IN RE THE MARRIAGE OF CHRISTOPHER LEE AND TAWNYA SUE LEE Upon the Petition of CHRISTOHER LEE, Petitioner-Appellee, And Concerning TAWNYA SUE LEE, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-193 / 05-1248
Filed July 26, 2006
IN RE THE MARRIAGE OF CHRISTOPHER LEE AND TAWNYA SUE LEE
Upon the Petition of
CHRISTOHER LEE,
Petitioner-Appellee,
And Concerning
TAWNYA SUE LEE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Madison County, Paul R. Huscher,
Judge.
Tawnya Sue Lee appeals that portion of the decree dissolving her
marriage naming Christopher Lee primary custodian of the parties’ two children.
AFFIRMED.
Ryan Genest, Des Moines, for appellant.
Bob Siddens of Siddens Law Office, Des Moines, for appellee.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
2
SACKETT, C.J.
Tawnya Sue Lee appeals challenging the custody provisions of the decree
dissolving her marriage to Christopher Glen Lee.
The district court awarded
primary physical care of the parties’ two daughters to Christopher, finding, among
other things, that Tawnya (1) had been physically abusive to Christopher, (2)
lacked credibility, and (3) demonstrated an unwillingness to allow Christopher in
the children’s lives. Tawnya challenges many of these findings and contends
she should be the custodial parent because she has been the primary caregiver
and she will more effectively minister to the children’s needs. We affirm.
Scope of Review.
We review de novo.
Iowa R. App. P. 6.4.
Prior cases have little
precedential value, and we must base our decision primarily on the particular
circumstances of the parties presently before us. In re Marriage of Weidner, 338
N.W.2d 351, 356 (Iowa 1983). The question is always which parent will do the
better job of raising the children. In re Marriage of Rodgers, 470 N.W.2d 43, 44
(Iowa Ct. App. 1991). We look to the factors set forth in In re Marriage of Winter,
223 N.W.2d 165, 166-67 (Iowa 1974).
We give weight to the fact findings of the trial court, especially when
considering the credibility of witnesses. Iowa R. App. P. 14(6)(g). Yet, we are
not bound by these determinations. Id. The interests of these children are the
primary consideration. See In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa
1984); Neubauer v. Newcomb, 423 N.W.2d 26, 27 (Iowa Ct. App. 1988). We
give consideration to each parent's role in child-raising prior to a separation in
fixing primary physical care. See In re Marriage of Love, 511 N.W.2d 648, 650
3
(Iowa Ct. App. 1993); In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct.
App. 1992). Though we do not award custody based on hours of service for past
care, we attempt to determine which parent will in the future provide an
environment where the child is most likely to thrive. In re Marriage of Crotty, 584
N.W.2d 714, 717 (Iowa Ct. App. 1998).
The parties were married in the spring of 2001. Tawnya had a daughter,
Megan, from a prior relationship, who Christopher adopted.
Tawnya and
Christopher subsequently had a daughter, Molly. At the time of trial Megan was
nine, Molly was two, Tawnya was thirty-five, and Christopher was twenty-eight.
Christopher is employed doing commercial refrigeration work. Tawnya
was a housekeeper at an apartment complex at the time of marriage.
She
terminated this employment upon becoming pregnant with Molly. At the time of
the dissolution she was attending school with hopes of becoming a dental
assistant. 1
This marriage was far from harmonious. There have been charges and
counter charges of domestic abuse.
In her appellate brief Tawnya makes a
number of allegations against Christopher which she contends support her
position that she is the better parent and the children’s interests are better served
in her custody than in Christopher’s. We discuss these allegations below.
Findings that Tawnya Committed Domestic Abuse.
The district court found and the record supports the fact there were a
series of physical encounters between the parties during the marriage and that
both parties had been physically assaultive. After making this finding the district
1
Her child support was fixed at seventy-five dollars a month.
4
court specifically found it was Tawnya who damaged doors, woke Christopher to
engage in fighting, bit him to the point of drawing blood, struck him with a piece
of steel, and confronted him with a shotgun. The court noted Tawnya was the
only one charged with the criminal offense of domestic abuse assault and while
the case was dismissed when the State’s request for a continuance was denied,
the court noted this was not a determination on the merits of the case.
Tawnya challenges the finding that she was the more violent. She points
out that an order of protection was entered ordering Christopher from committing
further acts of abuse or threats of abuse and prohibiting him from contacting
Tawnya.
However, the order was entered after an ex parte hearing on Tawnya’s
petition. It later was amended and without finding there was domestic abuse, the
court said that neither party should contact the other party. The order did provide
the parties could have contact through a third party to exchange information
about the children and further provided the parties may communicate on matters
related to the health of the children and jointly attend medical appointments and
treatments and the like without violating the no-contact order.
Tawnya also contends Christopher’s evidence was not of the kind which
would justify a finding she was guilty of domestic abuse. She admits there were
confrontations but correctly contends they happened several years prior to the
dissolution hearing. She also challenges the credibility findings made by the trial
court contending that the court incorrectly found Christopher’s testimony more
credible in determining fault when domestic abuse occurred.
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Unwillingness of Tawnya to Include Christopher in the Children’s
Lives.
The district court found Tawnya was not willing to include Christopher in
the children’s lives. Tawnya does not argue this finding by the district court is in
error and we do not find that it is. Rather Tawnya contends she has always
complied with court orders providing for Christopher's visitation, and Christopher
has not filed any contempt actions seeking her compliance.
