Opinion
No. 4-140 / 03-1667
April 28, 2004.
Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.
A mother appeals the district court's ruling awarding physical care of her daughter to the father. AFFIRMED.
Angie Schneiderman of Berenstein, Moore, Berenstein, Heffernan Moeller, L.L.P., Sioux City, for appellant.
Shelley Horak of Horak Associates, Sioux City, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
"This is another custody case which would severely test the wisdom of Solomon." In re Mann, 293 N.W.2d 185, 186 (Iowa 1980). Tabatha Kruse and Matthew Kleich are the unmarried parents of Alexis, born on December 8, 1999. Each has failed Alexis, yet both are suitable caretakers. The district court awarded Matthew physical care. On appeal, Tabatha asks us to reverse. We decline to do so.
I. Background Facts and Proceedings
At the time of Alexis's birth, both parents lived in Sioux City. Matthew saw Alexis once at the hospital. He had no further in-person contact with her.
Tabatha and Alexis lived with Tabatha's parents for approximately two years. Tabatha's parents then divorced and Tabatha followed her mother to Fort Wayne, Indiana, taking Alexis with her.
In December 2001, Tabatha was arrested in Sioux City on a charge of second-degree mischief. She returned to Indiana and failed to appear for the criminal trial nine months later. At the time of the custody hearing in August 2003, the charges were still pending and there was an outstanding warrant for failure to appear.
Meanwhile, the Child Support Recovery Unit filed a paternity and support action against Matthew. The district court determined he was the father and ordered him to pay child support. Within one month, Matthew petitioned for custody of Alexis.
Tabatha and Alexis continued to live in Fort Wayne throughout the proceedings. They shared a home with a man Tabatha had begun dating in January 2003 and Alexis's half-brother. Tabatha and her mother bought and sold collectibles, while Tabatha's boyfriend worked as a horse trainer, earning a sufficient wage to comfortably support the household.
Matthew lived in Sergeant Bluff. He worked as a truck driver Monday through Friday and two overnights per week. He married Dawn four months after Alexis was born and had a two-year-old daughter with her. Dawn was not employed outside the home. In the evenings, she took nursing courses.
At the custody hearing, Tabatha appeared by telephone, expressing concern that, if she returned to Iowa, she would be apprehended on the outstanding warrant and would be unable to mount a defense to Matthew's custody petition.
After considering the testimony of Tabatha and her mother and father as well as Matthew and his wife, the district court issued its ruling in favor of Matthew.
II. Physical Care
In placing Alexis with Matthew, the court reasoned:
Tabatha's inaction with regard to the warrant has set in motion a predictable chain of events that will likely jeopardize the well being of Alexis. Her inaction is a conscious choice cognizant of the potential consequences and selfish in every way. This Court is concerned that Tabatha's inaction is consistent with the legal maxim "Acts indicate the intention."
On our de novo review, we agree with the court that Tabatha's attempts to evade the law jeopardized her relationship with her daughter and her daughter's relationship with her newly discovered father. Tabatha had charges pending against her and faced six months in jail. The potential jail time would necessarily affect her availability to parent Alexis. We have stated that disregard for the law and an inability to take responsibility for one's own actions are serious considerations in child custody determinations. In re Marriage of Worthington, 507 N.W.2d 147, 150 (Iowa Ct.App. 1993)
We weigh these considerations against Tabatha's role as sole caretaker of Alexis. In re Marriage of Decker, 666 N.W.2d 175, 178 (Iowa Ct.App. 2003) (stating fact parent was primary caretaker prior to separation entitled to weight but does not assure he or she will be custodial parent). There is no question that, absent her legal troubles, Tabatha was a good mother to Alexis. By all accounts, Alexis thrived in her care, developing into a bright and well-adjusted child. Additionally, Matthew acknowledged that Tabatha was open to visitation and only money prevented him from exercising it. When asked if this openness ever changed, Matthew responded, "No, it stayed the same. I could see her whenever I wanted to."
In the months preceding the custody hearing, this solid caretaking record became tainted. Tabatha evaded the reach of Iowa authorities, knowing that by doing so she was worsening her own legal problems and risking her child's welfare. For example, Tabatha and Matthew scheduled a visit in Moline, Illinois, but Tabatha subsequently canceled the visit because she feared arrest.
In contrast, Matthew improved his conduct. He disclosed the existence of Alexis to his wife, began speaking to the child on the telephone, and instituted this custody action. At the custody hearing, he and his wife established that they had provided a stable and loving home for Matthew's second daughter and were capable of doing the same for Alexis.
We recognize that, as a result of Matthew's absence from his daughter's life for two and a half years, Alexis did not know her father or his wife and second daughter. While Matthew claimed he had a "deep feeling" Alexis was not his child, his conduct after her birth belies this assertion. He stated he went to see Alexis at the hospital "out of respect." He said, "[m]y mom and dad told me I should go up and at least be there." Once there, he told Tabatha's parents that he would be a good father to Alexis and provide for her. He admitted that his parents took Alexis to their apartment for a visit. Tabatha's father recalled the visit, stating that Matthew's parents wanted to show Alexis to "their family." Tabatha's mother was told this was a holiday gathering and the decorations included a Christmas stocking with Alexis's name on it. In short, there was ample evidence from which to surmise that Matthew knew Alexis was his daughter but chose not to acknowledge it.
Nevertheless, at the time of the custody hearing, Matthew was in the best position to care for Alexis, given Teresa's impending jail sentence. While we reach this conclusion based on a de novo review of the record, we are mindful of the fact that the district court, "[b]y observation of the witnesses" was in a particularly good position to make this difficult determination. Jones v. Jones, 251 Iowa 1148, 1156, 104 N.W.2d 449, 454 (1960).
We affirm the district court's ruling. Tabatha's request for appellate attorney fees is denied.