Opinion
No. 5-419 / 04-1677
Filed July 27, 2005
Appeal from the Iowa District Court for Buchanan County, Jon C. Fister, Judge.
Petitioner appeals from the provisions of the decree dissolving his marriage to respondent. AFFIRMED.
Robert J. Murphy of Murphy Law Office, Dubuque, for appellant.
Cheryl Weber of Dutton, Braun, Staack, Hellman, P.L.C., Waterloo, for appellee.
Heard by Mahan, P.J., and Zimmer and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Robert Thompson appeals from the provisions of the decree dissolving his marriage to Tina Thompson. He contends the district court erred in granting physical care of two of their children to Tina. He also contends the court erred in distributing the parties' property. Tina requests an award of her appellate attorney fees. We affirm.
I. Background Facts and Proceedings.
Robert and Tina were married in September 1987. They have three children: Daniel, born in 1988, Nicholas, born in 1991, and Michael, born in 2001. Tina is employed as a medical assistant at Health Enterprises. Robert is self-employed in the business of making custom kitchen cabinetry. Both parties are in good health.
In 2000, the parties separated. Tina obtained a protective order against Robert. The parties reconciled for a time and attended counseling sessions. In August 2002, Tina again left Robert. She alleges she was prompted to leave after Robert physically assaulted her. Tina again obtained a protective order against Robert. On August 16, 2002, Robert filed a petition to dissolve the marriage.
Terri Osvald was a good friend of Tina. While the parties were separated in December 2002, both Terri and her daughter, Heather, wrote letters recommending Tina be granted physical care of the children based on their observations. In March 2003, Terri began a romantic relationship with Robert. Both Terri and Heather were living with Robert and the children at the time of the dissolution.
During the parties' separation, Robert was physical caretaker of Daniel and Nicholas. Physical care of Michael was shared, with placement alternating on a weekly basis. Tina had visitation with Nicholas, but not with Daniel.
The exchange of custody for visitations was, by all accounts, difficult. Robert was by and large not involved in the exchange, instead sending other parties in his place. Daniel and Heather often accompanied Nicholas to the exchanges. On one occasion, Daniel sprayed Tina in the face with a can of deodorant, telling her it was "slut repellant." He then wrote "slut" on the window of the van. Cathy Corkery, Tina's friend, began attending the exchanges as a visitation facilitator.
One Monday morning, Tina awoke to find her home had been spray painted with vulgar language in the colors of orange, blue, and red. A receipt shows that the night before, Heather had purchased spray paint in the same colors at Wal-Mart. Although Heather denies any involvement in the vandalism, at the time of the dissolution trial she was being investigated by police as a suspect.
Trial was held in September 2004. The only issues before the court were physical care of the children and distribution of the parties' property. Tina conceded her relationship with Daniel had disintegrated, and thus did not request physical care of him. Although she sought physical care of Nicholas, Tina was also concerned about the deterioration of their relationship and asked the court to grant her his physical care only if the court determined it was in his best interest. Tina sought physical care of Michael.
On October 5, 2004, the district court entered its decree dissolving the parties' marriage. The court granted Robert physical care of Daniel and granted Tina physical care of Nicholas and Michael.
II. Physical Care.
Robert first contends the court erred in granting Tina physical care of Nicholas and Michael.
We review a custody order de novo. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). In doing so, we give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Id.
The best interest of the children is our standard for deciding child custody. Iowa R. App. P. 6.14(6)( o); Murphy, 592 N.W.2d at 683. Our objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Id. We consider the statutory factors in Iowa Code section 598.41(3) (2003) in making this determination. These statutory criteria, and those identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), are considered in determining the appropriate award of physical care. In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992).
Refusal by one parent to provide the opportunity for children to have maximum continuous physical and emotional contact with the other parent without just cause is considered harmful to the best interest of the child, Iowa Code § 598.1(1), and is considered a significant factor in determining the proper custody arrangement. Iowa Code § 598.41(1)(c). Because children of a divorce need to maintain meaningful relationships with both parents, In re Marriage of Gravatt, 371 N.W.2d 836, 840 (Iowa Ct. App. 1985), this court has given great weight to one parent's attempt to alienate a child from the other parent. In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct.App. 1992).
"The court recognizes that a custodial parent has the power to instill anxieties in a child toward the noncustodial parent." Nicolou v. Clements, 516 N.W.2d 905, 909 (Iowa Ct.App. 1994). Here, the district court found Robert had engaged in such behavior during the pendency of this case, turning Daniel and then Nicholas against their mother. The court made strongly-worded credibility findings in relation to this issue. We give deference to these findings, in light of the court's firsthand opportunity to hear the evidence and view the witnesses. Will, 489 N.W.2d at 397.
