IN RE THE MARRIAGE OF SARAH SNELLING AND JEFFREY SNELLING Upon the Petition of SARAH SNELLING , Petitioner - Appell ee , And Concerning JEFFREY SNELLING , Respondent - Appell ant .
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IN THE COURT OF APPEALS OF IOWA
No. 8-290 / 07-1807
Filed October 1, 2008
IN RE THE MARRIAGE OF SARAH SNELLING
AND JEFFREY SNELLING
Upon the Petition of
SARAH SNELLING,
Petitioner-Appellee,
And Concerning
JEFFREY SNELLING,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jefferson County, Annette
Scieszinski, Judge.
Jeffrey Snelling appeals from the district court‟s award of physical care of
the parties‟ two children to Sarah Snelling. AFFIRMED.
Allan C. Orsborn of Orsborn, Milani & Mitchell, L.L.P., Ottumwa, for
appellant.
John A. Morrissey of Morrissey Law Offices, Fairfield, for appellee.
Heard by Sackett, C.J., and Miller and Potterfield, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
Jeffrey (Jeff) and Sarah Snelling married on April 17, 2001, and separated
in July 2006. They resided during their marriage in a mobile home in rural
Fairfield on property adjacent to the home of Jeff‟s mother. Sarah and Jeff have
two children: Paul, born on January 23, 2002, and Elizabeth, born on October
10, 2004. Sarah also has an older child from a previous marriage, Crystal, born
on March 16, 1997. Sarah has sole custody of Crystal, who was a part of Sarah
and Jeff‟s household from the time she was four years old.
Sarah filed her petition for dissolution of marriage on July 31, 2006,
requesting physical care and custody of the two children. She left the marital
home with the children, Crystal, Paul, and Elizabeth, and moved into her
mother‟s house in Keosauqua.
Sarah‟s home is an apartment in the front
portion of the home of her mother and step-father, Linda and Raymond Hemm.
It is divided from her parents‟ portion of the house by a wall with a locking door.
Sarah plans to move to her own residence once Elizabeth is in school and the
children do not require daycare.
Sarah is a Certified Nurse‟s Assistant (CNA) and also has an Associate‟s
Degree in business. She has worked as a CNA throughout the marriage, most
recently at the Good Samaritan Society Home in Van Buren County. Throughout
the marriage, Sarah always worked at least full-time, and sometimes up to sixty
to 80 hours per week.
Beginning in 2004, after Elizabeth‟s birth and the
beginning of a period of underemployment for Jeff, Sarah bore most of the
financial responsibility for the family.
However, after the parties‟ separation,
3
Sarah rearranged her schedule so that she now works from 6:00 a.m. to 2:30
p.m. five days per week and does not anticipate increasing those hours in the
future.
Sarah uses an out-of-home daycare provider, and Sarah believes that
interaction with people outside of the home helps to foster her children‟s
socialization.
Sarah has integrated the children in the community.
She has
enrolled Paul in the Head Start program, and both children are involved in regular
church activities. Sarah has been actively involved as a girl scout leader for
Crystal‟s troop
Sarah‟s mother, Linda, is often available for childcare, and she has a close
relationship with the children.
Linda married Raymond Hemm approximately
eight years ago. Raymond has three adult sons who are on the sex offender
registry. Two of these sons, Jim and Orville, live in the Keosauqua area.1 Jim
has been to the Hemm household on occasion to help move something heavy.
He does not drive and does not come over on his own. Orville comes by the
Hemm household as needed to mow the lawn, generally once every other week.
He stops by without warning, but he is not allowed in the house if the children are
there. The lawn takes roughly twenty minutes to mow, and the children are
supervised at all times when Orville is on the property. Both Sarah and Linda
acknowledge the seriousness of the situation and insist that they have taken the
necessary steps to ensure that none of Raymond‟s sons have unsupervised
contact with Crystal, Paul, or Elizabeth.
1
The third son lives out of town and is not an issue in this case.
