IN RE THE MARRIAGE OF BRANDON J. POWERS AND HEATHER R. POWERS Upon the Petition of BRANDON J. POWERS, Petitioner-Appellant, And Concerning HEATHER R. POWERS, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-700 / 07-0006
Filed October 12, 2007
IN RE THE MARRIAGE OF BRANDON J. POWERS
AND HEATHER R. POWERS
Upon the Petition of
BRANDON J. POWERS,
Petitioner-Appellant,
And Concerning
HEATHER R. POWERS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George
Stigler, Judge.
Brandon Powers appeals the district court’s grant of physical care of his
two minor children to Heather Powers.
AFFIRMED AS MODIFIED AND
REMANDED.
John J. Wood of Beecher, Field, Walker, Morris, Hoffman & Johnson,
P.C., Waterloo, for appellant.
Heather Powers, Waterloo, pro se.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Brandon Powers appeals the physical care provisions of the district court’s
decree dissolving his marriage to Heather Powers. We affirm as modified and
remand.
I. Background Facts and Proceedings
Brandon and Heather were married in August 1992.
The marriage
produced two children: Hayley, born in August 1993, and Noah, born in May
1999. The children were ages thirteen and seven at the time of the dissolution
proceedings.
The parties’ marriage was stormy with many separations and
reunifications throughout. The parties’ final separation was in April 2005.
Brandon is thirty-four years old and is in good health. He is a high school
graduate. He has been employed at Fahr Beverage as a district manager for
over six years, earning $57,629 in 2005. The district court’s dissolution decree
awarded Brandon the family home as well as the 2003 Yukon. Although he has
a substantial amount of debt, he is financially stable.
Brandon has a 1998
conviction of domestic assault committed against Heather. After the assault the
parties reunited. Noah was born thereafter.
Brandon has dated Sarah Demoss since February 2006. Demoss has
three boys, whose ages are approximately ten, eight, and five.
Although
Brandon maintains that Demoss and her children do not live with him, Hayley
testified that Demoss and the boys stay at Brandon’s on a regular basis and that
bunk beds were placed in Noah’s room for the boys. Demoss does, however,
maintain her own home.
In addition, Hayley testified that there has been
discussion of moving the home office to another room to provide for an additional
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bedroom. Demoss’s ex-husband committed numerous acts of violence against
her and is now in prison. There is a no-contact order in place against Demoss’s
ex-husband to protect her and the children.
Demoss, herself, has been
convicted of operating while intoxicated within the past year. Hayley testified that
she does not like Demoss and would want to live with her dad if he did not have
a relationship with Demoss. Hayley claims Demoss is rude to her and that the
house rules have changed since Demoss’s involvement in their lives.
Additionally, Hayley testified that Brandon has cussed at her and called her and
Noah names. Specifically, Hayley testified as follows:
Q. Okay. And finally, you started out by saying that you
would prefer to live with your mom. Do you know why that is? A. I
just don’t like the living arrangement at my dad’s, and I don’t like
the way he treats me and my brother. And my brother doesn’t like
it either.
Q. How - - what is it about the way he treats you that you
don’t like? A. He yells at us. He calls my brother a little A-hole.
He calls me the B word. And one time, we got into an argument
over [Demoss], and he told me F you. So I don’t like the way he
treats us. Neither does Noah.
The record also shows that Brandon has, at times, discussed the parties’
relationship with the children and put down Heather in the children’s presence.
Hayley, however, testified that he mostly did this back when Brandon and
Heather were still talking. Now, she states that Brandon’s comments are mostly
limited to putting down Heather’s boyfriend, who has a history of selling drugs.
Brandon maintains that he is supportive of the children’s relationship with their
mother.
In fact, he testified that Heather is a good mother.
Brandon also
testified that since taking the Children in the Middle course he has learned what
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is inappropriate to say around his children and no longer puts Heather down in
front of them.
Brandon expresses that he is concerned that Heather puts the children in
the middle of their relationship. He is also concerned about his children having
contact with Heather’s boyfriend. Brandon sought counseling for his children to
help them deal with the parties’ separation. He invited Heather to participate in
this counseling. Brandon believes the children need some consistency in their
lives to get back on track.
He does not believe Heather can provide that
consistency, pointing to the fact that she has moved around a lot and financially
struggles.
Brandon claims that after the parties separated he gave Heather some
money from time to time to help support the children. Heather claims he did not
provide her with any money and she therefore struggled to make ends meet. In
June 2006 Brandon was ordered to pay Heather child support. He was often late
in making the payments.
