Opinion
No. 6-036 / 05-1414
Filed March 1, 2006
Appeal from the Iowa District Court for Adair County, Dale B. Hagen, Judge.
A mother appeals a district court ruling placing physical care of her daughter with the child's father. AFFIRMED.
Patrick W. O'Bryan, Des Moines, for appellant.
Ann M. Nielsen of Nielsen Nielsen, P.C., Corning, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
A mother appeals a district court ruling placing physical care of her daughter with the child's father. We affirm.
I. Background Facts and Proceedings
Jaysa Zimmerline and Brian Parker are the unmarried parents of Jozette, referred to by both parties as Joey. Joey was born in May 2004. The parties separated three months later and Jaysa subsequently filed a petition to establish custody, support, and visitation. The parties agreed to a shared physical care arrangement during the proceedings. Following a hearing on the petition, the district court granted Brian physical care of the child, subject to reasonable and liberal visitation with Jaysa. Jaysa appealed, contesting only the court's physical care determination.
II. Physical Care
Jaysa contends the district court acted inequitably in naming Brian the custodial parent. She suggests Brian (A) has a history of violent and abusive behavior, (B) is frequently intoxicated, and (C) was not Joey's primary caretaker for the first three months of the child's life. We will address each of these factors, reviewing the record de novo. See Iowa R. App. P. 6.4.
A. Abuse.
The district court described the parties' relationship as "stormy." We agree with this characterization. While Jaysa maintains Brian was the violent one, the record reflects that both were physically and verbally abusive to each other. Jaysa, for example, kneed Brian in the groin, "pushed him upside the head," and called him derogatory names. Brian, in turn, slashed the tires of Jaysa's car, broke her windshield and the side-view mirror, and shot a friend's gun at the ground near Jaysa's car. He also threw a glass of beer and a spatula at her.
Brian's acts were violent and dangerous and we do not condone them. However, the district court noted that his behavior was "atypical" and we concur in this assessment. For example, his former girlfriend of six years testified Brian was never abusive or physically assaultive towards her.
Jaysa's behaviors, in contrast, did not appear isolated. A former boyfriend testified she screamed at him, struck him, called him names, and threatened to kill him. He stated she was prescribed medication to manage her temper but could not afford to fill the prescription.
We agree with the district court that this factor paints both parties in a bad light, but we further agree with the court's determination that Brian "matured since Joey was born" while Jaysa remained "quite immature." See In re Marriage of Forbes, 570 N.W.2d 757, 759-60 (Iowa 1997) (stating it was up to court to "weigh the evidence of domestic abuse, its nature, severity, repetition, and to whom directed").
B. Alcohol Consumption.
Both parties drank alcohol to excess while they were together. However, Brian modified his drinking habits after his separation. He testified, "I don't want to go out and party when I got my child I can be with instead."
While Jaysa testified she also reduced her alcohol consumption after the separation, she admitted she went out "on Fridays." She also admitted she smoked marijuana in her home, but stated the last time she did so was several months before the custody hearing.
The district court found that Jaysa was "very concerned about her social life, leaving Joey with others while she `goes out.'" This finding is supported by the record. A neighbor testified she often babysat Joey on the weekend while Jaysa was out socializing, and she sometimes kept the child overnight. She mentioned that, on one occasion, Jaysa's current boyfriend called her and asked her to come over and help change the baby's diaper and prepare a bottle, because Jaysa was out.
Again, this evidence supports the district court's determination concerning the relative maturity of the two parties.
C. Primary Caretaker.
Jaysa next argues she should have physical care of Joey because she was her primary caretaker during the first three months of the child's life. The record supports her contention that she provided the majority of the care for the three months after Joey was born. However, beginning in September 2004, the parties shared physical care of Joey. This arrangement lasted for approximately ten months. Therefore, this factor does not weigh heavily in favor of Jaysa. In re Marriage of Burkle, 525 N.W.2d 439, 441-42 (Iowa Ct.App. 1994).
In reaching this conclusion, we have also considered testimony that Jaysa's care of Joey was inappropriate on more than one occasion. A neighbor testified she once found Jaysa sleeping on the couch while an unattended Joey banged on the screen door. The neighbor took Joey and babysat her for a couple of hours while Jaysa slept. The neighbor also testified she saw Jaysa smoking marijuana while Joey was in the apartment. Finally, she opined that Jaysa's housekeeping skills were inadequate.
D. Conclusion.
We conclude that none of the factors cited by Jaysa support her contention that the district court acted inequitably in granting Brian physical care of Joey. We are particularly swayed by the district court's assessment of the parties' demeanor and the court's determination that Brian and his witnesses were more credible. See Iowa R. App. P. 6.14(6)( g). As counsel for Jaysa stated during oral arguments, "this is a case of he said/she said." A district court's credibility determinations become particularly meaningful in this type of case. See In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997) ("In assessing a custody order, we give considerable weight to the judgment of the district court, which has had the benefit of hearing and observing the parties first-hand."). For these reasons, we affirm the district court.
III. Appellate Attorney Fees
Jaysa seeks an award of appellate attorney fees. Such an award rests within our discretion. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). As Jaysa did not prevail on appeal, we decline her request.