Opinion
No. 5-415 / 04-1352
Filed July 13, 2005
Appeal from the Iowa District Court for Scott County, David H. Sivright, Jr., Judge.
A father appeals the district court's ruling granting former spouse primary physical care of children over joint physical care. AFFIRMED AS MODIFIED AND REMANDED.
James Hoffman, Davenport, for appellant.
Arthur Buzzell, Davenport, for appellee.
Heard by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
This appeal requires us to decide whether to affirm a ruling granting physical care of two children to a competent mother or modify the ruling to grant a request for joint physical care from an equally competent father. On our de novo review, we choose the latter course.
I. Background Facts and Proceedings
Ted and Kerry Kueter married and had two daughters, born in 1995 and 1999. Kerry sought a divorce and also sought physical care of the children. Ted initially countered with his own physical care request. By the time of trial, he was seeking joint physical care, with primary physical care as an alternative.
The parties lived under the same roof during the divorce proceedings. They alternated "physical care" of the children every other day.
Following trial, the district court rejected Ted's request for joint physical care, stating:
They do not communicate well. While remaining in the same residence during the pendency of this action may be laudable on some grounds, it has nonetheless deprived them of the opportunity to demonstrate an ability to provide the children with a high level of competent caregiving in a shared care arrangement. It has left the record silent concerning the parties' specific plans for any such arrangement, as each hoped to continue in the marital residence with the children. The Court finds a shared physical care arrangement is not in the children's best interests.
On the question of who should have physical care, the court noted that the issue "presents a very close question, as both parents are capable, responsible, loving, and able to meet the basic needs of their daughters." The court stated, however, that Kerry had been the children's primary caretaker and had "demonstrated a greater ability to effectively provide the girls an environment likely to bring them to healthy physical, mental, and social maturity." Based on these reasons, the court granted Kerry physical care of the children but afforded Ted liberal visitation, including two week nights beginning after school and ending at 8:00 p.m.
Ted appealed. On appeal, he requests only that we modify the ruling to provide for joint physical care.
II. Joint Physical Care
Joint physical care is defined as:
[A]n award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, providing routine care for the child and under which neither parent has physical care rights superior to those of the other parent.
Iowa Code § 598.1(4) (2003). Joint physical care is a viable option under our dissolution statute. Iowa Code § 598.41(5) ("Joint physical care may be in the best interest of the child, but joint legal custody does not require joint physical care.").
Effective July 1, 2004, the legislature amended this provision to provide:
If joint legal custody is awarded to both parents, the Court may award joint physical care to both joint custodial parents upon the request of either parent. If the Court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
2004 Iowa Acts ch. 1169, § 1. The district court commendably set forth reasons for denying Ted's joint physical care request, even though its ruling predated the effective date of the amendment. See In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000) (stating law in effect at time of decree should govern).
Under both the current statute and its predecessor, the focus is on the child's best interests. Iowa Code § 598.51(5). Ted contends a joint physical care arrangement is in the children's best interests. He suggests (1) communication under a joint physical care arrangement would be no different than communication under the primary physical care arrangement ordered by the district court, (2) the record is not silent on the specifics of the joint physical care arrangement, (3) he contributed equally to the needs of the children, (4) he demonstrated "character and personal integrity," (5) Kerry placed her interests above those of the children, and (6) Kerry had a controlling personality. We will address each of these factors.
1. Communication.
The parties concede that they lacked an ability to effectively communicate with each other. This failing was a characteristic of the marriage rather than a product of the divorce proceedings. Kerry testified, "[a]s far as our marriage, we just — there was no talking. It was, `well, I'll try,' or `I'll try.' And it just never went anywhere. We have always had poor communication."
While this general absence of communication adversely affected Kerry's perception of the marriage, there is scant evidence that it adversely affected the children. When Kerry was asked whether there were any disputes concerning the children prior to the divorce process, she answered, "No. Our communication was very, very, very, very minimal." The record reflects that the parents did not talk much, but nevertheless managed to create a nurturing and loving environment for the children. They did so by compensating for each other's weaknesses. For example, the parents admitted that Kerry was a "take charge" type of person and Ted did not make decisions "real fast." In light of this personality difference, Kerry made many of the decisions that affected the children, such as who would serve as daycare provider and what they would do in the summer. Ted did not object, but also did not abdicate his parenting functions. He spent the lion's share of his free time with the children and, as will be discussed below, took an active role in parenting them.
After the dissolution petition was filed, the parties demonstrated a high level of communication and cooperation. Ted, who had been working the graveyard shift and substantial overtime before the filing, cut back on his overtime work and made plans to change to a day shift. As noted, he and Kerry continued to live under the same roof and implemented a temporary joint physical care arrangement that required alternating "physical care" every other day. Under this arrangement, the party with "physical care" on any given night was responsible for the children's dinner and homework.
The difficulties that arose with this temporary arrangement were minor. Kerry noted that Ted was inclined to help the children with their homework on days when he did not have "physical care," was unwilling to enforce the children's bedtime, and, on one occasion, failed to notify Kerry of a change in the younger daughter's gymnastics schedule. In our view, none of these difficulties seriously impeded the joint physical care arrangement.
