IN RE THE MARRIAGE OF JULIE E. PALEK AND SHAWN G. PALEK Upon the Petition of JULIE E. PALEK, Petitioner-Appellant, And Concerning SHAWN G. PALEK, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-113 / 06-1552
Filed June 13, 2007
IN RE THE MARRIAGE OF JULIE E. PALEK
AND SHAWN G. PALEK
Upon the Petition of
JULIE E. PALEK,
Petitioner-Appellant,
And Concerning
SHAWN G. PALEK,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Story County, William J. Pattinson,
Judge.
Julie Palek appeals from the child custody provisions of the decree
dissolving her marriage to Shawn Palek. AFFIRMED.
Matthew Boles of Parrish, Kruidenier, Moss, Dunn, Boles, Gibble & Cook,
L.L.P., Des Moines, for appellant.
Linda Murphy of Murphy & Parks, P.L.C., Des Moines, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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VAITHESWARAN, J.
Julie and Shawn Palek married in 1994 and had two children: Sydney,
born in 1997, and Sawyer, born in 2002. When the parents divorced twelve
years later, the district court granted Shawn physical care of the children. On
appeal, Julie takes issue with this portion of the dissolution decree.
I. Physical Care
The “first and governing consideration” in child custody cases is the longterm best interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424
(Iowa 1984). Julie contends the children’s best interests would have been better
served had the district court placed the children with her. She cites the following
factors: (A) she is more financially stable than Shawn; (B) a child-custody
evaluator recommended her as the physical caretaker; (C) Sydney expressed a
preference to have her serve as the physical caretaker; and (D) she is the better
caretaker. Our review is de novo. Iowa R. App. P. 6.4.
A. Financial Stability
Julie maintains her “‘employment history’ demonstrates that she, rather
than Shawn, is more likely to make career decisions necessary to provide for the
children.” We disagree.
Julie, like Shawn, obtained an AA degree in Commercial Art. Until 2003,
she worked for a company that paid her approximately $44,000 annually. In
2003, Julie transferred to a lower-paying job. About one month before trial, Julie
accepted a job near Chicago. Although her gross income was to increase to
$3626 per month and she was eligible for bonuses estimated at two percent of
her salary, her expenses were also slated to increase significantly. In particular,
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her monthly rent payment almost doubled and her child care expenses were to
rise from zero to $360 per month, assuming she was granted physical care.
These figures support the district court’s finding that “the increase in Julie’s living
expenses in Illinois makes this move economically non-feasible.”
We recognize that Julie was the primary wage earner during the marriage.
We also recognize that Julie reluctantly opted to assume this role to
accommodate Shawn’s dream of becoming a custom airbrush painter.
Her
decision to seek a job that provided a regular income stream and family health
insurance was laudable. However, the record provides no cogent explanation for
why she left a job that afforded her both for an out-of-state position that did not
measurably improve her financial circumstances. We concur with the district
court that this decision was inimical to the children’s well-being.
Julie’s decision is particularly surprising in light of the significant daily
interaction each parent had with the children. When Sydney was four years old,
Shawn was working as a freelance artist out of the parties’ home in Slater. Given
his flexible hours, it was decided that he would begin caring for Sydney during
the day rather than continue to send her to an outside day care provider. 1 When
Sawyer was born in 2002, Julie stayed at home with him for approximately six
weeks.
After she returned to work, Shawn became both children’s primary
caretaker.
In 2003, Shawn opened a custom paint shop in Des Moines. He equipped
the shop with a kids’ room containing the amenities of a day care center as well
1
This decision was precipitated by the closure of the day care center that Sydney had
been attending.
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as video cameras to monitor the children from other parts of the shop. He cared
for the children every weekday from before 8:00 a.m. until 5:30 or 6:00 p.m.
While Julie faults Shawn for keeping the children “locked up” in the kids’ room,
the record reveals that the children were at home until 11:00 a.m. or noon, as
Shawn generally worked from noon to 8:00 p.m. When Sydney began school in
Slater, Shawn dropped her off in the mornings, stayed home with Sawyer till
11:00, went to the shop by noon, drove from Des Moines to Slater to pick Sydney
up after school, and returned to his business with her for a couple of hours. This
arrangement essentially continued after the parents separated. 2
It is clear from this summary that both parents were actively involved in
the children’s lives on a daily basis. It is also clear that Shawn chose a career
path that allowed him to serve as the children’s primary caretaker. His business
partner testified as much, stating Shawn’s kids “always came first.” Shawn’s
lower earnings relative to Julie’s reflect this choice.
In sum, we agree with the district court that Julie’s higher earnings and
steady income stream do not render her the more financially stable parent. In
particular, her decision to accept a financially tenuous position in another state
foreclosed the joint physical care arrangement the parents had successfully
implemented.
B. Child Custody Evaluation
A child custody evaluator presented the district court with an assessment
of the Palek family and a physical care recommendation. She commended both
2
During the school year, the parents alternated week night care every two nights
and alternated weekends. In the summer, Julie took care of the children in the
evenings on all but one night per week.
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parents for their “strong parenting” of the children and found “no concerns about
the strength or stability of the parent/child relationships.”
In light of this
assessment, she opined that “[i]f Julie stayed in her current position and
remained living in Huxley there would be no question that joint physical care
would be recommended and supported as the best option for these children.”
