Opinion
No. 2-638 / 02-0317
Filed October 16, 2002
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
Tempest Sue Thomas appeals from a decree of dissolution granting physical care of two minor children to Kenneth Dean Murray. AFFIRMED AS MODIFIED AND REMANDED.
Carter Stevens of Roberts, Cohrt, Stevens Lekar, P.L.C., Waterloo, for appellant.
Richard K. Betterton, Cedar Falls, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Tempest Sue Thomas appeals from a decree of dissolution granting physical care of two minor children to Kenneth Dean Murray. We affirm as modified and remand with instructions.
I. Factual Background and Proceedings. Tempest, born November 2, 1969, and Kenneth, born January 16, 1958, were married on September 8, 1992. Tempest had one child, Andrew, born December 10, 1986, from a prior relationship. Two children were born of this marriage: Casey, born January 13, 1992, and Jesse, born November 12, 1996.
Kenneth was an illegal drug user before he met Tempest. During the parties' relationship, Kenneth used marijuana, cocaine and methamphetamine on occasion in the presence of the children. In January of 1996, he was charged with possession of methamphetamine with intent to deliver. He was convicted and sent to prison in January 13, 1997 for fifteen months.
Although Kenneth did participate in parenting the three children before he went to prison, Tempest was obviously their primary caretaker while he was incarcerated. During Kenneth's period of incarceration, Tempest regularly took the children to visit him and supported the family with earnings from her stable full-time employment as human resource director for a trucking company.
During Kenneth's prison term, Tempest purchased a home that the parties occupied shortly after Kenneth's discharge from prison in September of 1998. The home is located in Hudson where Andrew and Casey attend school. Jesse attends pre-school in Waterloo where Tempest is employed. At the time of trial, Kenneth resided in the basement of his sister's house in Waterloo, but testified he had made efforts to locate an apartment in Hudson suitable for himself and the children should he be awarded their physical care. Tempest and the children still occupy the home.
The parties' relationship was violent. During the period of his drug use, Kenneth pulled Tempest across the yard by the hair, inflicted a black eye, and knocked her down a flight of steps. Tempest was also guilty of physical abuse, having poked Kenneth in the leg with a pair of scissors during a fight. Both parties have been arrested for such behavior.
To his great credit, Kenneth has not used drugs since he was sent to prison. He is employed on a full-time basis and enjoys the support of his extended family in the Waterloo area.
Temporary custody of the children was placed with Tempest on July 27, 2000. After a trial on the merits, the district court awarded physical care of the children to Kenneth. On appeal, Tempest contends she should have physical care of the children and, in the alternative, asserts the district court erred in setting the amount of child support.
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 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. Discussion. The governing consideration in deciding the issue of physical care 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). "In determining which parent serves the child's best interests, the objective is to place the child in an environment most likely to bring the child to healthy physical, mental, and social maturity." In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996).
After a careful review of the record, we conclude Tempest will provide the better environment for the children. In another context, we have often noted that a parent's past performance may be indicative of the quality of future care he is capable of providing. In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). Although both parents clearly love the children, we find Tempest's record as the children's caretaker very compelling. She was the principal provider of physical care during Kenneth's years of drug abuse and the sole provider of physical care during his imprisonment. To her substantial credit, Tempest maintained Kenneth's relationship with the children during his incarceration by facilitating regular visitation. She owns the home in which the children have resided since the fall of 1998 and holds stable employment to provide for the children's financial needs.
We also give significant weight to the testimony of Dr. Ralph Scott who interviewed the parties and the children and opined on the issue of physical care. He administered Wide Range Achievement Tests which suggest Tempest functions at the post-high school level whereas Kenneth scored at the sixth grade level. Although both parents clearly wish optimal achievement for the children, we believe Tempest demonstrates greater ability to assist the children with educational endeavors and promote their academic achievement. After conducting a thorough assessment of the relative strengths and weaknesses of the parents, Dr. Scott opined that the children's physical care should be placed with Tempest. Dr. Scott acknowledged that his opinion was a very close call and described it as a "split decision."
Dr. Scott noted, and we agree, Tempest's record is far from unblemished. Like Kenneth, she has engaged in spousal abuse and exercised poor judgment especially surrounding instances of marital strife. Tempest's history in this regard does conform to her personality test result suggesting problems with impulse control and tendencies toward immaturity and manipulativeness. Nonetheless, we conclude under the circumstances of this case that Tempest will provide the best environment for the children.
Accordingly, we modify the district court's decision on the physical care issue. As a consequence of our decision, we need not decide and do not reach the child support issues raised by Tempest. We remand this case to the district court for determination of Kenneth's child support obligation based upon the present financial circumstances of the parties.
AFFIRMED AS MODIFIED AND REMANDED.