IN RE MARRIAGE OF STEFFEN, 699 N.W.2d 685 (Iowa App. 2005)

No. 5-289 / 04-1217Court of Appeals of Iowa.
Filed May 25, 2005

Appeal from the Iowa District Court for Woodbury County, Jeffrey Neary, Judge.

A mother appeals from the physical care and child support provisions of the decree dissolving the parties’ marriage.AFFIRMED.

David Reinschmidt of Munger, Reinschmidt Denne, L.L.P., Sioux City, for appellant.

Randy Waagmeester of the Waagmeester Law Office, P.L.C., Rock Rapids, for appellee.

Heard by Mahan, P.J., and Zimmer, J., and Hendrickson, S.J.[*]

ZIMMER, J.

Pamela Steffen appeals from the physical care and child support provisions of the decree dissolving her marriage to Ryan Steffen. We affirm the district court.

I. Background Facts and Proceedings.

Pamela and Ryan Steffen were married in October 1992, in Orange City, Iowa. Both were employed — Pamela as a legal secretary and Ryan at Tyson Foods. The couple’s first child, Josh, was born in September 1994. Pamela continued to work after Josh’s birth.

In 1999 the family moved to Sioux City so that Ryan, who had recently obtained a two-year manufacturing engineering technology degree at Northwestern Community College (NCC), could take a new job.[1] Soon thereafter the parties bought a home in nearby Sergeant Bluff. Pamela began taking classes at a local community college, but returned to the workforce after one semester. The parties’ second child, Amanda, was born in July 2000. As she had with Josh, Pamela continued to work after Amanda’s birth.

In 2001 Ryan accepted a teaching position at NCC. NCC is located in Sheldon, approximately thirty minutes away from Sergeant Bluff. The family continued to reside in Sergeant Bluff, and Ryan commuted to work.

With brief interruptions, both parties worked throughout the marriage. Both parties cared for the children, and were actively involved in their lives. However, Pamela’s work and school schedules were often more flexible than Ryan’s. As a result, Pamela provided a greater amount of the children’s care.

Ryan left the martial home in February 2003 and filed a petition for the dissolution of the parties’ marriage a few months later. During the pendency of the proceedings the children resided with Pamela in the marital home in Sergeant Bluff. Ryan purchased a home in Germantown, which is approximately twenty miles from Sheldon.

When Ryan’s petition came on for hearing in May 2004 the parties agreed to share legal custody, but each sought to be the children’s physical caretaker. At the time of the hearing both parties were employed full time, both were in good health, both remained active in their children’s lives, both offered the children a suitable home environment, and both were in committed relationships with new partners.

The parties’ marriage was dissolved by a decree entered in July 2004. In pertinent part, the decree placed the children’s physical care with Ryan, and ordered Pamela to pay child support. The district court acknowledged that, in general, Pamela had been the children’s primary caregiver, but noted that both parents had been actively involved in their children’s care and socialization. The court further recognized that during the course of the marriage both parties had been less than financially responsible, concluding that Ryan and Pamela’s 2001 bankruptcy was the result of the parties’ attempt to live above their means. The court also considered each parent’s current romantic partner, and found them both to be positive additions to the children’s lives. However, the court also drew some pointed distinctions between the parties.

In addressing the individual characteristics of each parent, the court noted Ryan’s church involvement, his stable employment and financial future, and the support provided by both his immediate and extended family. In contrast, the court focused on what it described as Pamela’s “financial weaknesses and lapses in judgment.” The court noted that in 2002 Pamela was convicted of shoplifting items in excess of $500,[2] and that at the time of the shoplifting incident she took steps to hold or hide the parties’ mail so that Ryan would not discover she had incurred additional credit card debt. The court also noted an incident in 2003 where Pamela convinced her fiancée, David Bird, to forge Ryan’s name on the endorsement portion of a $800 tax relief check made out jointly to Ryan and Pamela. Pamela then cashed the check and retained the proceeds.

After noting all the foregoing, the court concluded that “Ryan is the more capable, stable, and responsible parent. He is better able to care and provide for the children. It is in the children’s best interest that Ryan be awarded the physical care of the children.”

Pamela appeals. She asserts the district court erred in placing the children’s physical care with Ryan, as it placed inadequate weight on the fact that she was the children’s primary caregiver, and too great a weight on what she terms her “minor indiscretions.” She asks us to award her the children’s physical care, and to modify the decree’s child support provisions to create a support obligation in Ryan.

II. Scope and Standard of Review.

Our scope of review is de novo. Iowa R. App. P. 6.4; In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000). Although not bound by the district court’s factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)(g).

III. Physical Care.

In any 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, we consider 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 re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct.App. 1996). Our 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.

Upon our de novo review of the record, we find no reason to disagree with the district court’s decision to award Ryan physical care. We acknowledge that Pamela’s status as the children’s primary caretaker is a significant factor for our consideration. It does not, however, ensure that she will be awarded physical care. See In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996).

Both Ryan and Pamela love and are bonded with their children, and both are actively involved in their children’s care and socialization. In situations such as this, where both parents would prove effective caretakers, we believe the district court’s findings on physical care are entitled to particular weight. The trial court had the parties before it, was able to observe their demeanor, and was in a better position to evaluate them as caregivers. In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993).

Here, the district court expressed concerns about Pamela that find support in the record. Pamela’s actions in shoplifting merchandise from a store, hiding her accumulating credit card debt from Ryan, and fraudulently retaining the entirety of the tax relief check are not “minor indiscretions.” They are serious lapses of judgment that speak to Pamela’s ability to set a proper example for the children, and demonstrate a tendency to place financial concerns above her children’s best interests. Notably, the tax check incident occurred while Pamela was still on probation for her shoplifting conviction. If the matter had been criminally pursued it could have endangered her probationary status and once again created a risk that she could be removed from her children’s lives.

Although Pamela is a loving parent, her poor judgment is cause for concern. While granting Ryan physical care would remove the children from the family home and Josh from his current school, we cannot agree with Pamela that such a move is contrary to the children’s best interests. The children are well-bonded with both parents, and are entitled to stability in all areas of their lives. See In re Marriage of Williams, 589 N.W.2d 759, 762
(Iowa Ct.App. 1998); see also Winter, 223 N.W.2d at 166-67.

We agree with the district court that Ryan is the parent best able to provide the children stability, and offers the environment most likely to cultivate physically, mentally, and socially healthy individuals. See Murphy, 592 N.W.2d at 683. Accordingly, we affirm the district court’s decision to place the children’s physical care with Ryan. As a result, we need not address the issue of child support.

Finally, we address Ryan’s claim that this court should award him 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 Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Upon due consideration of these factors, we decline to award Ryan any appellate attorney fees.

AFFIRMED.