Opinion
No. 2-222 / 01-1667.
Filed July 31, 2002.
Appeal from the Iowa District Court for Wayne County, DAVID L. CHRISTENSEN, Judge.
Kenneth Banks appeals from the decree dissolving the parties' marriage. AFFIRMED.
David S. Wiggins and Carla T. Schemmel of Wiggins Anderson, P.C., West Des Moines, for appellant.
Roberta A. Chambers, Corydon, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Kenneth Banks appeals from the decree dissolving his marriage to Shannon Banks. He contests the decree's custody and property distribution provisions. We affirm.
I. Background facts and proceedings .
Kenneth and Shannon were married on August 26, 1995, and later had two daughters, Samantha, who was born July 12, 1996, and Savannah, who was born April 9, 1998. In 1997, the family moved to Colorado where Kenneth worked full-time to support the family and Shannon worked odd jobs. They returned to Iowa in 1998 and Kenneth took a job at Rubbermaid. In August of 1998, Shannon began training to become an emergency medical technician (EMT), and became a first-responder at the fire department. Her training and subsequent employment as an EMT required her to be away from home at irregular hours. Kenneth eventually left Rubbermaid and took a lower paying job with Wayne County Conservation.
In June of 2000, Shannon moved out of the family house, after informing Kenneth she wanted a divorce. She initially sought, and was later granted, an ex parte restraining order to keep Kenneth away from her and the children. This order was lifted, however, after a subsequent hearing. Pending trial on their dissolution petition, the court granted Kenneth and Shannon joint physical custody on a two-week rotating basis. Following the trial, the court granted the parties joint custody of the children, and placed their physical care with Shannon. Kenneth appeals from this order.
II. Scope of review .
Our review of this equitable proceeding is de novo. Iowa R. App. P. 6.4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.App. 1996). We give weight to the fact-findings of the district court, especially in determining the credibility of witnesses, but are not bound by them. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999).
III. Physical care .
Kenneth contends the court erred in failing to grant him physical custody of the children or, in the alternative, joint custody. The best interests of the children dominate our consideration in child custody cases. In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct.App. 1994). The critical issue in determining the best interests of the children is which parent will most likely raise the children into healthy, content, well-adjusted young adults. Id.
Numerous factors exist to supplement the best interests standard. They are enumerated in Iowa Code section 598.41(3) (2001) and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The factors include (1) the characteristics of each child, (2) the specific needs of the child, (3) the suitability of each parent, (4) the capacity and interest of each parent in providing for the needs of the child, (5) the interpersonal relationship between the child and each parent, (6) the interpersonal relationship between the child and its siblings, (7) the effect on the child of continuing or disrupting an existing custodial status, (8) the nature of each proposed environment, and (9) the recommendations of independent investigators. Id.
Upon our de novo review of the record, we address only those Winter factors both supported in the record and relevant to our decision. In that regard, we pay particular attention to factors (3), (4), (5), and (8). With respect to the remaining factors, the evidence is either in equipoise or they are not helpful to our determination of the physical care arrangement in this case. This case involves two loving and capable parents; yet, parents that are not without faults and failures. Both have provided, and likely will continue to provide, a safe and nurturing environment for Samantha and Savannah. Like the district court, we believe the relevant factors tip the balance in favor of concluding the children's long-term best interests will be best served by granting Shannon their physical care.
The record reflects Shannon was their primary caretaker for much of the children's lives, especially early in the marriage. Between 1996 and 1998 Shannon basically did little work outside the home except part-time unskilled jobs. Accordingly, she spent much of her time with the children during these early years. Shannon and the children had a close emotional relationship and were well-bonded. Kenneth concedes Shannon and the girls have a good relationship. We find Shannon made reasonable efforts to communicate with Kenneth following their separation regarding the children's well-being, especially regarding their schooling and dental and medical needs.
In 1998, Shannon began attending EMT classes in Des Moines, and completed the program in January of 1999. This allowed her enhanced employment and earning opportunities and she worked full-time outside the home for three months during 1999. We conclude Shannon's motivation to pursue and complete EMT training reflects favorably upon her commitment to improve her employment prospects and provide financial support for the children.
We note both Shannon and Kenneth admit to various pre-marital problems, from assaultive conduct to drug use. There is no indication these problems continued during the marriage such that they should control our custody determination. We find no evidence Shannon's pre-marital history of anger problems has resurfaced in her relationship with the children. Similarly, we find Kenneth commendably discontinued drug use after the children were born such that they have not been negatively affected.
Our decision does not ignore the positive parenting history Kenneth demonstrated. During Shannon's EMT training and after she began working full time, Kenneth assumed a more active parenting role and took over more of the household duties. To his considerable credit, Kenneth is an active and involved parent, taking part in Samantha's school activities and spending substantial portions of his free time with the children. Kenneth is now working at a lower paying, but less time intensive job, which will make it feasible for him to continue his active parental role.
Kenneth strenuously urges that Shannon's tendency to be untruthful about extramarital sexual relationships and her dishonesty in connection with applications for a protective order and public assistance disqualify her as a provider of primary physical care. Although such behavior gives us pause, we nonetheless conclude the factors enumerated in Iowa Code section 598.41(3) support the district court's resolution of the physical care issue. We believe the evidence indicates Shannon has put her past behind her, and places her daughters in a position of primary importance in her life. We find her suitability as a parent, her proven capacity to provide care for Samantha and Savannah, her close relationship with them, and the loving and nurturing environment she can provide them all tip the balance in her favor. See Winter, 223 N.W.2d at 166-67.
Moreover, because we conclude the best interests of the children will best be served in Shannon's physical care, we decline Kenneth's invitation to grant the parties joint physical care. See Iowa Code § 598.41(5) (authorizing joint physical care when it is in the child's best interest and would foster a relationship with both parents). Here, joint physical care was not a mutual request of the parties and we question whether the adversarial relationship between the parents will result in the kind of cooperation required to facilitate such an arrangement. See In re Marriage of Swenka, 576 N.W.2d 615, 616-17 (Iowa Ct.App. 1998). Accordingly, we affirm the trial court's custody determination.
IV. Property distribution .
Kenneth contends the court erred in failing to award him a fair share of the parties' assets. In particular, he believes he, rather than Shannon, should have been awarded their Winnebago camper, valued at $450.
After assigning valuations, a determination must be made as to the equitable allocation of the assets and debts. Vieth, 591 N.W.2d at 640. Assets and debts should be equitably, but not necessarily equally, divided under the circumstances after considering the criteria delineated in Iowa Code section 598.21(1). See In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct.App. 1997).
Shannon testified she purchased the trailer for Kenneth with proceeds she received from the sale of a litter of puppies. We find no indication in the district court record that Kenneth specifically requested he be awarded the camper. Shannon presented to the court a proposed property division listing the camper as property she should be awarded. When asked what aspects of Shannon's proposal Kenneth disagreed with, he mentioned several items, but did not request or refer to the camper. While the district court did grant Shannon substantial assets, it also ordered her to assume a number of debts. In addition, both parties were granted half of the household goods. We conclude the district court's property settlement scheme, viewed in its entirety, was equitable and fair under the circumstances, and therefore affirm it.
V. Attorney fees .
Shannon requests an award of attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Gilliam, 525 N.W.2d 436, 439 (Iowa Ct.App. 1994). We are to 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 trial court's decision on appeal. In re Marriage of Roberts, 545 N.W.2d 340, 345 (Iowa Ct.App. 1996). We determine the parties should pay their own attorney fees. Having considered all the arguments and issues on appeal, we accordingly affirm the district court.
AFFIRMED.