Opinion
No. 4-080 / 03-1174
Filed February 27, 2004
Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge.
Derrick Coleman appeals the district court's custody, visitation, and transportation fee provisions of its decree granting sole custody of his daughter to Sarah Cariaso. AFFIRMED.
Joseph Bertogli, Des Moines, for appellant.
Jay Kamath of Legal Aid Society of Story County, Nevada, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Derrick Coleman appeals the district court's custody and visitation provisions of its decree granting sole custody of his daughter, Asia, to her mother, Sarah Cariaso. We affirm.
I. Background Facts Proceedings
Derrick and Sarah began living together in Nevada, Iowa, in the summer of 2000, while both worked and attended classes at Iowa State University. Their daughter, Asia Leilani Coleman, was born on March 7, 2001. In December of 2001 Derrick graduated and moved to San Diego. Sarah and Asia remained in Nevada. Sarah assumed sole responsibility for Asia's care. The Iowa Child Support Recovery Unit issued an administrative order on June 27, 2002, requiring Derrick to pay $169 per month for Asia's support. In May of 2003 Derrick moved to Albuquerque, New Mexico. Derrick was delinquent on his support payments at that time.
On October 7, 2002, Sarah filed a petition to establish custody, support, and visitation rights. Sarah sought sole custody of Asia and additional child support. Derrick did not challenge Sarah's request for physical care, but he requested joint legal custody as well as liberal visitation rights. The district court granted Sarah's request for sole custody, stating:
Clear and convincing evidence supports granting Ms. Cariaso sole custody of the parties' daughter. Essential to a workable joint custody arrangement is the parents' ability to communicate reasonably about Asia's needs and to reach joint decisions on major issues affecting their daughter's development. The parties' substantial geographic separation significantly hinders joint decision making. More importantly, their longstanding, continuing inability to rationally and calmly discuss Asia's needs hinders such decision making. Since their separation, Mr. Coleman has been less than open about his place of residence and employment. At the time of trial, Ms. Cariaso did not even know exactly where Mr. Coleman lived. When Mr. Coleman moved from San Diego, Ms. Cariaso knew only that he might have moved to some unspecified location in New Mexico. If the Court named the parties as Asia's joint custodians, important decisions regarding Asia's education, healthcare, and other important matters could be unacceptably delayed or attended by unnecessary turmoil. Such situation would be contrary to Asia's best interest.
Derrick was awarded the following visitation:
(a) Until June 1, 2004, the Respondent shall have the right to visit Asia in the State of Iowa at reasonable times agreed upon by the parties from time to time. These visits shall not include any overnight hours, absent contrary agreement of the Petitioner. The Respondent shall provide the Petitioner at least 15 days' notice of the times when he plans to visit Asia in Iowa.
(b) For the time period beginning June 1, 2004, and ending June 1, 2005, the Respondent shall continue to have the visitation rights described in sub-paragraph (a) above. Provided, however, the Respondent may have overnight visits lasting no more than 72 hours.
(c) Beginning June 1, 2005, the Respondent shall be allowed a two-week period of visitation each summer. Beginning in 2007, the summer visitation period shall be increased to three weeks. The Respondent may exercise that right of visitation at any place of his choosing within the United States, provided that he provides the Petitioner with advance notice of such location.
(d) Beginning in 2005, the Respondent shall also be allowed a 5-day visit with the child at a location of his choosing during the time period beginning on December 24 and ending on the following January 2. Provided, however, (a) this right of visitation shall be exercised in a fashion to avoid disruption of the child's normal school attendance and (b) the period of visitation shall not begin until at least December 27 in odd-numbered years. The period of visitation may begin as early as December 24 in even-numbered years.
(e) Beginning June 1, 2005, the Respondent may have reasonable visitation whenever he travels to the State of Iowa. These visits may include overnight visits of reasonable duration.
The court ordered Derrick to pay all transportation costs incident to visitation and ordered him to pay the court costs. The court declined to modify the support award because the Child Support Recovery Unit was not notified of the proceedings, and no evidence was presented upon which Derrick's support obligation could be determined.
