No. 4-242 / 03-1742.Court of Appeals of Iowa.
June 9, 2004.
Appeal from the Iowa District Court for Grundy County, Thomas N. Bower, Judge.
Respondent appeals a dissolution decree challenging custody, child support, and property distribution. AFFIRMED.
Sara Kersenbrock of Kersenbrock Law Office, Waterloo, for appellant.
Gary Papenheim, Parkersburg, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
VOGEL, P.J.
James Brubaker appeals the dissolution decree, challenging the physical care of the minor children with his former spouse, Stacy Brubaker, the amount of child support ordered, and the property distribution. We affirm.
Background Facts.
James and Stacy were married in May 1999. They have two children together, Hunter, born November 1998, and Faith, born August 2000. James also has two children from a previous marriage and shares physical care of them with the children’s mother. James and Stacy separated in October 2001 and Stacy filed a petition for dissolution of marriage in February 2003 seeking physical care of the children. In his answer, James requested shared physical care. A temporary order was entered establishing a shared physical care arrangement agreed upon by the parties and with no child support ordered. According to the shared care arrangement, Stacy dropped the children off at James’s home between 5:00 a.m. and 5:30 a.m. James would then take the children to daycare, provided by his sister free of charge, between 6:00 a.m. and 6:30 a.m. After work, James picked the children up from daycare and returned with them to his home where he gave them dinner. Stacy would retrieve the children after she finished work between 6:00 p.m. and 6:30 p.m. The children stayed with James every other weekend.[1] At the time of trial, Stacy was working fewer overtime hours and could pick up the children from James around 4:30 p.m.
Trial was held on August 21, 2003 and on September 25, the district court issued its decree granting the parties joint custody but awarding physical care to Stacy. The court ordered James to pay child support in the amount of $509 per month. As part of the property distribution, the court ordered James to pay Stacy $2,500 of the equity in the marital home and to assume a $350 debt owed to Target. James appeals.
Scope of Review.
We conduct a de novo review of dissolution proceedings. Iowa R. App. P. 6.4. We defer to the district court’s findings, but are not bound by them. Iowa R. App. P. 6.14(6)(g).
Physical Care.
James argues that the district court erred in granting physical care of the children to Stacy and requests that we either grant shared physical care or physical care to James. Stacy contends that the district court properly granted her physical care of the children.
The district court found that shared physical care in this situation was not in the children’s best interests. The court stated, “although there is communication between the parties, there is an insufficient amount of cooperation to facilitate a divided physical care arrangement. Further, the petitioner is resistive of such an arrangement.” In granting Stacy’s request for physical care the court stated,
Had the respondent been asking for physical placement of the children, the Court’s decision would have been much more difficult. Given the respondent’s request for divided physical care and the Court’s inability to grant that request, the Court finds that primary physical care of the children is placed with the petitioner subject to reasonable visitation.
James asserts that the district court erroneously believed that he was not asking for physical placement of the children. He points to two questions and responses on direct examination indicating that if the district court had to choose one physical custodian it should be him. Yet, in his answer filed February 17, 2003, James requested only shared physical placement of the two children. We only consider those issues the parties presented to the district court. In re Marriage of Okonkwo, 525 N.W.2d 870, 872 (Iowa Ct.App. 1994). Because James did not properly present the issue of placing physical care with him before the district court, we cannot address it here. Id.
James’ primary concern with Stacy having physical care of the children is the people Stacy socializes with. Stacy’s brother and a close friend of her brother, who have both been in the home with the children present, caused some concern to the district court because of exposing the children to people with mental health problems, substance abuse issues, and criminal histories. Stacy’s live-in boyfriend also gave the court pause in her choice of relationships; however, no evidence was presented that the boyfriend posed any harm to the children.
The Iowa legislature has recognized joint physical care as an option for divorcing parents, “[w]hen the court determines such action would be in the best interest of the child and would preserve the relationship between each parent and the child, joint physical care may be awarded to both joint custodial parents . . .” Iowa Code § 598.41(5) (2003).
