IN RE THE MARRIAGE OF DEON LYNN GREDER AND JOHN ARTHUR GREDER Upon the Petition of DEON LYNN GREDER, Petitioner-Appellee, And Concerning JOHN ARTHUR GREDER, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-154 / 06-1525
Filed July 12, 2007
IN RE THE MARRIAGE OF DEON LYNN GREDER AND JOHN ARTHUR
GREDER
Upon the Petition of
DEON LYNN GREDER,
Petitioner-Appellee,
And Concerning
JOHN ARTHUR GREDER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Crawford County, James D. Scott,
Judge.
Respondent-appellant appeals from the custody and support provisions of
the decree dissolving his marriage to petitioner-appellee.
AFFIRMED AS
MODIFIED.
Kara L. Minnihan of Minnihan Law Firm, Onawa, for appellant.
Joseph J. Heidenreich of Dresselhuis & Heidenreich, Odebolt, for
appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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SACKETT, C.J.
John Greder appeals, challenging the custody provisions and support
provisions of the decree dissolving his marriage to Deon Greder. We affirm as
modified.
BACKGROUND
John and Deon were married in 1995, and their only child, a daughter,
was born in that same year. The child has an excellent relationship with both
parents, and the district court found both John and Deon to be capable parents.
In the fourteen months between their separation and the dissolution hearing John
and Deon shared primary physical care of the child, who spent alternate weeks
with each parent.
The district court determined that Deon should be awarded the primary
physical care of the child, and John should pay child support of $200 a month.
The district court ordered that to satisfy that obligation John should assign to
Deon the $324 a month disability payment he receives for the child as a result of
his disability.
John contends (1) he should have shared primary care and (2) if the
district court is affirmed, he should only be required to pay $200 of the child’s
disability payment to Deon. Deon contends the district court should be affirmed.
The district court found Deon had been the primary care parent for the two
children of her first marriage, and they were doing well as adults. After hearing
the evidence and observing Deon’s demeanor, the court determined she was a
more firm disciplinarian than John, had a stronger work ethic, and had been more
actively involved with the child’s school and her extracurricular activities. The
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court noted that John too has two adult children, and he provided the primary
care for a son who is serving in the military and is a fine young man.
The district court further found the parents have different parenting styles,
and John is much more lenient than Deon. The court believed John’s leniency
went too far.
The court noted while in John’s care the child missed school
thirteen times and while in Deon’s care only three. The court was concerned that
John provided the child with a cell phone, allowed her to keep her computer in
her own room, that she returns from her father’s care without her homework
done, and is more likely to miss extracurricular activities while under John’s care.
The court also had concern about John’s use of marijuana. While recognizing
John recently tested negative for drug use and his counselor’s belief he has
stopped using them, the court was of the opinion he was yet in a trial period of
proving abstinence from marijuana.
We conduct a de novo review of physical care awards. In re Marriage of
Murphy, 592 N.W.2d 681, 683 (Iowa 1999). We give weight to the fact findings
of the district court, especially when considering the credibility of witnesses, but
are not bound by them. Iowa R. App. P. 6.14(6)(g). The focal question is,
whether there is a basis for the district court to reject shared primary physical
care. We base our decision primarily on the particular circumstances of the
parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).
The interests of the child are the primary consideration. See In re Marriage of
Vrban, 359 N.W.2d 420, 424 (Iowa 1984). We focus on the child and whether
shared care is in her interest.
Iowa Code section 598.41(5) provides in relevant part:
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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.
This section “constitutes neither a ringing endorsement of joint physical
care, nor a mandate for courts to grant joint physical care.” See In re Marriage of
Ellis, 705 N.W.2d 96, 102 (Iowa Ct. App. 2005). The legislature has sought to
assure a child the opportunity for the maximum continuing physical and
emotional contact with both parents and encourage his parents to share the
rights and responsibilities of raising him. See id. However, there are a number
of factors we consider in assessing the issue. See In re Marriage of Hansen,
____ N.W.2d ____, ____ (Iowa 2007).
The district court found both parties, while sharing different parenting
styles, are capable parents who had raised other children successfully. Both
parents have education beyond high school. In the fourteen months prior to trial
the parties successfully shared care of their daughter.
They have been
somewhat flexible when the need arises. For example, when John’s son left for
service in the military, Deon allowed John to take their daughter to the send-off
even though it was during Deon’s custody week. And when Deon’s father was
critically ill John kept their daughter overnight, and the next morning both parents
together told her that her maternal grandfather had died. This indicates that
despite different parenting styles the parties have been able to work together for
their daughter’s benefit.
The child is intelligent, mature for her age, loves both of her parents, does
not want to be caught in the middle, and wants the current shared care
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arrangement to continue. Both parents live relatively close to each other at this
time. As we earlier noted, the court also believed that either parent was capable,
and John was given liberal visitation.