Brandon claims some of the late payments were
because the parties were trying to come to an agreement on who would provide
the children with health insurance, even though the court ordered Heather to do
so. It is unclear from the record whether Brandon is current on his child support,
but there does not appear to be a significant deficit.
Heather is thirty-one years old and in good health. She dropped out of
high school to marry Brandon, but obtained her G.E.D. in 1994. Heather worked
throughout the marriage. During the last five years she was employed at W.W.
Grainger Company earning $26,206.70 in 2005. She worked approximately thirty
hours per week and was primarily responsible for the children. Her employment
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was terminated, however, in 2006.
Brandon claims she was terminated for
falsifying her time card. Heather admits that she inadvertently recorded her time
wrong and was required to pay back approximately fifty dollars to the company,
but denies this was the reason for her termination.
On direct examination
Heather claimed she was terminated due to the downsizing of the company, but
on cross-examination she admitted that she was terminated for misconduct. She
claims, however, the misconduct was for answering the phone improperly.
Heather now collects unemployment of $360 per week and works at Prestige Dry
Cleaning twenty hours per week earning seven dollars per hour. Heather was
awarded little property in the dissolution decree. Upon separation from Brandon,
she took the parties’ 2000 Volkswagen Jetta, which was free of encumbrances.
She refinanced the vehicle to pay for furniture, but failed to make the payments,
resulting in repossession.
Heather also cashed out her 401(k) account from
W.W. Grainger and kept the parties’ entire tax refund of $4600 for herself.
Although the children resided with Brandon approximately one-half the time since
their separation, Heather testified she needed the money to support her children
by paying rent, buying groceries, school clothes, and school supplies.
Over the past three years Heather has moved multiple times, including
moving in and out of the family home. She currently maintains a two-bedroom
duplex. The children share a room, although Noah usually sleeps with Heather.
Heather testified that Noah often slept with her and Brandon when they were
together. She states it makes him feel safe and secure. Heather claims she has
always had a closer relationship with the children than Brandon.
Indeed,
Hayley’s testimony reflects that she is bonded more closely with her mother.
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Heather also claims the children do not like to go to Brandon’s house and beg
her to not make them go.
Heather has been involved with Carl Waters. Waters has served prison
time for drug convictions, including a conviction for selling drugs to minors. He
currently has two pending drug cases. One of the pending cases is the result of
an arrest on June 28, 2006, on the same block as Heather’s residence, for
possession of cocaine and driving while suspended. Although Heather claims
she is no longer dating Waters, she continues to drive his 1999 Tahoe and use
his cell phone. The Tahoe is registered in Heather’s name because it cannot be
registered in Waters’s name because his driver’s license is revoked. Heather
claims she is currently making the payments on the Tahoe, although the loan is
not in her name. Hayley testified that she has never been introduced and does
not know Waters.
She testified that she knows what he looks like because
Brandon pointed him out when they saw him while driving somewhere. Most of
the information Hayley has regarding Waters she received from Brandon. Hayley
believes Waters stays with Heather when Hayley and Noah are at Brandon’s
home.
Heather has a recent charge of domestic assault for an August 2006
incident. Heather went to the parties’ home, where Brandon resides, with Hayley
and asked Hayley to use her key to enter the garage. Heather then attempted to
take Brandon’s truck. When Brandon heard commotion in the garage, he tried to
stop her.
Hayley witnessed her parents’ fight.
The police were called, and
Heather was arrested and charged with domestic assault. Heather testified she
tried to take Brandon’s truck because her car was repossessed when she could
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not make the payment because Brandon did not pay his child support. She
claimed she needed a vehicle because she had the kids that week. Heather has
also failed to take the Children in the Middle course. The children have been
emotionally affected by their parents’ separation, and both children’s grades are
suffering.
Brandon filed a petition for dissolution of marriage on January 9, 2006.
The court ordered that physical care be shared between the parties, exchanging
custody every Sunday; ordered Brandon to pay temporary child support to
Heather in the amount of $564 per month; and ordered Heather to provide health
insurance for the children. On November 28, 2006, after a dissolution hearing,
the district court awarded joint custody of Hayley and Noah to Brandon and
Heather with physical placement to be with Heather, awarded Brandon liberal
and reasonable visitation, ordered Brandon to pay Heather $708 per month in
child support, ordered Brandon to maintain health and dental insurance coverage
for the children with the first $500 of uncovered medical bills to be paid by
Heather, ordered that Brandon be allowed to claim the children as dependents
on his tax return, and divided the debts and assets of the marriage. Brandon
appeals the physical care award.
II. Standard of Review
We review actions tried in equity de novo. Iowa R. App. P. 6.4. We
examine the entire record and adjudicate anew the parties’ rights that were
properly presented.
