Opinion
No. 2-739 / 02-0321
Filed October 16, 2002
Appeal from the Iowa District Court for Davis County, James P. Rielly, Judge.
The respondent appeals from the district court's modification of the custody provisions of the parties' dissolution decree. AFFIRMED.
Steven Gardner of Kiple, Denefe, Beaver, Gardner Zingg, Ottumwa, for appellant.
Matthew Moore of Heslinga, Heslinga, Dixon Moore, Ottumwa, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Dennis and Debra McElderry divorced in August 2000. The parties were awarded shared physical care of their three children, ages thirteen, nine, and six. The children would alternate between the homes of Dennis and Debra on a weekly basis.
In May 2001, Debra filed an application to modify the dissolution decree, requesting she be awarded primary physical care of the children. Dennis resisted, requesting the court award him primary physical care of the children. Following trial, the district court found a substantial change of circumstance warranted modification, and awarded Debra primary physical care of the three children. Dennis appeals, contending the district court erred in awarding Debra primary physical care of the children. He does not dispute the district court's finding of a substantial change in circumstance, but contends he should be awarded primary physical care. We review his claim de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
The primary consideration in determining an award of child custody is the best interests of the child. Iowa R.App.P. 6.14(6)( o). The court's objective is to place children in the environment most likely to bring them to healthy physical, mental, and social maturity. See Murphy, 592 N.W.2d at 683.
Upon de novo review, we concur with the district court. Dennis works from 11:00 p.m. until 7:00 a.m., leaving the children home alone. He testified that he believes it is acceptable for the eldest child to assume parenting duties over her younger siblings. He stated that if he were granted primary physical care he would not change his current situation, despite the fact that the younger children had problems with their older sister. The parent who can administer most effectively to the long-term best interests of the children and place them in an environment that will foster healthy physical and emotional lives is chosen as the primary physical care giver. In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct.App. 1998). We find Debra is better able to administer to the children's needs, and accordingly affirm the district court's award of primary physical care to her.
Debra requests an award of her appellate attorney fees. Appellate attorney fees are not a matter of right but rest within the sound discretion of the reviewing court. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). We award Debra $1000 in appellate attorney fees.