IN RE THE MARRIAGE OF ANJANA KUMAR AND MANISH KUMAR Upon the Petition of ANJANA KUMAR, Petitioner-Appellee/Cross-Appellant, And Concerning MANISH KUMAR, Respondent-Appellan t/Cross-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-788 / 06-0348
Filed December 28, 2006
IN RE THE MARRIAGE OF ANJANA KUMAR
AND MANISH KUMAR
Upon the Petition of
ANJANA KUMAR,
Petitioner-Appellee/Cross-Appellant,
And Concerning
MANISH KUMAR,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Manish Kumar appeals the district court’s ruling in his dissolution
proceeding. Anjana Kumar cross-appeals. AFFIRMED ON BOTH APPEALS.
Murray Bell, Davenport, for appellant.
Dennis Jasper, Bettendorf, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Manish Kumar appeals the district court’s ruling in his dissolution
proceeding. He argues the district court erred in awarding physical care of the
parties’ child to Anjana and in dividing the parties’ assets. Anjana Kumar crossappeals. She argues the district court erred in (1) dividing the parties’ assets;
(2) failing to find a history of domestic abuse; (3) failing to issue a permanent
protective order against Manish; (4) scheduling visitation; and (5) finding Anjana
in contempt. We affirm on both appeals.
I. Background Facts and Proceedings
Manish and Anjana were married in May 2001. They have one child, a
son born February 22, 2003.
December 17, 2004.
Anjana filed a petition for dissolution on
The court filed an injunction on December 27, 2004,
ordering both parties to refrain from spending, liquidating, disposing, lending,
alienating, or changing any money or assets.
Anjana was also granted a
protective order against Manish on March 9, 2005.
Trial took place on
November 2 and 3, 2005. Custody and the division of assets were the primary
issues contested.
Manish was thirty-four years old at the time of trial. When he and Anjana
married, he was an established dermatologist in Indiana. He moved his practice
to Bettendorf in June 2004. The court determined his income to be $200,000 per
year. He is in good health.
Anjana was thirty-three years old at the time of trial. She is an Indian
citizen and in the process of obtaining permanent legal residency in the United
States.
At the time of the parties’ marriage, she was enrolled in a
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gastroenterology fellowship program at the University of Iowa. Through the early
part of the marriage, she lived and worked in Iowa City. After giving birth to the
couple’s child, she took a leave of absence from her fellowship and lived with
Manish in Indiana for six weeks. She then returned to her fellowship. Six weeks
later, she took the couple’s child to Iowa City to live with her. The district court
determined the couple made trips between Indiana and Iowa City, with Manish
making more trips than Anjana. Upon finishing her fellowship, Anjana moved to
Bettendorf to live with Manish in September 2004. She took a position with
Gastroenterology Associates. The court determined her income to be $200,000
per year.
Both Anjana and Manish claim the other was physically, verbally, and
sexually abusive throughout the marriage. The district court refused to issue a
permanent protective order, determining that both parties had “embellished” their
accounts of abuse. It also determined that the parties’ filings did not establish a
history of abuse for the purposes of awarding custody.
Instead, the court
ordered joint legal custody, with Anjana receiving physical care. Manish was
awarded visitation every Thursday from 7:30 a.m. to 4:30 p.m. and every other
weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m. He also received six
weeks of summer visitation, including four uninterrupted weeks if he chooses.
While Manish has summer visitation, Anjana is to be afforded the same visitation
schedule he has with the child while the child is in her care. Further, Anjana
receives four uninterrupted weeks of summer visitation.
shared.
Holidays are also
In odd-numbered years, Anjana has the child for President’s Day
weekend, Memorial Day weekend, Labor Day weekend, Christmas Eve, and
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New Year’s Eve. Manish receives visitation on Easter weekend, July 4th holiday,
Thanksgiving Day, Christmas Day, and New Year’s Eve. The holiday schedule is
reversed in even-numbered years.
The court also divided the parties’ assets. The facts of the distribution are
addressed as needed below. Both parties appeal.
II. Standard of Review
We review dissolution decrees de novo. In re Marriage of Sullins, 715
N.W.2d 242, 247 (Iowa 2006). Though we are not bound by them, we give
weight to the district court’s factual findings and credibility determinations. Id.
We review the contempt ruling for errors at law. In re Marriage of Spears, 529
N.W.2d 299, 304 (Iowa Ct. App. 1994). Contempt for violating a court order
requires proof beyond a reasonable doubt that there was a willful violation of an
order. Id.
III. Merits
A. Physical Care and Custody
Manish argues the district court erred in awarding Anjana physical care of
their son. Anjana claims the district court erred when it failed to find a history of
domestic abuse and refused to grant her sole legal custody.
We review numerous factors in determining which parent should have
physical care of a child.
See Iowa Code § 598.41(3) (2003).
consideration, however, is the best interests of the child.
Our primary
In re Marriage of
Decker, 666 N.W.2d 175, 177 (Iowa Ct. App. 2003). Specifically, we look to
which parent can administer most effectively to the child’s long-term interests. In
re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). We also
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consider the emotional and environmental stability each parent offers. Id. at 762.
There is no inference favoring one parent over the other. Decker, 666 N.W.2d at
177. The critical issue is determining which parent will do a better job raising the
children; gender is irrelevant, and neither parent should have a greater burden
than the other in attempting to gain physical care in an original dissolution
proceeding. Id.