In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51
(Iowa 1999). We give weight to the district court’s findings of fact, but are not
bound by them. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
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III. Merits
The primary consideration in determining which parent should have
physical care is the best interests of the children. Iowa R. App. P. 6.14(6)(o);
Northland v. Starr, 581 N.W.2d 210, 212 (Iowa Ct. App. 1998).
We must
consider the factors set forth in Iowa Code section 598.41(3) (Supp. 2005). The
objective is to place the children in the environment most likely to bring them
healthy physical, mental, and social maturity. In re Marriage of Murphy, 592
N.W.2d 681, 683 (Iowa 1999). We must determine which parent is most likely to
minister to the long-range best interests of the children. In re Marriage of Winter,
223 N.W.2d 165, 167 (Iowa 1974). There is a presumption that siblings should
not be separated. In re Marriage of Pundt, 547 N.W.2d 243, 245 (Iowa Ct. App.
1996). The primary concern remains, however, to be the best interests of the
children. In re Marriage of Brauer, 511 N.W.2d 645, 647 (Iowa Ct. App. 1993).
Upon our de novo review, we find that Brandon is the parent most likely to
meet the long-term needs of the children.
Making this determination is very
difficult without the advantage of seeing into the future. In close cases such as
this one, we must determine which parent will do the best job in raising the
children by viewing all the evidence and putting isolated events into perspective.
In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct. App. 1998). Both Brandon
and Heather have their own downfalls as well as their own positive parenting
abilities. Although we are to give considerable weight to the judgment of the
district court, which had the benefit of hearing and observing the parties
firsthand, we note that the district court’s findings of facts are incomplete. See In
re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997).
A more detailed
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explanation of the district court’s considerations and reasoning would have
enabled us to more easily defer to its decision. However, viewing the record as a
whole, we disagree with the district court that Heather is the more suitable
parent.
Although the record is scarce on the subject, it appears Heather was the
primary caretaker of the children during the parties’ marriage. It also appears
that Heather is a decent mother.
Brandon even testified to this.
Heather
adequately tends to the needs of her children, both physically and emotionally. It
is obvious she loves the children, and they are bonded with her.
However, Heather has made some poor decisions in her life that have
negatively affected her children.
Upon separation from Brandon, she made
some very poor financial decisions that have put her in a financial bind, keeping
her from adequately providing for her children. To add to these problems, she
lost her job due to her own actions and has not found employment to replace her
earnings. In the midst of her financial problems, she involved her daughter in a
domestic dispute by entering Brandon’s home and attempting to take his truck
without permission. These actions lead to Hayley witnessing a very disturbing
encounter between her parents, with her mother being arrested in the end. This
set a very poor example for the children. It is also noteworthy that Heather has
failed to attend the Children in the Middle course.
Heather’s connection with Waters deeply concerns this court.
His
involvement in drugs, specifically selling drugs to minors, and his arrest near
Heather’s home is something to which children should not be exposed. We
commend Heather for isolating her children from this man, but the fact remains
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that she is still involved with him in some capacity.
This involvement is
evidenced by Heather driving his vehicle and using his cell phone.
Any
significant involvement is likely to lead to exposure of this man to the children.
Brandon is capable of providing the children with stability, with which
Heather has struggled. Brandon is more financially secure and maintains the
family home.
Although he may not have been the primary caretaker of the
children during the marriage, he has had them every other week since the
parties’ separation over one year before the dissolution hearing.
Although
Hayley testifies she does not like the living arrangement at Brandon’s, she gives
no persuasive reason why it is so intolerable. Although she does not like her
dad’s new girlfriend, Hayley only claims that Demoss is rude to her at times.
Hayley may complain about the rules, but none of the rules mentioned were so
outrageous to be found unreasonable. Hayley testifies that Noah gets along well
with at least two of Demoss’s children. We are most concerned, however, with
Hayley’s testimony regarding Brandon’s foul language and name-calling. We
acknowledge that any parent is likely to argue with his teenage daughter, but the
use of this language is entirely inappropriate.
Brandon has expressed that he believes his children have a good
relationship with Heather and he intends to foster that relationship.
Heather
should be allotted very liberal visitation. Her bond with these children is very
important.
The stability Brandon can provide should be complimented with
Heather’s bond.
Accordingly, we modify the decree previously entered by the district court
to award physical care of Hayley and Noah to Brandon. We remand the case to
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the district court for entry of further orders consistent with this decision including
visitation, child support, and completion of the Children in the Middle course by
Heather. Costs of this appeal shall be divided equally between the parties.
AFFIRMED AS MODIFIED AND REMANDED.
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