IN RE THE MARRIAGE OF BETH ANN EIDEN AND MATTHEW PETER EIDEN Upon the Petition of BETH ANN EIDEN, Petitioner-Appellee, And Concerning MATTHEW PETER EIDEN, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-847 / 08-0835
Filed December 17, 2008
IN RE THE MARRIAGE OF BETH ANN EIDEN AND MATTHEW PETER EIDEN
Upon the Petition of
BETH ANN EIDEN,
Petitioner-Appellee,
And Concerning
MATTHEW PETER EIDEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, John P. Duffy,
Judge.
Father appeals the custody provisions of a dissolution decree.
AFFIRMED.
Brian B. Vakulskas of Vakulskas Law Firm, P.C., Sioux City, for appellant.
William Cook of Herrick, Ary, Cook, Cook, Cook & Cook, Cherokee, for
appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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EISENHAUER, J.
In February 2008, the dissolution decree entered for Beth and Matthew
Eiden provided they would have joint legal custody of their three young children
and Beth would provide physical care. Matthew appeals the decree’s custody
provision seeking physical care of the children. We affirm.
Beth and Matt were married in August 1997. Matt has a college degree
and is director of Christian education at a local church. Beth has some college
credits and has worked as a hospital CNA. In April 2007, Beth petitioned for
dissolution of the marriage. When the parties separated, Beth and the children
remained in the Iowa house and Matt moved to Omaha. Eventually, Beth and
the children moved to Kansas to be closer to her family and Matt returned to the
Iowa house. Beth now works part-time as a CNA at a Kansas hospital while
taking classes for a nursing degree. Beth utilizes a family member for child care
and expects to be employed as a nurse in three years.
At the dissolution hearing both parties sought physical care of the children.
In granting physical care to Beth, the court ruled:
Both parties have issues that bear on their respective capabilities to
be the primary caretaker of the three children. The phrase “what
you see is what you get” does not apply here. Each party has a
“dark side” that this court must consider in deciding who should
have the primary care of the three minor children. . . . A complete
recitation of the facts will serve no purpose, other than to cause a
possible publication of the demeaning acts by both parties. . . . The
inappropriate conduct of the parties causes some concern for the
court, . . . [however], the inappropriate activities, of both parties, do
not involve the minor children of the parties. Their actions do not
appear to affect the minor children.
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Matt appeals the court’s custody decision arguing he should be awarded
physical care because he was the primary caretaker prior to the separation. In
this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the
entire record and decide anew the legal and factual issues properly presented
and preserved for our review. In re Marriage of Reinehart, 704 N.W.2d 677, 680
(Iowa 2005). Because the trial court has a firsthand opportunity to hear the
evidence and view the witnesses, we give weight to its fact-findings, especially
when considering the credibility of witnesses, but are not bound by them. Iowa
R. App. P. 6.14(6)(g); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
The sole issue is whether Beth or Matt should be awarded physical care.
“Physical care issues are not to be resolved based upon perceived fairness to
the spouses, but primarily upon what is best for the child.” In re Marriage of
Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Therefore, in determining physical
care, our overriding consideration is the children’s best interests. Iowa R. App.
P. 6.14(6)(o). In assessing which physical care arrangement is in the children’s
best interests, we utilize the factors in Iowa Code section 598.41(3) (2007), as
well as the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67
(Iowa 1974). The ultimate goal is to place the children in the environment most
likely to bring them to healthy physical, mental, and social maturity.
Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
In re
We do give
consideration to placing the children with the historical primary caregiver. In re
Marriage of Decker, 666 N.W.2d 175, 178-80 (Iowa Ct. App. 2003). However,
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“no one criterion is determinative” and our courts apply a multi-factored test.
Hansen, 733 N.W.2d at 697.
While Matthew was a caregiver before the separation, the “fact a parent
was the primary caretaker prior to separation does not assure he or she will be
the custodial parent.” Decker, 666 N.W.2d at 178. We note some of Matthew’s
caretaking was necessitated by Beth’s efforts to keep working while also
recovering from two, one-time events: a surgery and an automobile accident.
Further, by agreeing Matt could have the children for the 2007 summer, Beth has
shown the ability to see that the children keep in contact with Matt. Unlike Matt,
Beth also has had the insight to shelter the children from the conflict between
their parents.
We agree with the district court’s stated concerns about both
parties’ inappropriate behavior and, like the district court, decline to specify
incidents. The district court concluded: “it would appear that [Matt’s] conduct is
more detrimental to the children than [Beth’s] conduct.” After our de novo review,
we accept the district court’s determination, after its opportunity to observe the
parties’ demeanor, that Beth should be awarded physical care.
Noting she was obligated to defend the district court decision on appeal,
Beth seeks an award of appellate attorney fees. Appellate attorney fees are
discretionary. In re Marriage of Krone, 530 N.W.2d 468, 472 (Iowa Ct. App.
1995).
We conclude equity requires Matt to pay $2000 of Beth’s appellate
attorney fees. Costs are taxed to Matt.
AFFIRMED.
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