Opinion
No. 1-638 / 00-1583.
Filed January 28, 2002.
Appeal from the Iowa District Court for Dallas County, DALE B. HAGEN, Judge.
Petitioner appeals the child custody, child support, and attorney fee provisions of the parties' dissolution decree. AFFIRMED.
Debra A. Hockett-Clark of Hockett-Clark Law Office, Des Moines, and Jeanne K. Johnson, Des Moines, for appellant.
Dallas J. Janssen, Des Moines, and Steven L. Udelhoven, Ankeny, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Petitioner-appellant Judith D. Redman appeals challenging the dissolution decree awarding primary custody of the parties' daughter Malori, born in July of 1991, to her father, respondent-appellee Frederick J. Redman. Judith also challenges the support and attorney fee provision in the decree. We affirm.
Judith, forty-five at the time of dissolution, and Frederick, fifty-three, were married in August of 1990. Judith had three prior marriages. She has four sons from those marriages. At the time of the dissolution her sons ranged in age from fourteen to twenty-four. Judith's sons lived with the parties after the marriage during their minority. At the time the dissolution petition was filed two of Judith's sons remained in the home. Judith is a registered nurse and through much of the marriage she worked at Mercy Hospital in Des Moines. At the time of the dissolution hearing she was unemployed but had been offered a nursing job in Colorado where she intended to move if she were successful in her petition seeking primary care of Malori, the only child she and Frederick had together.
Frederick had two prior marriages and has seven children from these marriages and a prior relationship. His children all have been in the primary care of their mothers, although Frederick pays child support and has enjoyed visitation with his four younger children. Frederick is a helicopter pilot for Mercy Hospital and at the time of trial was in the Iowa Army National Guard.
Judith filed the petition for dissolution in November of 1999. The dissolution was tried in June of 2000. The parties, Malori, and Judith's two younger sons remained living in the same home during the pendency of the action.
The district court found both Judith and Frederick to be good parents who had spent time with their daughter and were interested in her progress. The district court reasoned Frederick was the better custodian. The district court noted he intended to remain in the area of Earlham, Iowa, where Malori had grown up, attended school, and had half-siblings and grandparents. The court found Judith's stated intention to move to Colorado should she receive custody would rob Malori of connections with family and would require her to adjust to a new living environment and a new school. The court further noted that it was not certain of Judith's stability, and if the Colorado situation did not work out for her, it was concerned she would seek other jobs and perhaps make other moves.
Judith was awarded what the court referred to as liberal and frequent visitation, to include at least four weeks in the summer as well as extended vacations when Malori's school was not in session.
Additionally the district court ordered Judith to pay Frederick child support of $560 a month commencing on August 1, 2000. The court found Frederick should have Malori's tax exemption for the year 2000, and the exemption should alternate each subsequent year. Frederick was required to provide health insurance including medical and dental for Malori. Health-related expenses not covered by insurance were to be paid one-half by each party.
Judith contends that she, not Frederick, should have been named Malori's primary care parent.
Our review is de novo. Iowa R. App. P. 4. We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses. Iowa R. App. P. 14(f)(7). We are not bound by these determinations. Id. We base our decision primarily on the particular circumstances of the parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). Malori's interests are our primary consideration. See In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The factors we consider in awarding custody are enumerated in Iowa Code section 598.41(3), in Weidner, 338 N.W.2d at 355-56, and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The issue is which parent will better raise the child; gender is irrelevant and neither parent has a greater burden than the other in attempting to gain custody in a dissolution proceeding . In re Marriage of Volding, 544 N.W.2d 457, 259 (Iowa Ct. App. 1995); In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct. App. 1985).
We agree with the district court that both Judith and Frederick have been good parents to Malori. Unfortunately, both parties seek to paint the other in an unattractive light. Judith complains of the way Frederick treated her sons and contends her sons never established an emotional bond with Frederick. She advances Frederick used physical discipline on her sons. She says his treatment of his own children was light-hearted and happy.
Frederick complains that Judith did not exercise proper discipline with her sons. He contends they get bad grades, have been in trouble in school, and family counseling was necessary to deal with the inappropriate behavior of one of Judith's sons. Judith contends that she provided structure and guidance to all of her children.
Frederick, a graduate of Iowa State University, is a former teacher. He works a cycle where he has three days of work and then a day off. He then works three more days and has six days off. He says he spends most of his non-working hours at home with Malori. He indicates he helps her with her schoolwork. He says he has daily contact with Malori and assists her in getting to school. He claims he has never missed one of her school events. Frederick further contends that Malori has strong relationships with her half-brothers and half-sisters and her grandparents, who live in Iowa. He challenges the amount of time Judith contends she has spent with her children, advancing that he took care of Malori and Judith's sons while she traveled around the country. Judith is involved in selling Quixtar/Amway products and goes to those conventions twice a year. She took a trip to Mexico after the parties' separation and also took an Alaskan cruise, leaving Frederick with all the children. Frederick said she did most of this on credit cards. The balance on Judith's personal credit cards exceeded $17,000 at the time of trial. Judith also had a relationship with a married man from Wisconsin and left that relationship for another relationship with a man in Colorado who lives in the area where she intends to move.
We find no reason to disagree with the district court's decision to grant Frederick primary physical care and affirm on this issue.
Judith next contends the district court should have included money Frederick earns from the National Guard in computing her child support obligation. Frederick earned about $18,000 from the National Guard in the year prior to trial. In addition, Frederick earned $60,908 as a helicopter pilot. Frederick promised that if awarded Malori's primary custody he would resign from the National Guard so that he would have the necessary time with his daughter. As a result the district court did not consider his National Guard income in determining child support. Judith contends that amount should be included before figuring her child support obligation. The district court ordered Judith to pay child support of $560.26 a month. The district court based this amount on the assumption that the job she was taking in Colorado would pay her an annual income of $45,656. The record made at trial supported a finding that Frederick would no longer have earnings from the National Guard. We affirm on this issue.
Judith contends that the district court should have ordered Frederick to pay her trial attorney fees in the amount of $12,911.00. Frederick contends the district court was correct in not ordering him to pay Judith's attorney fees. He advances that she should have been required to pay his. Frederick has not filed a cross appeal. Consequently, we address only Judith's claim for attorney fees.
An award of attorney fees lies within the discretion of the trial court. In re Marriage of Guyer, 522 N.W.2d 818, 821 (Iowa 1994). Whether attorney fees should be awarded depends on the respective abilities of the parties to pay the fees, and the fees must be fair and reasonable. Id. Judith has not shown the district court abused its discretion in not awarding her attorney fees.
Judith requests appellate attorney fees. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct. App. 1997); In re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994). In determining whether to award appellate attorney fees, 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 decision of the trial court on appeal. Id. We award no appellate attorney fees. Costs on appeal are taxed to Judith.
AFFIRMED.