Opinion
No. 1-797 / 01-100.
Filed March 13, 2002.
Appeal from the Iowa District Court for Polk County, GEORGE W. BERGESON, Judge.
The petitioner appeals from a district court order establishing custody, visitation, and child support for the parties' minor children. AFFIRMED.
Lori M. Holm, Des Moines, for appellant.
Ryan A. Genest of Borseth, Genest Seibrecht, Altoona, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
A father appeals a decree establishing custody, visitation, and support. He contends the district court acted inequitably in: (1) awarding the mother sole custody of the parties' two minor children; (2) awarding the mother physical care of the children; (3) considering his unexplained income in determining the amount of his support obligation; and (4) ordering him to pay a portion of the mother's trial attorney fees. We affirm.
I. Background Facts and Proceedings
William Young and Dawn Bish have two children, Billy and Cory. Their six-year relationship was marred by drug use, excessive gambling, domestic abuse and general volatile behavior. Bish was ultimately diagnosed with schizophrenia and a thyroid disorder, and was placed on medications to control these conditions. Young was convicted of a drug charge following the discovery of items used to manufacture methamphetamine in his home
When the relationship ended, Young petitioned for custody, visitation and support. The court entered a temporary order placing the children with Bish but giving Young visitation. Following each of three visits with his children, Young reported to authorities that one or both had been abused. The Department of Human Services was called in to investigate. The department issued one founded child abuse report, with the perpetrator unknown, but later expressed concern that Young was using the department to gain an advantage in the custody proceeding. A child in need of assistance action begun in response to the charges of abuse was eventually dismissed.
The custody case proceeded to trial. Following trial, the district court determined Bish had been physically abused and Young posed a credible threat to her safety. The court awarded Bish sole legal custody and physical care of the boys, subject to reasonable visitation by Young. After imputing income to Young, the court determined he should pay Bish $950 per month in child support. The court also ordered Young to pay $3,000 of Bish's attorney fees. This appeal followed. Our review is de novo. Iowa R. App. P. 6.4.
II. Sole Custody
Young maintains the district court acted inequitably in awarding Bish sole custody because (A) her original answer sought only joint custody and the court did not rule on her request for an amendment; and (B) there is no history of domestic abuse justifying such an award. We are not persuaded by either argument.
A. Pleading . The district court did not rule on Bish's request to file an amended answer seeking sole custody. However, there is no question the issue of sole custody was before the court and was tried and considered without objection from Young. See In re Marriage of Antisdel, 478 N.W.2d 864, 868 (Iowa Ct.App. 1991). Therefore, we reject this challenge to the sole custody award.
B. History of Domestic Abuse . Our domestic relations statute provides for a rebuttable presumption against an award of joint custody where there is a court finding of a history of domestic abuse. Iowa Code § 598.41(1)(b). The law further provides that such a finding, if unrebutted, will outweigh any other factor bearing on the custody award. Iowa Code § 598.41(1)(c). The district court found that "there does exist a history of domestic abuse." Based on our de novo review of the record, we agree.
Although this action was filed pursuant to Iowa Code chapter 600B governing paternity and support, that chapter expressly incorporates the custody factors set forth in Iowa Code section 598.41. See Iowa Code § 600B.40.
Bish testified there were times during the relationship when Young hit, kicked and slapped her. Medical records corroroborated this testimony. One progress note states Bish appeared at Broadlawns Hospital with multiple bruises on her arms and face and stated her head had been bashed in. In addition, the court entered a protective order in favor of Bish after Young told a department social worker that he intended to beat Bish and her boyfriend to death. The order was later extended.
We believe this evidence is sufficient to trigger the presumption against joint custody, particularly in light of the district court's determination that Bish was "the more credible party." Young did not rebut most of this evidence. Cf. In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997) (finding presumption rebutted by evidence that both parties inflicted abuse on each other). Although he did deny threatening to kill Dawn and her boyfriend, the district court determined the department worker's contrary statement was more credible. We defer to this credibility finding. Iowa R. App. P. 6.14(6)(g) We conclude the district court acted equitably in awarding Bish sole custody of the children.
III. Physical Care
Young also challenges the court's decision to award Bish physical care of the children. He maintains Bish: (1) has a transient lifestyle; (2) lives with an unsavory man; (3) has mental health and substance abuse problems; and (4) lacked credibility at trial. He also contends he rebutted the evidence of a history of domestic abuse.
First, Bish's transient lifestyle is directly attributable to Young. Bish testified she originally lived with her mother after the parties separated but moved because she was afraid of Young. She stated Young threatened to burn her mother's house down.
