IN RE THE MARRIAGE OF KIMB ERLY L. WARNICK AND SCOTT P. WARNICK Upon the Petition of KIMBERLY L. WARNICK, Petitioner-Appellee, And Concerning SCOTT P. WARNICK, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-295 / 06-1881
Filed June 27, 2007
IN RE THE MARRIAGE OF KIMBERLY L. WARNICK AND SCOTT P.
WARNICK
Upon the Petition of
KIMBERLY L. WARNICK,
Petitioner-Appellee,
And Concerning
SCOTT P. WARNICK,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, William Joy, Judge.
Respondent Scott Warnick appeals from the district court’s decree
granting petitioner Kimberly Warnick physical care of the parties’ minor children.
AFFIRMED.
Eric Borseth of Borseth Law Office, Altoona, for appellant.
Dennis Chalupa of Brierly & Charnetski, L.L.P., Newton, for appellee.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
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EISENHAUER, J.
Scott Philip Warnick (Scott) appeals from the decree of dissolution of
marriage entered by the district court granting Kimberly Lynn Warnick (Kim)
physical care of the parties’ minor children. We affirm.
BACKGROUND FACTS AND PROCEEDINGS.
Scott and Kim were married in May 1992. Two children were born of their
marriage: Trenton, born in August 1997, and Wyatt, born in September 2000.
The parties resided in Kellogg, Iowa, during their marriage. Kim filed a petition
for dissolution of marriage on January 31, 2006.
The major issue in the
dissolution proceedings was the custodial arrangement for the two minor
children. Kim requested physical care of the children, and Scott requested joint
physical care or in the alternative physical care.
Kim is thirty-four years old.
management.
She has a B.A. degree in business
At the time of trial, she was employed as a special market
customer coordinator for floor care in the Hoover division of Maytag. Her position
was expected to end in April 2007 because Maytag Corporation had been
purchased by Whirlpool Corporation. Her monthly income at the time of trial was
$2,700.00.
Scott is thirty-seven years old at the time of the dissolution proceedings.
He has a political science degree in criminal justice and has been working as a
correctional officer at Newton Correction Facility for the past ten years.
His
monthly earnings at the time of trial were $3,793.82.
Scott and Kim continued living in the same household for about six
months after the dissolution petition was filed. A temporary order was entered on
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February 14, 2006, holding that the parties were going to share expenses and
responsibilities for the children during the pendency of the dissolution
proceedings. Approximately six weeks before trial Kim moved out of the family
home with the children and rented an apartment in Ankeny, Iowa. She then filed
an application for additional temporary orders. Responding to this application,
the district court granted the parties temporary joint physical care alternating the
children’s care on a weekly basis.
The case was tried on August 31, 2006. The district court found joint
physical care was not appropriate and granted Kim physical care of the children.
Scott appeals.
STANDARD OF REVIEW.
We review the trial court’s decision regarding custody de novo. Dale v.
Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996). We give weight to the
findings of the district court, but are not bound by them. Id. This is because the
district court had a firsthand opportunity to hear the evidence and view the
witnesses. Id.
ANALYSIS.
In assessing the issue of child custody, the controlling consideration is the
best interest of the child. Iowa R. App. P. 6.14(5)(o). The district court found it
was reasonable and in the children’s best interest to grant Scott and Kim joint
legal custody. See Iowa Code § 598.41(1)(a). Neither party challenges this
decision on appeal.
However, Scott alleges that the district court erred in
granting Kim physical care. He argues the district court should have awarded the
parties joint physical care or granted him physical care.
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I. Joint Physical Care. The district court found joint physical care was
inappropriate for two reasons: first, the physical distance between the parties,
and second, the domestic abuse Scott inflicted on Kim and the children. Scott
challenges both factors.
Physical Distance between Parties: At the time of trial, Scott was
still living in the parties’ family home in Kellogg, while Kim was living
approximately forty-five miles away in Ankeny, Iowa. Kim testified that in order to
maintain employment with the same company, she might have to transfer to
Arkansas. She also indicated an interest in moving to Canton, Ohio, where she
had friends.
Scott argues that Kim can find new employment and housing in Kellogg,
Newton, or Des Moines, and in that case, joint physical care would be plausible.
However, Kim testified that she would not return to the Kellogg and Newton area
because she believed the community did not provide the best environment and
educational opportunities for the children. Under this circumstance, even if Kim
found a new job in the Des Moines area allowing her to remain in Iowa, the
children would have to travel constantly and enroll in different school districts if
they were in the parents’ joint physical care. This instability would not serve the
children’s best interest. See In re Marriage of Swenka, 576 N.W.2d 615, 617
(Iowa Ct. App. 1998).
