Brueland v. Baldus, No. 8-947/08-0946 (Iowa App. 2/4/2009)
| Decision Date | 04 February 2009 |
| Docket Number | No. 8-947/08-0946.,8-947/08-0946. |
| Court | Iowa Court of Appeals |
| Parties | RITA BRUELAND, f/k/a RITA TEASDALE, Petitioner-Appellee, v. MIKE BALDUS, Respondent-Appellant. |
Appeal from the Iowa District Court for Boone County, William J. Pattinson, Judge.
Michael Baldus appeals the district court ruling granting Rita Brueland's application to change the physical care of the parties' child from him to Rita. AFFIRMED.
Dorothy L. Dakin of Kruse & Dakin, L.L.P., Boone, for appellant.
Andrew B. Howie of Hudson, Mallaney & Shindler, P.C., West Des Moines, for appellee.
Heard by Mahan, P.J., and Miller and Doyle, JJ.
Michael Baldus appeals the district court ruling granting Rita Brueland's application to change the physical care of the parties' child from him to Rita. Michael and Rita both request an award of appellate attorney fees. We affirm.
Rita and Michael are the parents of one child, April, born in April 1994. The parties were never married to each other. Rita originally commenced this litigation in July 1994 in order to legally establish Michael as April's father and obtain a custody and support order. Michael agreed in his responsive pleading that he was the child's biological father, and filed a competing request for April's physical care. On February 15, 1995, the trial court entered its order granting the parties joint legal custody of April and placing her physical care with Michael. Rita was given visitation rights and ordered to pay $206 in monthly child support to Michael.
In April 1998 Rita filed an application asking that April's physical care be transferred to her. However, she later amended this application in April 2000 seeking only expanded visitation rights instead of a change in physical care. A stipulated order was entered thereafter increasing Rita's visitation. This arrangement remained until Michael, a member of the Iowa Army National Guard, volunteered for active duty in Iraq in early 2006. To facilitate his deployment, the parties agreed to, and the court entered, an order temporarily transferring April's physical care to Rita, suspending Rita's child support obligation, and ordering Michael to pay $617 per month in support while physical care was transferred. The temporary order commenced on March 20, 2006. Upon Michael's return from active duty April was to return to his physical care and Rita's support and visitation rights were to return to what they were prior to the temporary order. The temporary order was terminated on August 13, 2007, after Michael's return from Iraq, and physical care of April was to be transferred back to Michael on September 1, 2007.
Before April was returned to Michael's care, Rita filed an application asking that April's physical care be transferred to her. She alleged there had been a material and substantial change in circumstances since the entry of March 2006 temporary order, namely that April was now established in Rita's home and school district (Ogden) and April desired to now permanently reside with Rita and attend the Ogden school district. Rita also claimed she was better able to provide a structured environment leading to April's full development and maturation, and thus changing physical care from Michael to Rita would be in April's best interests.
Trial on Rita's application was held in February 2008. At the time of trial Rita was forty-four years of age, Michael was forty-two years of age, and each was in good health. April was two months shy of her fourteenth birthday.
Rita had married Brent in January 1999. From a previous relationship Rita has another child, Tina, who was an adult at the time of trial. Rita's husband, Brent, had two children from a previous marriage, Lane, who was nineteen and attending college, and Wesley, who was fifteen. Wesley lived with Rita and Brent and was a freshman in the Ogden school district. Rita has been employed at Iowa State University in a secretarial capacity for thirteen years. In 2005 she obtained an AS degree in Business Administration. The district court found Rita's child support guideline worksheet indicated that Rita would earn $34,293 for tax year 2008.
At the time of trial Michael was married to Beth and they had one child together, Devon, who was eight years of age. Michael also has a child from a previous relationship, Adam, who was an adult at the time of trial. Michael has been employed as a technician with the Iowa National Guard since 1989. The court stated that Michael's child support guideline worksheet indicated his gross annual income was $61,751.