Christopher points out that after she filed the petition for a protection order
and the matter came on for hearing, she made certain allegations about his
sexual behavior. 2 He notes that while she received custody he was given only
supervised visits. He agreed to be evaluated by Dr. Craig B. Rypma for a risk
assessment as to his sexual behavior. After Dr. Rypma evaluated Christopher
he was to provide a report to the attorneys for both parties. It was agreed that if
Dr. Rypma determined it was unnecessary for Christopher’s visits to be
supervised then supervised visits could be stopped. Christopher claims he got a
favorable report from Rypma but that Tawnya insisted the supervised visits
continue.
The evaluation took place. Dr. Rypma reported Christopher was within
normal limits and had developed sexual interests and behaviors along a course
that would be expected. Rypma found Christopher’s sexual adjustment to be
within normal limits and that Christopher was functioning within a normal range
and there was no evidence that he was currently experiencing a paraphilia or that
his sexual behavior was in any manner deviant. The evaluation was completed
2
This concern apparently was fueled by pictures of nude women she found in the
garage.
6
in September of 2004, yet Christopher was still having only supervised visits at
the time of trial in July of 2005. 3
However, Christopher did not challenge
Tawnya’s refusal to comply with the spirit of the agreement until the time of trial.
Tawnya’s attitude towards Christopher’s relationship with his daughters is
clear from her own testimony. She testified she does not want him to have
anything to do with the children until they are eighteen and even after what she
refers to as “the custody battle” she does not want to have anything to do with
him, not even on medical or speech issues concerning the children.
Not only did she refuse to allow him unsupervised visits with the children
after Dr. Rypma’s report, but she also prevented him from attending a
consultation with a professional concerning Molly’s hearing despite the fact the
protection
order
specifically
provided
both
parents
could
attend
such
appointments.
Christopher wrote three letters to Tawnya and/or her attorney on the
subject of him wanting to put together a plan so Megan could get needed math
help, expressing his concern about the professional counselor for Megan that
Tawnya had chosen without his input or consent, and providing Tawnya with
information concerning the number of counseling sessions that his health
insurance policy covered. The letters were straightforward and reasonable and
focused on Megan’s education and treatment issues on which the parties should
have been making joint decisions. Rather than Tawnya attempting to discuss the
issues in a reasonable way her attorney wrote a letter to Christopher’s attorney
with a copy to Tawnya stating:
3
Christopher willingly paid $140 for supervision of a four hour visit.
7
Please find attached to this letter yet another letter that your
client has written to Ms. Lee. By this letter I am putting both of you
on notice that as far as I’m concerned your client’s actions at this
point amount [to] harassment of my client and will not be tolerated
any further. If Mr. Lee sends one more letter I will not hesitate to
file an Application For Rule to Show Cause and ask that he be
incarcerated. Please advise him that your non-committal approach
does not give him the right to continue to harass Ms. Lee and seek
to interfere with counseling 4 simply because it does not suit his own
selfish, self centered purposes.
The Iowa courts do not tolerate hostility exhibited by one parent to the
other. In In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App.
1994), we addressed a situation where parents sought to put the other parent in
an unfavorable light and considered it a factor in modifying a custody award.
Other cases have addressed similar complaints under other circumstances. See
In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage
of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer,
475 N.W.2d 657, 659-60 (Iowa Ct. App. 1991).
Custody award was to punish Tawnya and it was not in the children’s
best interest.
Tawnya also argues that the district court order punished her in asking for
what she believes were reasonable protections for her daughters. She contends
counselors had told her Megan was fearful of Christopher and she said Megan
exhibited fear when she had visits with her father. She further contends she
reasonably believed Christopher might sexually abuse the children.
4
The counselor Christopher was questioning was chosen only by Tawnya. She
rejected another counselor and chose this one because she wanted a counselor who
would help her with her custody fight. The district court gave little or no weight to the
opinions this counselor advanced at trial.
8
Social workers from Generations Incorporated, including Yuett Williams, a
protective social worker for fourteen years, supervised over 100 hours of visits
between Christopher and the girls. Notes made by the visitation supervisors and
Williams’s testimony contradict Tawnya’s position that the children were afraid of
their father. Williams testified the children were glad to be with Christopher and
he exhibited a good relationship with both of the children. There also is evidence
that would indicate Tawyna attempted to turn Megan against Christopher.
Other Challenges.
Tawnya also contends the district court should not have discounted the
testimony of a counselor who had met with Megan at Tawnya’s request. The
counselor testified it was never his purpose to promote reunification between
Megan and Christopher. The district court noted the counselor had animosity
against Christopher, made no effort to corroborate statements made to him, and
did not consider the visitation supervisor’s reports.
The court gave the
counselor’s testimony and recommendations little weight.
In choosing the
counselor Tawnya sought one who would help her in her custody fight and she
did not seek Christopher’s input even though the protective order provided she
should have consulted him about decisions such as these.
Megan’s grades and attendance were problematic during the time she
was in her mother’s care.
Tawnya blames these problems on the fact that
Christopher had visitation during this period. We find nothing in the record that
would support Tawnya’s contention.
The district court determined Christopher was more truthful and credible
than was Tawnya. The court noted the evidence supported Christopher’s claim
9
Tawnya repeatedly invented new claims as time went on and she admitted a
number of earlier statements were untruthful. The district court discounted a
number of serious complaints Tawnya first made against Christopher at trial but
failed to mention during a two-hour deposition.
After our review of the record giving the required deference to the
credibility findings made by the district court we affirm.
We award no appellate attorney fees.
Tawnya.
AFFIRMED.
Costs on appeal are taxed to
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