Opinion
No. 3-345 / 02-2088
Filed July 10, 2003
Appeal from the Iowa District Court for Black Hawk County, Bruce Zager, Judge.
Beth Morrissey appeals from the physical care provisions of the decree dissolving the parties' marriage. Sean Morrissey cross-appeals from the property distribution provisions of the decree. AFFIRMED.
John Rausch of Rausch Law Firm, Waterloo, for appellant.
Brian Sayer of Dunakey Klatt, P.C., Waterloo, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Beth Morrissey appeals from the decree dissolving her marriage to Sean Morrissey. She contends she should have been awarded physical care of the parties' only child. Sean cross-appeals finding fault with the court's property division. Both parties request appellate attorney fees. We affirm the district court.
I. Background Facts and Proceedings.
Beth and Sean were married in 1994. Their son, Carrsan, was born in 1995. Sean has a child, Alex, from a prior relationship. Sean maintains a relationship with Alex, who resides in Wisconsin. The parties separated in February 2002.
Both parties completed high school and attended some college. During the marriage, Sean operated a karaoke business which required him to work evenings. Shortly before trial, Sean obtained his real estate license and listed his first home. At the time of trial, Sean was thirty-four years old and earning approximately $34,000 per year.
During most of the marriage, Beth stayed home and cared for Carrsan. Beth performed some part-time work during the marriage. At the time of trial, she was thirty-six years old and working part-time for her brother at an hourly rate of $7.50.
The parties incurred substantial debt during the marriage. In 1996, several of Sean's employees left his karaoke business to open a competing enterprise. As a result, Sean's business suffered a downturn leaving him unable to meet his financial obligations. Sean became substantially delinquent in his child support payments for Alex. The parties also failed to make proper payment of their state and federal taxes and owe $17,000 in back taxes. Sean's parents advanced funds to Sean during the marriage.
In February 2002, Beth filed a petition for dissolution. The district court placed Carrsan in Beth's temporary care and ordered Sean to pay temporary child support. At the time of trial, Beth was residing with her brother in Cedar Falls and Sean was residing in the parties' marital home.
Following trial, the district court entered a decree granting Sean physical care of Carrsan. The court awarded Beth liberal visitation and ordered her to pay child support. The court awarded Beth a 1992 Lumina van and Sean a 1989 Ford Probe. The court ordered the marital residence sold with the sale proceeds applied to the debts of the parties, excluding Sean's child support arrearage for his son Alex and any loans Sean claimed he owed his parents. Any debts remaining, with the exception of Sean's child support and loans, were to be equally divided between the parties. Both parties appeal.
II. Scope of Review.
In this equity case our review is de novo. Iowa R.App.P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). 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. 6.14(6)( g). This is because the trial court has a first-hand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
III. Physical Care.
Beth contends the court improperly awarded Sean physical care of Carrsan. Because she has been Carrsan's primary caregiver, Beth claims she can minister more effectively to Carrsan's long-term interests.
In any custody determination, the primary consideration is the best interests of the child. Iowa R.App.P. 6.14(6)( o); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). The court's objective is to place the child in the environment most likely to bring him to healthy physical, mental, and social maturity. Murphy, 592 N.W.2d at 683. In considering what custody arrangement is in the best interests of the child, the court is required to consider the factors set forth in Iowa Code section 598.41(3) (2001). In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). These statutory factors and the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), are appropriately considered in determining the award of physical care. Will, 489 N.W.2d at 398.
In reaching its decision regarding physical care, the trial court considered a number of factors including the nature of the parties' living arrangements, the characteristics of each parent, and the capacity of each parent to support Carrsan's relationship with the other parent. In its decree, the court expressed some concern about Beth's current living arrangements. The court also expressed concern that the record revealed little information regarding several people close to Beth who will be involved in Carrsan's life, including Beth's current boyfriend. The court also mentioned "Beth has created an environment which is permeated by visions, spirits, psychics, intuitives, and holistic medicine."
In contrast, the court approved of Sean's proposed environment for Carrsan. In support of its decision, the court found that "everyone which Sean involves in Carrsan's life is a positive role model for Carrsan. This includes the close extended family which is extremely supportive of Sean and Carrsan." Sean's decision to change careers in order to be available to Carrsan also favorably impressed the trial court.
The record reveals that either party would be a suitable caretaker for Carrsan. By all reports, Carrsan is a normal and healthy boy. He does well in school and is very bright and outgoing. Carrsan is obviously very close to his mother and father. Both Beth and Sean are good parents. In close cases, we give weight to the trial court's findings. In re Marriage of Burkle, 525 N.W.2d 439, 441 (Iowa Ct.App. 1994). Where neither parent has markedly superior parenting qualities and both parents are capable of providing adequate care and equal affection, the trial court's ruling on physical care should be upheld. See In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993); In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct.App. 1991). The trial court had the parties before it, was able to observe their demeanor, and was in a good position to evaluate them as custodians. Upon our de novo review of the record, we find no reason to disagree with the court's decision. Carrsan's physical care with Sean coupled with liberal visitation for Beth will not only serve Carrsan's best interests and maximize his relationships with both parents, but will also provide him with an environment most likely to bring him to healthy physical, mental, and social maturity. We affirm the district court's decision to grant physical care of Carrsan to Sean.
IV. Property Division.
Sean maintains that (1) the debt incurred when he borrowed money from his parents should have been equally divided between the parties and (2) he should have been awarded the 1992 Lumina van.
The parties to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). After assigning valuations, a determination must be made as to the equitable allocation of the assets and debts. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999). Assets and debts should be equitably, but not necessarily equally, divided under the circumstances after considering the criteria delineated in Iowa Code section 598.21(1) (2001). In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct.App. 1997).
The record reveals Sean received money from his parents during the marriage. The family unit clearly benefited from these funds. Sean provided the court with no written documentation as to whether the funds were intended to be loans or gifts. Sean testified that Beth was fully aware of the loans from his parents. Sean's mother also testified that she and her husband had loaned Sean and Beth money over the years and that they expected to be paid back. However, Beth testified that she considered the funds received from Sean's parents to be gifts. Sean's initial financial affidavit failed to include any reference to loans from his parents. If, in fact, the money was loaned rather than gifted, the trial court concluded Beth was not a party to the transactions.
Sean relies on In re Marriage of Vrban, 359 N.W.2d 420, 427 (Iowa 1984), for the proposition that the moneys provided by his parents were loans making them subject to equitable division between the parties. In Vrban, the court concluded the parents performed a significant act when they wrote the word "loan" on each check. Vrban, 359 N.W.2d at 427. In this case, there is nothing in the record to suggest that the moneys were to be repaid other than Sean and his mother's testimony. Assuming, without deciding, that the funds advanced by Sean's parents were loans, we conclude the trial court acted equitably in allocating the responsibility for their repayment to Sean. We also affirm the trial court's decision to award Beth the 1992 Lumina van. We affirm the district court's property division.
V. Appellate Attorney Fees.
Both Beth and Sean seek an award of appellate attorney fees. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. Id. We decline to grant either party any appellate attorney fees.