Opinion
No. 2-526 / 01-1584
Filed September 11, 2002
Appeal from the Iowa District Court for Lyon County, John P. Duffy, Judge.
Kimberly Koedam appeals from the child custody provisions of the decree dissolving her marriage to Terry Koedam. AFFIRMED.
Bradley K. De Jong of Klay, Veldhuizen, Bindner, De Jong Jacobsma, P.L.C., Orange City, for appellant.
Kay Dull, Spirit Lake, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
Kimberly and Terry Koedam were married on March 18, 1995. The couple had two children during the marriage, Alexis, who was born August 2, 1996, and Tristan, who was born February 17, 1999. On January 16, 2001, Kimberly responded to Terry's petition for separate maintenance with a counterclaim for dissolution of their marriage. Following a trial, the court granted the parties joint legal custody, and granted Terry the children's physical care. Kimberly appeals from the custody provisions of the decree. We affirm.
Our review of this case is de novo. In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct.App. 1996). 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 Wessel, 520 N.W.2d 308, 310 (Iowa Ct.App. 1994).
The governing consideration in deciding the issue of physical care in a dissolution of marriage is the best interests of the children. In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct.App. 1998). Our legislature has identified a host of factors to weigh in determining the best interests of the children in each particular case. See Iowa Code § 598.41(3) (2001). Additionally, our courts have outlined other factors to consider. See In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). The critical inquiry is to determine which parent will do the best job in raising the children. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct.App. 1985).
Upon our de novo review of the record and arguments, we conclude the best interests of the children will best be served by placing their physical care with Terry. We acknowledge Kimberly was the children's primary caretaker prior to the parties' separation. However, although greater primary care experience is one of many factors the court considers, it does not ensure an award of physical care. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa 1995). We believe a number of factors combine to overcome this consideration, sufficient to support the court's decision to grant Terry physical care of Alexis and Tristan.
Kimberly exercised extremely poor judgment during the marriage in undertaking a new relationship via the internet with Jason Harris, who has a significant criminal record involving multiple felonies. In pursuit of this surreptitious relationship, Kimberly incurred substantial phone bills and made large credit card charges. She made two secret trips to Minneapolis, Minnesota, and Sioux Falls, South Dakota, to meet Harris. On one of these trips, Kimberly brought Alexis and Tristan to meet Harris at the hotel where they stayed.
We find Kimberly has exhibited irresponsibility with regard to her parental, personal, and financial conduct. Although the award of physical custody is not a matter of punishing one parent for apparent misdeeds, see In re Marriage of Kleist, 538 N.W.2d 273, 277 (Iowa 1995), we believe Kimberly's conduct in this case was inconsistent with the best interests of the children. We share the trial court's concern Kimberly's relationship with Harris could hinder her relationship with the children.
Moreover, we conclude Terry possesses the characteristics necessary to raise the children into healthy, well-adjusted young adults. He has exhibited stability in employment, housing, and family relationships. Terry holds full time employment, and is engaged in a farming operation with his father. He has involved the children in religious instruction and activities. Terry has close family in the area and has involved them in the lives of Alexis and Tristan. Terry's parents appear willing and able to care for the children when childcare is required. Finally, Terry provides the children stability in that he remains in the family home, while Kimberly moved to South Dakota where she lives with Harris. Accordingly, we affirm the decision of the trial court to grant Terry physical care of Alexis and Tristan.
AFFIRMED.