IN RE THE MARRIAGE OF FAWN MARIE BROOKS AND MICHAEL LEE BROOKS Upon the Petition of FAWN MARIE BROOKS, Petitioner-Appellee, And Concerning MICHAEL LEE BROOKS, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-223 / 06-0189
Filed May 23, 2007
IN RE THE MARRIAGE OF FAWN MARIE BROOKS
AND MICHAEL LEE BROOKS
Upon the Petition of
FAWN MARIE BROOKS,
Petitioner-Appellee,
And Concerning
MICHAEL LEE BROOKS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Gary G. Kimes,
Judge.
A father appeals the physical care, child support, and attorney fee
provisions of a decree of dissolution of marriage. AFFIRMED.
Kenneth Weiland of Andrew & Weiland, P.C., Knoxville, for appellant.
Steven Guiter of Johnston, Hicks, Guiter & Griffith, Knoxville, for appellee.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
BAKER, J.
Michael Brooks appeals the physical care, child support, and attorney fee
provisions of his decree of dissolution of marriage. We affirm on all issues and
award Fawn Brooks attorney fees on appeal.
I.
Background and Facts
Fawn and Michael were married in October 2002. Their marriage was
dissolved by decree in December 2005.
children affected by this decree:
They are the parents of two minor
J.B., born in July 2002, and C.B., born in
October 2004. 1 Fawn and Michael had a tumultuous relationship. In May 2004,
Fawn stabbed Michael in the leg and injured his finger when he tried to grab the
knife from her. In March 2005, they were again involved in an altercation. 2 In
April 2005, the Iowa Department of Human Services (DHS) issued a founded
report against Fawn and Michael for denial of critical care. In June 2005, the
children were adjudicated to be children in need of assistance (CINA) pursuant to
Iowa Code sections 232.2(6)(b) and (c) (2005). They were returned to Fawn’s
care following a six-day removal and have remained with her since. Both Fawn
and Michael were ordered to complete a psychological evaluation.
Fawn
completed the evaluation. Michael did not. At the time of dissolution, Fawn was
a full-time student and Michael worked part-time and earned ten dollars per hour.
Fawn had completed Children in the Middle. Michael had not.
1
There is a third minor child who is the child of Fawn but not Michael and therefore is
not at issue in this matter.
2
There is a dispute regarding who was the aggressor in the assault. It is clear,
however, that Michael pushed Fawn into the washer/dryer and punched her in the face.
Fawn reported the assault to the police, and Michael was charged with domestic abuse
assault. Pursuant to a deferred prosecution agreement, the charges were dismissed,
and Michael was restrained from any contact with, or threats or abuse toward, Fawn.
3
The decree provided for joint legal custody of the children pursuant to a
stipulation by the parties. Fawn was awarded physical care, subject to Michael’s
reasonable visitation. The trial court gave considerable weight to the testimony
of the in-home worker, April Verweers, and the children’s guardian ad litem,
Natalie Hazen.
Both recommended Fawn be awarded physical care of the
children. Michael was ordered to pay $482 per month in child support and $950
for payment of Fawn’s attorney fees. Michael appeals the physical care, child
support, and attorney fee provisions of the decree.
II.
Merits
Our review in equity cases is de novo. Iowa R. App. P. 6.4. We are not
bound by the trial court’s findings of facts, but we give them deference because
the trial court had a firsthand opportunity to view the demeanor of the parties and
evaluate them as custodians. In re Marriage of Walton, 577 N.W.2d 869, 871
(Iowa Ct. App. 1998); see also Iowa R. App. P. 6.14(6)(g). When we determine
physical care, our primary consideration is the best interests of the children. In re
Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
A.
Physical Care
Michael argues the district court improperly granted Fawn physical care 3
because it failed to give appropriate weight to the domestic abuse allegations.
There are numerous factors used to determine which parent is best suited to
serve as primary caregiver. In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa
Ct. App. 1997). We have previously recognized domestic abuse as a factor in
3
In his answer to the petition of dissolution of marriage, Michael agreed to joint custody.
Therefore, although Michael argues the district court improperly granted Fawn “custody,”
we assume he is disputing the award of physical care of the children to Fawn.
