Upon the Petition of JOSE LUIS NUNEZ DUENAS, Petitioner-Appellee, And Concerning ANA CECILIA CARDOSA VIDAL, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-497 / 05-1751
Filed November 16, 2006
Upon the Petition of
JOSE LUIS NUNEZ DUENAS,
Petitioner-Appellee,
And Concerning
ANA CECILIA CARDOSA VIDAL,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Carl Baker,
Judge.
Ana Cecilia Cardosa Vidal appeals from a custody decree that awarded
Jose Luis Nunez Duenas primary physical care of the parties’ daughter.
AFFIRMED.
Nancy Robertson, Des Moines, for appellant.
Darrell Meyer, Marshalltown, for appellee.
Reyne See of Johnson, Sudenga, Latham, Peglow & O’Hare, P.L.C.,
Marshalltown, for minor child.
Heard by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
ZIMMER, J.
Ana Cecilia Cardosa Vidal appeals from a custody decree that awarded
Jose Luis Nunez Duenas primary physical care of the parties’ daughter. We
affirm the district court.
I.
Background Facts & Proceedings
Ana and Jose met in Mexico in 1998. They began dating and then lived
together in Mexico before Jose moved back to Marshalltown, Iowa. At the time
Jose returned to Iowa, Ana was pregnant. Jose asked Ana to come live with him
in the United States. He sent Ana money for an airline ticket and paid a third
party to assist Ana in entering this country illegally.
When Ana arrived in Marshalltown, she lived with Jose and his parents.
Ana and Jose’s daughter, Jacqueline, was born in June of 2000. Ana and Jose
continued to live with Jose’s parents after Jacqueline’s birth. Ana went back to
Mexico with Jacqueline in 2001, but eventually returned to Iowa. Eventually,
Jose, Ana, and Jacqueline moved into a home Jose purchased in Marshalltown.
In June 2004 Ana told Jose she wanted to visit her mother and brother in
California.
Jose paid for Ana’s airline ticket, and Ana told Jose she and
Jacqueline would be gone for four weeks. While Ana was in California, she
informed Jose she wanted to extend her stay by two weeks. Later, she told Jose
she intended to remain in California and would not return to Iowa. Jose drove to
California and unsuccessfully attempted to persuade Ana to return to Iowa.
On August 9, 2004, Ana filed a petition for child custody, child support,
and visitation in California. When Jose was served with notice of the action in
3
Iowa, he filed his own custody action in Iowa on August 25. The California case
was dismissed when the California court determined jurisdiction of the custody
action would be more properly addressed in Iowa. Jose sent money to Ana in
November for the return trip to Iowa. When Ana and Jacqueline returned, they
stayed with Jose in Marshalltown for approximately one month.
Jose
dismissed
his
child
custody
petition
without
prejudice
on
November 10 because he believed Ana and Jacqueline were going to stay with
him in Iowa. A short time later, Jose discovered Ana had obtained airline tickets
to return to California with Jacqueline. Jose filed a petition for injunctive relief on
November 17 in an effort to prevent Ana from leaving the state with Jacqueline.
The district court entered an order that same day enjoining Ana from leaving the
state with Jacqueline.
Jose subsequently filed a motion to set aside the voluntary dismissal of his
petition to establish custody. He alleged he had been misled into seeking a
dismissal of his petition by Ana. Ana filed a response stating she did not resist
the motion to set aside the dismissal. On December 10 the court reinstated
Jose’s petition for custody and support. On that same date Ana went to Jose’s
home and started packing her clothing and Jacqueline’s clothing. Jose feared
Ana was going to take Jacqueline to California, so he took Jacqueline to his
parents’ home without Ana’s permission. This prompted Ana to file a petition for
relief from domestic abuse, and on December 13 the court entered a temporary
protective order granting temporary physical care of Jacqueline to Ana. The
court also appointed a guardian ad litem to represent Jacqueline’s interests on
4
December 17. Following a hearing held February 15, 2005, the court entered an
order which provided that Ana would maintain temporary physical care of
Jacqueline pending the parties’ custody trial.