In 2005, at around age eleven, April began to complain of stomach aches. Michael took April to their family physician who referred them to Blank Children's Hospital. During April's examination at Blank, Michael was asked to leave the room when Rita told the doctor she believed April's pain seemed to increase with stress. While Michael was out of the room April apparently told the doctor she felt the source of her pain was due to conflict with her stepmother, Beth. Michael does not deny there was stress in his home during 2005 due to issues with Beth's job and the fact Michael's younger sister, whom it is undisputed April greatly admired, was diagnosed and later died from cancer around that time period. Michael testified he and Beth were experiencing some marriage problems during that time, but went to see a marriage counselor and things had improved. The doctor at Blank suggested April might benefit from counseling.
Rita began April in therapy with Dr. Jennifer Ryan in October 2005. Michael was not originally informed of the counseling appointment because April was afraid of how he would react. Dr. Ryan recommended Michael be made aware of the counseling and thereafter he did participate in at least one of April's sessions with Dr. Ryan. During a November 2005 session with Dr. Ryan, Rita informed Dr. Ryan that April had told Rita that Beth had slapped April. There was conflicting testimony regarding this incident. April testified Beth slapped her once. Beth's mother testified that April was out of control and hysterical because she did not get to do what she wanted and in order to calm her down Beth put her hand on April's chin to make her look at her but never slapped her.
April stopped counseling in January 2006, but resumed again in October 2007, with Peggy Clark, a family and marriage therapist, when her stress level rose once again in response to the current physical care dispute. It was Michael's idea for her to see Clark. Rita, Michael, and April attended one session with Clark. Rita and Brent took April to see a different counselor, psychologist Dr. Kenneth Dodge, in November 2007 in order to help April stay focused and get through the pending physical care proceeding. Michael initially was not made aware of these sessions with Dr. Dodge, however Dr. Dodge told Rita he would not see April unless her father was made aware of Dr. Dodge's involvement. After Dr. Dodge's first session with April, Dr. Dodge contacted Michael about the counseling and Michael has been involved in the sessions since then. Michael agreed to stop counseling with Clark in favor of Dr. Dodge as things were going well with Dr. Dodge.
April began to express a strong desire to live with her mother during her sessions with Dr. Ryan in 2005. As set forth above, by agreement of the parties her desire became a reality by happenstance due to Michael's deployment to Iraq in early 2006. During the seventeen months April was with Rita their mother-daughter bond became much stronger. April became involved in a myriad of activities associated with her church, community and school. She attended school in the Ogden school district while with Rita, rather than attending in the Boone school district as she had while living with Michael. Rita encouraged and supported April's involvement in sports, church, music, dance, 4-H, and various civic projects. Rita also made certain that April had regular contact with Devon and Beth, and had electronic contact with Michael.
When Michael returned from active duty, April initially expressed a desire to return to his physical care. However, she made it adamantly clear she did not want to return to the Boone school district. Shortly thereafter, April began verbalizing a strong desire to remain not only in the Ogden school district but also in Rita's physical care. Michael did not agree to April changing homes or schools and compelled April to return to his care and the Boone schools upon his return. This prompted Rita to file the present application for change in April's physical care from Michael to her.
Following the trial, the district court entered a written ruling granting Rita's application and transferring physical care of April to Rita.
Michael appeals, contending the court erred in (1) transferring physical care after Michael returned from active duty given the recent enactment of Iowa Code section 598.41C (see 2008 Iowa Acts ch. 1060, §1), (2) finding a substantial change in circumstances and finding that Rita had proved she was the superior caregiver, (3) giving April's preference too much weight, and (4) failing to consider the strong presumption that siblings should not be separated. Michael and Rita each seek an award of appellate attorney fees.
Our review in this equity matter is de novo. Iowa R. App. P. 6.4; see also Callender v. Skiles, 623 N.W.2d 852, 854 (Iowa 2001) (). The parties also both agree our review is de novo. Thus, we examine the entire record and decide anew the legal and factual issues properly presented. In re Marriage of Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We accordingly need not separately consider assignments of error in the...
To continue reading
Request your trial