IN RE MARRIAGE OF EVANS, 699 N.W.2d 684 (Iowa App. 2005)

No. 5-059 / 04-1403Court of Appeals of Iowa.
Filed May 11, 2005

Appeal from the Iowa District Court for Floyd County, Bryan H. McKinley, Judge.

A father appeals from the physical care provisions of the parties’ dissolution decree. AFFIRMED.

Roger Sutton of Sutton Troge Law Office, Charles City, for appellant.

Brian McPhail of Gross McPhail, Osage, for appellee.

Heard by Sackett, C.J., and Zimmer and Hecht, JJ.

ZIMMER, J.

Jeremy Evans appeals from the physical care provisions of the parties’ dissolution decree. We affirm the district court.

I. Background Facts and Proceedings
Jeremy and Mary Evans were married on July 24, 1999. The parties have two children, Hunter, born in May 1999, and Tanner, born in December 2000. Mary filed a petition to dissolve the parties’ marriage during November 2003.

Both Jeremy and Mary were twenty-nine years old at the time of trial. Mary has an AA degree in elementary education from NIACC. After obtaining her degree, she worked in daycare for four years and taught swimming lessons. Mary then performed factory work at a printing company from 1995 until December of 1999 when the parties decided she would become a stay-at-home mom. Mary performed some part-time work as a waitress after leaving her full-time job at the printing company. Mary currently lives in St. Ansgar, Iowa, in a home owned by her new husband, Glen Buntrock. She was working part-time as a waitress in Charles City at the time of trial.

Jeremy is currently self-employed. He does collection work for several co-ops throughout the State of Iowa. Jeremy works out of his home in Charles City. His job requires him to drive approximately 40,000 miles per year. Jeremy previously worked as a law enforcement officer.

The district court dissolved the parties’ marriage by decree entered August 2, 2004. On August 30, 2004, the court filed a supplemental decree which granted the parties joint legal custody of Hunter and Tanner, and awarded the children’s primary physical care to Mary.

Jeremy appeals. He contends he should have been named as the children’s physical caretaker. Both Jeremy and Mary seek an award of appellate attorney fees.

II. Scope and Standard of Review
Our review of this equitable proceeding is de novo. Iowa R. App. P. 6.4. We give weight to the district court’s findings of fact, 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 district court had a first-hand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).

III. Physical Care
Jeremy claims the district court erred in granting Mary physical care of Hunter and Tanner. He argues that he could do a better job of raising the children.

In any custody or physical care determination, the primary consideration is the best interests of the children. Iowa R. App. P. 6.14(6)(o); In re Marriage of Murphy, 592 N.W.2d 681, 683
(Iowa 1999). In considering which physical care arrangement is in the children’s best interests, the court considers the factors set forth in Iowa Code section 598.41(3) (2003), as well as the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The critical issue is which parent will do better in raising the children; gender is irrelevant, and neither parent should have a greater burden than the other. In r Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). Greater primary care experience is one of many factors the court considers, but it does not ensure an award of physical care. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct.App. 1995). The court’s objective is to place the children in the environment most likely to bring them to healthy physical, mental and social maturity. Murphy, 592 N.W.2d at 683. With these principles in mind, we address the parties’ contentions regarding physical care.

Our de novo review of the record reveals both Jeremy and Mary are suitable caretakers for the children. The district court described Jeremy and Mary as “truly capable parents who both have given their children exceptional love, care and attention.” We agree with the court’s assessment.

Faced with a decision, which it obviously found very difficult, the district court ultimately decided that it was in the best interests of the children to be placed with Mary. In reaching this conclusion the court considered a number of factors, including, but not limited to: (1) Mary’s role as primary caregiver for the children during the parties’ marriage; (2) her education and experience in daycare; (3) her ability to provide consistency and routine for the boys; (4) her “insight into her two children”; and (5) her flexible work schedule. The court also concluded “Mary would be more accommodating than Jeremy in arranging additional parenting time with the nonplacement parent.” After considering all of the evidence, the district court determined that “[b]y placing the boys with Mary . . . both parents will have the optimum and maximum possible time with the boys without the need of alternatives, such as daycare or a sitter or Jeremy’s parents.”

After careful review of the record, we find no reason to disagree with the district court’s conclusions.[1] We also note that although Mary will have physical care of the children, the court’s decree provides that Jeremy will be able to see the boys every Tuesday and Friday night during the school year, and that the boys will be able to stay overnight on Friday so that they will have the opportunity to have breakfast with their paternal grandparents every Saturday morning. Additionally, Jeremy will have the children every other weekend, on alternating holidays and school vacations, on their birthdays, in a shared arrangement, and the first six weeks of the summer.

In this type of case, where either party would be a suitable caretaker, the district court’s evaluation of the parties is particularly helpful. See In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993). Upon de novo review of the record, and giving due deference to the district court’s assessments of the evidence, we affirm the district court’s decision to designate Mary as the children’s physical caregiver.

IV. Attorney Fees
Both Jeremy and Mary seek an award for appellate attorney fees. Such an award is discretionary and is determined by assessing the needs of the requesting party, the opposing party’s ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Cooper, 524 N.W.2d 204, 207
(Iowa Ct.App. 1994). After considering these factors, we award no appellate attorney fees.

AFFIRMED.