Upon the Petition of TROY JAMES LENZ, Petitioner-Appellee, And Concerning DIANA MAE FENSKE, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-443 / 07-0275
Filed October 12, 2007
Upon the Petition of
TROY JAMES LENZ,
Petitioner-Appellee,
And Concerning
DIANA MAE FENSKE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Calhoun County, William C.
Ostlund, Judge.
A mother appeals from a district court ruling that placed physical care of
the parties’ minor child with the father. AFFIRMED AS MODIFIED.
Dorothy L. Dakin of Kruse & Dakin, L.L.P., Boone, for appellant.
Dan T. McGrevey of McGrevey Law Office, Fort Dodge, appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
Diana Fenske appeals from a district court ruling that placed physical care
of the parties’ minor child with Troy Lenz. We affirm as modified.
I.
BACKGROUND FACTS AND PROCEEDINGS.
Diana and Troy are the parents of Ava Rose Lenz, born in September
2005. The parties were never married. Paternity is not disputed. Troy filed a
petition in November 2005 seeking joint legal custody and physical care of Ava.
The petition came before the district court in October 2006.
Diana and Troy are recovering substance abusers. They met in 2004 at
Community and Family Resources (CFR) while they were participating in inpatient substance abuse treatment. Diana was being treated for her addiction to
cocaine and marijuana, and Troy was being treated for his addiction to alcohol.
Diana began using illegal drugs after dropping out of high school in 1998.
She attended in-patient treatment for the first time in 1999. She relapsed in 2000
after she gave birth to her daughter, Deborah, from a prior relationship. A few
months after Deborah was born, Diana and Deborah moved to Florida. They
lived with Diana’s mother in Florida for “about four months.” Diana then secured
employment and obtained a duplex where she and Deborah lived for
approximately three years. Diana continued to use drugs during this time period.
In 2004, she “realized that [her] drug use was getting out of control.”
She
returned to Iowa and entered in-patient treatment at CFR for her addiction to
cocaine and marijuana.
Troy began having a “serious problem” with alcohol after graduating from
Iowa State University with a major in agriculture business and a minor in
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agronomy in 1997. He has several alcohol-related convictions, the most recent
of which was in 1998. Troy entered in-patient treatment in September 2003 at
the insistence of his family, and he was involuntarily committed for treatment in
November 2003 and again in July 2004. He was also hospitalized in November
2003 after overdosing on medication.
Both parties were successfully discharged from in-patient treatment in
August 2004. Troy has maintained his sobriety since then with the exception of
one weekend in January 2005. He did not participate in out-patient treatment
following his release from CFR.
However, he testified he attends Alcoholics
Anonymous meetings on a weekly basis. Diana completed her aftercare outpatient treatment in December 2004. She testified she has refrained from using
illegal drugs since she was discharged from treatment.
The parties started living together in September 2004. Soon thereafter,
Diana obtained employment as an office manager at Grell Commercial Roofing.
She was laid off in May 2005 and remained unemployed until November 2005
when she began working as a secretary at Beam Industries. Diana obtained her
GED in 2005 and enrolled at a local community college. She hopes to become
an accountant. At the time of the trial, Diana was employed full-time at Beam
Industries and taking two college classes.
Troy has been employed at Star Energy as a warehouse manager since
December 2004. While the parties were together, he farmed forty acres that he
rented from his father and assisted his father with the family’s farming operation.
He testified he stopped “farming the extra acres” in 2006 so that he could “spend
[his] time with Ava.”
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Troy and Diana’s relationship began to deteriorate shortly after Ava was
born.
Troy began keeping a journal in October 2005 documenting Diana’s
activities and her involvement with Ava. According to his journal, beginning on
October 21, 2005, Diana started drinking and going “out to bars” from six or
seven o’clock in the evening until early in the morning, leaving him to care for
Ava “from the time [he got] home from work till 6:00 in the morning.”
Troy
testified he would “feed Ava, change her diapers, [and] play with her” while Diana
would “maybe hold her for fifteen minutes to a half an hour.” Diana denied these
claims and testified she primarily cared for Ava because Troy was farming from
the time he came home from work until nine or ten o’clock at night throughout the
majority of October.
In November 2005, Troy became “afraid that Diana was going to take
Deborah and Ava and go to Florida . . . .” He consequently filed a petition on
November 21, 2005, requesting joint legal custody and physical care of Ava. He
also requested the court to enter an injunction restraining Diana from removing
Ava from the parties’ residence in Manson, Iowa.
The district court granted
Troy’s request for a temporary injunction.