On appeal, Derrick argues the trial court erred by awarding sole custody to Sarah, failing to grant adequate visitation, and requiring him to pay all transportation costs incidental to visitation. He further requests the costs of this appeal to be taxed to Sarah.
II. Standard of Review
Our review of these equitable proceedings is de novo. Iowa R. App. P. 6.4. It is our duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct. App. 1993). 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).
III. Custody
We initially note that the legal analysis employed in determining custody of children born to unmarried parents is the same as that utilized if a child's parents were married and divorced. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). We also recognize that Derrick bears no higher burden of proving parental fitness under these circumstances. Id. The best interests of the child is our first and governing consideration. In re Marriage of Buttrey, 538 N.W.2d 322, 324 (Iowa Ct. App. 1995). The factors considered in awarding custody are enumerated in Iowa Code section 598.41(3) (2003), and they need not be repeated here. Our objective is to make a custody award that will assure Asia the opportunity for the maximum continuing physical and emotional contact with both parents. Iowa Code § 598.41(1).
Our statutory preference for joint custody over other custodial arrangements is well settled. See Iowa Code § 598.41; In re Marriage of Bartlett, 427 N.W.2d 876, 878 (Iowa Ct. App. 1988). "Joint custody is preferred because, properly tailored to the parties' circumstances, joint custodial arrangements will often go a long way toward encouraging both parents to share the rights, responsibilities, and frequently joyful and meaningful experiences of raising their children." In re Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983). A court denying joint custody must cite in its decision clear and convincing evidence that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and parent should be severed. See Iowa Code § 598.41(2); Bartlett, 427 N.W.2d at 878.
Our review of the record discloses abundant support for the trial court's findings of fact and we adopt them as our own. Like the trial court we find Derrick's lack of interest in parenting Asia, sporadic visitation, and failure to timely pay child support justifies sole custody in this instance. See Iowa Code § 598.41(3)(d),(h). Derrick's ability to jointly parent Asia is also impeded by the distance between the parties' residences. Lastly, we note Derrick's history of domestic abuse and Sarah's opposition to joint custody as additional reasons why joint custody is inappropriate in this case. Asia's long-term best interests are better served if Sarah is granted sole custody.
IV. Visitation
Generally, we have considered liberal visitation rights to be in a child's best interests. In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct. App. 1994). Both parents are charged with maintaining the best interests of the child, and thus with cooperating with visitation. In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991). A child should be assured the opportunity for the maximum continuing physical and emotional contact with both parents. In re Marriage of Ruden, 509 N.W.2d 494, 496 (Iowa Ct. App. 1993) (emphasis in original).
In reaching its visitation schedule determination, the district court stated the following:
The fashioning of a visitation schedule for Mr. Coleman is complicated by the parties' geographical separation and Asia's young age. Further complicating the Court's task is the fact that Mr. Coleman has had sparse in-person contact with Asia since January 1, 2002. A visitation schedule should take into account the amount of time needed for Mr. Coleman to develop or redevelop a meaningful parent-child relationship with Asia.
We conclude the district court's visitation schedule is reasonable in light of Asia's age and relationship with Derrick, and the great distance between the parties' residences. Moreover, this schedule affords Derrick ample opportunity to gradually reassume his parenting relationship with Asia.
We also reject Derrick's claims concerning transportation expenses incident to visitation. The record indicates Derrick conceded this issue at trial and we accordingly decline to consider it on appeal.
Lastly, Derrick asks this court to tax the costs of this appeal to Sarah. Sarah requests appellate attorney fees from Derrick and asks the costs of the appeal to be taxed to Derrick. Sarah is represented by the Legal Aid Society and testified that she makes approximately $500 to $900 per month working at Sears. Derrick, on the other hand, testified that as a car salesman, he can make anywhere between $3000 and $8000 per month. An award of appellate attorney fees on appeal is not a matter of right, but rests within the sound discretion of the court, considering the financial positions of the parties and the obligation to defend the district court's decision. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). Derrick is in a far superior position to pay fees in this case. We therefore find the costs of this appeal, along with Sarah's attorney fees incurred defending this appeal shall be taxed to Derrick.