IN RE THE MARRIAGE OF KELLY LYNN RIXEN AND DAVID A. RIXEN Upon the Petition of KELLY LYNN RIXEN, Petitioner-Appellee, And Concerning DAVID A. RIXEN, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-791 / 06-0669
Filed December 28, 2006
IN RE THE MARRIAGE OF KELLY LYNN RIXEN
AND DAVID A. RIXEN
Upon the Petition of
KELLY LYNN RIXEN,
Petitioner-Appellee,
And Concerning
DAVID A. RIXEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, David H. Sivright,
Jr., Judge.
David A. Rixen appeals the district court’s ruling in his dissolution
proceeding. AFFIRMED.
Christopher Farwell of Farwell & Bruhn, Clinton, for appellant.
Mary Lynn Wolfe of Wolfe Law Office, Iowa City, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
David A. Rixen appeals the district court’s ruling in his dissolution
proceeding. He argues the district court erred in (1) awarding physical care of
the parties’ child to Kelly Lynn Rixen; (2) failing to award joint physical care;
(3) providing inadequate visitation; and (4) failing to grant a new trial. We affirm.
I. Background Facts and Proceedings
David and Kelly were married in February 2001. Their daughter was born
in May 2002. Kelly filed a petition for dissolution on May 20, 2005. The primary
issue at trial was their daughter’s physical care.
David was approximately forty years old at the time of trial. He works as a
housepainter for his brother ten months out of the year.
He collects
unemployment the remaining two months. Based on his income from painting
and unemployment over the last four years, the district court determined his
annual income was approximately $20,000. Currently, David lives with his sister
Kim, using a converted porch as a bedroom. The couple’s daughter also has a
bedroom at Kim’s house. David is in good health; he has had, however, some
mental health issues in the past. 1 He has a thirteen-year-old son with whom he
exercised sporadic visitation for a time, but whom he has not seen since July
2001.
According to witnesses, he occasionally has difficulty controlling his
temper.
1
He testified he had an anxiety disorder, but witnesses testified he threatened suicide in
July 2004 and was hospitalized for three days for psychiatric care. He stated that the
panic attack was the result of a job change and he has returned to normal since he
started working for his brother.
3
Kelly was approximately thirty years old at the time of trial. She works as
the kitchen manager at an assisted living facility. Her annual income is $26,300.
She also has physical care of a seven-year-old daughter from a previous
marriage. The two girls get along well together and have “sister-like” bonds.
Kelly received some psychiatric treatment related to the break-down of the
marriage, but is no longer receiving the treatment. She also has a history of
methamphetamine use from her first marriage. She and her first husband were
arrested on drug charges in 1995, but the charges against her were later
dropped.
There is no evidence she continued to use methamphetamine,
although she testified both she and David have used marijuana occasionally in
the past.
Kelly has been dating a man named James since August 2005.
He
occasionally stays at Kelly’s home. James is employed and has two teenage
children from his marriage.
An action to dissolve that marriage is currently
pending. He has a good relationship with both of Kelly’s daughters. The girls,
however, reported to their counselor that David makes negative and threatening
remarks about James.
There is also a history of domestic abuse between David and Kelly. The
district court determined that David had been, at times, verbally abusive toward
Kelly. It found he was jealous and controlling. On the day Kelly intended to
move out of the parties’ marital home, David tried to prevent her from leaving
with their daughter. The child was literally caught between the two during a
struggle. Kelly dialed “911” on her cell phone. David smashed the phone and
attempted to deflate the tires on Kelly’s vehicle. Both were arrested for domestic
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abuse assault and both spent the night in jail. Upon his release, David took the
child to his sister Kim’s house and denied Kelly any contact with her until a
temporary custody order was entered two weeks later.
After the parties’ separation, they shared physical care of their daughter,
exchanging her at 5:30 p.m. every fourth day.
Kelly testified that the
arrangement was hard on the child. She argued her daughter was acting out as
a result of lack of consistency and enrolled her in counseling and play therapy.
Kelly’s opinion is shared by both the child’s therapist and the director of her
daycare program.
The district court specifically rejected continuing the parties’ shared
physical care. Instead it awarded joint legal custody, with Kelly responsible for
physical care. David was awarded reasonable visitation, including but not limited
to Wednesday from 5:30 p.m. to 8:00 p.m. and alternate weekends from
5:30 p.m. Friday to 8:00 p.m. Sunday.
David was also awarded two
nonconsecutive weeks each summer, with two consecutive weeks the summer
after the child completes kindergarten, and four weeks after she completes fifth
grade. The parties were ordered to alternate Christmas Eve Day and Christmas
Day until the child begins kindergarten, when they must begin dividing Christmas
vacation from school. They were also ordered to share alternate holidays, giving
Kelly Easter, July 4th, and Thanksgiving in odd-numbered years, and David
Memorial Day and Labor Day in odd-numbered years.
David filed a motion to enlarge the court’s findings and motion for new trial
arguing the court’s findings were contrary to the law and not supported by
sufficient evidence.
