Opinion
No. 5-608 / 05-0171
Filed October 26, 2005
Appeal from the Iowa District Court for Pottawattamie County, Gordon C. Abel, Judge.
A mother appeals from the physical care provisions of the decree dissolving the parties' marriage. AFFIRMED.
SueEllen Overton, Council Bluffs, for appellant.
Susan Christensen, Harlan, for appellee.
Heard by Vogel, P.J., and Zimmer and Miller, JJ.
Janese Osborn appeals from the physical care provisions of the decree dissolving her marriage to Curtis Osborn, which awarded Curtis physical care of the parties' two children. We affirm the district court.
I. Background Facts and Proceedings.
Curtis and Janese were married in 1988. They are the parents of two children: Joshua, born in 1991, and Justin, born in 1993. The family maintained their martial residence in Walnut, Iowa.
Joshua is an active, bright, and well-adjusted child. Justin was diagnosed with autism when he was three years old. His social interaction and communication skills are impaired. Although Justin has special educational needs, he is able to express himself, is doing well in school, and is involved in outside activities.
During the early years of the parties' marriage, Curtis was the family's sole income provider, and Janese cared for the children and the home. Janese was also the parent who primarily worked with the local area education agency in creating an individualized education plan for Justin. After Justin entered preschool, Janese obtained employment outside the home.
Although both parents were involved with the children's care, Janese continued to perform the greater portion of the childcare duties. Janese's work schedule allowed her to be at home during the afternoons and evenings. Curtis had several different employers during the marriage, and some of his positions required him to work long hours. Curtis was also involved in coaching, officiated at sporting events, and assisted his father in an auctioneering business.
Curtis filed a petition for dissolution in January 2004. Janese left the martial residence a few days later and moved to Avoca. During the separation the parties engaged in a shared care arrangement. The children maintained their primary residence in the marital home, and Curtis would ensure that the children arrived at school in Walnut each morning. Janese would then care for the children in Avoca from the end of her shift at work until Curtis arrived to take the children back to Walnut. In addition, Janese had the children's care one overnight each week and every other weekend.
In June 2004 Curtis filed an application for a guardian ad litem. On August 16, 2004, ten days prior to the dissolution hearing, the court followed the parties' joint recommendation and appointed Karen Mailander as guardian ad litem. Mailander interviewed the parties, the children, and Justin's teacher, and filed a report prior to trial. In her report Mailander recommended that the parties share physical care, and if a shared care arrangement was not viable, that Curtis receive physical care and Janese be awarded liberal visitation.
Prior to the hearing each party took steps to improve their availability for the children. Curtis obtained a new job, which would allow him to be available for the children after school. Janese located housing in Walnut.
In her answer to Curtis's petition, Janese stated that in 2005 she "anticipates moving which will result in a change of school districts." She has apparently abandoned any such intention.
Following hearing, the court dissolved the parties' marriage, divided their property, awarded them joint legal custody of the children, and placed the children's physical care with Curtis. The court noted Janese had been the children's primary caregiver, and that since the separation she had maintained nearly daily contact with the children. It noted each parent's stated commitment to keeping the boys in the Walnut school system, and Curtis's vow to abandon some of his non-work activities in order to make more time for the boys. The court considered the job stability and financial responsibility of each party, as well as children's stated preference to remain with their father. Finally, the court concluded "upon careful consideration," that it should adopt the guardian ad litem's recommendation to award Curtis physical care.
Janese appeals. She contends awarding Curtis physical care is not in the children's best interest because she was the primary care giver during the marriage and has always made the children a priority, whereas Curtis is only now modifying his behavior. She further asserts that she is more financially stable than Curtis, who has held several jobs and gone into debt to "buy" the children's affections. She also contends the guardian ad litem's recommendation is not entitled to any weight because it was based upon brief interviews and inaccurate information. Finally, she requests that Curtis pay her appellate attorney fees and the costs of this appeal.
II. Scope and Standard of Review.
Our scope of review is de novo. Iowa R. App. P. 6.4; In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000). Although not bound by the district court's factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)( g).
III. Physical Care.
In any physical care determination, the primary consideration is the best interests of the children. Iowa R. App. P. 6.14(6)( o); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). In considering which physical care arrangement is in the children's best interests, we consider the factors set forth in Iowa Code section 598.41(3) (2003), as well as the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The critical issue is which parent will do better in raising the children; 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). Our objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Murphy, 592 N.W.2d at 683.
Turning to the relevant considerations, we note that both Curtis and Janese love their children, and both have been involved in the children's care and socialization. Both parents are actively involved in their church and their children's religious upbringing. Although Janese may have had more responsibility for the children's day-to-day care, Curtis spent significant time with the children. Moreover, while Janese criticizes Curtis's financial responsibility and job stability, the record indicates that both parents are gainfully employed and financially stable.