Where parents respect their former spouse and their children and recognize that cooperation and communication are important to their children’s welfare and they put that welfare ahead of their own needs and petty differences, shared care can be beneficial to the children because it allows both parents to remain a viable and real part of the children’s lives.
Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002) (citing In re Marriage of Swenka, 576 N.W.2d 615, 616-17 (Iowa Ct. App. 1998)).
We agree with the district court’s assessment that a shared physical care arrangement is not in the best interests of the children in this particular situation. James and Stacy have different parenting and disciplining methods which make a shared arrangement confusing to the children. The children are young and need a sense of stability. See In re Marriage of Burham, 283 N.W.2d 269, 273 (Iowa 1979). James lives in Reinbeck while Stacy has moved to Grundy Center. While the distance is not great, their homes are in different school districts. Hunter will be starting kindergarten next year which would add strain to a shared physical care arrangement. In addition, Stacy is against a shared arrangement.[2] We therefore affirm the district court’s order granting Stacy physical care of the two children.
Child Support.
James argues that the district court’s order regarding the amount of child support was erroneous. Specifically, James asserts that he is entitled to a thirty-percent discount on the child support because the visitation ordered is approximately 164 days per year. Stacy asserts, however, that under the decree James is given ninety-six days visitation, which does not entitle him to the discount.
Under the child support guidelines, a non-custodial parent receives a credit to the guideline amount if the children spend a certain number of days in the parent’s care. Child Support Guideline, Iowa Court Rule 9.7(2). A “day” is counted as an overnight spent caring for the child. Child Support Guideline, Iowa Court Rule 9.7(2). The decree grants James the following overnight visits: alternating weekends from Friday evening to Sunday evening or from Thursday evening to Sunday evening when school is not in session; one-half of the Christmas school holiday; and six weeks during the summer months. An exact number of overnight visits is not possible without a school calendar and may change from year to year. However, James has the children for approximately 100 overnights each year, well below the 128 days required for any credit under the guidelines. Therefore, we affirm the district court’s order requiring James to pay child support in the amount of $509 per month.
Property Distribution.
James argues that the district court erred in distributing the property on two counts: awarding half of the equity in the marital home, or $2,500, to Stacy and assigning James a $350 debt to Target. Stacy contends both awards were equitable.
The district court found that the home had equity of approximately $5,000. Further, the court stated, Until such time as the contract is paid in full, the Court finds that there is no equity to be distributed at this time. In the event that the contract is paid in full or the house is refinanced through a traditional mortgage, the Court finds that the respondent shall pay to the petitioner $2,500 to represent one-half of the potential net equity in the residence.
James argues that there is no equity in the marital home because the parties were purchasing it on contract. We disagree. While the court utilized the phrase “potential net equity,” the evidence clearly shows there is current equity in the house. Prior to trial, the parties stipulated that the marital home had an assessed value of $54,370 and the balance owed on the contract was $48,683. The pretrial stipulation, along with the amortization schedule, support the district court’s finding that there was at least $5,000 equity in the home at the time of trial. In addition, there is no provision in the real estate contract preventing resale, assignment, or refinancing such as would prohibit James from giving Stacy her share of the current equity. We therefore find that the district court correctly ordered James to pay Stacy $2,500 under the conditions set forth in the decree. See generally In re Marriage of Romig, 207 N.W.2d 780, 783 (Iowa 1973) (upholding a property distribution including one-half equity in a residence being purchased on contract).
James next contends that the court erred in assigning him the $350 debt owed to Target despite Stacy’s testimony that she would be responsible for the debt. Reviewing the property distribution as a whole, the district court fairly distributed the debts between the parties and we affirm.
Appellate Attorney Fees.
James also requests appellate fees of $3,000 and that Stacy be required to pay all costs on appeal. 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). As we have affirmed the district court, James’ request is denied.
AFFIRMED.