No. 03-1791.Court of Appeals of Iowa.
March 16, 2005.
Appeal from the Iowa District Court for Johnson County, Thomas Koehler, Judge.
Olabayo Olaniyi appeals the custody provisions of the dissolution decree entered by the district court dissolving his marriage to Laurie Christine Olaniyi. AFFIRMED.
Sharon Mellon of Mellon Spies, Iowa City, for appellant.
Laurie Olaniyi, Battlecreek, Michigan, appellee pro se.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
MILLER, J.
Olabayo Olaniyi appeals the custody provisions of the dissolution decree entered by the district court dissolving his marriage to Laurie Christine Olaniyi. He contends the court erred in ordering joint legal custody of the parties’ two minor children. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Olabayo and Laurie (hereafter “Christine”) were married in March of 1997 and have two children, Oba-Santos, born December 30, 1997, and Aluna Aro, born May 6, 2000. Christine filed a petition for dissolution of marriage on October 12, 2001. After several continuances trial to the court was held on her petition and the district court filed a written decree of dissolution on October 24, 2003. In the decree the court ordered, among other things, that the parties have joint legal custody of the children. It placed responsibility for the children’s physical care with Olabayo.
Christine was thirty-two years of age at the time of trial. She was born in Columbia but raised in Indiana. She received a degree from the University of Indiana in 1993. After moving a few times, Christine ended up in Florida as an elementary school bilingual teacher. In 1995 she met Olabayo in Orlando at an African Studies conference and invited him and the other artists to a program for her class. Christine and Olabayo remained in contact while she fulfilled her teaching contract in Florida. She visited Olabayo in New Mexico in January of 1996, where he was living at the time. The following summer she moved to Santa Fe, New Mexico, where she secured a teaching position and her own apartment. Christen and Olabayo continued their relationship in New Mexico and eventually moved in together. They were married in Santa Fe on March 14, 1997. Oba was born on December 30, 1997, and the parties moved to Iowa City, Iowa, in the summer of 1998 as Olabayo had been offered a scholarship to pursue a master’s degree in fine arts at the University of Iowa.
Olabayo was thirty-three years of age at the time of the dissolution trial. He was born in Nigeria where he was raised by two of his grandparents. His parents were both well-known artists in Nigeria and he worked with his mother as an artist from an early age at various places in the United States. They eventually settled in Santa Fe, New Mexico, where Olabayo received a Bachelor of Science degree in Art at the College of Santa Fe. He was also a performing artist for the National Black Theater. He began traveling with the National Black Theater in 1993 giving “performances” and performing “workshops” at various locations throughout the United States. He traveled to Florida in 1995 and met Christine there. In the summer of 1996 Olabayo accepted a position with the Santa Fe, New Mexico “Art Initiative.” As set forth above, the parties eventually moved in together in Santa Fe, married in March of 1997, had Oba in December 1997, and moved to Iowa City in the summer of 1998 because Olabayo was supposed to receive a scholarship toward a master’s degree at the University of Iowa.
Christine and Olabayo were already having some marital problems before they moved to Iowa City. However, it is agreed that after the move their situation became much worse and the marriage deteriorated rapidly. As a full-time graduate student Olabayo spent a great deal of time away from home, either working at one of his many studios, working as a teaching assistant, or traveling. Christine became a day care provider which allowed her to care for Oba full-time. In 1999, while Olabayo was in the second year of his master’s program, Christine became pregnant and Aluna was born in May of 2000. Because she was providing in-home day care at this time Christine was the children’s primary caregiver throughout this period.
It is undisputed that after Aluna’s birth the parties’ marriage deteriorated even further. However we, like the district court, will not attempt to address every incident, complaint, and episode surrounding the parties’ tumultuous relationship. Suffice to say that Olabayo did complete his master’s programs and received his degree from the University of Iowa. He accepted an “artist in residence” position at the University of Michigan and moved there without his family shortly after Aluna’s birth. In Michigan Olabayo initially lived with Dana Rush. He later moved into his own apartment and eventually Reena Patel moved in with him in September of 2001. Patel continued to live with Olabayo up to the time of trial, is his business partner, and often performs with him. The extent of his relationship with Patel is disputed in the record. Christine stayed in Iowa for some time after Olabayo moved to Michigan. She moved to a duplex in Coralville, continued to provide in-home daycare, and assumed sole responsibility for the care of the two children.
As noted above, Christine filed a petition for dissolution of marriage on October 21, 2001. A January 4, 2002 ruling on temporary custody and support ordered joint legal custody and joint physical care of the children, with the parties alternating two-week periods of care. The parties filed several motions and applications over the next two years before trial on the petition finally commenced on October 6, 2003. In this interim period Christine moved to Battle Creek, Michigan, in early January 2002 in order to reduce travel time for the biweekly exchange of the children and because her parents and a large extended family lived in and around that area. Several of the court filings involved Christine’s attempt to get the case moved to Michigan. However, both the Iowa and Michigan courts rejected her requests to transfer the case to Michigan.
In addition, each party filed one or more contempt actions directed at the other at different times during this period. Each alleged the other had violated the temporary custody order. On December 17, 2002, the district court found Christine had not proven her abuse and neglect allegations against Olabayo by a preponderance of the evidence. Christine was found in contempt of court on September 10, 2003, for denying Olabayo access to the children and was ordered to turn the children over to him at the next exchange date. Also during this period Olabayo was arrested in Washington, D.C. with Patel in March 2003 but the charges were ultimately dismissed. In July 2003 Olabayo moved back to Iowa City with Patel.