Kerry notes that there were also other communication difficulties. She points out that, shortly after the petition was filed, Ted asked one of their daughterswho she would rather live with, placing the child in the middle of the conflict. While this incident is more troubling, we conclude it was an isolated lapse of judgment. At trial, Ted acknowledged that he was wrong in asking the child to make this choice and stated it did not happen again.
Kerry apparently suggests that, on one other occasion, Ted refused to notify Kerry and her family of their daughter's first communion. We have reviewed the record on this question and conclude there was a mix-up in communication rather than an intentional refusal to convey key information. By all accounts, Ted had a good relationship with Kerry's family. When Kerry filed her dissolution petition, he discussed the matter with Kerry's father and sisters. He also visited them on a regular basis. In addition, Ted did not minimize Kerry's relationship with the children in other contexts. For example, when asked about Kerry's nights out with her friends, he stated, "I don't like to say anything bad to Kerry — to the girls about Kerry, you know." These behaviors are inconsistent with a purposeful design to exclude Kerry or her family from events involving the children.
We conclude Ted was keenly attuned to the children's needs throughout the marriage and, to the extent he did not communicate effectively with Kerry, the children did not suffer. This was not the type of breakdown in communication that would prove inimical to a joint physical care arrangement. Cf. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998) (stating parents "allowed their bitterness toward each other to interfere with the well-being of their children"); In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa Ct.App. 1998) (stating parents "can not cooperate and do not respect the parenting or lifestyles of the other").
2. Specifics of joint physical care arrangement.
Ted contends the district court should not have relied on the absence of a joint physical care plan to deny his request for joint physical care. He notes that his attorney submitted a post-trial letter outlining a proposed every-other-week transfer schedule. He also points out that the parties were able to implement a workable joint physical care arrangement during the divorce proceedings.
We agree with the district court that Ted did not propose a specific plan for the future. Ted testified, however, that the existing alternate-day arrangement was "not that bad" and it was "pretty easy taking care" of the children. He also testified he would be on the day shift, would get off work at 3:00 p.m., had made arrangements for a sitter in the mornings, and would be able to pick the children up after school. Finally, he stated he had "no problem" with any type of arrangement. He stated, I want the girls to see their mom, to be able to call their mom, to be able to call their dad, whenever they feel like, to be able to see them. You know, I mean, that's what they need." This type of outlook and flexibility is precisely what is needed to implement a joint physical care arrangement.
3. Primary Caretaker.
The district court found that Kerry was the primary caretaker of the children. Ted disputes this assertion, contending he made equal contributions to the children's needs.
The record reveals that Kerry was the primary caretaker for the first six weeks following each child's birth. After that, the parents shared child care responsibilities. Ted took the children to day care in the morning. Both parents shared the duty of picking the children up from day care. In the evenings, Kerry prepared indoor meals and Ted prepared outdoor meals. Ted performed yard work and helped watch the children when Kerry cooked. After dinner, Ted washed the dishes while Kerry put them away. In the evening, the children had a bedtime routine that included both parents, albeit Ted to a lesser extent. Both parents cared for the children when they were ill. Both parents took the children to doctor appointments, with Ted handling most of the immunization appointments. As for other household chores, Ted did most of the laundry while Kerry did most of the grocery shopping.
We recognize that Ted worked substantial overtime during the marriage, but he did so with the acquiescence of Kerry. When he was not working, he stayed home with the children or went to his in-laws' farm with Kerry and the children.
We conclude that Kerry may have spent more physical hours with the children, but both parents were actively involved in their upbringing. Therefore, this factor does not weigh heavily in favor of Kerry.
4. Ted's character and integrity.
Ted points to his character and integrity as grounds to award the parties joint physical care. Neither Kerry nor the district court disputed the strength of Ted's character. With the exception of a gambling stint that Ted recognized as a problem and ended on his own, Ted displayed few negative behaviors or characteristics that would adversely affect the children. Both he and Kerry testified to his strong work ethic, extreme patience, and easygoing temperament. At the beginning of the divorce proceedings, Kerry told Ted, "you are a good person, and I want you to remember that." She characterized Ted as the "best father in the world" and stated, "[t]he girls think the world of you and deserve to see you, just as much; the only difference is that we won't be in the same house." This factor militates in favor of a joint physical care arrangement.
5. Kerry's Needs.
In 2002, Kerry began socializing with her co-workers on Friday evenings and occasionally on Tuesday evenings. There were times when she did not come home until early in the morning. Ted points to these activities as evidence that Kerry placed her needs above those of her children. The district court rejected this contention finding her nights out were not harmful to the children, but provided her with a "greater self-awareness and understanding." The record supports the court's finding.
6. Controlling Personality.
Ted also contends Kerry has a controlling personality. At trial, Ted did not see this as a negative trait, noting that she took charge of things and was "good at it." As noted, the parties compensated for each other's weakness, with Kerry assuming more control because Ted did not. This factor does not assist us in our review of the joint physical care question.
In the end, we are persuaded that these parents could and did make a joint physical care arrangement work. Neither lost sight of the children's best interests, even during the throes of the divorce proceedings. Both took their parenting roles seriously and showed themselves to be effective care givers. Joint physical care would allow the children maximum contact with these loving parents.
III. Disposition
We modify the dissolution decree to provide for joint physical care on an alternating two-week basis. The district court may set an alternate time frame for exchange of the children if the parties agree to a different joint physical care schedule that satisfies the court. We remand for a recalculation of child support.