We conclude the court's credibility findings are well supported in the record. Robert's testimony at times strained the boundaries of credulity. For instance, Robert steadfastly maintained Heather had nothing to do with the instance of vandalism at Tina's house, in spite of the evidence that Heather had purchased cans of spray paint in the same colors the night before the vandalism occurred. Robert testified instead that Heather purchased the spray paint for him, at his behest, and the likely explanation was that Tina had observed Heather's purchase and spray painted her own home to discredit him. To support his claim, Robert testified that Terri's home was also vandalized, but that he simply cleaned it up without documenting it or notifying the police. No one else witnessed this alleged vandalism. Further, Robert, Terri, Heather, and Daniel were dishonest in testimony regarding in whose home they were residing, and in which room Daniel was sleeping.
Robert, Terri, Heather, and Daniel all testified they were living in Robert's home and denied that Daniel and Heather shared a bedroom. Nicholas, testifying in camera, stated that they had been living in Terri's home for at least six months, and stated Heather and Daniel shared a room.
We believe, as did the district court, Robert has alienated the children from Tina. It is painfully evident from the record the relationship between Tina and the oldest child, Daniel, has been completely destroyed. The court concluded, "[T]he only reasonable inference to be drawn from all of the evidence on this issue is that Daniel's attitude is the result of efforts by [Robert] to alienate him and his brothers from their mother. . . ."
The evidence further shows that while in Robert's care, Nicholas's relationship with Tina deteriorated. For instance, in its interim temporary placement order, the district court stated:
Mary Terry, a child protective assessment worker for DHS, testified that Nick first told her he had a good relationship with his mother, then later told her he did not want to have any contact with his mother. Ms. Terry was concerned that Nick appeared to have been pressured to change his position.
Nicholas could not state any specific reasons for his dislike of Tina, instead making general statements that she was "not there" for him. The credible evidence also demonstrates Nicholas enjoyed his visitations with Tina, at least initially. Robert's influence on Nicholas is the only reasonable explanation for his change in attitude toward his mother. Robert's refusal to participate in all but one visitation exchange further demonstrates his inability to foster a meaningful relationship between the children and Tina.
Robert contends he is better suited to meet the children's needs because Tina suffers from quarterly bouts of depression that make her violent. However, the district court noted the testimony of Robert's witnesses regarding Tina's alleged depression "was so similar it appeared to be rehearsed." The court found these allegations inconsistent with Tina's demeanor in court and her ability to maintain regular employment.
We conclude the evidence shows Robert cannot provide his children the opportunity for maximum continuous physical and emotional contact with Tina. He has, in fact, been detrimental to their relationship. The record shows Tina has the ability to provide superior caretaking. For that reason, we affirm the provision of the decree granting Tina physical care of Nicholas and Michael.
III. Property Distribution.
Robert next contends the district court erred in its distribution of the marital property. In particular, he contends the court erred in determining his business's value at $60,000.
Our review of the economic provisions of a divorce decree is de novo. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). This standard requires us to examine the entire record and adjudicate anew rights on the issues properly presented. Id. We recognize the value afforded the trial court in listening to and observing the parties and witnesses. See Iowa R. App. P. 6.14(6)( g). Consequently, we give weight to the findings of the trial court, although they are not binding. Campbell, 623 N.W.2d at 586.
Partners to a marriage are entitled to a just and equitable share of the property accumulated during the marriage through their joint efforts. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.App. 1996). Iowa law does not require an equal division or percentage distribution, but rather merely requires us to determine what is fair and equitable under the circumstances. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). We must take into consideration those factors set forth in Iowa Code section 598.21(1).
The district court made extensive fact and credibility findings when determining Robert's business's value at $60,000. The court found his denial of any substantial inventory, work in process, and accounts receivable was not believable. In fact, Robert's January 2004 financial statement represented that his business was worth $63,000 in inventory, work in process, and prepaid business expenses. The court also rejected his claim that his business had no good will value. It noted Robert's failure to record cash payments and cashed checks as business income. Even disregarding good will, the record evidence supports the trial court's valuation. It was within the permissible range of evidence and we will not disturb it. In re Marriage of Versluis, 521 N.W.2d 760, 761 (Iowa Ct.App. 1994). Furthermore, we conclude the court's overall property distribution is equitable.
IV. Appellate Attorney Fees.
The trial court did not award attorney fees to either party. However, Tina now requests attorney fees in connection with this appeal. We award Tina $500 in appellate attorney fees.