No. 4-350 / 03-1899.Court of Appeals of Iowa.
August 26, 2004.
Appeal from the Iowa District Court for Clayton County, John G. Bauercamper, Judge.
Timothy Harbaugh appeals, and Jada Harbaugh cross-appeals, from certain provisions of their dissolution decree. AFFIRMED ASMODIFIED AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.
James Garrett of Jacobson, Bristol, Garrett Swartz, Waukon, for appellant.
Stephanie Hassler of Roeder Rattenborg, Manchester, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
MAHAN, P.J.
Timothy Harbaugh appeals, and Jada Harbaugh cross-appeals, from certain provisions of their dissolution decree. Tim contends the district court erred in denying his request for physical care of the children. On cross-appeal, Jada claims she is entitled to alimony and appellate attorney fees. We affirm as modified on the appeal. We affirm the cross-appeal.
I. Background Facts and Proceedings.
Tim and Jada were married on July 10, 1993. They are the parents of Alexis, born March 24, 1993, and Hunter, born November 19, 2000. Since their separation, the children have lived with Jada, and Tim has exercised visitation.
Tim has been employed by the Canadian Pacific Railway for the past fourteen years. Tim’s work often requires him to travel far from home. His current weekly work schedule is Monday through Thursday, and includes overnight stays. Tim leaves early Monday morning and returns home on Thursday evening. In addition, Tim is laid off an average of three to four months each winter season. During that time, he receives unemployment compensation.
Jada has been unemployed for one and a half years. She was laid off from a factory job, and her unemployment benefits expired in June 2003. She has decided to be a homemaker and currently is not looking for work. Jada has been trained as a cosmetologist, but is not licensed. She also worked as a nurse’s aid, but her certification has lapsed.
Jada was the primary caretaker of both children during the marriage. She was also the parent most involved in the children’s medical appointments and school activities. Her involvement was partially due to having a more favorable work schedule than Tim.
The parties’ marriage was fraught with fights and alcohol abuse. Both have been arrested as a result of domestic strife. Jada has made extensive use of day care services for the children, especially in the evening, so she can socialize. Much of her free time is spent in area bars and restaurants.
Tim and Jada were awarded joint custody of Alexis and Hunter, with Jada as the primary physical caretaker. Tim was awarded liberal visitation and ordered to pay a child support obligation of $465 per month. The district court denied Jada’s request for alimony. Tim appeals. Jada cross-appeals.
II. Standard of Review.
Our review is de novo. Iowa R. App. P. 4. We examine the entire record and adjudicate anew the parties’ rights on the issues properly presented. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). We are not bound by the district court’s findings, but we do give it deference considering its opportunity to view, firsthand, the demeanor of the witnesses when testifying. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct. App. 1995).
III. Primary Physical Care.
Tim asserts awarding primary physical care to Jada does not serve the children’s best interests. In support of his argument, Tim points to Jada’s desire to socialize during the evening hours and her lack of attentiveness towards the children. He also claims Jada’s relationship with Alexis has broken down. He claims Jada’s behavior is not in the children’s best interests.
The critical issue before us is the best interests of the children. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). This must, of necessity, be the first and controlling consideration in our discussion. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41 (2003); In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The issue in determining the best interests of the children 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 attempting to gain custody in a dissolution proceeding. In re Marriage of Ullerich, 367 N.W.2d 297, 299
(Iowa Ct.App. 1985).
This decision requires selection of a custodial parent who can minister more effectively to the long-range best interests of the children. Winter, 223 N.W.2d at 167. The objective should always be to place the children in the environment most likely to bring them to a healthy physical, mental, and social maturity In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996). Each custody decision is based on its own particular facts. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
This is a difficult case indeed. We are troubled by the substantial evidence indicating Jada has determined her nightlife activities should come before the best interests of her children. We are also concerned by the evidence indicating that Jada’s relationship with and treatment of Alexis is far below what is to be expected in a mature and stable parent-child relationship.
