Opinion
No. 2-772 / 02-0330.
Filed December 11, 2002.
Appeal from the Iowa District Court for Lee County, R. DAVID FAHEY, Jr., Judge.
Andrea Marshall appeals from the custodial and visitation provisions of an order entered by the district court. AFFIRMED AS MODIFIED.
Leslie Babich and Stacey Warren of Babich, Goldman, Cashatt and Renzo, P.C., Des Moines for appellant.
Elaine F. Eschman of Fehseke Eschman Law Offices, Fort Madison, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Andrea Marshall appeals from the trial court's decision to award physical care of her children, Jessica and Quentin, to their father, Jerry Beach. In the event we affirm the award of physical care, she requests that we modify the visitation schedule established by the court. She also requests an award of appellate attorney fees. We affirm as modified.
I. BACKGROUND FACTS AND PROCEEDINGS.
Andrea Marshall and Jerry Beach are the unwed parents of two children, Jessica, born in 1997, and Quentin, born in 1999. Andrea has two older children from a prior marriage which ended in 1992. The parties began living together in 1991. They separated several times during their first few years together and then cohabitated steadily until Andrea moved out in September of 2000. Andrea was thirty-one years old at the time of trial. She is a high school graduate and attended junior college for one year. Andrea has been employed at General Electric in Burlington as a materials handler for about six years. She works daytime hours Monday through Friday. Jerry is thirty-five years old. He is a high school graduate. Jerry has been self-employed since 1991. His business has been primarily involved in semi-tractor salvage, repair and resale. During the time the parties lived together, both played an active role in their children's lives.
Andrea filed a petition to establish custody, visitation and child support on February 14, 2001. Trial was held the following November. Both parties sought physical care of their children. Following trial, the district court awarded the parties joint legal custody. Jerry was awarded physical care of the children. The court's decree granted Andrea visitation and required her to pay child support. Andrea appealed.
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. PHYSICAL CARE.
Andrea contends she should be awarded physical care of the parties' two children. She argues she has been the children's primary caregiver. She contends the children should not be separated from their half-siblings. She asserts the record does not support the district court's findings and conclusions for awarding Jerry physical care.
The legal analysis employed in determining custody of children born to unmarried parents is the same utilized if the children's parents were married and divorced. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). Neither parent bears a higher burden of proving parental fitness under these circumstances. Id. The best interest of the children is our first and overriding concern. Iowa R.App.P. 6.14(6)(o). The factors considered in awarding custody are enumerated in Iowa Code section 598.41(3) (2001) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), and need not be repeated here. The decision requires selection of a custodial parent who can minister more effectively to the long-range best interests of the children. Winter, 223 N.W.2d at 167. The objective should always be to place the children in the environment most likely to bring them to a healthy physical, mental, and social maturity. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996). Each custody decision is based on its own particular facts. Will, 489 N.W.2d at 397.
The trial court summarized its reasons for awarding Jerry physical care in the following manner:
In summary, both Andrea and Jerry would be suitable physical caretakers. Andrea's arguments and evidence concerning physical care present an appropriate, but not compelling argument in her favor. Despite Jerry's transparent attempt to hide his financial situation, his evidence regarding custody balances Andrea's and ultimately tips the scales in his favor. His patience and emotional stability win out. His ability to support Andrea's relationship with the children also weighs in as a significant factor. The court recognizes that the adversary system of trial tends to paint an exaggerated and distorted picture; as the parties vie for position at trial, only the extremes of the parties' lives tend to be presented. Andrea is by no means a bad mother. She is a good one, both loving and devoted. The court nonetheless believes that, although the question is close, the children's long-range best interests are better served if Jerry has their primary physical care.
The record reveals the trial court reached its conclusions after carefully assessing each party's demeanor and attitude during trial. Upon de novo review, we find the court's reasons for awarding physical care of the children to Jerry are supported by the record. We also find the long-range best interests of the children outweigh the strong interest in not separating half-siblings. We affirm the district court's decision to grant physical care of Jessica and Quentin to Jerry.
IV. VISITATION.
Andrea contends her visitation schedule should be expanded. She requests additional summer visitation, overnight mid-week visitation, additional visitation during spring break and winter break, and expanded holiday visitation.
In establishing visitation rights, our governing consideration is the best interests of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). Generally, liberal visitation rights are in the children's best interests. Id. When dealing with visitation issues, prior cases have little precedential value and we must base our decision primarily on the particular circumstances of the parties before us. In re Marriage of Holub, 584 N.W.2d 731, 732 (Iowa Ct.App. 1998).
We agree with Jerry that the summer and mid-week visitation provisions of the trial court's decree are equitable and in the children's best interests. On appeal, Jerry does not object to Andrea's request for additional visitation time during winter and spring break, and during holiday weekends. Accordingly, we modify the parties' decree by awarding Andrea one-half of the period designated as winter break by the children's school calendar. We further modify the decree to provide that the spring break period designated by the school calendar shall be alternated on an annual basis. In addition, holiday visitation shall be for the entire holiday weekend, not just for the day of the holiday.
V. APPELLATE ATTORNEY FEES.
Andrea 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 a 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 Andrea appellate attorney fees.
VI. CONCLUSION.
We affirm the district court's decision to award physical care of the parties' children to Jerry. We affirm the parties' visitation schedule as modified. We deny Andrea's request for appellate attorney fees.