He also requested shared physical care and increased
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visitation. The district court granted the motion to enlarge and awarded David
visitation from 5:30 p.m. the first Wednesday of every month to 8:00 p.m. the
following Sunday, 5:30 p.m. the third Wednesday of every month to 8:00 p.m. the
following Sunday, and every other Wednesday from 5:30 p.m. to 8:00 p.m.2
David appeals the award of physical care, and alternately, visitation. He
also argues he should have received a new trial.
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.
III. Merits
A. Physical Care
David argues he should have been awarded physical care of the couple’s
child. We review numerous factors in determining which parent should have
physical care of a child.
See Iowa Code § 598.41(3) (2005).
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
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
2
Subsequently, the court granted Kelly’s motion to enlarge requesting the visitation be
moved to the second and fourth Wednesday to facilitate the child’s interaction with her
sister, who has also visitation with her father on the second and fourth weekends.
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child; 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.
As the district court noted, this is a close case. It is obvious both parents
love their child and want what is best for her.
Some of David’s behavior,
however, has been troubling. First, his temper causes us concern. Though his
family testified that he had overcome his anger, there was no testimony as to
how or why he ceased being angry. Kelly presented persuasive evidence that
David’s temper is, in fact, still quite destructive. Second, we are also concerned
about David’s lack of contact with his thirteen-year-old son, whom he has not
seen since July 2001. David claims he stopped seeing the boy because the
boy’s mother made it difficult. He also claimed he stopped because he and Kelly
were newly married and Kelly did not want him to see his son. Third, testimony
indicated Kelly would be more supportive of the child’s visitation and relationship
with David than either David or his family would be of her visitation and
relationship with the child. Finally, we also question David’s decision to upset the
girl’s routine by refusing to take her to daycare when both her therapist and
daycare director suggest consistency and stability are in her best interests.
David points out that Kelly has invited James to stay overnight on
occasion, and claims, in fact, that the two have been cohabiting. However, there
is no evidence to indicate this relationship has had a negative impact on the
child. Further, the child is bonded with her half-sister, who also lives with Kelly.
In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993) (noting
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siblings or half-siblings should only be separated for compelling reasons). We
therefore defer to the district court ruling granting Kelly physical care.
B. Shared Physical Care
David argues that he and Kelly should share physical care of their
daughter.
He also claims the district court did not adequately address his
request for joint physical care. See Iowa Code § 598.41(5). We disagree with
both arguments.
In addressing David’s request for joint physical care, the court wrote:
The Court rejects the suggestion that the parties continue to share
her physical care. This issue presents a close question, as both
parents clearly have great love and affection for their daughter.
After a troublesome beginning and with counseling, [the child] has
adjusted to the present arrangement. However, the Court is not
convinced that its continuation is in her long-term best interests.
The reasons for this doubt also support the Court’s choice of Kelly
as the custodial parent.
(Emphasis added.)
The court then went on to enumerate its reasons for
awarding Kelly physical care. Because the court stated its reasons for awarding
Kelly physical care were the same for denying shared physical care, we conclude
the court adequately addressed David’s claim.
We also conclude that shared physical care is not a viable long-term
option for this family. It is clear that David is unwilling to cooperate with Kelly’s
parenting decisions or respect her lifestyle. See In re Marriage of Ellis, 705
N.W.2d 96, 101 (Iowa Ct. App. 2005).
He has demonstrated episodes of
irritability and anger, and has had difficulty inhibiting impulses when he is angry.
He has displayed no effort to moderate the hostility between his sister and Kelly,
making communication concerning the parenting of the couple’s child difficult.
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For these reasons, including the reasons we stated for awarding Kelly physical
care, we affirm the district court’s ruling denying shared physical care.
C. Visitation
David argues the district court erred in setting his visitation. He claims the
court considered only one factor: the child’s age. See In re Marriage of Drury,
475 N.W.2d 668, 671 (Iowa Ct. App. 1991). He also requests we set visitation
for the child’s birthday, the parties’ birthdays, President’s Day, Martin Luther King
Day, and Columbus Day.
Taking the decree in its entirety, it is clear the court not only considered
the girl’s age, but David’s parenting skills, his ability to control his anger, his
home and family environment, and the stability he has provided the child in the
past. Further, the visitation schedule meets the goal of maximum continuing
physical and emotional contact. See Iowa Code § 598.41(1). David sees the
child six out of every fourteen days. For these reasons, we see no need to alter
the visitation schedule set by the district court.
D. New Trial
David gives no reason for a grant of a new trial other than his abovestated arguments about physical care and joint physical care. Because we find
the evidence was sufficient to support the district court’s findings concerning
physical care, we affirm the decree.
E. Attorney Fees
Kelly requests $1000 in appellate attorney fees. An award of appellate
attorney fees is not a matter of right, but rests within the court’s discretion. In re
Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We consider the
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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 Maher, 596 N.W.2d 561, 568 (Iowa 1999).
Kelly’s request for appellate attorney fees are denied. Costs of the appeal are
taxed one-half to each party.
AFFIRMED.
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