Certain complaints of Deon’s about John are not surprising in the context
of dissolution of marriage. Deon is concerned that John gave their daughter a
cell phone. He testified it was to allow the child to keep in contact with him. He
pays the bills and monitors the use. Deon complains the child uses a computer
in her room when at John’s, while Deon limits her computer use to the family
room. John testified the computer Internet connection in his home is dial-up, and
the child lets him know when she uses it. He testified he has her password, she
knows he has it, and he checks her computer on a regular basis. Deon also
disagreed with John’s decision to take their daughter on a vacation trip to South
Dakota rather than leaving her home to play summer softball.
None of Deon’s above criticisms of John are reasons to reject shared care
as they show no more than minor disagreements between parents. Both parents
are concerned about the child’s safety. We have concerns about John’s past use
of illegal substances as we do about Deon’s past use. Their drug of choice was
marijuana, and the evidence shows they smoked it together socially and tried to
keep their use away from their children. Though Deon contends she never used
marijuana, the testimony of John and his son would indicate she has.
John was determined to be disabled after a load of lumber fell on him. He
testified he smoked marijuana to relieve the pain and he has not used marijuana
since August 2005, after he completed a pain management clinic at the
University of Nebraska Hospital in Omaha.
John’s licensed mental health
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counselor who works for Lutheran Family Services and has been a certified
alcohol and drug counselor, met with John twenty-six times. She also did some
joint counseling with John and his daughter. She testified she had not seen any
signs of a relapse. John also attends Narcotics Anonymous regularly. 1
The child’s thirteen absences from school while in John’s care are of
concern. He testified two days were the result of his taking her to a send-off for
her brother, who was going to Iraq. He contends the other days were when she
vomited, had a fever, or headache.
While John is more aggressive than Deon and at one time put an
inappropriate sign on the couple’s house criticizing the city, there is no evidence
he has ever been physically abusive. The principal at his daughter’s school in
comparing John to Deon said that he is “more vocal in defense of his children.”
While Deon testified John does not always see that their daughter’s
homework is finished, there was no evidence the child was not doing well in
school.
Neither parent has been financially responsible, and both have relied on
their parents for financial assistance. Their net worth showed a negative balance
except for approximately $200,000 2 Deon will receive as a result of a recent
inheritance.
There is testimony both parties have on occasion put their child in the
middle. It would appear Deon is less flexible than John.
Is an award of joint physical care not in the child’s best interest? The
district court found it was not, specifically finding “John is too lenient, allows too
1
2
The case was tried on August 3, 2006.
The entire inheritance was set aside to Deon.
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much absenteeism from school, and does not give careful attention to the child’s
homework. Further, the degree of hostility John exhibits through the signs he
displays on his home is harmful.” Giving the required deference to the district
court we affirm on this issue.
John’s last contention is that he should not have been required to pay the
$324 a month he receives from the social security administration to Deon when
his child support obligation under the guidelines is only $200.
The social security benefit for a dependent of a disabled worker is not a
payment for or to the worker, rather it is a benefit for the dependent and is
payable according to federal regulations 3 for the purpose provided by the
regulations. The benefits a disabled worker and his dependents receive have
been earned, in part, through the employee’s payment of social security taxes
and their purpose is to replace income lost because of the employee’s disability.
In re Marriage of O'Brien, 565 N.W.2d 619, 621 (Iowa 1997).
Under these
circumstances, it is equitable to treat dependency benefits as a substitute for
child support for the period during which such benefits are paid. Id.
Deon contends in applying the child support guidelines the district court
failed to attribute sufficient income to John. The district court set his net monthly
income at $900 but failed to include the $324 social security disability benefit he
3
20 C.F.R. § 404.2021(c)(1) (2005) provides:
As a guide in selecting a representative payee, categories of preferred
payees have been established. These preferences are flexible. Our
primary concern is to select the payee who will best serve the
beneficiary's interest. The preferences are:
(c) For beneficiaries under age 18, our preference is (1) A natural or adoptive parent who has custody of the
beneficiary, or a guardian.
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currently receives as payee for their child. Deon contends the benefit should be
included in John’s income.
In In re Marriage of Hilmo, 623 N.W.2d 809, 814 (Iowa 2001), the Iowa
Supreme Court agreed with the rationale of other courts and concluded that
dependent benefits should be included as income of the disabled parent for
purposes of computing child support and that a disabled parent is allowed a
credit against his child support obligation for dependent social security disability
payments.
Poots v. Poots, 240 N.W.2d 680, 681 (Iowa 1976).
Under this
formula John’s child support would be set at $275 a month which is forty-nine
dollars a month less than the benefit paid to the child.
Following Hilmo, 623 N.W.2d at 814, we fix John’s child support at $275 a
month. Should Deon apply for and become payee of the child’s benefit, then
John’s obligation for child support shall cease. We modify the dissolution decree
accordingly. In all other respects we affirm.
We award no appellate attorney fees. Deon has the ability to pay her own
attorney fees as she has substantially more assets and income than John.
Costs on appeal are taxed to John.
AFFIRMED AS MODIFIED.
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