It is clear that both parents love their son and want the best for him.
However, both parents have serious credibility issues.
Dr. Witherspoon
interviewed and evaluated the parents based on the physical care factors set
forth in Iowa Code section 598.41(3).
He suggested Anjana should have
physical care of the parties’ son. The district court also heard testimony from
Anjana, Manish, and several other witnesses. It determined that Anjana had
been the child’s primary caretaker and, though both parents demonstrated the
ability and desire for physical care, Anjana was better able to function as the
child’s physical care giver in the long term. Dr. Witherspoon was able to observe
the parents and several of the witnesses during his evaluation. In addition, the
district court was able to observe all the witnesses and independently determine
their credibility.
After reviewing the evidence, we agree with the credibility
determinations and affirm the district court rulings on both physical care and
custody. Further, we agree that neither party proved that a permanent protective
order is warranted in this case.
B. Visitation
Anjana argues the district court did not consider the child’s needs when
granting visitation. We disagree. The district court determined that “both parents
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have shown they are capable of acting as the primary caretaker of the child.”
The court was aware of the child’s food allergies and other health problems when
it awarded physical care and visitation. Anjana’s contention that the child should
not have visitation when he is sick is unfounded. Manish is a medical doctor and,
as the district court stated, capable of being the primary caretaker of the child.
He would thus be able to care for a sick child. Obviously, if the child is severely
ill, visitation would not be advisable.
Anjana requests reciprocal summer
visitation. We note that the district court already provided her four consecutive
weeks of visitation in its ruling on the parties’ motions to enlarge. Anjana also
requests telephone visitation while the child is in Manish’s care. We note again
that the district court provided Anjana with the same visitation Manish receives
while the child is in Anjana’s care. The court wrote,
In regard to the four consecutive weeks of vacation accorded to
both the Petitioner and the Respondent in this matter, unless the
party who has the child on vacation is traveling out of the Quad
Cities area, the other parent [Anjana] shall have the same regular
weekend visitation rights which have been accorded to [Manish].
We construe the phrase “the same regular weekend visitation rights” to include
the same telephone contact Manish enjoys.
Finally, the record makes it obvious the parties have been quite
adversarial throughout their case. We reiterate the district court’s advice to the
parents:
It is apparent to the court that there is an acrimonious relationship
between the parties which manifested itself in all issues presented
to the court, including those involving the child. Nonetheless, it is
apparent to the court that both parties are intelligent and caring
parents who have the capacity to rise above their present conflicts
and act as joint legal custodians of the child. The court further
believes that upon further reflection and once this case is
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concluded, the parties will wish to act in the best interest of their
child by modeling at least civil and respectful behavior towards
each other when they communicate regarding the child’s needs and
long-term interests.
The district court’s ruling concerning visitation is affirmed.
C. Division of Assets
Both parties argue the district court erred in dividing their personal assets.
Anjana also claims the district court erred in dividing their respective business
assets. Both parties made accusations concerning depletion of marital assets.
Manish claims Anjana absconded with a family-heirloom, a 6.35 carat diamond
ring. Again, we reiterate the district court:
[Anjana] and [Manish] have reserved some of their most caustic
and vituperative attacks on one another for these economic issues,
often to a degree which was inversely proportional to the amounts
in issue. Both parties have enjoyed very expensive lifestyles during
their marriage and separation. This court is not a forensic
accountant, and is not equipped with the expertise or the inclination
to isolate and resolve all the myriad of financial improprieties and
incidents of taking unfair advantage alleged by each party against
the other.
We conclude the district court’s valuation of the parties’ property is well
within the permissible range of the evidence. See In re Marriage of Steele, 502
N.W.2d 18, 21 (Iowa Ct. App. 1993). Further, the district court’s distribution is
equitable given the parties’ premarital assets, financial and other contributions to
the marriage, their generosity to their families, and their lifestyle. As for the
diamond ring, Manish’s family and a friend testified to its existence. Manish,
however was unable to provide any independent documentation confirming he
owns such a ring. We, then, are left with three possibilities: (1) Anjana took the
ring; (2) Manish still has the ring but is accusing Anjana of taking it; or (3) Manish
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never owned such a ring. There is no independent evidence to support any of
the possibilities.
Therefore, we conclude, as did the district court, that any
heirloom ring as described by Manish in the evidence presented at trial is
awarded to him, at an undetermined value. The district court’s ruling concerning
the parties’ distribution of assets is affirmed.
D. Contempt
Anjana claims the district court erred in finding her in contempt for
violating an order restricting the parties from spending, liquidating, disposing,
encumbering, lending, alienating, or changing the form of any money or assets.
Anjana, however, violated the order by spending money on her immigration
attorney. While we understand it was an expense necessary for her to become a
citizen, she should have sought the court’s permission before spending that
amount of money. The district court’s contempt finding is affirmed.
IV. Summary
We conclude Anjana should have physical care of the parties’ child and
that the parties should share joint legal custody. We also conclude that the
district court’s visitation schedule adequately addresses the needs of the child.
The district court’s valuation of the assets is within the permissible range of the
evidence and its distribution is equitable. Finally, the district court properly found
Anjana in contempt. The district court’s ruling is affirmed. Costs are taxed onehalf to each party.
AFFIRMED ON BOTH APPEALS.
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