Ana lived in a women’s shelter for a short time after she and Jose
separated for the final time.
After Ana left the shelter, she established a
temporary residence with Maria and Jesus Gomez. Ana told the guardian ad
litem that another woman, Sonia, and an infant also lived in the home. She
would not specify where they slept in the home. 1
The district court heard the child custody action on July 13, 2005, and on
August 10 the court awarded the parties joint legal custody and granted Jose
primary physical care of Jacqueline. Ana now appeals.
II.
Scope and Standard of Review
We review a district court’s ruling on child custody de novo. Iowa R. App.
P. 6.4; In re Marriage of Barry, 588 N.W.2d 711, 712 (Iowa Ct. App. 1998).
Although we are 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.
Discussion
When we determine physical care, our primary consideration is the best
interests of the child. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa
1999). When we consider which physical care arrangement is in the child’s best
interests, we consider the factors set forth in Iowa Code section 598.41(3)
1
Ana gave conflicting accounts that Sonia and her infant slept in the basement, but then
she stated they slept in the garage. Ana refused to show the guardian ad litem the
garage, saying it was not finished.
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(2003), as well as the factors identified in In re Marriage of Winter, 223 N.W.2d
165, 166-67 (Iowa 1974). 2 The critical issue 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 re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa
Ct. App. 1996). Our primary objective is to place the child in the environment
most likely to bring him or her to healthy physical, mental, and social maturity. In
re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996). We must also
consider the willingness of each party to allow the child access to the other party.
Id.
2
We consider the following factors from Winter, 223 N.W.2d at 166-67, when making
physical care determinations:
1.
The characteristics of each child, including age, maturity, mental
and physical health.
2.
The emotional, social, moral, material, and educational needs of
the child.
3.
The characteristics of each parent, including age, character,
stability, mental and physical health.
4.
The capacity and interest of each parent to provide for the
emotional, social, moral, material, and educational needs of the
child.
5.
The interpersonal relationship between the child and each parent.
6.
The interpersonal relationship between the child and its siblings.
7.
The effect on the child of continuing or disrupting an existing
custodial status.
8.
The nature of each proposed environment, including its stability
and wholesomeness.
9.
The preference of the child, if the child is of sufficient age and
maturity.
10. The report and recommendation of the attorney for the child or
other independent investigator.
11. Available alternatives.
12. Any other relevant matter the evidence in a particular case may
disclose.
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Ana first claims the court erred in minimizing domestic violence by Jose
and in failing to apply the rebuttable presumption against joint custody when a
history of domestic violence exists. 3
As we have said before, domestic abuse is in every respect dramatically
opposed to a child’s best interests. In re Marriage of Daniels, 568 N.W.2d 51, 55
(Iowa Ct. App. 1997). In this case, the record reveals there was an altercation
between Ana and Jose in Jose’s parents’ home on May 10, 2002. The trial court
heard conflicting evidence regarding this incident. Ana claimed Jose hit her in
the face, but she admitted she pushed him first. Jose’s mother maintained Ana
threw herself at Jose and tried to scratch him, so she had to restrain Ana. She
also claimed Ana attempted to throw a vase at Jose. After the altercation, Ana’s
nose was bleeding, and Jose’s face and chest were scratched.
Jose was
arrested by police officers and charged with domestic abuse assault following the
incident. Ana tried to have the charges dismissed with the assistance of a local
lawyer. However, Jose pleaded guilty to simple assault and paid a fifty-dollar
fine. He successfully completed a court ordered batterer’s education program
after pleading guilty.
During the parties’ custody trial, Jose claimed both parties were at fault
during the incident three years earlier. He stated he accepted responsibility for
the incident at the time because he was concerned Ana would be deported if she
was charged with domestic abuse.
3
At trial, Ana claimed Jose was verbally
Iowa Code section 598.41(1)(b) (2003) establishes a rebuttable presumption against
joint custody if a history of domestic abuse exists, and section 598.41(2)(c) states if a
history of domestic abuse exists and is not rebutted, that outweighs any other factor
considered under section 598.41(3).
