Opinion
No. 6-037 / 05-1506
Filed March 15, 2006
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.
Lisa Wilmington appeals the district court's joint physical care and child support orders in Terino Rush's action to establish custody and child support. AFFIRMED.
Arthur Buzzell, Davenport, for appellee.
Kelly G. Cunningham, Davenport, for appellant.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Lisa Wilmington appeals the district court's order on Terino Rush's application to establish custody and child support. She contends the court erred in ordering joint physical care of the parties' minor child and in its calculation of child support. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Lisa and Terino are the parents of one son, Fahsheed Rush, born in April 2002. The parties were never married to each other. Paternity is not disputed. Both parties work at the Kraft Foods plant in Davenport and have had the same work schedule from the time Fahsheed was born through the present action. Terino has three children from a prior relationship. Two of the children, twins, live with him and the other one is with his mother. He works thirty hours per week, three ten-hour days on Friday, Saturday and Sunday from 4:00 a.m. until 2:30 p.m. The court found Terino had a gross annual income of $22,404 at the time of trial. Lisa has a daughter from a previous relationship. The daughter has two children and has at times lived with Lisa. Lisa works forty hours per week, Monday through Thursday from 4:50 p.m. until 3:20 a.m. and had a gross annual income of $29,950 at the time of trial. The parties ended their relationship permanently in September of 2003.
Following Fahsheed's birth Lisa did take a three-month leave from work and Terino took a two-month leave.
On January 21, 2004, Terino filed an application to establish custody, physical care, child support, and to address other related issues. Trial on the matter occurred on June 17, 2005, and the district court filed a written ruling on July 11, 2005. The trial court ordered that the parties have joint legal custody and joint physical care of Fahsheed. The court also ordered Lisa to pay Terino $140.32 per month in child support. Lisa appeals, contending the court erred in awarding joint physical care of Fahsheed and in its calculation of the child support obligation.
An earlier hearing was held on Terino's application after which the court also ordered joint legal custody and joint physical care of Fahsheed. However, Lisa appealed from that order and our supreme court, in an order dated December 16, 2004, remanded the case for retrial based solely on a conflict of interest of one of the attorneys in the matter. The current appeal is from the order following retrial.
II. SCOPE AND STANDARDS OF REVIEW.
In this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). "Prior cases have little precedential value, except to provide a framework for analysis, and we must base our decision on the particular facts and circumstances before us." Id.
III. MERITS. A. Physical Care.
The court ordered joint legal custody and joint physical care of Fahsheed, granting Terino physical care of Fahsheed from Monday at noon until Friday at 8:00 a.m. and Lisa physical care from Friday at 8:00 a.m. until Monday at noon. The court found both parties to be appropriate and capable parents, that both had played an active role in parenting Fahsheed up to that point in his life, their current work schedules allow them the ability to equally share physical care, and a joint physical care arrangement would foster the greatest degree of involvement by both parents and would serve the best interests of the child. The court further found the "inconsistencies in [Lisa's] testimony coupled with the demonstrable animus in her demeanor toward [Terino] causes the Court to devalue her credibility." Although the court noted the parties had difficulty communicating, it attributed this largely to Lisa's animosity toward Terino and implicitly agreed with Terino's belief that the parties' ability to communicate concerning Fahsheed would improve over time following the conclusion of this adversarial proceeding.
The evidence shows that from Fahsheed's April 2002 birth through the parties' September 2003 separation both parties actively and regularly participated in his care, and that following an April 2004 temporary custody order Terino has at all times actively and regularly participated in his care as allowed by various court orders.
The criteria governing physical care determinations are the same whether the parents are dissolving their marriage or have never been married to each other. Jacobson v. Gradin, 490 N.W.2d 79, 80 (Iowa Ct.App. 1992); Hodson v. Moore, 464 N.W.2d 699, 700 (Iowa Ct.App. 1990). Fahsheed's best interests are paramount in making a physical care determination and the objective is to place him "in the environment most likely to bring [him] to healthy physical, mental, and social maturity." Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). The court considers several factors in determining the long-term best interests of the child. See Iowa Code § 598.41(3) (2005); In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We must 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).