After the entry of the temporary injunction, Troy, Diana, and Ava continued
to live together until January 2006 when Diana and Deborah moved out of Troy’s
home in Manson to an apartment in Webster City. Thereafter, the parties shared
physical care of Ava on an alternating weekly basis. The district court entered an
“Order on Injunctive Relief and Temporary Custody” on February 7, 2006,
confirming the temporary joint physical care arrangement, dissolving the
temporary injunction, and enjoining both parties from removing Ava from Iowa.
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Shortly before trial, Troy purchased an acreage between Pomeroy and Palmer,
and Diana purchased a house in Webster City. The parties indicated to the court
at trial they were not seeking a continuation of the temporary joint physical care
arrangement due to the fact they lived in different school districts.
Following a two-day trial, the district court entered a detailed ruling placing
Ava in the parties’ joint legal custody and in Troy’s physical care. Diana was
granted visitation with Ava on alternating weekends from 6:00 p.m. Friday to 7:00
p.m. Sunday; one evening per week from 5:00 p.m. to 7:00 p.m.; alternating
holidays, consisting of eight specified holidays including Christmas Eve as one
holiday and Christmas Day as another; time on Diana’s birthday and on Ava’s
birthday; Mother’s Day; and three periods of two weeks each in the summer.
The court ordered Diana to pay child support to Troy. Finally, the court ordered
Diana was entitled to retain a vehicle purchased by Troy “by assuming and
paying the $100.00 per month owed on the promissory note by the 15th day of
each month, or in the alternative returning the vehicle to [Troy], who shall
assume the indebtedness.”
Diana appeals. She claims the district court erred in (1) finding Ava’s best
interests would be served by placing physical care with her father; (2) failing to
properly apply the presumption that it is in a child’s best interests to keep siblings
together; (3) failing to award sufficient visitation; (4) asserting jurisdiction over a
property dispute in a paternity action or, in the alternative, awarding the vehicle to
Troy; and (5) failing to award her attorney fees. Diana also requests an award of
appellate attorney fees.
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II.
SCOPE AND STANDARDS OF REVIEW.
Our review in this equity matter is de novo. Iowa R. App. P. 6.4; Callender
v. Skiles, 623 N.W.2d 852, 854 (Iowa 2001) (stating while “questions of paternity
are reviewed on legal error,” decisions as to the “reasonableness of the court’s
visitation and custody award” are reviewed de novo). Although not bound by the
district court’s fact findings, we give them weight, especially when considering
the credibility of witnesses. Iowa R. App. P. 6.14(6)(g).
III.
MERITS.
A.
Physical Care.
“When considering the issue of physical care, the child’s best interest is
the overriding consideration.” In re Marriage of Fennelly, 737 N.W.2d 97, 101
(Iowa 2007). The court is guided by the factors set forth in Iowa Code section
598.41(3) (Supp. 2005) as well as those identified in In re Marriage of Winter,
223 N.W.2d 165, 166-67 (Iowa 1974). See Yarolem v. Ledford, 529 N.W.2d 297,
298 (Iowa Ct. App. 1994) (noting criteria apply regardless of parents’ marital
status). Among the factors to be considered are whether each parent would be a
suitable custodian for the child, whether both parents have actively cared for the
child before and since the separation, the nature of each proposed environment,
and the effect on the child of continuing or disrupting an existing custodial status.
See Iowa Code § 598.41(3); Winter, 223 N.W.2d at 166-67.
The ultimate
objective is to place Ava in the environment most likely to bring her to healthy
physical, mental, and social maturity. In re Marriage of Hansen, 733 N.W.2d
683, 695 (Iowa 2007). With these principles in mind, we conclude the district
court was correct in placing Ava’s physical care with Troy.
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As the district court recognized, we are faced with two loving and capable
parents. Where the child would flourish in the care of either parent, the choice of
physical care necessarily turns on narrow and limited grounds. In cases such as
this, where there are two suitable parents, “stability and continuity of caregiving
are important factors . . . .” Id. at 696. These factors tend to favor a parent who,
prior to the parties’ separation, was primarily responsible for the physical care of
the minor child. Id.
Diana argues the district court failed to properly consider the evidence of
her role as the primary caretaker of Ava.
The court was presented with
conflicting evidence on the question of which parent served as the primary
caregiver. Troy testified that he remained at home and cared for Ava “from 6:00
in the evening ‘til 6:00 in the morning” while Diana was drinking and going “out to
the bars” throughout October, November, and December 2005. Troy presented
several witnesses who testified they had seen Diana at various bars drinking and
behaving as though she was intoxicated. Diana did admit she drank alcohol after
being released from in-patient substance abuse treatment. However, she denied
almost every instance where Troy or other witnesses claimed to have seen her
intoxicated or at a bar.
