IN RE THE MARRIAGE OF EVA MARIE RUDINGER AND MANFRED RUDINGER Upon the Petition of EVA MARIE RUDINGER, Petitioner-Appellant, And Concerning MANFRED RUDINGER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-505 / 09-0281
Filed October 7, 2009
IN RE THE MARRIAGE OF EVA MARIE RUDINGER AND MANFRED
RUDINGER
Upon the Petition of
EVA MARIE RUDINGER,
Petitioner-Appellant,
And Concerning
MANFRED RUDINGER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell,
Judge.
Eva Rudinger appeals from the decree dissolving her marriage to Manfred
Rudinger. AFFIRMED.
Bradford Kollars and Michelle M. Lewon of Kollars & Lewon, P.L.C., Sioux
City, for appellant.
Eva Rudinger, Sioux City, pro se.
Dennis R. Ringgenberg and Marci L. Iseminger of Crary, Huff, Inkster,
Sheehan, Ringgenberg, Hartnett & Storm, P.C., Sioux City, for appellee.
Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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SACKETT, C.J.
Eva Rudinger appeals from the decree dissolving her marriage to Manfred
Rudinger. She contends that (1) she, not Manfred, should have been awarded
primary physical care of the parties’ son born in December of 2001; (2) she
should not have been required to pay all the costs of transportation associated
with her visits with her son; (3) the district court did not correctly allocate her
son’s tax exemption for state and federal income tax purposes; (4) she should
not have been required to post a $2500 bond to ensure her compliance with the
decree; and (5) that she should have been awarded attorney fees for her trial
counsel. She also contends she should have appellate attorney fees. We affirm.
SCOPE OF REVIEW.
The case was tried in equity.
Our review is
therefore de novo. Iowa R. App. P. 6.907 (2009). We examine the entire record
and adjudicate anew rights on the issues properly presented. In re Marriage of
White, 537 N.W.2d 744, 746 (Iowa 1995). We give weight to the fact findings of
the trial court, especially when considering the credibility of witnesses, but are
not bound by them. Iowa R. App. P. 6.904(3)(g); In re Marriage of Beecher, 582
N.W.2d 510, 513 (Iowa 1998); In re Marriage of Gaer, 476 N.W.2d 324, 326
(Iowa 1991).
BACKGROUND AND PROCEEDINGS. The parties were married in May
of 1990. They have one child, a son born in December of 2001. At the time of
trial the child had just begun first grade at a Sioux City, Iowa, school. Eva, born
in the United States in 1962, received a degree from Morningside College in
1984. Following graduation she worked for Mid-Step Services in Sioux City for
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six months, then with Siouxland Mental Health, where she voluntarily terminated
her employment in 1993. Since that time she has worked for Gateway, Grand
Jewelers, Bomgaars, and Edge Teleservices, which job she left in August of
2008. She was unemployed at the time of trial. She has family in the Sioux City
area.
Manfred was born in West Germany in 1959.
He holds a bachelor’s
degree in mechanical engineering from Rothenburg, Germany. He subsequently
obtained a master’s degree in engineering in Germany. He came to the United
States when his then employer, Schaeff, transferred him to their U.S. subsidiary
plant located between Lawton and Sioux City, Iowa.
At the time of trial he
worked at FIMCO in North Sioux City, South Dakota. Manfred testified that he
intended to return Dombuehl, Germany, where he has an aging mother and
several brothers.
Both parents have always been involved in the child’s life. Neither parent
had outside employment following the child’s birth, and both were involved with
his early care. Manfred returned to the workforce when the child was about two
months old. Eva was not employed outside the home until February 2008. The
relationship between Manfred and his son strengthened in the year prior to trial.
The district court, after hearing the evidence, found that each party was
interested in providing the best for the child. The court determined the focal
issue was which parent can best provide for him in the ten years when he is
between eight and eighteen years of age. The court further found the child to be
in good mental and physical health and to have a meaningful relationship with
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both parents, but found the child had minor disciplinary struggles with his mother.
The court noted both parties were about the same age and both demonstrated
strength of character and were physically healthy. The court found both parties
were interested in providing the best for the child and that each had the capacity
and ability to provide a stable and wholesome environment for the child, though
the nature of their proposed environments would be different. The court then
considered each parent’s attitude towards child-raising and also considered what
it termed the cultural problems, the distance problems, and the jurisdictional
problem.
The court found the cultural problems would be addressed with
Manfred’s proposed transition period.
Finally, the court determined that the
parties should have joint custody of their son and his physical care was placed
with Manfred.
The court noted that the distance between the United States and Germany
would only allow for visits in the summer and during the Christmas holiday. The
court then fixed Eva’s visitation to begin ten days after school has concluded in
the spring to run until ten days prior to the beginning of the next school year. In
addition she received eight days visitation during the Christmas-New Year
holiday break, which may include December 24 each year. The court ordered
each party to acquire a computer with internet access and equipped to provide
for video and audio transmissions so that Eva could have face-to-face contact
with the child while he was in Germany and Manfred with the child while he was
in the United States. The court determined the contact could occur as long as
the contact did not interfere with school or bed times. The court provided that in
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the event Eva travels to Dombuehl, Germany, she should have reasonable
visitation including overnight visits so as not to interfere with the child’s schooling.
Each party was directed to deposit $2500 with the Woodbury County clerk of
court and, in the event either failed to comply with the order, that after a hearing
the court could order the deposits be contributed toward attorney fees or travel
expenses.1
PHYSICAL CARE. Eva contends she was historically the child’s primary
caregiver and to allow the child to remain with her will support stability and
continuity of care. She correctly argues that our courts have held successful
care giving by one parent in the past is a strong predictor that the future care by
that parent will be of the same quality.
