IN RE THE MARRIAGE OF SHAW N CROSSER AND KELLY CROSSER Upon the Petition of SHAWN CROSSER, Petitioner-Appellant, And Concerning KELLY CROSSER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-852 / 06-0760
Filed December 28, 2006
IN RE THE MARRIAGE OF SHAWN CROSSER AND KELLY CROSSER
Upon the Petition of
SHAWN CROSSER,
Petitioner-Appellant,
And Concerning
KELLY CROSSER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, Carl D. Baker,
Judge.
Father appeals from the physical care provision of the decree dissolving
the parties’ marriage. AFFIRMED.
Barry S. Kaplan and Melissa A. Nine of Kaplan & Frese, L.L.P.,
Marshalltown, for appellant.
William T. Talbot of Newbrough, Johnston, Brewer, Maddux & Howell,
L.L.P., Ames, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
Shawn Crosser appeals from the physical care provision of the decree
dissolving his marriage to Kelly Crosser, which placed the children’s physical
care with Kelly. Shawn asserts the district court erred by failing to award the
parties joint physical care or, alternatively, by placing the children’s physical care
with Kelly. We affirm the district court.
I. Background Facts and Proceedings.
Shawn and Kelly married in 1992. The parties have three children, two of
whom are minors:
Riley, born in 1993, and Shannen, born in 1996.
Both
children are generally healthy, although Riley has been diagnosed with Attention
Deficient Hyperactivity Disorder (ADHD).
Shawn filed a petition for the
dissolution of the parties’ marriage in June 2005. A dissolution decree was filed
in April 2006, following a March 2006 hearing.
At the time of hearing Shawn was thirty-nine years old and Kelly was
thirty-six years old. Both parties were in good health. Each had a high school
education, and was gainfully employed.
Shawn worked for Target Distribution Center, earning $14.39 an hour. In
2005 Shawn’s yearly income was $26,268. Prior to taking this position Shawn
worked for a private hog confinement operation. Kelly had been employed in
various capacities during the course of the marriage, but primarily provided
home-based daycare services. At the time of hearing Kelly was employed by
AGWSR School District as a daycare provider, for thirty hours per week at a rate
of six dollars per hour. With a yearly income of approximately $10,000 Kelly
admitted she was underemployed, but contended it was difficult to find suitable
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employment in the local, small town area. For this reason, Kelly expressed an
intent to move to a nearby area with better job opportunities.
Each party was an active and involved parent, to the extent their
respective schedules allowed. Shawn became a more attentive and involved
parent after the parties’ 2004 separation. It was Kelly, however, who served as
the children’s primary caregiver during the majority of the marriage, while Shawn
served as the family’s primary income provider.
Prior to trial the parties stipulated to the disposition of nearly all items of
property, including the marital residence. The parties agreed that Shawn would
receive the residence, and pay Kelly $15,000 for her share of the home’s equity.
The main issue to be decided by the district court was that of the children’s
physical care. Each party had requested the children’s sole physical care in his
or her respective pleading, but in his pretrial report Shawn also requested the
court consider awarding the parties joint physical care.
Following hearing, the court awarded the parties joint legal custody of the
children, and placed the children’s physical care with Kelly. The court noted that
Shawn was “clearly angry with Kelly because of her relationship with” another
man, and that “after observing Shawn’s demeanor at trial, his attitude toward
Kelly is one which is not conducive to joint physical care.” Noting that Kelly had
been the children’s primary caretaker, and concluding that she would do a better
job of supporting the children’s relationship with the noncustodial parent, the
court determined Riley and Shannen’s interests were best served by placing their
physical care with Kelly.
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Shawn appeals. He contends the record does not contain a reason to
rebut the statutory presumption of joint physical care. Alternatively, he contends
that if the presumption in favor of joint physical care is rebutted, then the
children’s interests are best served by placing their physical care with him.
II. Scope and Standard of Review.
Our scope of review is de novo. Iowa R. App. P. 6.4; In re Marriage of
Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Although not bound by the district
court's fact findings, we give them weight, especially when assessing the
credibility of witnesses. Iowa R. App. P. 6.14(6)(g).
