No. 5-421 / 04-1713Court of Appeals of Iowa.
Filed July 27, 2005
Appeal from the Iowa District Court for Clinton County, Gary D. McKenrick, Judge.
Kendra Green appeals district court’s order granting Brian Green primary physical care of their children and his entire 401(k). AFFIRMED.
Jeffrey Farwell of Farwell Bruhn, Clinton, for appellant.
Michael McCarthy of McCarthy, Lammer Hines, Davenport, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
VAITHESWARAN, J.
Brian and Kendra Green married and had two children. After approximately seven years, Brian sought a divorce. While the proceedings were pending, the parties shared physical care of the children. Following trial, the district court granted Brian physical care of the children. The court also awarded him his entire 401(k) account, totaling $7,879. Kendra appealed these portions of the dissolution decree. On our de novo review, we agree with the district court’s decision.
I. Physical Care
In granting Brian physical care of the children, the district court stated:
Based on . . . the respondent’s demonstrated efforts to alienate the children from the petitioner, the respondent’s placing of her own needs and desires before the interests of the children, the respondent’s apparent refusal to recognize and deal with her mental health issues . . . the Court concludes that shared physical custody is not in the long-term best interest of the minor children. The Court concludes that the children, in light of the respondent’s erratic behavior, need the added stability and support that a primary physical care arrangement can provide. Further, the evidence overwhelmingly favors the award of that primary physical care to the petitioner.
The record fully supports this statement.
First, Kendra used certain pictures of her daughter to develop a case of inappropriate conduct by Brian. The pictures, which were admitted into evidence, show the parties’ fully-clothed seven-year-old daughter in various modeling poses. A psychologist to whom the children were taken testified the daughter told her she had seen the poses in catalogs. By Kendra’s admission, the pictures were not taken by Brian but by her sister’s daughter. Brian testified he only learned of them when the Department of Human Services began questioning him about allegations he sexually abused his daughter.
Second, Kendra took the children to a psychologist without telling Brian. She testified she did so after seeing the pictures and after seeing her four-year-old son urinate and defecate in his pants. She stated she did not tell Brian because she was “suspicious” of him. Notably, the psychologist also did not speak to Brian. During the course of six sessions, the parties’ son told her his father and sister touched his bottom. The case was referred to the Department of Human Services for investigation. An investigator determined that Brian had to wipe the child after he went to the bathroom because he did not clean himself properly. The Department determined the allegation of sex abuse by Brian was unfounded. Additionally, Brian’s sister, a registered nurse, later testified at trial that they gave the child a suppository to quell stomach problems he was having but he did not react well to it. The district court gave “absolutely no credence to the testimony of [the psychologist] with respect to the behavior of the children,” concluding her analysis of the children’s behavior “is flawed in that she clearly assumed at the outset of the contact with her that [Brian] was a possible perpetrator of abuse.” We give weight to this credibility determination. Iowa R. App. P. 6.14 (6)(g).
Third, Kendra had the children examined for sexual abuse without telling Brian. The exam included photography of the children’s genitals. No signs of sexual abuse were found.
Fourth, Kendra enrolled the children in school and daycare in the hometown of her parents, where she was then living. She did not tell Brian. She testified she did so for her convenience, despite the fact that her daughter had established friendships in her original school.
Finally, Kendra refused to address her mental health problems. Towards the end of the marriage, Brian and Kendra visited a doctor to discuss her mental health. Based on a questionnaire Kendra completed, the physician diagnosed her with bipolar disorder. Kendra contends Brian told her how to answer the questions. She did not deny, however, that she “was thinking of suicide” and told Brian “maybe I’d be better off gone.” She also did not deny that she refused to take the medication prescribed to her.
We recognize the record contains some questionable decisions by Brian. For example, Brian acknowledged watching a pornographic tape with Kendra’s fifteen or sixteen-year-old sister. Brian admitted this was a mistake.
Kendra also points to the fact that Brian shot the family dog. Brian testified he did so when the dog began acting erratically and started biting the children. Kendra acknowledges that the children were unaware of the shooting.
While these actions by Brian are of concern, we agree with the district court that, on balance, Brian would serve as the better caretaker. He displayed a record of open communication with Kendra about the children’s welfare and refused to allow bitterness and vindictiveness to govern his actions during the proceedings.
II. 401(k) Account
The district court awarded Brian the entire sum of $7,879 in his retirement account. The court reasoned that Brian had been allocated assets and liabilities with a negative value of $22,890 relative to Kendra’s assets with a negative value of $6,100.
“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 Fynaardt, 545 N.W.2d 890, 894 (Iowa Ct. App. 1996). Given the insolvency of both parties and the fact that Brian was allocated a greater share of the parties’ debt, we conclude the district court’s award was equitable.
III. Disposition
We affirm the district court decree in its entirety.
AFFIRMED.