Opinion
No. 5-158 / 04-0086
Filed April 28, 2005
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
Gabriel Hagen appeals the district court decision awarding physical care of the parties' child to Heather Mayes. AFFIRMED.
Carrie Coyle of Carrie E. Coyle, P.C., Davenport, for appellant.
Edward Wehr of Wehr, Berger, Lane Stevens, Davenport, for appellee.
Cynthia Z. Taylor of Zamora, Taylor, Alexander, Woods Frederick, Davenport, guardian ad litem and attorney for minor child.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
I. Background Facts Proceedings
Heather Mayes and Gabriel Hagen are the parents of Maci, who was born on November 26, 2001. The parties are not married. At the time of Maci's birth, they were living together in a mobile home in Cedar Rapids. The parties separated in November 2002, when Heather and Maci moved out of the home.
Gabriel still lives in the mobile home in Cedar Rapids. He has a two-year degree in electrical engineering. He is employed by Graybill Communication Company and is considered an excellent employee.
Heather and Maci live with Heather's parents in Blue Grass. Heather is unemployed and is a full-time student at a community college. She anticipated transferring to Augustana College, where she wanted to obtain a degree in teaching and coaching. Heather is very active in sports.
In November 2002 Heather filed a petition seeking to establish paternity and support under Iowa Code chapter 600B (2001). Gabriel responded by seeking primary physical care of Maci. The district court granted the parties joint legal custody of Maci, with Heather having primary physical care. The court noted Heather "has consistently been Maci's primary caretaker, and that she has consistently provided appropriate care, discipline and learning opportunities for this very young child." The court set forth a visitation schedule and ordered Gabriel to pay child support. Gabriel was ordered to pay $3000 for Heather's attorney fees. The parties were ordered to equally pay the attorney fees for Maci's guardian ad litem during these proceedings.
On Gabriel's post-trial motion, the district court slightly changed the holiday visitation times and reduced Gabriel's attorney fee obligation to $2414. Gabriel now appeals, and Heather cross-appeals.
II. Standard of Review
Generally, the review of paternity actions under chapter 600B is for errors at law. Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999). Section 600B.40 provides, however, that proceedings to determine visitation and custody are equitable proceedings. Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). Therefore, in the present proceedings our review is de novo. Iowa R. App. P. 6.4.
III. Physical Care
Gabriel contends that the district court should have awarded him primary physical care of Maci. Gabriel's claims for custody were premised on evidence of Heather's moral misconduct. Gabriel claims that the trial court did not give enough weight to the evidence of Heather's misconduct and erroneously relied on Heather's primary care experience in awarding primary physical care to Heather. We disagree.
In this action we consider the statutory criteria applicable to custody determinations in dissolution of marriage cases. Iowa Code §§ 600B.40; 598.41(3). Our first and governing consideration is the best interests of the child. Iowa R. App. P. 6.14(6)(o). We consider which parent can minister more effectively to the long-range best interests of the child. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). Our objective is to place the child in the environment most likely to bring her to healthy physical, mental and social maturity. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988).
The district court carefully considered all of the evidence in this case and determined:
[Heather] has tread a more meandering path as a teenager and young adult. Following the breakup with [Gabriel] she has engaged in one or more promiscuous relationships with other young men, and she has shown a penchant to stay out late and drink too much on occasion. Although the Court does not condone those activities, it is also apparent that they have not taken place in the child's presence or in circumstances which would affect the safety or appropriate care of the child. The evidence also demonstrates that [Heather] has consistently been Maci's primary caretaker, and that she has consistently provided appropriate care, discipline and learning opportunities for this very young child.
We give more deference to the district court on issues of credibility. See Iowa R. App. P. 6.14(6)(g) ("In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them). This is because the district court had the opportunity to view, firsthand, the demeanor of witnesses when testifying. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). The court considered the credibility and biases of Gabriel and his witnesses, and we determine the court gave the proper weight to their testimony.
On our de novo review, the fact that Heather was Maci's primary caregiver throughout her life is but one factor that we consider. See In re Marriage of Kunkel, 546 N.W.2d 634, 635 (Iowa Ct. App. 1996). Overall, we find that Maci has done very well in Heather's care. Several witnesses testified Heather was doing a good job taking care of Maci. Gabriel's witnesses did not dispute this, but brought up concerns regarding Heather's activities on weekends when Maci was with Gabriel. Regarding Gabriel, the evidence showed he generally relied on Heather to take care of the child, or looked to her for direction in caring for the child. We affirm the district court's conclusion that Heather should have primary physical care of Maci.