4
Jeff has a GED and earned a degree in auto body repair from Indian Hills
Community College. He has been employed for over twelve years at the Nelson
Company, where he worked in a supervisory position until 2004. When that
position was no longer available, Jeff began to work fewer hours, and sometimes
none at all. At the time of trial, he was working part-time. He predicted at trial
that he will begin to work full-time again after the child custody dispute is over.
He expects to work from 7:00 a.m. to 3:00 p.m.
Jeff continues to reside in the marital home adjacent to the home of his
mother, Esther Elizabeth Snelling (Liz). Liz is available to care for the children
when Jeff is at work, and she has a close relationship with the children.
Both parents are in fairly in good health. Jeff has high blood pressure that
he treats through medication. Sarah has been treated for depression and has
managed the disease successfully for the past ten years. She currently takes
Effexor and counsels periodically, most recently with Doug Buttikofer in April and
May of 2007. Dr. Buttikofer‟s letter to counsel reports that he had no reason to
believe that Sarah “could not provide a balanced home environment as the
custodial parent of her children.”
Crystal has a strong bond with both Paul and Elizabeth, and as their big
sister, she serves as a positive role model. Crystal shared a close relationship
with Jeff during the parties‟ marriage, but she has seen him very little since the
separation. Jeff is given credit for potty training Crystal, when, at age four, she
was still in diapers. He has invited Crystal to come spend the afternoon with
Paul and Elizabeth at his house, indicating that he appreciates the important role
that Crystal plays in Paul and Elizabeth‟s lives.
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Paul is a challenged and challenging child. At the time of trial, he was five
years old and not yet potty trained.
His speech is delayed and difficult to
understand. Paul‟s behavior is disruptive.
In the past, Jeff and Sarah have
disagreed about Paul‟s needs and the best way to meet those needs. Since
Sarah filed her petition, both parents have sought help for Paul from different
professionals, though they continue to disagree on the value of the various
resources.
Elizabeth is a bubbly and active toddler. She appears to be healthy for
her age, and she is well-disciplined. At times, Elizabeth has shown bruising in
various places, most notably on her hips and a large bruise near her eye. Jeff
claims that these injuries always happen when Sarah is caring for Elizabeth.
Sarah responds that the injuries are natural for a playful child.
During the
pendency of the dissolution, a report was filed with the Iowa Department of
Human Services (DHS) alleging that Sarah was denying the children critical care.
After investigating the incident, the DHS determined that this report was
unfounded and that Elizabeth was safe at Sarah‟s home.
Jeff and Sarah agreed to an independent custody study by John
Cardenzana. Cardenzana‟s report did not advocate strongly for either parent
and indicated that both parents had a strong bond with the children. Cardenzana
did find that Sarah was more proactive in searching for solutions to Paul‟s
educational delays and meeting his needs. It was his opinion that Sarah is the
parent “who appears better able to meet Paul‟s special education and social
needs.”
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Jeff arranged for Paul to begin counseling with a licensed social worker,
Pat Franje, in September of 2006. Franje recognized that both parents have a
strong bond with their children and believed that it would be in the best interests
of the children to stay in the home that they have always known, regardless of
which parent lives there.
The parties agree that Jeff was the primary caretaker for the children since
Elizabeth was born in 2004 until their separation in 2006.
Jeff lost his
supervisory position at The Nelson Company in 2004 and willingly accepted a
larger share of the day-to-day care of the children and primary responsibility for
Crystal, Paul, and Elizabeth. At the same time, Sarah accepted a larger share of
the financial responsibilities and worked long hours away from her family. Sarah
testified that she wished she could have spent more time with her children but
was compelled to work more hours to provide for the family financially after Jeff
was laid off. Jeff testified that Sarah was disinterested in the children. He said
he wished that he could work more, but Sarah‟s work schedule didn‟t allow it.
Several of Jeff‟s family members testified that Sarah sometimes asked them to
watch the children so that she could sleep.
They testified that Sarah even
missed holidays with the children because she was sleeping.
The district court found that Paul and Elizabeth are bonded to both
parents.
The court found that both parents could provide and care for the
children, but awarded Sarah physical care of the children, subject to Jeff‟s
reasonable and liberal visitation privileges. Jeff appeals that decision.