Although Curtis held several jobs during the marriage, there is no credible evidence that his employment changes negatively impacted the family's financial stability. Moreover, his post-separation spending was not as extravagant as Janese suggests, nor should it be given significant weight in light of the financial frugality both parties demonstrated during the marriage.
Either parent would prove an effective caretaker. While Janese's status as the children's primary caregiver is a significant factor for our consideration, it does not ensure that she will be awarded physical care. See In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996). The controlling question is which of these capable and loving individuals can provide the environment most likely to bring Joshua and Justin to physical, mental, and social maturity. See Murphy, 592 N.W.2d at 683. Upon our de novo review of the record, we find no reason to disagree with the district court's decision to place physical care with Curtis, particularly as the court had the parties before it, was able to observe their demeanor, and was in a better position to evaluate them as caregivers. See In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993).
In reaching this decision, we recognize the weight to be given to the guardian ad litem's recommendation is arguably diminished by the limited nature of the interviews and the fact the recommendation seemed to be based, at least in part, on an assumption that Janese would or might move the children from Walnut. See In re Marriage of Rebouche, 587 N.W.2d 795, 799 (Iowa Ct.App. 1998); In re Marriage of Pothast, 539 N.W.2d 199, 202 (Iowa Ct.App. 1995). Nevertheless, the report contains several factual observations that support the district court's decision to award Curtis the children's physical care.
Significantly, in their individual interviews Joshua expressed a "very clear preference" and Justin a "strong preference" for living with Curtis. These preferences, while not controlling, are relevant and cannot be ignored. In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct.App. 1985). In assessing the weight to afford these preferences, the court considers many factors, including the child's age and educational level, the strength of the preference, the intellectual and emotional makeup of the child, relationships with family members, the reasons for the decision, the advisability of recognizing the preference, and the fact that the court cannot be aware of all the factors that influence the child's decision. Id. at 258-59.
In light of the foregoing, Joshua's preference is entitled to some weight. The record indicates that at the time of the interview Joshua was an intelligent and well-adjusted thirteen-year-old who expressed a strong preference to live with his father. While Joshua was somewhat critical of his mother, the record indicates that he loves Janese and wishes to maintain contact with her. Justin's preference, while entitled to less weight in light of his age and his autism, nevertheless provides at least some additional support for the court's decision to award Curtis physical care.
During his interview Joshua expressed concerns that Janese "prefers" Justin, and claimed that Janese had restricted contact with Curtis and made negative statements about Curtis to and in front of the boys.
Although the children's preferences may have been motivated, in part, by a concern that Janese would move them from Walnut, that fact alone does not negate consideration of the clearly stated preferences. Even if Janese permanently relocates to Walnut, she will not be occupying the martial home. Although we place greater importance on emotional stability than upon physical environment, in certain cases even minor changes in a child's physical environment can have a greater emotional impact. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998). Awarding Curtis physical care allows both children to remain in the home they have occupied most of their young lives, offering both children, but particularly Justin, needed environmental and emotional security.
The decision to award Curtis physical care finds further support in the differing attitudes of the parties, both during the interviews by the guardian ad litem and during their trial testimony. In their individual interviews Janese tended to criticize Curtis, while Curtis indicated that Janese was a good mother. Although Janese did admit during trial that Curtis was a good father, once again she seemed more focused on criticizing Curtis than praising him. In contrast, Curtis tended to testify positively about Janese's role as a parent. A parent's ability to support the relationship between the children and his or her former spouse is an important consideration in awarding physical care. See Iowa Code § 598.41(5)(b).
We agree with the district court that Curtis is the parent who offers the environment most likely to cultivate physically, mentally, and socially healthy individuals. See Murphy, 592 N.W.2d at 683. Although Janese now suggests the children would benefit from a shared care arrangement, neither party requested shared physical care at trial, and in fact Janese testified that the shared care arrangement the parties employed during separation "wouldn't work." Moreover, we conclude shared physical care would not be in the children's best interests. See Iowa Code § 598.41(5). In addition to the factors previously discussed, we conclude such an arrangement would be too disruptive for Justin, who has a particular need for stability and routine. Accordingly, we affirm the district court's decision to place the children's physical care with Curtis.
IV. Appellate Attorney Fees and Costs.
Finally, we address Janese's claim that this court should award her appellate attorney fees and require Curtis to pay the costs of the appeal. An appellate attorney fee award is discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). We decline to award Janese any appellate attorney fees. Costs of the appeal are assessed to Janese.