Opinion
No. 2-203 / 01-1045.
Filed May 31, 2002.
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Carrie Fazio appeals from the child custody and property distribution aspects of the parties' dissolution decree. AFFIRMED.
Susan L. Ekstrom, Des Moines, for appellant.
David S. Wiggins and Carla T. Schemmel of Wiggins Anderson, P.C., West Des Moines, for appellee.
Heard by Sackett, C.J., and Huitink and Hecht, JJ.
Carrie Fazio appeals from the decree dissolving her marriage to Leonard Fazio. She contends the court erred in (1) failing to award her physical care of their son Anthony, (2) failing to equitably divide the assets, and (3) denying her request for attorney fees. We affirm.
I. Background Facts and Proceedings .
Carrie and Leonard Fazio were married on January 17, 1992. Their son, Anthony, was born on February 9, 1992. Carrie became the child's primary caretaker while Leonard continued working long hours in the real estate business. Thereafter, Leonard and Carrie organized a new realty firm known as Re/Max A-1 Best Realtors. Leonard was the firm's supervising broker and Carrie performed certain bookkeeper tasks for the company.
Carrie filed a bankruptcy shortly before the marriage and therefore brought few assets to the relationship. Although Leonard brought assets valued in excess of $200,000 into the marriage, the parties did not manage their fiscal affairs wisely. By the time of their dissolution, the couple's debts substantially exceeded the value of their assets.
On February 24, 2000, Carrie filed a petition for dissolution of the marriage. Following a trial, the court granted Leonard and Carrie joint legal custody, but placed Anthony's physical care with Leonard. The court awarded Leonard assets valued at $149,051 and ordered him to assume $355,697 in debt. The court allocated to Carrie assets valued at $35,255 and debts in the amount of $5,004. Carrie appeals from the physical care and property division provisions of the decree.
II. Scope of Review .
Dissolutions of marriage are tried in equity. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). Our standard of review is therefore de novo. Iowa R. App. P. 6.4. In such cases, "[w]e examine the entire record and adjudicate anew rights on the issues properly presented." In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). 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. at 513.
III. Anthony's Physical Care .
Prior to trial, licensed clinical psychologist Ana Lopez-Dawson prepared an evaluation for the court regarding custody issues. She characterized Leonard's role with Anthony as a "provider" and Carrie's role as the child's "caretaker." Lopez-Dawson recommended Carrie be granted Anthony's physical care. The district court rejected this recommendation, however, because Lopez-Dawson was unaware of the nature and extent of Carrie's drug usage and her relationship with a paramour. On appeal, Carrie asserts the court should have accepted Lopez-Dawson's recommendation and granted her Anthony's physical care.
The best interest of the child dominates our consideration in child custody cases. In re Marriage of Brainerd, 523 N.W.2d 611, 614 (Iowa Ct.App. 1994). Numerous factors exist to supplement the best interest standard, which are enumerated in Iowa Code section 598.41(3) (2001). See also In re Marriage of Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The critical issue in determining the best interests of the child is which parent will do better in raising the child into a healthy, content, and well-adjusted young adult. See In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App. 1991).
On our de novo review of the record, we conclude the district court properly rejected the recommendation of the homestudy investigator and granted Anthony's physical care to Leonard. As noted, the investigator's recommendation did not take into account the extent and reckless nature of Carrie's drug and alcohol abuse. Cori, Leonard's daughter from his first marriage, testified that Carrie began smoking marijuana around her when Cori was a fourteen-year old high school freshman, and provided alcohol to Cori and her friends when Cori was fifteen. Cori also testified she witnessed Carrie smoke marijuana approximately one hundred times, and that Carrie provided marijuana to Cori more than fifty times.
Diana Pastor, an employee in the Fazios' real estate office, testified that Carrie used marijuana on a daily basis. Pastor personally witnessed Carrie smoke marijuana at work, in a car, and in front of Cori. She also knew of occasions when Carrie was under the influence of alcohol or marijuana when she transported Anthony in a car. Carrie admitted getting high while Anthony was in the home and smoking marijuana in front of Cori.
