IN RE MARRIAGE OF SWAGEL, 698 N.W.2d 337 (Iowa App. 2005)

No. 5-173 / 04-1127Court of Appeals of Iowa.
Filed April 13, 2005

Appeal from the Iowa District Court for Cass County, Timothy O’Grady, Judge.

Jeffery Swagel appeals from his dissolution decree. AFFIRMEDAS MODIFIED.

Jeffrey L. Swagel, Greenfield, appellant pro se.

David L. Jungmann of David L. Jungman, P.C., Greenfield, for appellee.

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

HECHT, J.

Jeffery Swagel appeals from the dissolution decree. We now affirm as modified.

I. Background Facts and Proceedings.

Jeffery (Jeff) and Elizabeth (Beth) Swagel were married in 1985 and together had three boys, all of whom were teenagers at the time of trial. In January 2002, the Swagels accepted two brothers, Andrew and Jared, into their Greenfield home as foster children. After approximately six months under this arrangement, Andrew, the older brother, was placed elsewhere. However, Jared remained and was eventually adopted by the Swagels in March of 2003. At the time of trial, Jared was eight years old.

In February 2003, the Swagels accepted into their home three young girls as foster children.[1] The record reveals Jeff and the teen-aged boys were reluctant to have three additional children in their home, but eventually agreed to the arrangement. By June of 2003, the relationship of Jeff and Beth had deteriorated to such an extent that Beth filed petition for dissolution. Jeff established a separate residence in Winterset, and eventually the three teenagers went to live with him. In October 2003, Beth finalized her adoption of the three young girls.

Jared, the couple’s adoptive son, remained primarily in Beth’s physical care from the time of the parties’ separation until the dissolution trial, but Jeff maintained regular visitation with him. The district court found that Jared had developed a close relationship both with the couple’s older boys and with Beth’s three adopted girls.

At trial, Beth testified that Jeff had undermined her relationship with the older boys, and that she believed she had been purposefully excluded from the boys’ activities. She noted Jeff had discussed the details of the dissolution with the older boys, and stated her belief that their decision to live with Jeff was colored by Jeff’s lax discipline. She also expressed a concern that her relationship with Jared would be similarly undermined if he were placed in Jeff’s physical care. Beth testified that it takes Jared a while to “warm up” to her and the three girls after visitation with Jeff.

The district court’s decree expressed disapproval of the animosity between the parents manifested by (1) Jeff’s involvement of the three teen-agers in the divorce, (2) Jeff’s failure to foster a positive relationship between Beth and the older boys, and (3) several instances when Beth denied Jeff visitation with Jared out of anger or spite. In awarding physical care of Jared to Beth,[2] the district court emphasized (1) its belief that Beth would better foster a relationship between Jared and Jeff, (2) Jeff’s work schedule which caused him to travel extensively, and (3) the fact that Beth had been Jared’s primary caregiver during his foster placement and eventual adoption. Jeff was ordered to pay a net $320 per month[3]
in child support to Beth for Jared, while Beth was awarded the dependency tax exemption for Jared as well as Jared’s adoption subsidy of $458 per month paid to her by the State of Iowa.[4]

Jeff now appeals, contending the district court erred in (1) splitting physical care of the couple’s children, (2) refusing to include the monthly adoption subsidy in Beth’s income for purposes of calculating child support, and (3) awarding Beth the dependency tax exemption for Jared.

II. Scope and Standard of Review.

Dissolution of marriage decrees are reviewed in equity and thus our standard of review is de novo. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). In such cases, we examine the entire record and adjudicate anew those issues properly presented. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). Though we are not bound by the fact-findings of the district court, we accord them due weight, especially when considering the credibility of witnesses. Iowa R.App. P. 6.14(6)(g).