Turning to Julie’s move, she continued, “[t]he reality that Julie is making a career
(and perhaps personal) move significantly complicates every aspect of the
children’s and adults’ lives.” She acknowledged that
[u]nder these circumstances, Julie’s decision to move to Chicago
would suggest that she be the one to adapt to and cope with the
implications and conditions imposed by such a move while the
children continue to experience the familiarity and stability of their
current life.
Nevertheless, she concluded that the children’s relative youth and Sydney’s
expressed desire to be with her mother gave Julie a “slight edge” over Shawn in
the physical care calculus.
Julie maintains the district court “diminished the value of” this
recommendation. To the contrary, the court accurately summarized the custody
evaluator’s recommendation for placement with Julie “as the second-best option
necessitated by the functional realities occasioned by Julie’s move to Illinois.”
There is no question that the children benefited from daily contact with Julie and
that they would continue to benefit from that level of contact. However, the same
can be said of the children’s contact with Shawn. Under these circumstances,
we conclude the district court acted equitably in opting to grant physical care to
the parent whose work and home environment was established versus the parent
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who chose to reconfigure both for questionable financial reasons shortly before
the divorce was finalized.
C. Sydney’s Preference.
Julie and the custody evaluator testified that Sydney expressed a
preference to live with her mother. The district court acknowledged this stated
preference but found that Sydney was not “sufficiently mature to make the
custody decision on her own.” We agree.
It is established that a child’s preference is not controlling. In re Marriage
of Thielges, 623 N.W.2d 232, 239 (Iowa Ct. App. 2000). Indeed, our court has
declined to honor the preferences of children far older than Sydney.
Id.
(declining to defer to the preference of the fourteen-year-old child).
There is no question that Sydney was a mature child; a teacher testified
she displayed leadership qualities, and others characterized her as bright,
articulate, and social.
Despite these qualities, she was years away from
adulthood and still appropriately focused on childhood concerns such as riding
bikes with friends and enjoying a walk-in closet in her mother’s new apartment.
While she expressed closeness to her mother, her first preference was to
maintain daily contact with both parents. Under these circumstances, the district
court acted equitably in declining to honor her preference.
D. The Better Caretaker
Julie suggests that she was the qualitatively better caretaker. First, she
points to the childcare conditions at Shawn’s workplace. She maintains that she
advocated for years to have Sawyer placed in a structured day care environment.
Her trial testimony supports this contention. Additionally, the custody evaluator
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opined that Sawyer could benefit from interaction with other children in a
structured day care setting.
Shawn testified he was looking into sending Sawyer to a day care center
beginning in January 2007. The district court judge “strongly recommend[ed]”
that Shawn pursue this option and stated he would “look askance on Shawn’s
continued incorporation of a child care facility in his business premises, should
the issue of physical care be revisited for some reason in the future.” We believe
this was an equitable resolution of the situation.
Julie next points to the “significant emotional bond” she shares with the
children. As noted, we agree this bond exists, but also find evidence of a similar
bond with Shawn. Those witnesses who testified to the contrary had a familial
relationship with Julie.
For example, a former office manager at Shawn’s
business who provided damaging testimony concerning Shawn’s interaction with
the children, turned out to be Julie’s sister. In contrast, Sydney’s kindergarten
teacher testified that the kids “definitely responded” to Shawn during parentteacher conferences. Another teacher who also had Sydney in her class stated
Shawn was “very enthusiastic from what I saw, supportive, very approachable
and easy to talk with.” The teachers’ perceptions of Shawn’s relationship with his
children was corroborated by the custody evaluator who, as noted, found a
strong emotional bond with both parents.
Julie also suggests that Shawn was more focused on his work than on his
supervision of the children. Again, much of the damaging testimony came from
Julie’s sister, who stated Shawn spent little time with them in the kids’ room. This
testimony was contradicted by Shawn’s business partner and by the business
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partner’s ex-wife who stated she wished her ex-husband parented their children
as well as Shawn parented his.
Finally, our de novo review of the record reveals that both parties used
marijuana during the marriage. Julie suggested at trial that Shawn’s usage was
greater than hers and should be a factor in the custody evaluation. Although she
appears to have abandoned this argument on appeal, we note that drug use may
be a factor in a physical care determination, see In re Marriage of Harris, 499
N.W.2d 329, 331 (Iowa Ct. App. 1993) (considering the mother’s alcohol abuse in
deciding to grant the father physical care), and, indeed, may result in a
determination that children should be removed from the custody of their parents.
In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005) (finding the mother’s
substance abuse sufficient to justify continued placement of the children outside
her care). In this case, both parents testified they stopped consuming the drug
before trial and the custody evaluator opined that there did not appear to be
“substantial difficulties with drug or alcohol abuse.” Based on this evidence, we
agree with the district court that the parents’ prior drug use was not a factor in the
custody determination, at the time of trial.
We emphasize, however, that
renewed drug use may be a factor in a modification action. In re Marriage of
Malloy, 687 N.W.2d 110, 113-14 (Iowa Ct. App. 2004) (finding a substantial
change in circumstances warranting modification of child custody where the
mother moved in with a man with a history of drug and alcohol abuse).
Based on the record created at trial, we conclude the district court acted
equitably in granting Shawn physical care of the children.
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II. Disposition
We affirm the district court’s physical care ruling.
AFFIRMED.
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