Carrie attacks Cori's credibility because Cori did not disclose to Lopez-Dawson the allegations of Carrie's drug use. Carrie contends Cori's testimony is suspect because its substance was not disclosed until after Lopez-Dawson's custody evaluation recommended physical care be placed with Carrie. Leonard contends the timing of Cori's disclosures should not be viewed as suspect because of their tendency to reflect unfavorably upon her. Like the district court, we find Cori's testimony credible. We give it considerable weight because of its consistency and detail and also because it is consistent with testimony of other witnesses including Pastor.
Carrie's history of drug and alcohol use at times and in places posing a risk of harm to Anthony and Cori indicates a selfish indifference to the welfare of her son and stepdaughter. Like the district court, we cannot conclude, based on this reckless, dangerous, and illegal behavior that Carrie is better equipped to raise Anthony into a healthy, content, and well-adjusted young adult. See Rodgers, 470 N.W.2d at 44. We gain insight for this determination from evidence of Carrie's past performance, for that performance may be indicative of the quality of the future care she is capable of providing. In re D.P., 431 N.W.2d 777, 781 (Iowa 1988).
Carrie places great weight on the fact she has served as Anthony's primary caretaker, while Leonard has focused his time and efforts on his business pursuits. We believe the record supports this characterization. However, the parent who has been the primary caretaker of the children during the marriage will not necessarily be designated the primary caretaker at the time of a divorce. In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct.App. 1992). The record reflects that Leonard, although certainly not without faults of his own, has been a loving and capable father as well. We credit Leonard's testimony that he will devote more time to Anthony and less to his real estate business if he is granted Anthony's physical care.
Our decision is also influenced by the fact that placing Anthony in Leonard's physical custody will leave him in his familiar environment. Carrie has moved to Ankeny to live with her paramour. A move to Ankeny will place Anthony in an unfamiliar school district, away from his friends, and in an unfamiliar home with a man to whom his mother is not married.
We affirm the district court's grant of Anthony's physical care to Leonard.
IV. Property Distribution .
The partners to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). Iowa courts do not require an equal division or percentage distribution. Id. The determining factor is what is fair and equitable in each circumstance. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). The distribution of the property should be made in consideration of the criteria codified in Iowa Code section 598.21(1). See In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa Ct.App. 1983).
We conclude the district court properly divided the assets and debts of the parties. As noted above, the court awarded Leonard assets worth $149,051 and ordered him to pay debts of $355,697. This leaves Leonard with a net of $206,546 in liabilities. The court awarded Carrie $35,255 in assets, and allocated to her debts of $5,004. Thus, Carrie leaves the marriage with net assets valued at $30,251. Carrie contends this division of assets is inequitable because Leonard received a substantially greater value of assets than she. We disagree. The parties enjoyed a fiscally immoderate lifestyle during their marriage, spending far in excess of what they earned. What Carrie's position ignores is the substantial marital debt attributable to that lifestyle, which the district court's decree allocates to Leonard. Leonard leaves the marriage with far less net worth than when he entered it, while Carrie leaves it with an increased net worth. We find the district court's property division equitable and therefore affirm it in its entirety.
V. Attorney Fees .
Carrie appeals from the trial court's refusal to grant her attorney fees. District courts have considerable discretion in awarding attorney fees. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). To overturn an award the complaining party must show that the trial court abused its discretion. Id. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct.App. 1987). In view of Leonard's substantial debt burden, the district court did not abuse its discretion by requiring the parties to pay their own attorney fees.
Carrie requests an award of attorney fees for this appeal. We have discretion to award appellate attorney fees under Iowa Code section 598.36. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Daniels, 568 N.W.2d 51, 56 (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 trial court's decision on appeal. Maher, 596 N.W.2d at 568. We conclude each party should pay their own appellate attorney fees.
AFFIRMED.