Second, with respect to the character of Bish's boyfriend, Young points to a department case note stating her boyfriend admitted to spanking Cory once on his bottom and refused to answer additional questions from the social worker. Bish, however, willingly answered questions about her boyfriend, stating at trial that, to the best of her knowledge, he did not have a domestic abuse history, did not have an arrest record and, unlike Young, had not been convicted on drug charges.
Third, with respect to Bish's mental health problems, the record reflects Bish had obtained treatment for her schizophrenia. Specifically, a nurse came to her home monthly to administer an injection of an antipsychotic drug and she also took another drug for this illness. Additionally, although there was evidence Bish had used illegal drugs in the past, she testified she did not currently drink alcohol or use marijuana.
Fourth, the district court expressly resolved the credibility issue in favor of Bish, despite certain discrepancies in her testimony. As the court had the benefit of seeing and assessing the witnesses, we defer to its determination. In re Marriage of Short, 373 N.W.2d 158, 160 (Iowa Ct.App. 1985).
Finally, we have already resolved the domestic abuse question against Young.
In sum, the record supports the following assessment by the district Court:
[I]t is clear that Dawn should remain the primary caretaker of these children. Since these parties separated for a final time in the summer of 1999, Dawn had made significant strides in stabilizing her life and providing a stable, wholesome environment for her children to live. Her mental health condition has improved; she has obtained employment and her own residence. Disinterested individuals who have had contact with Dawn and who have been asked to comment on the quality of care she is provided [sic] to her children have indicated that Dawn provides good care for her children. The record established at trial indicates that Dawn has ensured that the children have regular and continuing contact with their father, despite the fact he has engaged in less than honorable conduct. There appears absolutely no reason to disturb the present placement of these children.
Based on our de novo review, we affirm the district court's decision to grant Dawn physical care of the children.
IV. Child Support
William contends the district court acted inequitably in basing the child support determination on imputed income of $45,000. He maintains: (1) the court failed to explain why it was deviating from the guidelines, as required by Iowa Code section 598.21(4)(a); (2) the evidence of his unexplained income was speculative; and (3) the effect was to make him financially dependent on gambling to support his children.
With respect to Young's first argument, the district court expressly found that William's ability to earn income was substantially greater than what he reported on his taxes and in his financial affidavit. The court stated:
Petitioner does have an earning capacity of $45,000 a year and that it is necessary to base the Petitioner's child support award on his earning capacity, rather than his actual earnings as a substantial injustice would result if his actual earnings were used instead.
Therefore, the court complied with the statutory requirements for a deviation from the guidelines.
Second, we are not persuaded that the evidence of Young's non-wage income is speculative. Bish's testimony of Young's enhanced earning capacity was supported by evidence of actual transactions at Prairie Meadows Racetrack and Casino. In 1997, he spent a total of $56,175.90 at the facility and reported winnings of $14,436 to the Internal Revenue Service. In 1998, he spent a total of $47,497.25 and reported winnings of $17,524 to the IRS. This gambling was in addition to betting at other facilities in the area. Given this evidence, we agree with the district court that Young "gambled substantial sums of money well above and beyond the amounts he claims he has earned on his income tax returns or in his financial affidavit."
Young claimed he worked as a tree cutter, earning $1,250 per month.
Finally, we reject Young's argument that the district court's ruling will force him to continue gambling. The court's decision merely recognizes that Young was less than forthright about his sources of income and that his income, from whatever the source, was substantially higher than he disclosed at trial. See In re Marriage of Will, 602 N.W.2d 202, 205 (Iowa Ct.App. 1999) (substantial sources of deferred income justified upward deviation from support guidelines). Cf. In re Dowie's Marriage, 215 N.W.2d 276, 277-8 (Iowa 1974) (record supported trial court's determination that husband had more income than he disclosed). We conclude the child support award was equitable.
V. Attorney Fees
Young contends the district court abused its discretion in ordering him to pay $3,000 of Bish's trial attorney fees. Iowa courts have the discretion to award attorney fees. See Iowa Code § 600B.25 (attorney fees permissible in paternity proceeding); In re Marriage of Gonzalez, 561 N.W.2d 94 (Iowa Ct.App. 1997). The district court concluded Young had more income than he disclosed. This fact alone supports the fee award. We decline to find an abuse of discretion. For the same reason, we decline to award him appellate attorney fees. We also deny Bish's request for appellate attorney fees. Costs are taxed to Young.
AFFIRMED.