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II. Standard of Review
Because this is an action in equity, our review is de novo. In re Marriage
of Kleist, 538 N.W.2d 273, 276 (Iowa 1995). We give weight to the district court‟s
findings of fact, but we are not bound by them. Id. at 278. The best interests of
the children is the first and governing consideration. In re Marriage of Wilson,
532 N.W.2d 493, 495 (Iowa Ct. App. 1995). “The issue is ultimately decided by
determining under the whole record which parent can minister more effectively to
the long-range best interests of the children.” In re Marriage of Bowen, 219
N.W.2d 683, 687-88 (Iowa 1974).
Stability and continuity of caregiving are important factors to consider
when one spouse has successfully cared for children, but a parent‟s prior role as
primary caregiver during the marriage does not necessarily render that parent the
primary caregiver after the marriage. In re Marriage of Hansen, 733 N.W.2d 683,
696 (Iowa 2007); In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct. App.
1992). Gender is irrelevant in custody considerations. In re Marriage of Wessel,
520 N.W.2d 308, 310 (Iowa Ct. App. 1994).
We have considered the following relevant factors among those outlined
by Iowa Code section 598.41(3) (2007) and the Iowa Supreme Court in In re
Marriage of Winter: the characteristics of each child, including age, maturity,
mental and physical health; the emotional, social, moral, material, and
educational needs of the child; the characteristics of each parent, including age,
character, stability, mental and physical health; the capacity and interest of each
parent to provide for the emotional, social, moral, material, and educational
needs of the child; the interpersonal relationship between the child and each
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parent; the interpersonal relationship between the child and its siblings; the effect
on the child of continuing or disrupting an existing custodial status; and the
nature of each proposed environment, including its stability and wholesomeness.
In re Marriage of Winter, 223 N.W.2d 165, 166-167 (Iowa 1974).
III. Merits
The parents have been sharing physical care of the children since an
August 28, 2006 temporary custody order provided for the two children to rotate
between their parents‟ homes on a weekly basis. Neither parent wants this
arrangement to continue. Both parents want to provide day-to-day care for their
children and appear to be capable of doing so. Both parents genuinely love the
children. Both have the help of extended family members. We must determine
which parent will more effectively foster the long-range interests of Paul and
Elizabeth.
A. Stability
Jeff‟s residence in the home where the children were living before the
parties separated may provide a certain degree of continuity to the children.
However, Jeff‟s household seems to provide little plan or ritual, and, by Jeff‟s
admission, the children spend a lot of time at his home on the computer and
watching television.
Although the Snelling‟s family physician, Dr. Miller,
suggested that Jeff employ a more structured schedule to help with Paul‟s
behavioral issues, there is no evidence that Jeff made any changes.
Paul‟s
attendance at preschool is sporadic when he is in his father‟s care. Jeff never
took Paul to the Tuesday reading group that had been recommended for him.
9
The record reflects that Sarah provides a more stable home environment
for her children. She enforces a regular mealtime where everyone eats as a
family. The children have a bedtime to ensure they get ample sleep. Sarah‟s
new schedule at work allows her to have time to spend with her children, but she
has arranged for daycare when she must be at work. She strictly limits the
children‟s computer and television time.
At Sarah‟s house, the children spend time with their half-sister, Crystal,
who has been a part of their lives since they were born. Crystal is a positive
influence on Paul and Elizabeth, and the children all share a bond with one
another, according to the district court. “Changes in custody which separate
siblings are discouraged under Iowa law.” In re Marriage of Hunt, 476 N.W.2d
99, 102 (Iowa Ct. App. 1991). This principle applies to half siblings as well and
should be considered in determining the best interests of the children.
Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986).
In re
Franje‟s notes from
counseling sessions report that Crystal helps and plays with Paul. It is important
that Paul and Elizabeth be allowed to maintain their close relationship with
Crystal.
Sarah has involved Paul and Elizabeth in regular educational and social
activities to help them adjust to the behavioral expectations of school. She takes
the children to church with her on the Sundays when she has their care. She
enrolled Paul in Head Start and ensured his regular attendance.