III. Physical Care.
We begin by correcting a basic fallacy in Shawn’s argument. Contrary to
his contention, Iowa does not have a statutory presumption in favor of joint
physical care. Shawn points to the following language of Iowa Code section
598.41(5) (2005) in support of his assertion that such a presumption exists:
If joint legal custody is awarded to both parents, the court
may award joint physical care to both joint custodial parents upon
the request of either parent. . . . If the court denies the request for
joint physical care, the determination shall be accompanied by
specific findings of fact and conclusions of law that the awarding of
joint physical care is not in the best interest of the child.
As we have repeatedly stated, this language is no more than a
proclamation by the legislature that joint physical care, once strongly disfavored,
is now a viable option, provided it is in the children’s best interests and the
parents are able to cooperate and communicate with one another. See In re
Marriage of Ellis, 705 N.W.2d 96, 101 (Iowa Ct. App. 2005); In re Marriage of
Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). Section 598.41(5) does not,
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however, make joint physical care the preferred or presumptive care
arrangement. See Ellis, 705 N.W.2d at 101-02. 1
We also reject Shawn’s contention that the district court failed to provide a
factual basis for declining to award joint physical care. The court stated that joint
physical care was not an option in light of Shawn’s anger, suspicion, and
resentment toward Kelly. We likewise conclude joint physical care is not in the
children’s best interests. In addition to the contentious nature of the parties’
relationship, it is clear that Kelly intends to move from the immediate area. The
areas Kelly is considering relocating to, while close enough to facilitate visitation
with the non-custodial parent, are sufficiently distant to make a joint physical care
arrangement unworkable.
Having concluded that joint physical care is not a viable option under the
facts of this case, we turn to the question of which parent should be granted
physical care. In answering this question, our overriding consideration is the
children’s best interests. Iowa R. App. P. 6.14(6)(o); In re Marriage of Ford, 563
N.W.2d 629, 631 (Iowa 1997). The goal of the court is to select the environment
most likely to cultivate physically, mentally, and socially healthy children. In re
Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We consider a number
of factors, including the children’s needs and characteristics, the parents’ abilities
to meet those needs, the nature of each proposed home environment, and the
effect of continuing or disrupting the children’s current status. See Iowa Code §
598.41; In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).
1
In
Shawn’s reliance on the unpublished opinion of In re Marriage of Little, No. 04-1555
(Iowa Ct. App. April 13, 2005), is misplaced. The language cited to, stating that there is
now a preference for joint physical care, is a recitation of the district court’s conclusion
and not a holding of this court.
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addition, while it is not the singular factor in determining which placement would
best serve the children’s interests, we give significant consideration to placing the
children with the primary caregiver. In re Marriage of Wilson, 532 N.W.2d 493,
495 (Iowa Ct. App. 1995).
Applying the foregoing standards to the facts of this case, we agree with
the district court’s decision to place the children’s physical care with Kelly. Both
Shawn and Kelly are capable and loving parents who are able to meet the
children’s needs. We have no doubt the children would thrive in the care of
either party. We are thus faced with the unenviable task of choosing between
two good parents. In such circumstances, even small factors will tip the balance,
and the district court’s fact findings and credibility assessments become
particularly important, given the court’s opportunity to observe the parties.
Here, the record indicates that Kelly was the children’s primary caregiver.
It also supports the district court’s determinations that Shawn’s unresolved anger
and resentment toward Kelly will undermine his ability to support her relationship
with the children, and that Kelly will be better able to support Shawn’s
relationship with the children. After considering the totality of circumstances in
this case, we agree with the district court’s decision to place the children’s
physical care with Kelly.
VI. Attorney Fees.
Kelly requests an award of appellate attorney fees. Such an award rests
in this court’s discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa
2006). The factors to be considered include the needs of the party requesting
the award, the other party’s ability to pay, and the relative merits of the appeal.
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Id.
Upon consideration of the foregoing factors, we award Kelly $1000 in
appellate attorney fees. Costs of this appeal are assessed to Shawn.
V. Conclusion.
We have considered all of Shawn’s contentions, whether or not
specifically discussed. We agree with the district court’s resolution of all disputed
issues, including its decision to place the children’s physical care with Kelly. The
district court’s decree is accordingly affirmed.
AFFIRMED.
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