Opinion
No. 2-622 / 01-1742
Filed October 30, 2002
Appeal from the Iowa District Court for Clinton County, Max R. Werling, Judge.
Petitioner appeals from the physical care and economic provisions of the parties' dissolution decree. AFFIRMED.
Constance Peschang Stannard of Johnston Nathanson, P.L.C., Iowa City, for appellant.
J. David Zimmerman, Clinton, for appellee.
Heard by Vogel, P.J., and Zimmer and Hecht, JJ.
Shamin Mueller appeals from the physical care and economic provisions of the parties' dissolution decree. She contends (1) the district court erred in granting physical care of the parties' two children to the respondent, Matthew Mueller, and (2) the court erred in denying her alimony. She requests appellate attorney fees. We affirm.
I. BACKGROUND FACTS.
Shamin and Matthew Mueller were married in 1993. They have two minor children, Catelynn, born in 1993, and Courtney, born in 1998. Shamin filed a dissolution petition on July 1, 2000. Matthew was awarded temporary physical care of the children on September 19, 2000 following a contested hearing. At the time of trial, Shamin was living with another man, Michael Carrington, and she was pregnant with his child.
Following trial, the district court awarded Matthew physical care of the two girls. It denied Shamin's request for rehabilitative alimony. Matthew was ordered to pay $1000 towards Shamin's attorney fees. Shamin appeals.
II. SCOPE OF REVIEW.
In this equity case our review is de novo. Iowa R.App.P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R.App.P. 6.14(6)(g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
III. PHYSICAL CARE.
Shamin contends she should be awarded physical care of the parties' two children. She argues she was the primary caregiver, her eating disorder was not proven, Matthew's alcohol dependency was not given sufficient weight, and her moral misconduct was given undue weight. She maintains her pregnancy and her lack of family support are not negative factors under the facts of this case. She asserts it is unreasonable to use Carrington's criminal record to deny her physical care.
In any custody determination, the primary consideration is the best interests of the children. Iowa R.App.P. 6.14(6)(o); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). The court's objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Murphy, 592 N.W.2d at 683. In considering what custody arrangement is in the best interest of the children, the court is required to consider statutory factors. Iowa Code § 598.41(3) (1999). All factors bear upon the "first and governing consideration" as to what will be in the best long-term interest of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). These statutory factors and the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), are appropriately considered in determining the award of physical care. Will, 489 N.W.2d at 398.
On our de novo review of the record, we conclude Matthew should be awarded physical care of the parties' two minor children. We note that both parents have substantial problems. However, it appears the children have done very well while in Matthew's care. He promotes the girls' relationship with Shamin. Matthew has strong family support, both from his family and from Shamin's family. He has a good job and steady income, and he appears to be more financially secure than Shamin. We have considered the negative factors that weigh against him receiving physical care, including his alcoholism and his alcohol related criminal offenses.
We find it would not be in the children's best interests to award Shamin physical care. We acknowledge that she was the primary caretaker of the children during the marriage, and that her criminal history occurred in the more distant past than Matthew's criminal offenses. However, Shamin has a significant history of troubling behavior. She has made obscene phone calls to another woman. She has made a false report that a woman keyed her car, when Shamin actually had done so. She has made harassing phone calls and apparently attempted to involve the IRS in a woman's business. She has previously had an eating disorder. Shamin is estranged from her family. She lives with Carrington, who has criminal convictions for indecent contact with a child and delivery of methamphetamine.
Once again, we note that each parent has significant negative factors that weigh against their suitability as primary caregiver. In addressing the issue of physical care, we have given appropriate deference to the fact-findings and credibility determinations of the trial court. We affirm the trial court's ruling awarding physical care to Matthew.
IV. ALIMONY.
Shamin argues she is entitled to rehabilitative or reimbursement alimony. She maintains she should receive alimony because Matthew received his education during the marriage and used marital assets to pay for it. She claims she made sacrifices during the marriage in support of Matthew's continued education. She contends further education would assist her in raising her level of income.
Alimony is an allowance to a former spouse in lieu of a legal obligation to support that person. In re Marriage of Gonzalez, 561 N.W.2d 94, 99 (Iowa Ct.App. 1997). Alimony is not an absolute right; an award depends on the circumstances of each particular case. In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa Ct.App. 1997). We consider the length of the marriage, age, health, earning capacities, levels of education, and the likelihood that the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed during the marriage. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998).
Rehabilitative alimony serves to support an economically dependent spouse through a limited period of re-education and retraining. In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989). Its object is self-sufficiency. In re Marriage of O'Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996). An award of reimbursement alimony, on the other hand, is predicated upon economic sacrifices made by one spouse during the marriage that directly enhanced the future earning capacity of the other spouse. Id.
We conclude Shamin is not entitled to rehabilitative alimony. At the time of trial, Shamin was pregnant and planned to marry Michael Carrington. She is employed and receives support from Carrington. She testified she would like to return to college; however, her plans were vague at best. She did not share any specific information as to where and when she would attend school or the costs of her education. Furthermore, she made several unsuccessful attempts to attend college during the parties' marriage. The record reveals she struggled with her classes and was not a diligent student.
We find no indication in the record that Shamin requested reimbursement alimony, and the trial court did not rule on whether she should receive such alimony. In any event, we find no basis for an award of reimbursement alimony. The evidence before the trial court does not support the conclusion that Shamin made significant economic sacrifices in support of Matthew's education. Matthew began work on his B.A. degree before the marriage. In addition, he maintained full-time employment while attending school after the parties married. He provided the bulk of the income for the family throughout the marriage. Under the facts of this case, reimbursement alimony is unwarranted.
V. APPELLATE ATTORNEY FEES.
Shamin seeks an award of appellate attorney fees. We consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Cooper, 524 N.W.2d 204, 207 (Iowa Ct.App. 1994). Considering these factors, we do not award Shamin appellate attorney fees.
VI. CONCLUSION.
We conclude Matthew should be awarded physical care of the two girls. We determine Shamin is not entitled to an award of alimony. We deny her request for appellate attorney fees.