Paul also
attended a monthly get-together for the children at Head Start.
Paul and
Elizabeth benefit from interaction with other children at their daycare.
10
The supreme court recently stated “[w]e continue to believe that stability
and continuity of caregiving are important factors that must be considered in
custody and care decisions.” Hansen, 733 N.W.2d 683, 696 (Iowa 2007). We
agree with the supreme court that “preservation of the greatest amount of
stability possible is a desirable goal,” especially considering the number of
professionals that have commented on Paul‟s need for stability. Marriage of
Hansen, 733 N.W.2d at 696-97. We acknowledge the importance of Jeff‟s role
as the pre-separation primary caregiver and consider this as an important factor
weighing in Jeff‟s favor. Id. at 697. However, we find that other factors that must
be considered weigh more strongly in Sarah‟s favor, demonstrating that giving
Sarah physical care and custody of the children is in their best interests. Overall,
we find that Sarah provides a more stable and predictable home environment
than Jeff.
B. Paul’s Needs
Both parents now acknowledge that Paul has special needs. However,
the parents‟ opinions diverge greatly as to the most effective way to help Paul.
We agree with Cardenzana that Sarah is the more proactive parent in addressing
Paul‟s needs.
Paul has struggled with the uncertainty, and perhaps the temporary
shared care arrangement, between his parents.
Malinda Allen, who did a
psychological evaluation of Paul at the Center for Disabilities and Development,
found that family circumstances were a contributing factor in Paul‟s inappropriate
and regressive behavior.
Peggy Stokes, who evaluated Paul from a social
services perspective at the Center for Disabilities and Development, noted the
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instability of Paul‟s home life due to his parents‟ differing opinions. The ResCare
report on Paul indicates a diagnosis of adjustment disorder, which custody
evaluator Cardenzana suspected was due to the uncertainty in his life.
We
believe that it is essential to Paul‟s progress that he be placed in a stable
environment where he receives professional help for his special needs.
Sarah testified that she was concerned early about Paul‟s speech, but that
Jeff did not want to seek treatment. Jeff testified that he was not trying to avoid
treatment, but he simply did not want to put Paul through the stress of being
tested for autism or mental retardation when Jeff believed that Paul should not be
labeled with any particular disabilities. Jeff did not demonstrate any efforts to
seek care for Paul, even after Dr. Miller recommended the AEA (area education
agency) as a resource if Paul did not progress. Jeff and his mother referred to
Paul‟s difficult-to-understand speech as “Dutchy,” and Jeff characterized Sarah‟s
approach to Paul‟s needs as a “witch hunt.”
The district court noted Sarah‟s efforts to identify Paul‟s needs. Almost
immediately after filing her petition for dissolution of the marriage, Sarah had
Paul participate in a Brigance Preschool screening, which allowed an AEA
committee to evaluate whether Paul needed help. She also took him to the
University of Iowa Children‟s Hospital and the Center for Disabilities and
Development in order to address some of Paul‟s behavioral issues. Jeff took
Paul to begin counseling with Pat Franje but seems to have used the counseling
sessions as an opportunity to disparage Sarah rather than to help Paul. Jeff
reported to Franje that Paul‟s relationship with his mother was “non-existent.”
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We find that, while Jeff ultimately participated in attempting to find help for Paul, it
was Sarah who made the initial efforts to diagnose and treat Paul.
In addition, Dr. Linda Cooper-Brown at the University of Iowa Children‟s
Hospital hypothesized that Paul‟s inappropriate behavior occurred because Paul
got desired outcomes or social reinforcement. We believe this is a reference to
what custody evaluator Cardenzana referred to as Paul‟s ability to manipulate
Jeff. Jeff admitted to urinating out the door of the family‟s trailer home, making
him a poor role model for Paul, who is struggling with potty training. Jeff follows
Franje‟s suggestion that Paul not be pressured to use the toilet, but be allowed to
potty train at his own pace. Sarah agrees with Cooper-Brown that Paul should
be encouraged to use the toilet with positive reinforcement. We find that Sarah‟s
desire to be proactive in this area is probably in Paul‟s best interests, as his use
of diapers and pull-ups in kindergarten may increase his social problems.