III. Discussion.
A. Jared’s Physical Care.

In determining which parent should be granted physical care of Jared, we consider a number of factors, including the child’s needs and characteristics, the parties’ abilities to meet the child’s needs, and the nature of each proposed home environment In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). Split physical care is not favored because it deprives the children of the benefit of constant association with one another In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). Thus, siblings should not be separated without good and compelling reason. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994).

Jared, however, is in the unique position of being accepted into two distinct home environments. After Jared began living in the Swagels’ home, he developed a good relationship with his older brothers who credibly testified of their strong brotherly bond. However, upon the couple’s separation, Jared lived primarily with Beth and her three newly adopted daughters, one of whom is close to Jared’s own age.[5] Beth also credibly testified as to the close bond Jared shared with her daughters. Thus, regardless of where physical care is placed, Jared will be denied regular contact with one group of children or the other Will, 489 N.W.2d at 398.

Accepting this reality, we must endeavor to place Jared’s physical care with the parent that will best promote Jared’s best interests. In re Marriage of Brainard, 523 N.W.2d 611, 614
(Iowa Ct.App. 1994). We share the district court’s finding that both Jeff and Beth are capable and loving parents. Because Jared’s physical care parent could have a significant influence on Jared’s relationship with the other parent, it is crucial that the parent with physical care actively supports that relationship. We note, as the district court did, that Jeff and Beth’s personal relationship deteriorated extensively before and during the separation and that both involved the children in the acrimony that ensued. It is apparent from the record that Jeff has a poor track record of supporting the older boys’ relationship with Beth. While he contends the teenagers are old enough to choose whether or not to include their mother in their lives, a similar attitude towards Beth’s relationship with Jared, at Jared’s young age, would be highly detrimental to Jared. Beth admitted she had on occasion denied Jeff visits with Jared out of anger. Despite the isolated instances regarding such visitation denials, we concur with the district court’s judgment that Beth is more likely to foster a positive relationship between Jared and Jeff. When this conclusion is combined with the fact that Beth has been Jared’s primary caregiver since his placement with the family in 2002, and the close bond that has developed between Jared and Beth’s girls, we find no basis for altering the judgment of the district court and therefore affirm the allocation of Jared’s physical care to Beth.[6]
B. Adoption Subsidy.

Jeff next contends the district court failed to account for the substantial adoption subsidies Beth receives for her four adopted children, which total some $2,600 per month, in calculating the amount Jeff owes in net child support payments. However, as Beth’s brief accurately points out, income from state public assistance programs is generally exempt from child support determinations. Iowa Admin. Code r. 441-99.1(1) (2004). Subsidized adoption assistance, the type received by Beth, is specifically exempted from her income in this context. Iowa Admin. Code r. 441-41.27(6)(x) (2004). Jeff’s argument on appeal is therefore without merit and the district court’s determination of the parties’ child support obligations is affirmed.

C. Dependency Exemption for Jared.

We agree with Jeff that the equities dictate the dependency tax exemption relating to Jared should be awarded to Jeff. In re Marriage of Thede, 568 N.W.2d 59, 62 (Iowa Ct.App. 1997).As discussed above, Beth’s income for child support purposes may not be augmented by any amount she receives as an adoption subsidy. As such, Beth’s monthly income was found to be $1,000, while Jeff’s monthly contribution to Jared’s support was set at $641. While currently offset by the $321 per month Beth was ordered to pay for the support of two of the couple’s older boys in Jeff’s physical care, Jeff’s monthly obligation will increase in net amount as the older boys become ineligible for support. We believe allocation of the tax exemption for Jared to Jeff is equitable in this case, and we therefore modify the decree accordingly. Jeff shall be entitled to the tax exemption for Jared if Jeff’s child support payments are current as of December 31 of the year for which the exemption is claimed. In re Marriage of Pothast, 539 N.W.2d 199, 203 (Iowa Ct.App. 1995) overruled on other grounds by In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa 1999).

Costs of this appeal shall be divided equally between the parties.

AFFIRMED AS MODIFIED.