The district court’s decision to place Ava in Troy’s physical care was
based “in large part” on its “perception of the candor and credibility of the
parties.” The court was not as concerned with Diana’s reported behavior as it
was with “her denial of these facts.”
The court was “convinced that Troy’s life
and personality has been accurately reflected on the record and acknowledged
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by Troy himself.” However, the court was “not equally convinced that [was] the
case with” Diana due to “inconsistencies in her testimony and that of others.”
We give considerable deference to the district court’s detailed credibility
determinations because the court has a firsthand opportunity to hear the
evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397
(Iowa 1992). Moreover, our own review of the record leads us to agree with the
court’s findings regarding the credibility of Diana and other witnesses.
We
accordingly reject Diana’s contentions regarding the district court’s credibility
determinations.
Diana also argues the district court failed to consider Troy’s “physical and
verbal abuse” of her when making its custody decision. A history of domestic
abuse is a significant factor in determining which parent should have physical
care of a child. In re Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa Ct. App.
1997). In assessing what is sufficient to constitute a history of domestic abuse,
we weigh the evidence of abuse, its nature, severity, repetition, and to whom it is
directed. In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997).
Diana raised the issue of domestic abuse for the first time at trial, testifying
Troy “has put his hands on me” and “kicked me.” A witness for Diana testified he
“saw bruises on her wrist one time,” which she told him were “from Troy.”
Diana’s testimony regarding the dates and details of these incidents was vague.
She did not report any of these events to the police, and there were no protective
orders between the parties. See Iowa Code § 598.41(3)(j). She did not reveal
any allegations of physical or verbal abuse in her responses to interrogatories
propounded by Troy. The district court questioned “her veracity” due in part to
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“inconsistencies in the interrogatories.” We find the district court did not err in
declining to give weight to Diana’s domestic abuse allegations. See Forbes, 570
N.W.2d at 759 (finding the district court’s failure to “specifically discuss” section
598.41(3)(j) is “not fatal under our de novo review”).
Diana next argues the district court erred in placing physical care of Ava
with Troy because “he is less likely to support Ava’s relationship with” Diana.
One of the many factors to consider in determining a suitable custodial
arrangement is which parent will better support the other parent’s relationship
with the child.
Iowa Code § 598.41(3)(e).
Although there is evidence both
parties have disparaged each other, Diana and Troy testified they would support
one another’s relationship with Ava. The record also reveals the parties have
allowed each other access to Ava outside of the set temporary visitation
schedule. We therefore conclude this factor does not influence the physical care
determination one way or the other.
After considering the parties’ arguments on appeal and reviewing the
evidence anew, we ultimately agree with the district court that Diana and Troy
are both competent and loving parents who are “sincere in their desire to care for
Ava.” Each is capable of providing for Ava’s long-range best interests. In close
cases such as this, we give careful consideration to the district court’s findings.
In re Marriage of Wilson, 532 N.W.2d 493, 495-96 (Iowa Ct. App. 1995). We
accordingly affirm the district court’s decision to place physical care of Ava with
Troy.
In doing so, we recognize the presumption that siblings should not be
separated. In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). This
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presumption applies equally to half-siblings. Id. Diana contends the district court
erred in failing to properly apply this presumption. The presumption is not “ironclad.” Will, 489 N.W.2d at 398. However, good and compelling reasons must
exist for a departure from the presumption. In re Marriage of Quirk-Edwards, 509
N.W.2d 476, 480 (Iowa 1993). Our primary concern remains the long-range best
interests of the child. In re Marriage of Brauer, 511 N.W.2d 645, 647 (Iowa Ct.
App. 1993).
The factors favoring the presumption of leaving the siblings together are
not strong in this case. At the time of the trial, Deborah was six years old and
Ava was one year old. Deborah and Ava lived together for only three months
before the parties began sharing physical care of Ava.
Diana was awarded
liberal visitation with Ava, and the children will have many opportunities to be
together.
The district court acknowledged Diana’s assertion that the “warm,
loving and compassionate relationship that she has established between her and
Ava and Deborah is an important factor.” However, the court determined it was
in Ava’s best interests to be placed in Troy’s physical care because he
represented “the most stable environment in the long term” and “Ava’s welfare is
secure in his hands.” We see no reason to disturb the district court’s findings in
this regard.
B.
Visitation.