See In re Marriage of Hansen, 733
N.W.2d 683, 696 (Iowa 2007). However, the fact that a parent was the primary
caretaker of a child previously does not assure that he or she will be awarded
primary physical care. In re Marriage of Kunkel, 546 N.W.2d 634, 635 (Iowa Ct.
App. 1996) (recognizing the mother was the primary care giver of the children in
the marriage, but also recognizing the father, though employed outside the
home, had substantial influence in their upbringing and awarding him care). The
fact a parent was the primary caretaker prior to separation does not assure he or
she will be the custodial parent. Id.; see also In re Marriage of Toedter, 473
N.W.2d 233, 234 (Iowa Ct. App. 1991) (affirming physical care with father despite
mother’s role as primary caretaker); Neubauer v. Newcomb, 423 N.W.2d 26, 2728 (Iowa Ct. App. 1988) (awarding custody of a child who had been in the
1
The court ordered if the money was not used it could be ordered to be used as a postsecondary education subsidy or returned to the party who posted it.
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mother’s primary care for most of the child’s life to the father). While the primary
caretaker is frequently named the primary custodian, it is the interest of the child
that is the first and governing consideration and we look to all the factors the
court is directed to consider in awarding custody that are enumerated in Iowa
Code section 598.41(3) (2007), in In re Marriage of Weidner, 338 N.W.2d 351,
355-56 (Iowa 1983), and in In re Marriage of Winter, 223 N.W.2d 165, 166-67
(Iowa 1974).
All factors bear on the “first and governing consideration,” the
court’s determination of what will be in the long-term interests of the child. In re
Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984).
The critical issue in
determining the best interests of the child is which parent will do better in raising
the child. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct. App. 1985).
Gender is irrelevant, and neither parent should have a greater burden than the
other in attempting to gain custody in a dissolution proceeding. In re Marriage of
Riddle, 500 N.W.2d 718, 719 (Iowa Ct. App. 1993). With all these factors in mind
we address Eva’s contentions.
Eva believes she is the better parent. The district court did not agree and,
giving the required deference to the district court’s factual findings, neither do we.
Eva also has concerns about the child’s adjustment in Germany, where she
contends the culture and language may curtail his learning. She also contends
that the education he receives in Germany may not allow him to return to the
United States in a job he would have been able to take if he were educated in the
United States.
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We recognize that the child will have initial difficulties in Germany,
primarily with the language. We recognize there are differences between United
States and German schools, yet there is no evidence comparing the schools and
we do not attempt to do so. However, we find no reason to find German schools
inferior, nor do we believe an education in Germany will preclude the child from
finding employment in the United States in accord with his work ethic and ability if
he desires, as an adult, to work here
Eva contends also that the law does not support moving her son to
Germany, that Manfred has failed to show he can care for his son there, that he
has no plan, and that it is not in the child’s best interest. The district court found
that the United States and Germany are parties to the Hague Convention on the
Civil Aspects of International Child Abduction, an international treaty the purpose
of which is to discourage international parental child abduction and to ensure
children who are abducted or wrongfully retained in a party’s country are returned
to their country of habitual residence. Eva does not challenge this finding. She
argues instead that there is no guarantee Germany would enforce this decree.
The district court did not have serious concerns that Manfred would not return the
child for visitation when ordered to do so. There is nothing in the record to cause
us to decide otherwise. In fact, Germany may be quicker on returning a child
following a hearing than the United States.2
2
Some countries, though not always the United States, provide for the execution of an
order for the return of a child during the pendency of a Hague Convention appeal. See
Report of the Second Special Commission Meeting to Review the Operation of the
Hague Convention on the Civil Aspects of International Child Abduction, Held 18-21
January 1993, 33 I.L.M. 225, 232 (1994) (noting that an order may be enforced pending
8
Our hope for justice for our citizens in foreign courts can best be
forwarded by our efforts to offer fair and equitable treatment to foreign nationals
in our jurisdiction. We cannot assume Manfred will not honor our decree. In re
Marriage of Hatzievgenakis, 434 N.W.2d 914 (Iowa Ct. App. 1988). The focal
question is not where the child lives, it is which parent is the stronger parent and
which parent will better serve him as custodial parent in the next decade. We
affirm the custody award.
TRAVEL
EXPENSES.
Eva
contends
Manfred
should
pay
all
transportation costs. The district court did not order Eva to pay any child support
but held her responsible for the travel expenses for the child to go between
Germany and the United States twice a year. We find no reason to reverse on
this issue.
TAX EXEMPTIONS. The district court allowed the parties to claim the
child as a dependent on their federal and state income tax return in alternate
years. Eva claims she should be able to claim him every year contending there
is no benefit for Manfred to claim him in Germany. With no obligation to pay child
support and the child residing with her only three months a year, we find no
reason to reverse on this issue.
BOND. Eva contends that the court should not have required her to post
a $2500 bond. We do not find the district court abused its discretion on this
issue. See id. at 918 (reducing a bond for a noncustodial parent’s agreement to
return a child from Greece following visitation from $20,000 to $10,000).
an appeal in Austria, France, Germany, Luxembourg, and the Netherlands). Walsh v.
Walsh, 221 F.3d 204, 213 (1st Cir. 2000).
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ATTORNEY FEES. Eva contends the district court erred in not awarding
her trial attorney fees and she should have attorney fees on appeal. We review
the claim for trial attorney fees for an abuse of discretion. See In re Marriage of
Russell, 473 N.W.2d 244, 247-48 (Iowa Ct. App. 1991). We award no attorney
fees to either party on appeal and find the district court did not abuse its
discretion in not awarding trial attorney fees.
AFFIRMED.
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