Opinion
No. 1-547 / 00-1604.
Filed February 20, 2002.
Appeal from the Iowa District Court for Polk County, RICHARD G. BLANE, II, Judge.
Julie Ummel appeals from the custody provisions of the parties' dissolution decree. AFFIRMED.
Marla Suddreth of Borseth, Genest Suddreth Law Office, Altoona, for appellant.
Thomas J. McCann of the Law Offices of Thomas J. McCann, Des Moines, for appellee.
Heard by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Julieann Ummel (Julie) appeals from the custody provisions of the parties' dissolution decree. She claims the district court should not have placed physical care of the parties' son, Douglas, with Dennis Ummel because it resulted in an inappropriate split custody arrangement. We affirm.
Julie and Dennis were married in 1981. They have two children, Jennifer, born in December 1984, and Douglas, born in March 1987. During the marriage the parties resided in the family home in Urbandale.
Julie is a real estate agent. She has flexible hours, but is required to work afternoons on alternating weekends. Dennis is an engineering technician. He gets off work at 4:00 p.m. each weekday, and does not work weekends.
The parties have an unfortunate history of marital discord. This action represents Julie's third dissolution petition filed during the marriage. The record includes evidence of Julie's infidelity and resulting verbal altercations between the parties. There is also evidence indicating Dennis has a hostile temperament and controlling disposition. The evidence indicates the parties' marital discord has negatively affected their children, who witnessed their altercations. There is also evidence that Jennifer sympathizes with her mother's situation resulting in a negative and strained relationship with Dennis.
The district court's dissolution decree awarded the parties joint custody of their children:
with the primary physical custody of both minor children being awarded to Petitioner, Julieann Ummel, until one week prior to the first day of school 2001, at which time primary physical custody of Douglas L. Ummel shall be transferred to the Respondent, Dennis Ummel, provided the Respondent complete counseling for temper and anger management. The Respondent shall attend at least one session each month for a period of one year. Said sessions shall be at least one hour in length. The Respondent shall also be required to successfully complete parenting classes. Further, the Respondent shall live in the Urbandale School District.
Each party was awarded liberal visitation with the child not in his or her care, including alternating weekends, two evenings each week, alternating holidays, and two-two week periods during the summer. The visitation schedule was arranged so the children would be together each weekend, holidays, and summer visitation periods.
Julie appeals, claiming the court should have placed Douglas in her physical care. She asserts Jennifer and Douglas should not be separated. She also contends the district court improperly considered gender in determining that Douglas should live with his father. She further claims it is not in Douglas's best interests to live with Dennis because of Dennis's hostile temperament.
Our scope of review in this equitable action is de novo. Iowa R. App. P. 4. We examine the record in its entirety to adjudicate anew all issues properly presented. In re Marriage of Smiley, 518 N.W.2d 376, 378 (Iowa 1994). In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the trial court, but are not bound by them. Iowa R. App. P. 14(f)(7).
Our primary consideration in child custody cases is the best interests of the children. In re Marriage of Pundt, 547 N.W.2d 243, 245 (Iowa 1996). 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, well-adjusted young adult. In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct. App. 1994).
The present case involves a split physical care arrangement, with each parent having physical care of one child. See In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). There is a presumption that siblings should not be separated. In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981). "The rule is not ironclad, however, and circumstances may arise which demonstrate that separation may better promote the long-range interests of children." Id. Split custody of children is warranted if good and compelling reasons exist for dividing custody. Pundt, 547 N.W.2d at 245. Specifically, split custody is justified if it is found to better promote the children's long-range best interests. In re Marriage of Harris, 530 N.W.2d 473, 474 (Iowa Ct. App. 1995).
We agree with the district court's conclusion that, despite Dennis's temperament, he is nevertheless the more stable parent. We also agree that he would be an appropriate physical care provider for both children. There is abundant evidence of Dennis's constructive participation in the children's educational and social activities. The reality, however, is that Jennifer has sided with her mother and would prefer to live with her. Jennifer was fifteen years old at the time of trial and has made a thoughtful and considered judgment in stating her preference to live with Julie. We conclude that the district court appropriately considered this reality and Jennifer's best interests are served by this arrangement.
In contrast, Douglas's relationship with Dennis is more positive. We agree with the district court's determination that the stability of the environment Dennis offers necessitates placement of Douglas in his physical care. We also note that under the parties' visitation schedule the children will be afforded considerable time together on the weekend, holidays and summer vacation. Under these circumstances we believe any presumption against split physical care has been overcome. The district court is affirmed on this issue.
In reaching this conclusion we have not ignored evidence concerning Dennis's hostile temperament. The record indicates that Dennis's temperament most often found its negative expression as a result of the parties' conflict over Julie's infidelity. Moreover, Dennis has acknowledged this problem and will attend counseling to address it. Lastly, we note that there is no evidence that Dennis's temperament has resulted in abusive behavior towards the children, nor is there any history of domestic abuse implicating a presumption against the custodial arrangements ordered by the district court. We affirm.
AFFIRMED.