No. 2-769 / 02-0187Court of Appeals of Iowa.
Filed October 16, 2002
Appeal from the Iowa District Court for Monroe County, Daniel P. Wilson, Judge.
Joshua Scholtus appeals the dissolution decree awarding primary physical care of the parties’ son to Talisa Scholtus. AFFIRMED ASMODIFIED AND REMANDED.
Michael Brice of Brice Smith, L.L.P., and Zachary Simpson, Oskaloosa, for appellant.
Talisa Scholtus, Albia, for appellee pro se.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
MAHAN, J.
Joshua Scholtus appeals the dissolution decree awarding primary physical care of the parties’ son to Talisa Scholtus. We affirm as modified and remand.
Background Facts and Proceedings. Talisa and Joshua were married on May 22, 1999. They are the parents of Trevor Michael who was born on February 5, 2000.
Joshua, twenty-two years old, graduated from high school and is currently employed at Pella Corporation. He earns approximately $40,983 per year. He is in good health and does not drink alcoholic beverages or smoke cigarettes. Talisa, twenty years old, quit high school after the tenth grade. Currently, she is employed as a C.N.A. at Oakwood Nursing Home. Talisa earns approximately $16,640 per year. She began smoking at age fourteen and now smokes approximately one pack of cigarettes per day. Talisa smoked during her pregnancy against her doctor’s advice and continues to smoke around Trevor in the house and in the car. She has an intimate relationship with an eighteen-year old high school senior, Jeremy De Moss. Jeremy also smokes approximately one pack of cigarettes per day around Trevor.
In his short life, Trevor has been to the doctor over fifteen times for various health problems including: coughing, runny nose, bronchitis, high temperature, wheezing, and asthma. Trevor also has been hospitalized twice for pneumonia. At trial, Talisa denied knowledge of the connection between her smoking and Trevor’s health problems. This was evidenced by her testimony on cross-examination:
Q:Have you ever placed a connection between your smoking during pregnancy and Trevor’s problems?
A: No.
Q:Have you ever made a connection between your smoking since Trevor’s birth and Trevor’s problems?
A: No.
Q:Do you think that your smoking or the smoking that you and Jeremy both do in Trevor’s presence contributes to any of his health problems?
A: No.
Despite Talisa’s inability to make a connection between her smoking and Trevor’s health problems, the district court awarded her primary physical care of Trevor. Joshua appeals.
Standard of Review. We review actions tried in equity de novo. Iowa R.App.P. 6.4. We give weight to the 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).
Physical Care. Joshua contends the district court erred in awarding primary physical care of the parties’ child to Talisa. We agree.
The critical issue before us is the best interests of the child Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct.App. 1998). This must, of necessity, be the first and governing consideration in our discussion. Id. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41 (2001); 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 child is which parent will do better in raising the child; 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 child Winter, 223 N.W.2d at 167. The objective should always be to place the child in the environment most likely to bring him 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).
In the instant case, the district court stated “the decision as to the placement of Trevor’s physical care as between Talisa and Joshua is a close one.” The court explained its decision, stating:
The court is unclear as to Talisa’s true understanding and attitude as concerns any connection between Trevor’s health and inhalation of secondary smoke. It appears that although Talisa realizes that there may be some connection between the two, she is dismissive of the same or for some reason, unconcerned. . . . .
Talisa’s inability or unwillingness to make a connection between Trevor’s respiratory/medical difficulties and her smoking is of concern to this Court. However, on balance, the Court finds that Trevor’s best interests will be served by giving Talisa and Joshua joint legal custody, and by placement of Trevor’s physical care with Talisa. In addition, by granting Joshua significant visitation/contact with Trevor.
This Court fully expects that Talisa will take whatever steps are necessary to eliminate any cigarette or other smoking activity by her, or anyone else, around Trevor. This would include in a vehicle in which Trevor is a passenger, or in any house or other structure in which Trevor is located, for any period. If Talisa is unwilling or unable to take such steps, and if Trevor’s respiratory/health concerns continue, this may be viewed by a later or reviewing Court as grounds to consider a change of Trevor’s physical care to Joshua.
We disagree with the district court’s conclusion that the decision in this case is a close one. In the two short years of his life, Trevor has been to the doctor over fifteen times for respiratory problems. The overwhelming medical evidence presented at trial suggests Talisa’s smoking has either caused Trevor’s health problems or at the very least intensified his health problems. It is also clear from the record, Talisa refuses to stop smoking because she feels it does not present a health risk to Trevor. Our de novo review of the record leads us to conclude that Trevor’s best interest would be served by awarding Joshua primary physical care. Our decision is not based upon the fact Talisa is a smoker. Rather, it is based upon Talisa’s refusal to quit smoking around Trevor. Talisa has not been asked to quit smoking. She has simply been advised to quit smoking around Trevor. However, Talisa has not shown any willingness to follow this advice and has not taken any steps to resolve the issue. She continues to stonewall and, as a result, ignore the best interests of Trevor. Unlike the district court, we are not willing to wait for Talisa to have an epiphany. We conclude Trevor should be placed with the parent most likely to foster a healthy physical environment.
Accordingly, we modify the decree previously entered by the district court to award physical care of Trevor to Joshua. We remand the case to the district court for entry of further orders consistent with this decision.
AFFIRMED AS MODIFIED AND REMANDED.