Opinion
No. 2-549 / 01-1685.
Filed November 15, 2002.
Appeal from the Iowa District Court for Marion County, GREGORY HULSE, Judge.
Respondent appeals the custody, physical care, property, and attorney fee provisions of the decree entered by the district court dissolving her marriage to petitioner. AFFIRMED.
Erik Luthens of Luthens Law Offices, P.C., West Des Moines, for appellant.
Zachary Simpson and Michael Brice, Oskaloosa, for appellee.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Belinda Schuring appeals the custody, physical care, property, and attorney fee provisions of the decree entered by the district court dissolving her marriage to Jerry Schuring. She requests an award of appellate attorney fees. We affirm.
The parties began living together in about 1989, at least a year before their December 1990 marriage. Both had been married before. At the time of trial in this case Jerry was forty-eight years of age and had three adult children from his one prior marriage. Belinda was forty-five and had no children from her one prior marriage. The parties are parents of twins, born February 13, 1997.
Jerry has gross annual income of about $25,000. Until the parties separated in early 2000, Belinda was employed at a Veterans Administration hospital earning $27,000 per year. She then quit that job and at the time of trial was working part-time earning about $9,500 per year. The trial court attributed to her an earning capacity of $15,600 per year.
The trial court ordered that the parties have joint legal custody of the twins, Jerry have responsibility for their physical care, and Belinda have visitation rights. It found that at the time of the marriage Jerry had net assets of $19,000 plus a 1975 Corvette, and Belinda's debts exceed her assets by $300. It set aside the 1975 Corvette to Jerry, ordered Jerry to be responsible for $10,000 of a $20,000 debt to his mother, and divided the parties' remaining property equally between them. In effecting an equal property division it awarded Jerry the parties' principal asset, their home and the fourteen acres upon which it is situated, and ordered him to pay Belinda about $79,000 together with interest accruing at the statutory rate commencing three months after the decree. It ordered that each party be responsible for their own attorney fees.
In this equity action 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).
Custody and Physical Care. The trial court found Jerry had abused alcohol and had a "history of domestic abuse" of Belinda. While recognizing that this led to a rebuttable presumption against joint custody, see Iowa Code § 598.41(1)(b) (2001), the trial court nevertheless ordered joint custody and placed responsibility for the twins' physical care with Jerry. Belinda claims the trial court erred in finding Jerry had rebutted the presumption against joint custody, and in placing the twins' physical care with him.
The twins' best interests are paramount in our decision and the objective is to place them "in the environment most likely to bring [them] to healthy physical, mental, and social maturity. Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). The critical issue in determining the best interests of children is which parent will do better in raising them; gender is irrelevant, and neither parent should have a greater burden than the other. In re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct.App. 1996).
Several facts, most found by the trial court, support the trial court's ultimate conclusion and order concerning custody and physical care. Before the parties' marriage Belinda had improperly received unemployment compensation while employed and owed the State $3,500. Belinda began using methamphetamine in 1998, and used regularly in 1999 and 2000. During those times she also used marijuana.
In February 2000 Belinda began living with a friend, Heather, and Heather's parents. Although the sequence of events is not completely clear from the record, while living with Heather Belinda developed a sexual relationship with Heather's father and Heather's parents initiated proceedings to dissolve their marriage. Belinda's sexual relationship with Heather's father began while Heather's mother was still residing in the home. Belinda slept with Heather's father while the twins were present in the home, a fact known to the twins who were three and later four years of age when they observed such events.
An April 2000 order on temporary matters placed the twins in the parties' joint custody and joint physical care. Beginning in late August 2000 Belinda hid herself and the children from Jerry and deprived them of all contact with each other. This continued until Jerry secured an order in late February 2001 placing temporary physical care of the children with him.
The trial court found that Belinda denying contact between the twins and Jerry was not related to or justified by Jerry's past domestic abuse of her. Substantial evidence supports the trial court finding and upon our de novo review we make the same finding.
The trial court further found that Belinda's disregard and violation of its initial order on temporary matters was a strong indication of her unwillingness to foster maximum continuing physical and emotional contact between the twins and Jerry. Belinda was apparently fully aware of the nature and contents of the order on temporary matters, and was willing to obey and enjoy the benefits of those provisions she found favorable. However, at the same time, she felt free to ignore other provisions and to deny the twins and Jerry the benefits of those other provisions. If she in fact felt the order's provisions were improper and should be changed she could have rather easily sought modification. She did not do so. We agree with the trial court that Belinda's actions show an unwillingness to foster maximum contact between the twins and Jerry.
The trial court found that due to the negative characteristics of the parties the issue of physical care was very close. It stated that its ultimate decision concerning physical care was heavily influenced by, among other things, its observations of the parties' actions and reactions during trial. These are proper matters for its consideration. It noted that when the twins' temporary physical care was placed with Jerry in February 2001 they were introverted and kept to themselves, but by the time of trial in June 2001 they were much more outgoing. It ultimately concluded that Jerry's history of domestic abuse was outweighed by Belinda's present instability.
The trial court carefully considered the evidence and made a lengthy ruling which included detailed findings of fact and reasoning concerning the custody and physical care issues. Its findings are fully supported by the evidence, its reasoning is sound, and its detailed application of the law correct. We agree with its conclusions that the evidence when viewed as a whole rebuts the presumption against joint custody, that Belinda denying the twins contact with Jerry was not related to or justified by the history of domestic abuse, and that the twins' long-range best interests will be served by placing responsibility for their physical care with Jerry. We affirm on these issues.
Property. Belinda claims the trial court erred by not ordering the parties' home sold and the net proceeds divided equally. She argues equity dictates such a result, but does not indicate why such a result is more equitable than the result reached by the trial court. The trial court awarded the parties' home, in which the twins had lived most of their lives, to Jerry, who will have responsibility for their physical care. It effected an essentially equal overall property division. We find nothing inequitable or improper in the trial court's property division and affirm on this issue.
Trial Attorney Fees. Belinda asserts she is entitled to an award of trial attorney fees because Jerry is clearly in a better financial position than her to pay these fees. An award of trial attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). The court should make an attorney fee award which is fair and reasonable in light of the parties' financial positions. In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct.App. 1998). Based on the difference between Jerry's income and Belinda's earning capacity as found by the trial court, it might have awarded her some portion of her attorney fees. However, she has the capacity to earn at least $15,600 per year and Jerry will be responsible for the twins' physical care. Under such circumstances we are unwilling to find any abuse of trial court discretion on this issue.
Appellate Attorney Fees. Belinda seeks appellate attorney fees from Jerry. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). 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. Id. After considering the relevant factors we conclude each party should be responsible for their own appellate attorney fees.
Jerry's Claim on Appeal. The parties' home is built on one acre of a fourteen-acre tract. Jerry claims the trial court erred by not setting the thirteen acres aside to him before effecting a division of the remainder of the parties' property. Becaues Jerry did not cross appeal we cannot consider this claim. See In re Marriage of Sjulin, 431 N.W.2d 773, 777 (Iowa 1988); In re Marriage of Pieper, 369 N.W.2d 439, 441 (Iowa 1985); Musch v. Frost, 319 N.W.2d 286, 288-89 (Iowa 1982).