We have carefully reviewed the record in this case. The district court considered the evidence in this case and concluded as follows:
A placement decision for the children is not easy, because it is difficult to determine that either parent is superior to the other. Although petitioner has been the primary caretaker, her current life style appears to place the children at risk.
Respondent’s work schedule would require him to rely on petitioner, his relatives or daycare providers to provide a substantial portion of the daily care for the children if he were awarded primary placement. Therefore, the court has decided that primary placement of the children should be awarded to petitioner, but respondent should be awarded very substantial visitation privileges consistent with his work schedule.
(Emphasis added.) We would go further. Our de novo review indicates that Jada’s current lifestyle does place the children at risk.
We note Tim filed a posttrial request seeking a protective order. This request was joined by the guardian ad litem. They requested certain restrictions on Jada’s lifestyle based upon the district court’s own recognition she was placing the children at risk. On October 31, 2002, the district court entered an order denying the request, but stating as follows:
Petitioner has been sufficiently put on notice regarding her past short-comings in supervising the children, and the court anticipates that she will do a better job of supervising the children in the future, based upon her trial testimony. If petitioner does not adequately supervise the children in the future as contemplated by the court, other remedies are available, such as under the child abuse and neglect laws, and by subsequent modification of this decree to award placement of the children to respondent. The court further believes that the children will benefit from the increased contact with respondent provided by the visitation provisions of its decree.
(Emphasis added.)
We note the district court’s decision to award primary physical care to Jada rested, in large part, on Tim’s work schedule. Tim acknowledged his work schedule was a problem, which made the district court’s decision a difficult one. However, he suggested the children reside with his parents during his absence. The evidence is clear the home of the paternal grandparents is a suitable and proper place for the children.
We further note Alexis stated a clear preference to live with Tim and a “strong opposition” to living with Jada. However, Alexis was only ten years of age at the time of the dissolution hearing. Iowa Code section 598.41(3)(f) allows the district court to consider a child’s preference while factoring in the age and maturity of said child. Although quite young with regard to this section, Alexis’s concerns and preference were substantiated by independent witnesses and deserve consideration in this case.
Our de novo review leads us to the conclusion that the decree should be modified to place primary physical care of the children with Tim. This is not a determination we make easily. Tim’s current work schedule makes an award of primary physical care difficult, but not impossible. This is especially true in light of the evidence indicating Jada’s inability to act consistently in the best interests of the children. We conclude Tim can minister more effectively to the long-range best interests of the children. Further, placement with Tim will put the children in the environment most likely to bring them to a healthy physical, mental, and social maturity. The decision of the district court on this issue is affirmed as modified. This case is remanded back to the district court for further proceedings, including a determination of the proper amount of child support and visitation.
IV. Alimony.
Jada argues the district court erred when it determined alimony was not appropriate. We disagree. Alimony is not an absolute right; an award depends on the circumstances of each particular case. In re Marriage of Kurtt, 561 N.W.2d 385, 387
(Iowa Ct.App. 1997). The discretionary award of alimony is made after considering those factors listed in Iowa Code section 598.21(3) In re Marriage of Sychra, 552 N.W.2d 907, 908 (Iowa Ct.App. 1996). We consider the length of the marriage, the age and health of the parties, the parties’ earning capacities, the levels of education, and the likelihood the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed during the marriage. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998).
Having considered the findings of the district court, in conjunction with the above-mentioned factors in light of the evidence presented at hearing, we find the alimony decision to be fair. We will not disturb the order of the district court on appeal.
V. Appellate Attorney Fees.
Jada requests an award of appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the discretion of the court. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999). “We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court’s decision on appeal.” In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). We deny Jada’s request for attorney fees. Costs of appeal are to be divided equally between the parties.
AFFIRMED AS MODIFIED AND REMANDED ON APPEAL; AFFIRMED ONCROSS-APPEAL.