4
determining which parent should be awarded physical care. Id. “[T]he weight
ultimately assigned to each factor depends on the particular facts of each case.”
Id. In this case, the domestic abuse allegations were given sufficient weight and
did not preclude awarding physical care to Fawn.
Michael further contends the district court gave too much weight to the
testimony of the guardian ad litem and the in-home worker because they were
unqualified to provide a conclusion regarding physical care.
Hazen and
Verweers’ testimony established they had extensive knowledge of the family.
Their opinions were sufficiently neutral and informed to effectively aid the court in
making its determination. The court did not rely excessively on their testimony.
Michael contends the district court failed to consider that the children were
temporarily removed from Fawn’s care and that her psychological assessment
was not considered. The children were returned to Fawn’s care within six days
of the removal.
Fawn complied with the requirements of the juvenile court,
including completing the psychological assessment, while Michael had not.
He asserts the court did not consider that he has been consistently
employed, and therefore in a better position to provide for the children. The
longest Michael had worked for any one employer was eight to nine months, and
his assertion that he is in a better position to provide for the children is
inconsistent with the fact that he failed to provide child support from March
through December 2005.
Michael also contends that the district court improperly granted Fawn
physical care because he produced more credible witnesses. The number of
witnesses is not controlling. Brown v. Blanchard, 240 Iowa 123, 140, 35 N.W.2d
5
858, 867 (1949) (“In determining the probative force and the value of evidence,
courts weigh it rather than count the witnesses.”). The findings of the district
court are supported by the evidence in the record. In custody cases, “we give
weight to the findings of the trial court, which had an opportunity to view the
demeanor of the witnesses when testifying.”
In re Marriage of Forbes, 570
N.W.2d 757, 759 (Iowa 1997).
Upon our careful de novo review of the record, we conclude that the
district court properly granted Fawn physical care of the children. Fawn had
been the primary caregiver, and she was the only parent who complied with the
juvenile court’s requirements, established a safe and secure residence for her
children, and took steps to improve herself by attending college. Michael, on the
other hand, did not comply with the juvenile court’s requirements, did not work
full-time, and did not support his children. We affirm the district court’s granting
of physical care of C.B. and J.B. to Fawn.
B.
Attorney Fees
Michael contends the district court improperly awarded attorney fees to
Fawn. “An award of attorney fees rests in the sound discretion of the trial court
and will not be disturbed on appeal in the absence of an abuse of discretion.” In
re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). The controlling
factor in awards of attorney fees is the ability to pay. Id. The district court
correctly assessed the parties’ respective abilities to pay. We therefore affirm the
award of attorney fees to Fawn.
6
C.
Child Support
Michael contends the district court improperly calculated his child support
obligation when it based his obligation on a forty-hour work week instead of the
thirty-two hours he typically works. When a parent voluntarily works less than
full-time, the court may consider earning capacity rather than actual earnings in
applying the guidelines. In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa
1997). “We examine the employment history, present earnings, and reasons for
failing to work a regular work week when assessing whether to use the earning
capacity of a parent.” Id. Michael does not work a forty-hour week, and we find
no valid reason why he cannot work a regular work week. A refusal to consider
his earning capacity would result in substantial injustice to the children. We
therefore agree with the district court’s use of his earning capacity to determine
his child support obligation.
D.
Appellate Attorney Fees
Fawn requests this court order Michael to pay the attorney fees incurred
for this appeal. “An award of attorney fees is not a matter of right, but rests
within the court’s discretion and the parties’ financial positions.” In re Marriage of
Clinton, 579 N.W.2d 835, 839 (Iowa Ct. App. 1998).
“In considering such a
request, we look to the needs of the party making the request, the ability of the
other party to pay, and whether the party making the request was obligated to
defend the trial court’s decision on appeal.” Romanelli, 570 N.W.2d at 765. We
determine Fawn is entitled to an award of $500 to apply towards her appellate
attorney fees. Costs on appeal are taxed against Michael.
7
III.
Conclusion
We conclude that the district court properly granted Fawn physical care of
the children, correctly awarded attorney fees to Fawn, and properly calculated
Michael’s child support obligation based on earning capacity. Appellate attorney
fees of $500 are awarded to Fawn.
AFFIRMED.
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