Where parents respect [each other] and their children and recognize that cooperation and communication are important to their children's welfare and they put that welfare ahead of their own needs and petty differences, shared care can be beneficial to the children because it allows both parents to remain a viable and real part of the children's lives.
Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002).
The trial court's credibility determination was clear and explicit. It found the inconsistencies in Lisa's testimony coupled with her demonstrable animus toward Terino devalued her credibility. We give weight to the credibility determinations of the trial court because it has a firsthand opportunity to hear the evidence and view the witnesses. Will, 489 N.W.2d at 397. Based on our review of the record before us we agree with the trial court's credibility determination. The record contains inconsistencies in Lisa's testimony, including but not limited to the one noted by the trial court regarding her testimony as to whether she had ever lived with Terino. Although Lisa claimed she has never lived with him, she testified regarding the layout of Terino's apartment "[a]t the time I was living there."
We also agree with the trial court's finding that the majority of the fault for the parties' less-than-ideal communication lies with Lisa. Lisa testified that she does not even speak to Terino when he comes to pick up Fahsheed, and the trial court found that her as-yet-unresolved animosity toward Terino was evident at trial in her body language and vocal tone. We further agree with the court that once the current contested proceeding is over the parties' communication most likely will improve. In doing so we note that both parties testified they were willing to communicate with the other.
Finally, and perhaps most importantly, we find the facts and circumstances of the parties in this case are uniquely suitable for joint physical care. The parties' almost exactly opposite work schedules and close geographic proximity are ideal for joint physical care. Therefore we, like the trial court, find that such an arrangement will foster the greatest degree of involvement by both parents and will serve the best interests of Fahsheed physically, socially, educationally, and emotionally.
B. Child Support.
The trial court found Terino's gross annual income to be $22,404 and Lisa's to be $29,950. Based on the shared care schedule set forth above Lisa has Fahsheed some seventy-six hours per week, including three nights, while Terino has him some ninety-two hours per week, including four nights. The court calculated child support by using guidelines worksheets to determine what each party would pay if the other had Fahsheed's physical care and then offsetting the two amounts to determine a net amount. Based on these calculations the court determined Lisa should pay Terino $140.32 per month in support payments. On appeal Lisa contends the court erred in its support calculations because it did not take into account Terino's additional rental income and it failed to impute additional income to Terino because it is his choice to limit the number of hours per week he works.
Generally our preservation rules require that issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998); Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). Here, the trial court never addressed or ruled upon Lisa's argument that additional income should be imputed to Terino because he could work additional hours if he chose to do so. We decline to vary from the child support guidelines and impute additional income to Terino when the trial court did not pass upon this issue and it was thus not preserved for our review.
Lisa next contends the court erred in failing to take into consideration Terino's rental income in calculating the child support obligations of the parties. She claims he earns at least an additional $4,500 a year in rental income that was not considered by the trial court. However, Terino's 2004 tax returns clearly show he in fact incurred a small loss on the rental property. In addition, the record shows the rent he receives from the property is less than the mortgage payments he makes on it. His mortgage payments are $390 per month and he receives between $350 and $375 per month in rent. We conclude the trial court did not err by not considering Terino's rental income in calculating a child support obligation.
Terino is purchasing a duplex, resides in one of the two units, and rents out the other unit.
Of the other two years of Terino's tax returns that are in the record one shows an even more significant loss on the rental property than in 2004 and the other shows a minimal income on the property.
Terino testified at trial he had recently raised the rent $25 per month from $350 to $375.
IV. CONCLUSION.
Based on our de novo review of the record, and for the reasons set forth above, we agree with the trial court's order for joint physical care of Fahsheed. We further conclude the court did not err in calculating a child support obligation.