribution equalization equitable
Summary of this case from In re Marriage of FlahertyOpinion
No. 3-244 / 02-1309.
Filed May 29, 2003.
Appeal from the Iowa District Court for Winneshiek County, MARGARET L. LINGREEN, Judge.
Joni Kalkwarf appeals, and Daniel Kalkwarf cross-appeals from the district court's decree dissolving the parties' marriage. AFFIRMED.
James Burns of Miller, Pearson, Gloe, Burns, Beatty, Cowie Shidler, P.L.C., Decorah, for appellant.
Michael Pedersen, Waterloo, for appellee.
Heard by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
Joni Kalkwarf appeals, and Daniel Kalkwarf cross-appeals from the district court's decree dissolving the parties' marriage. We affirm.
Background Facts and Proceedings. Joni and Daniel were married on July 1, 1989. They are the biological parents of Madison, born March, 14, 1990. Joni also has a child from a previous marriage, Granville, born January 9, 1985. The couple first made their home in Colorado and Kansas. When the two moved to Iowa, Daniel adopted Granville.
Joni was forty years old at the time of the dissolution hearing. She is a high school graduate and has attended three years of college. Currently, she is employed by Compass Bank as a skip tracer in the recovery department. She earns approximately $32,000 per year. At the time of the dissolution hearing, Daniel was forty-three years old. He is a high school graduate. Daniel was employed as a carpet installer until he was injured in an accident in the fall of 1999 or spring of 2000. He sustained a broken vertebra and had to undergo surgery. Following surgery, Daniel has been unable to return to work due to a weight lifting restriction. He received disability payments in the amount of $1500 per month for two years. The payments have expired. At the time of trial, Daniel was attending classes at Hawkeye Community College. His sole source of income was student loans.
The parties separated in October 2001 when Joni moved to Arizona with the children. Joni moved without informing Daniel of her decision. She asserts her reason for this was that Daniel had threatened to kill her if she ever took the children from him. Daniel denies making such a statement. After hearing both parties testify, the district court concluded there was "no credible evidence in the record as to what, if anything, actually precipitated Joni to decide to leave Iowa." Joni also testified she took the children because she did not think it was safe for them to be alone with Daniel. However, the court noted Joni did not have a problem leaving the children alone with Daniel while she was working in Iowa and she agreed to allow them to return to Iowa for visitation after she moved to Arizona. Further, neither party claimed the other had abused the children.
There was evidence presented at the hearing that both parties abused alcohol. The couple had a turbulent marriage. Each party testified the other had been physically abusive. The district court stated it was unable to conclude which party's account of the numerous altercations was accurate since each party testified the other was responsible for initiating the physical confrontation and then claimed he or she acted in self-defense. The court concluded "it is likely that both parties were responsible at one time or another for escalating the altercations from verbal into increasingly physical confrontations."
A decree of dissolution was granted on August 22, 2002. The district court awarded Daniel physical care of Madison and Joni physical care of Granville. The court ordered Daniel to pay $50 per month for child support for Granville and Joni to pay $519.86 per month for child support for Madison. Further, the court ordered Daniel to pay Joni a cash settlement in the amount of $8250 at the rate of $1650 per year in order to equalize the distribution of the parties' assets and debts. Joni appeals, and Daniel cross-appeals.
Standard of Review. Dissolution of marriage decrees are reviewed in equity. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). Our standard of review is therefore de novo. Iowa R.App.P. 6.4. In such cases, we 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). In doing so, we give weight to the fact-findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
Physical Care. The best interests of the child dominate our consideration in child custody cases. In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct.App. 1994). In determining which parent should be granted physical care, we consider a number of factors, including the child's needs and characteristics, the parties' abilities to meet the child's needs, the nature of each proposed home environment, and the effect of continuing or disrupting the child's current status. In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). Siblings should not be separated without good and compelling reason. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994). Split physical care is generally opposed because it deprives the children of the benefit of constant association with one another. In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). Siblings should not be denied the benefit of constant association except when their best interests require it. Smiley, 518 N.W.2d at 380.
Joni contends the district court erred in splitting physical care of the children. We disagree. The trial court resorted to split physical care in this case for primarily three reasons: the differences in the children's ages, their needs, and their preferences. At the time of hearing, Granville was five months from turning eighteen. Thus, he would only be subject to the court's decree for a very short time. We believe that when one sibling is older than the other and about to become emancipated, the rule that siblings should not be separated is overcome by the reality of the situation.
Furthermore, we consider Madison's stated preference to live with Daniel. At the time of hearing, she was twelve years old. When a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment, his or her wishes, though not controlling, may be considered by the court, with other relevant factors, in determining child custody rights. In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa Ct.App. 1991). The district court had the opportunity to privately interview Madison and stated she was "bright, articulate, and mature" for her age. Although the court did not ask Madison where she wanted to live, it was brought to the court's attention Madison had informed other family members of her desire to live with her father. A minor child's preference to live with one parent is relevant and cannot be ignored. In re Marriage of Blume, 473 N.W.2d 629, 631 (Iowa Ct.App. 1991).
Joni also contends the district court ignored evidence in the record showing Daniel had physically abused her. We disagree. In making its decision, the court stated Joni testified in some detail about various altercations; however, she referred to a detailed affidavit she previously filed in the case to refresh her memory. The district court concluded, and we agree after reviewing the record, there is conflicting evidence on this point. Since the district court had the opportunity to view the parties and their demeanor at trial, this is a case where we must defer to the district court. See In re Marriage of Ford, 563 N.W.2d 629, 630-31 (Iowa 1997) (in assessing a custody order, we give considerable weight to the judgment of the district court, which had the benefit of hearing and observing the parties firsthand).
Finally, Joni argues the district court did not give weight to the fact she has been the primary caregiver for Madison since she moved to Arizona. The fact that one parent has been the primary caregiver of minor children prior to legal separation does not assure that parent will be awarded primary care. In re Marriage of Wilhelm, 491 N.W.2d 171, 172 (Iowa Ct.App. 1992). The district acknowledged Joni had taken care of Madison since the move; however, the court also noted the reason. Joni moved the children to Arizona, and she disrupted their lives and school attendance without telling Daniel. As mentioned above, the court found Joni's alleged reasons for moving to be unsupported by other evidence in the record. We believe, as the district court did, that this shows a lack of stability in Joni's life in regard to her living arrangements. See In re Marriage of Wessel, 520 N.W.2d 308, 310 (Iowa Ct.App. 1994).
We also want to point out Joni has not been very supportive of Daniel's relationship with Madison. Joni complains about the frequency of Daniel's calls to Madison and that the calls interfere with meals, bedtime, and other activities. However, Madison informed the court she was the one calling her father. Madison would call when she was home alone and scared. She told the court she had informed her mother that she disliked being home alone, however, only on occasion did Joni have someone come by and check on her.
On the other hand, the court found Daniel to be attentive to Madison's needs and concerns. This was evidenced by the fact he refuses to leave her home alone and has provided her with a phone card so she can contact him and her grandmother. Also, prior to the parties' separation, Daniel was the primary caregiver as Joni worked. For the reasons set forth above, we affirm the decision of the district court to award primary care of Madison to Daniel.
Cash Settlement. On cross-appeal, Daniel argues the district court erred when it ordered him to pay Joni a cash settlement in the amount of $8250 at the rate of $1650 per year. Assets and debts should be divided equitably, but not necessarily equally upon consideration of the criteria listed in Iowa Code section 598.21(1) (2001). In looking at the property division as a whole, we find it to be equitable to both parties.