The next assignment of error is whether the visitation schedule set by the
district court allows sufficient contact between Diana and Ava. In determining the
appropriate amount of visitation, we are guided by the principle a court should
order such visitation as will ensure a child the opportunity for maximum
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continuing physical and emotional contact with the noncustodial parent. See
Iowa Code § 598.1(1), § 598.41(1)(a). Diana argues she “should have been
granted mid-week overnight visitations [and] spring break and extended holiday
visitation . . . .” She points out that school holiday breaks at Christmas-time
usually last ten days to two weeks.
The trial court’s duty with respect to visitation, and our duty on appeal as
well, is to do equity and achieve a fair and appropriate result that provides Ava
with the opportunity for the maximum continuing physical and emotional contact
with both parents. We find that in order to do so Diana should have visitation
with Ava for one-half of any school spring break each year and one-half of the
school holiday break at Christmas-time each year. We modify the district court’s
decree to so provide. The breaks in question shall be determined by the school
calendar in the school district in which Troy resides.
The trial court’s duty with respect to visitation is not to decide each and
every detail exactly as we would if sitting as the trial court. It has range of
discretion within which to fashion a visitation schedule.
While it might have
provided for mid-week overnight visitation, it was not compelled to do so. Its
order does include mid-week evening visitation. We find that the trial court’s
visitation order, as modified herein, meets the goal of providing for visitation that
is equitable and reasonable and satisfies the statutory criteria of maximizing
Ava’s continuing contact with both parents.
We therefore decline to further
modify the trial court’s decree to provide for mid-week overnight visitation.
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C.
Vehicle.
Troy purchased a 1990 Pontiac 6000 sedan from Diana’s sister for $2000
during the parties’ relationship with the expectation Diana would repay him. The
parties thereafter executed a promissory note whereby Diana agreed to pay Troy
$100 per month until the debt was paid in full. In the event she failed to make
payments, the parties agreed Troy would retain the vehicle. Troy testified Diana
had paid him $400 at the time of trial.
As a part of the decree entered in this matter, the district court enforced
the promissory note and ordered that Diana “shall be entitled to retain the vehicle
by assuming and paying the $100.00 per month owed on the promissory note . . .
or in the alternative returning the vehicle to [Troy] who shall assume the
indebtedness.” Diana argues the district court erred in asserting jurisdiction over
a property dispute in a paternity action. In the alternative, she contends she
should have been awarded the vehicle free of any debt. We do not agree.
The district court stated in its ruling that it addressed the vehicle issue at
the request of the parties.
The record shows both parties elicited testimony
regarding the vehicle at trial. Despite Diana’s assertions to the contrary, she did
not object to evidence on the issue until after the district court entered its decree.
“When a party introduces evidence without objection on an issue not raised by
the pleadings, the court considers the matter tried by consent and properly in the
case.” Gibson Elevator, Inc. v. Molyneux, 668 N.W.2d 565, 568 (Iowa 2003).
Therefore, the district court’s order regarding the vehicle was appropriate given
the circumstances presented by this case.
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D.
Attorney Fees.
The district court denied Diana’s request for an award of attorney fees.
The decision to award attorney fees rests within the sound discretion of the court,
and we will not disturb its decision absent a finding of abuse of discretion. In re
Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Whether fees ought to be
awarded depends, in part, on the ability of the parties to pay. In re Marriage of
Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We find no abuse of discretion and
affirm the district court’s decision.
Similarly, we have authority to award appellate attorney fees. See id.
Appellate attorney fees are not a matter of right, but rather rest in this court’s
discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). In
arriving at our decision, we consider the parties’ needs, ability to pay, and the
relative merits of the appeal. Sullins, 715 N.W.2d at 255. None of these factors
justify an award of appellate attorney fees in this case.
IV.
CONCLUSION.
Upon our de novo review of the record, we agree with the district court’s
decision to place physical care of Ava with Troy. Although both parents are
suitable, we find it is in Ava’s best interests to be placed in Troy’s physical care.
We modify the visitation schedule set by the district court to provide that Diana
shall have visitation with Ava for one-half of school spring breaks and Christmastime breaks. We reject Diana’s claim that the district court erred in entering an
order regarding the promissory note executed between the parties for a vehicle.
Finally, we conclude the district court did not abuse its discretion in declining to
award attorney fees to Diana. We likewise conclude Diana is not entitled to an
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award of appellate attorney fees. The judgment of the district court is accordingly
affirmed as modified.
Costs on appeal are taxed three-fourths to Diana and one-fourth to Troy.
AFFIRMED AS MODIFIED.
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