Trial to the court on Christine’s dissolution petition was held October 6-14, 2003. At the conclusion of the trial the court entered an interim order from the bench placing the physical care of the children with Olabayo until the decree could be entered. The trial court entered its extensive written findings of fact, conclusions of law, and decree of dissolution of marriage on October 24, 2003. It ordered joint legal custody of the two children and placed physical care with Olabayo.
On October 30, 2003, Christine filed a notice of appeal and on October 31 a motion for stay. Olabayo filed a notice of cross-appeal on November 10, 2003. The supreme court denied Christine’s motion for stay on November 12, 2003. Christine’s counsel withdrew during the pendency of the appeal and Christine did not proceed with her appeal. She did not file a proof brief and appendix within the time required by our rules of appellate procedure and her appeal was accordingly dismissed on July 30, 2004.
Therefore, although Christine attempts to raise certain issues in her appellate brief, because her appeal was dismissed these issues are not properly before us on appeal and we do not address them. Olabayo proceeds as appellant on his cross-appeal. The sole issue before us on appeal is his contention that the trial court erred in ordering joint legal custody of the children because it should instead have placed sole legal custody with him.[1]
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 with respect to custodial issues, and this court must make its decision on the particular circumstances unique to each case. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct.App. 1995).
III. MERITS.
“The legislature and judiciary of this State have adopted a strong policy in favor of joint custody from which courts should deviate only under the most compelling circumstances.” In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct.App. 1992). “Joint custody is preferred because, properly tailored to the parties’ circumstances, joint custodial arrangements will often go a long way toward encouraging both parents to share the rights, responsibilities, and frequently joyful and meaningful experiences of raising their children.” In re Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983). If either parent requests joint custody the court must order joint custody unless it cites clear and convincing evidence, pursuant to the factors in Iowa Code section 598.41(3) (2003), that joint custody is unreasonable and not in the best interest of the children to the extent that the legal custodial relationship between the children and a parent should be severed. Iowa Code § 598.41(2)(b). Christine requested joint custody.
Olabayo argues sole legal custody should be granted to him for two reasons: (1) Christine’s alleged hatred toward him, resulting in a “laundry list” of abuses against him, and (2) a need to protect the children from attempts by Christine to alienate them from Olabayo. We do not believe the evidence contained in the record sufficiently demonstrates that these two concerns should overcome the preference for joint legal custody and justifies severing Christine’s legal custodial relationship with the children.
There is evidence, as the trial court pointed out, that Christine has acted inappropriately at times toward Olabayo in the presence of the children, and has wrongly kept the children from Olabayo in violation of court orders as evidenced by the court finding her in contempt of the temporary custody order. However, the trial court’s findings are rather one-sided in cataloging Christine’s shortcomings while recognizing none of Olabayo’s misdeeds and shortcomings as shown by the record and recognizing none of Christine’s positive attributes.
The record demonstrates that Christine was the children’s primary caretaker for the first years of their lives, and most certainly was so when Olabayo left the family and moved to Michigan shortly after Aluna’s birth. By all accounts in the record the children were doing well and thriving during the time they were primarily with Christine, and continued to do so while the parties shared joint physical care during the pendency of this dissolution action. Furthermore, Christine in now living near her parents and other extended family members and thus will have any needed help and support when she has the children.
We further find that although Olabayo appears to be a good and fit parent to the children at the present, there were times in the past when his commitment to his family was questionable. Examples include the times he traveled extensively while earning his master’s degree at the University of Iowa, and the lengthy time he left his family in Iowa City to move in with Dana Rush and later Reena Patel in Michigan and become an artist in residence at the University of Michigan. He did not provide any substantial support to Christine for the care of his children during this period of time while he was in Michigan.
There is also evidence in the record to support some of Christine’s claims regarding Olabayo’s temper and misconduct. Michigan police reports from the Washtenaw County Sheriff’s Office and the Saline Police Department regarding an incident on October 20, 2001, show that at a minimum Olabayo threw Dana Rush off his porch because she was insisting on going inside to get a painting that belonged to her. He admitted to the police that he had done so. However, according to Rush Olabayo in fact strangled her and struck her in the face several times with her own hands. The record shows she had a laceration over her earlobe, stitches on the inside of her mouth, tenderness to her ribs, and swelling to one finger.
In an incident documented by the University of Michigan campus police in May 2002, one of the University’s faculty members, Mr. Kennedy, filed a harassment report against Olabayo for calling and coming into his office, shouting at him, and making other intimidating gestures and threats toward him and other members of the office staff. One of the times Olabayo went to Mr. Kennedy’s office to confront him he brought the parties’ children with him, and apparently later made Oba talk to Kennedy on the telephone. This and other incidents in the record show there have been times when Olabayo’s improper conduct has at times occurred in the presence of the children.
We find that neither party is without blame for their past and present problems and any remaining hostility in their relationship. However, we find that neither party has acted so abhorrently that severing the party’s legal custodial relationship with the children is necessary or desirable. The record does not contain clear and convincing evidence, pursuant to statutory factors, that joint custody is unreasonable and not in the best interests of the children to the extent that Christine’s legal custodial relationship with the children should be severed. Ordering sole legal custody in Olabayo would not be in the children’s best interest under the facts and circumstances of this case. Accordingly, we agree with the trial court that the parties should have joint legal custody of the children, with Olabayo having their physical care and Christine having specified visitation rights. We, like the trial court, hope that now the parties are apart from each other they will be able to put any remaining differences aside and place the best interests of the children foremost. Two of those interests are of course having regular contact with both of their parents, who have both demonstrated they love their children very much, and having neither parent denigrate the other to or in the presence of the children.
IV. CONCLUSION.
Based on our de novo review of the entire record, and for all of the reasons set forth above, we conclude the trial court was correct in ordering joint legal custody of the parties’ two children.
AFFIRMED.