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abusive and controlling throughout their relationship, while Jose expressed
concern Ana was too rough with Jacqueline. In its custody decree, the district
court did not make specific findings regarding whether a history of domestic
abuse existed in this case or whether any presumption under section
598.41(1)(b) was rebutted. However, it is apparent that the trial court ultimately
concluded the evidence of domestic abuse presented in this case should not
prevent either party from being considered as a primary physical caretaker for
Jacqueline. Upon review of the record, we find no reason to disagree with this
conclusion.
The district court heard evidence that both parties behaved
inappropriately during the 2002 altercation. Ana told the child’s guardian ad litem
there had been no incidents of physical violence since the incident in 2002, and
she acknowledged Jose has never harmed Jacqueline.
Ana next claims the district court placed too much weight on her
undocumented status when making the custody determination.
Although the
district court indicated Ana’s undocumented status “complicates the custody
issue,” the mother’s immigration status was only one factor among many in the
court’s determination of the child’s best interests. Moreover, for the reasons
which follow, our own de novo review of the record convinces us the court’s
ultimate decision to place Jacqueline in the physical care of her father is amply
supported by the record.
We begin our discussion of physical care on a positive note. The guardian
ad litem’s report to the court states:
Jacqueline is a somewhat shy little girl who is clearly bonded with
both of her parents. She appeared to be well taken care of by both
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parents, and both parents appeared to have the ability to provide
for the needs of the child. Both parents love Jacqueline.
We agree with this assessment.
Although the parties have some current
complaints regarding one another, they are both capable of taking care of
Jacqueline. However, like the district court, we believe Jose offers Jacqueline far
more stability than her mother.
Jose is a legal and permanent resident of this country. He has resided in
the United States for ten years. Jose has a full-time job, a car, and a driver’s
license. He owns his own residence where Jacqueline has her own bedroom.
Jose has at least fifteen family members living in Marshalltown. Jacqueline has a
close relationship with Jose’s extended family. Jose has demonstrated he can
provide a stable and secure home for his daughter.
Ana’s situation is much less stable. She does not have a job, a car, or a
driver’s license. Ana does not have a permanent home. She lives with friends
she recently met in Marshalltown. Ana has no relatives in this area, and her
plans for the future are uncertain. Her testimony indicated she would likely move
to California if awarded custody, even though she acknowledged such a move
would be unfair to Jose and Jacqueline.
Our review of the record also supports the district court’s conclusion that
Jose is more willing to support Ana’s relationship with Jacqueline than Ana is
willing to support Jose’s relationship with his daughter. The denial of one parent
of a child’s opportunity to have meaningful contact with the other parent is a
significant factor in determining a physical care arrangement. In re Marriage of
Will, 489 N.W.2d 394, 399 (Iowa 1992).
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Finally, the decision to award Jose physical care finds further support in
the guardian ad litem’s recommendation, following a thorough investigation, that
the parties share joint legal custody with Jose granted primary physical care.
Upon our de novo review of the record, we find no reason to disagree with
the district court's decision to place physical care of Jacqueline with Jose. Like
the district court and Jacqueline’s guardian ad litem, we believe this physical care
arrangement is in the child’s best interests.
In reaching this conclusion, we
recognize the court had the parties before it, was able to observe their
demeanor, and was in a better position to evaluate them as caregivers than we
are. See In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993).
Jose requests appellate attorney fees. An award of appellate attorney
fees rests within the discretion of the court.
N.W.2d 252, 258 (Iowa 1996).
In re Marriage of Benson, 545
Whether attorney fees should be awarded
depends on the needs of the party making the request and the respective
abilities of the parties to pay. In re Marriage of Guyer, 522 N.W.2d 818, 822
(Iowa 1994).
We also consider whether the party making the request was
obligated to defend the trial court's decision on appeal. In re Marriage of Gaer,
476 N.W.2d 324, 330 (Iowa 1991). We decline to award appellate attorney fees
in this case.
IV.
Conclusion
We affirm the district court’s decision to grant joint legal custody to the
parties with physical care of Jacqueline with Jose.
AFFIRMED.
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