Scott also indicates that Kim began a relationship with a man in Ohio, and
Kim intends to move out of state simply to satisfy her own personal and
emotional needs. Kim denied that she had a boyfriend in Ohio, and we find no
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other evidence supporting this allegation. We conclude the physical distance
between the parties weighs against joint physical care.
Domestic Abuse:
At trial Kim alleged several instances of
physical assault Scott inflicted on her. She claimed Scott once locked her out of
the house in the wintertime. She also alleged that on one occasion, Scott forced
himself on her while she was in the shower and caused bruises on her body.
Kim’s sister testified that she saw Scott spank one of the children because the
child interfered with him watching television. Scott denied he had been abusive
to Kim or the children. However, the district court found that “[b]ased upon the
observations of the parties while in the courtroom and while testifying, and other
evidence the fact finder found credible, the respondent is found to have been a
domestic abuser during this marriage.”
On appeal Scott points out that Kim never called the police or filed for a
protective order, and there was no eye witness testimony to his abusive behavior
against Kim.
He further argues that a single spank on the child does not
constitute abuse. He claims the district court was simply wrong in finding there
was domestic abuse. We disagree. A petition for protective order and police
involvement are only some of the factors the court may consider when
determining the existence of domestic abuse. Testimony of the parties and the
witnesses are also considered. In the present case, Kim’s mother and sister
reinforced Kim’s testimony and testified to Scott’s temper and aggressive
behavior. Even if these events do not amount to a history of domestic abuse,
they indicate the tension between the parties and Scott’s tendency to use
physical force against his spouse and children when they disagree or disobey
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him. We believe Scott’s temper is a barrier to the parties being able to work
together in a joint physical care arrangement.
Scott also argues that even if there was abuse, the district court, by
granting the parties joint legal custody, must have found allegations of domestic
abuse were rebutted.
Iowa Code § 598.41(1)(b).
The district court did not
elaborate how the factor of domestic abuse was weighed in its decision of
granting joint legal care. Even if the domestic abuse is rebutted in determining
legal custody, it does not prevent the court from considering Scott’s aggressive
temper when deciding the proper physical care arrangement.
The physical
conflicts between the parties, combined with the difficulties caused by the
distance between the two households, make joint physical care inappropriate.
See In re Marriage of Hynick, 727 N.W.2d 575, 580 (Iowa 2007).
II. Physical Care. When joint physical care is not warranted, the court
must choose one party to be the primary caretaker, awarding the other party
visitation rights.
See generally Iowa Code § 598.41(5) (Supp. 2005).
In
determining which physical care arrangement is in the children’s best interest, we
consider the factors set forth in Iowa Code section 598.41(3), as well as the
factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa
1974). Our objective is to place the children in the environment most likely to
bring them to healthy physical, mental and social maturity. In re Marriage of
Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
The district court awarded Kim primary care based on the following
findings: (1) Kim was the primary caretaker to the children, (2) Scott had a violent
temper evidenced with several incidents of physical assaults against Kim, (3) Kim
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had better parenting and interpersonal skills compared to Scott, (4) Kim was
better able than Scott to support the other parent’s relationship with the children,
and (5) Kim presented a more positive parental role model for the children.
Our de novo review of the record reveals no reasons for us to disagree
with the district court’s findings and conclusion.
worked second shift, 2:00 p.m. to 10:00 p.m.
During their marriage Scott
In the morning Scott got the
children up, fed them, and got them ready during the day. He took the children to
the babysitter between 11:00 and 11:30 a.m., and the children would have lunch
there. After the children started school, Scott would take them to the bus stop
where they boarded the school bus. Kim worked between 7:00 or 8:00 a.m. to
4:00 or 5:00 p.m. during the weekdays. Kim would pick up the children from the
babysitter or school after work, and take care of the children through the evening.
She helped the children with their homework and did most of the cooking and
cleaning. The parties’ work schedule suggests that Kim spent more time with the
children in the past. The babysitter who worked for the Warnicks for the last
seven years also testified that, based on her observation, Kim was the primary
caretaker of the children, and Scott started doing more after the dissolution
proceedings had commenced. We agree with the district court that Kim has been
the primary caretaker of the children.
We acknowledge the disruptions the children have to experience when
moving away from their home, school and community.
However, evidence
shows that granting the physical care to Kim is in the children’s best interest.
She is highly concerned with the children’s education and makes effort to provide
them with best possible opportunities. Her schedule allows her to spend time
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with children after school and help them with their homework. Scott, on the other
hand, will have to rely on a babysitter or his brother every evening during the
week. Kim also recognizes the importance of the relationship between Scott and
the children and is willing to promote the communication between them. These
factors, combined with the domestic abuse discussed above, lead us to conclude
the district court did not err in granting Kim physical care.
AFFIRMED.
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