Finally, Sarah‟s approach to helping Paul provides more consistency for
him. The kindergarten teacher at the school Sarah would have Paul attend in
Stockport would also be Paul‟s first grade teacher. The speech therapist that
Paul saw at Head Start is the same therapist that works at the Stockport school.
This continuity of instruction would likely be helpful for Paul and would aid his
speech development. Because Paul‟s parents agree on very little with regard to
Paul‟s needs, it would be helpful for Paul to have consistency in his teachers and
therapists.
C. Parental Interaction and Respect
It is important for the children‟s sake that their parents respect one another
and encourage the children‟s relationship with the other parent. We think that
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Sarah has better demonstrated respect in the past and believe that she will
continue to do so in the future. The district court found that Jeff was “overtly
condescending toward Sarah, seemed at ease and practiced in criticizing her,
and displayed a penchant for the „sharp tongue‟ his mother mentioned.”
In
contrast, the district court stated that Sarah “demonstrated in her courtroom
testimony and demeanor that she understands the unique personalities involved”
and that her “sincerity and resolve in addressing discipline and personal-control
issues is borne of a concern for Paul‟s sake, and not out of a desire to prevail
over or deride a co-parent.”
Sarah has shown flexibility in the past with Crystal‟s father, allowing
Crystal to have regular contact with him.
When Crystal‟s father was in the
military, Sarah arranged for him to visit Crystal when he was home. Now that
Crystal‟s father lives in Florida, Sarah allows Crystal to visit him there. She also
allows Crystal to travel to her paternal grandparents‟ house in Champaign to visit.
Sarah does not seek to inhibit Crystal‟s relationship with her father, but allows it
to flourish.
Sarah has also been flexible with Jeff since the separation. Sarah allowed
Jeff to see the children on three separate occasions during a week that was
allotted for her to spend with the children. She testified that she would be willing
to allow Jeff extra time with the children midweek. Sarah also invited Jeff to join
Paul at “donuts for dads,” an event that was held through Paul‟s Head Start
program.
Sarah has demonstrated that she will encourage the children‟s
relationship with their father.
14
Jeff, on the other hand, consistently discussed Sarah in a negative light
during Paul‟s counseling sessions with Franje in front of both Paul and Elizabeth.
We agree with the district court in its finding that “Jeff has intense and negative
feelings for Sarah that . . . have spilled over to his actions with the children.” Jeff
has never had a good relationship with Sarah‟s mother, Linda. When Linda
came to the parties‟ home during the marriage, Jeff would leave the house, often
taking Paul with him, depriving Linda of the opportunity to see Paul. We find that
Sarah shows a greater respect for Jeff and that she will continue to foster his
relationship with the children.
D. Safety
Jeff makes much of the possible presence of sex offenders on the Hemm
property where Sarah lives.
The potential exposure of small children to sex
offenders is an extremely serious matter.
We find, however, that Sarah is
properly managing the situation. The record reflects that only one of Sarah‟s
step-brothers is on the property with any regularity, and when he is there, he
stays outside to mow the lawn. Sarah has put in a wall with a locking door to
protect the children. Sarah‟s parents are aware of the situation and are on the
alert when any of the step-brothers are on the property. The children reportedly
have never had unsupervised contact with any of the step-brothers. We are
confident that Sarah and her parents are mindful of the situation and will not
expose the children to risk of harm.
The record contains testimony that Jeff can be violent and at times throws,
kicks, or punches inanimate objects. Crystal recounted an incident when Jeff hit
a broomstick on the counter, denting both the broomstick and the counter. Jeff‟s
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outbursts may have a negative effect on the emotional well-being of the children,
and the children may seek to model Jeff‟s behavior.
Considering the record as a whole, we find that Sarah is the parent best
able to provide a safe and loving home for the children. We do not believe that
the trial court erred in placing physical care of the children with their mother,
Sarah.
AFFIRMED.
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