IV. Visitation
Heather asks to change the visitation schedule. Gabriel was awarded visitation on alternating weekends. He is to have one overnight visit each week until Maci begins kindergarten, when his mid-week visitation is reduced to 5:00 p.m. to 8:00 p.m. Gabriel was awarded two weeks of summer visitation, but in 2006 that will increase to four weeks of summer visitation. Gabriel also has visitation on alternating holidays.
Heather believes that due to Maci's young age, one overnight each week may be too difficult. Heather also asks that Gabriel not be awarded four weeks of summer visitation until 2008. We find the visitation is equitable and affirm. We attempt to "assure the child the opportunity for the maximum continuing physical and emotional contact with both parents . . . ." Iowa Code § 598.41(1)(a).
The decree provided that the parties would evenly divide the responsibility for transporting the child for visitation. Heather states that sometimes Gabriel would require her to drive half-way to Cedar Rapids from Blue Grass to drop off Maci, but then he would drive with Maci to Stockton, which is near Blue Grass. Gabriel's parents live in Stockton. We do not believe a modification of the decree is required, but note that as a common courtesy, if Gabriel decides to exercise his visitation in Stockton, he should not require Heather to travel half-way to Cedar Rapids. It is unfair to Maci to require her to make this unnecessary trip.
V. Sanction
When Heather was deposed for this case, Gabriel's attorney felt she was not answering questions to the best of her ability and filed a motion to compel. The district court ordered that Heather should provide responses either by sworn interrogatories or a new deposition at her cost. Heather stated she would provide sworn interrogatories. Gabriel insisted on a new deposition and scheduled one. Heather did not show up, stating she had made the choice to provide sworn interrogatories. Gabriel filed another motion to compel. The court determined Gabriel had the right to elect the method of conducting his discovery. Heather was assessed $586 for the deposition she failed to attend.
On appeal, Heather again asserts that she should have the ability to determine how to respond to Gabriel's discovery request. She asks us to eliminate the $586 sanction against her. We first point out that it is not for us to dictate a party's discovery tactics. Winegard v. Oxberger, 258 N.W.2d 847, 853 (Iowa 1977). We agree with the district court that a party should be permitted to conduct discovery as he or she sees fit. Furthermore, a district court's order imposing discovery sanctions will not be disturbed unless the court abused its discretion. In re Marriage of Williams, 595 N.W.2d 126, 129 (Iowa 1999). We find no abuse of discretion under the facts of this case.
VI. Guardian ad Litem Trial Attorney Fees
Heather objected to the appointment of a guardian ad litem in this case, and she particularly objected to the appointment of Cynthia Taylor as the guardian. Gabriel's attorney, Carrie Coyle, rents office space from Taylor. Coyle's office is very close to that of Taylor, and they share a receptionist. Gabriel paid $500 as a retainer for Taylor. The court ordered the parties to evenly divide the guardian ad litem's fees of $6172.50, giving Gabriel credit for the $500 he already paid. Heather was ordered to pay $3086.25, and Gabriel was ordered to pay $2586.25.
Additionally, Gabriel was ordered to pay $3000 toward Heather's trial attorney fees, less the $586 she was ordered to pay as a sanction. Gabriel was thus ordered to pay Heather $2414 for her trial attorney fees. Heather asserts that she should not have to pay for the guardian ad litem, and she asks for an increase in the amount of trial attorney fees awarded to her.
Under section 600B.25(1) an award of attorney fees is permissible in a paternity proceeding. Audas v. Scearcy, 549 N.W.2d 520, 523 (Iowa 1996). The fees of a guardian ad litem may be considered along with attorney fees. In re Marriage of Smith, 471 N.W.2d 70, 73 (Iowa Ct. App. 1999). The decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its discretion absent an abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999).
We find no abuse of discretion in the district court's division of the guardian ad litem fees or in the award of attorney fees to Heather.
VII. Appellate Attorney Fees
Both parties seek attorney fees for this appeal. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). 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 the district court's decision on appeal. Maher, 596 N.W.2d at 568. We determine Gabriel should pay $1000 toward Heather's appellate attorney fees.
We affirm the decision of the district court. Costs of this appeal are assessed to Gabriel.
AFFIRMED.