In re McManus, 13–1878.
| Decision Date | 15 October 2014 |
| Docket Number | No. 13–1878.,13–1878. |
| Citation | 858 N.W.2d 36 (Table) |
| Parties | In re The MARRIAGE OF Jaime McMANUS and Thomas Ronald McManus. Upon the Petition of Jaime McManus, Petitioner–Appellee, And Concerning Thomas Ronald McManus, Respondent–Appellant. |
| Court | Iowa Court of Appeals |
R. Douglas Wells of Gomez May, L.L.P., Davenport, for appellant.
Patricia Zamora of Zamora, Tylor, Woods & Frederick, Davenport, for appellee.
Considered by POTTERFIELD, P.J., and TABOR and MULLINS, JJ.
Thomas McManus appeals from a decree dissolving his marriage to Jaime McManus. Thomas argues the district court erred by awarding Jaime physical care of the minor children, awarding Jaime part of Thomas's retirement account, failing to award Thomas an extraordinary visitation credit in calculating his child support obligation, and failing to order Jaime to pay uninsured medical expenses. We find the district court failed to apply Iowa Court rule 9.9 (2013) correctly to give Thomas an extraordinary visitation credit, and failed to apply rule 9.12(5) correctly to require Jaime to pay some uninsured medical expenses. We affirm the decree as modified.
Thomas, born 1971, and Jaime, born 1981, were married in 2003. They have two children, born 2004 and 2007. Thomas is employed as a deputy city assessor making approximately $61,000 per year. Jaime is employed as an intermediate school teacher making approximately $48,000 per year.
Jaime filed for dissolution of the marriage in June 2012. Following trial, the district court filed a decree of dissolution in September 2013. In the decree the court ordered joint legal custody of the children with Jaime having physical care. Thomas has visitation every other weekend, from 5:15 p.m. on Friday to 7:00 a.m. on Monday; every Tuesday from 5:15 p.m. to Wednesday 7:00 a.m.; alternate holidays;1 and two uninterrupted weeks of summer vacation. The court ordered Thomas to pay $963 per month in child support. The court also ordered the parties to divide the cost of the children's uninsured medical expenses according to their income: fifty-six percent to be paid by Thomas and forty-four percent to be paid by Jaime. The court next divided the marital property, awarding Thomas the marital home and splitting the parties' retirement savings by awarding Jaime part of Thomas's Iowa Public Employee Retirement Savings (IPERS) account. Thomas appeals.
We review dissolution proceedings de novo. Iowa R.App. P. 6.907. We give weight to the factual findings of the district court, especially concerning the credibility of witnesses, but are not bound by them. Iowa R.App. P. 6.904(3)(g).
In matters of child custody, the first and governing consideration of the court is the best interest of the child. Iowa R.App. P. 6.904(3)(o). Prior cases have little precedential value, except to provide a framework for analysis; we must base our decision on the facts and circumstances before us. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). The Iowa Code provides a nonexclusive list of factors the court shall consider in determining a custodial arrangement. Iowa Code § 598.41(3) (2011).2 In addition to the statutory factors, the court also must consider the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974),3 in determining the award of physical care. See Will, 489 N.W.2d at 398. “The ultimate objective of a physical care determination is to place the child in the environment most likely to bring him to healthy mental, physical, and social maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct.App.2010). The question of physical care must be determined based on what is in the best interest of the child, not on what is fair to the parents. In re Marriage of Hansen, 733 N .W.2d 683, 695 (Iowa 2007). Stability and continuity in caregiving are primary factors in determining an award of physical care. Id. at 969. Past caretaking patterns, including primary caregiving, weigh heavily in custody matters. Id.; In re Marriage of Decker, 666 N.W.2d 175, 178–80 (Iowa Ct.App.2003).
The district court gave the parties joint legal custody and gave Jaime physical care. Thomas contends the district court should have ordered the parties to have joint physical care. The district court found Jaime has been the primary caregiver throughout the children's lives. It expressed concern about Thomas's consumption of alcohol and his conduct while intoxicated. The court also was concerned about Jaime allowing her paramour to be present around her children.
Both parties testified that Jaime has been the primary caregiver for the children throughout their lives. Thomas claimed his involvement included, “everything since birth.” However, when pressed for details, he enumerated birthday parties, chaperoning field trips, and taking the children to their first day of school. He admitted he rarely helped cook or feed them. He also admitted that Jaime ran the household for the nine years of their marriage, including doing the cooking, cleaning, laundry, and caring for the children. Jaime and Thomas both testified Thomas had become more involved with the children since she filed for dissolution. The couple's younger child has a severe peanut allergy. However, while Jaime testified she carries an emergency allergic reaction
“pen” with her at all times, Thomas testified he does not.
Jaime detailed the children's daily routine, which aligns with her schedule as a schoolteacher. If Thomas has visitation the night before, he drops the children off at her home in the morning, and she gets them ready for school including dressing
them, giving them breakfast, and packing their lunches. This is particularly important for the child with the peanut allergy. She takes them to her workplace at the intermediate school, where they board their bus for the elementary school. After school, they take the same bus back to the intermediate school, meet Jaime, and go home with her. If Thomas has visitation that evening, he picks them up from Jaime's home.
Jaime and Thomas also testified about Thomas's drinking habits. Jaime stated Thomas is a binge drinker. She claims Thomas's involvement with the children has been limited due to his social engagements that often involve heavy drinking. In particular, she noted that during their marriage, after his Wednesday pool league nights, Thomas would come home very late or not at all. He also would occasionally miss the next day of work, claiming he was ill or that one of the children was ill. This became such a problem that Thomas's boss gave him a list of all the days Thomas had missed work and asked him to explain whether they truly were due to illness or something else.
Jaime described Thomas's personality as volatile, explosive, and controlling and suggested alcohol exacerbated these attributes. She described numerous incidents involving Thomas's heavy drinking. On one occasion, Thomas had been drinking all day with friends when Jaime picked him up to drive home. The children were in the car. Thomas became angry, grabbed the steering wheel from Jaime, and caused the car to swerve off the road. He then punched and damaged the windshield and dashboard. Jaime also testified that on one occasion, Thomas got drunk, crashed his car, and hid from the police all night in a cornfield. Thomas testified this was in 2001 and not related to alcohol. In 2008, Thomas and his brother were in a bar and pushed the bartender through a window. Thomas pled guilty to assault causing injury, and was ordered to pay approximately $3600 in restitution. He also was ordered to participate in anger management classes. In 2009, during the state high school baseball tournament, Thomas and a group of men were intoxicated in a downtown Des Moines hotel and attempted to push a piano up an escalator, destroying the piano and damaging the escalator. Thomas was charged with public intoxication and ordered to pay $8300 in restitution. Thomas contends most of these incidents occurred before the marriage and before the children were born. He insists he is not an alcoholic, only a social drinker.
Jaime also testified about her new paramour. She stated they had been dating around eight months. She had introduced the paramour to her children five months prior. The paramour had spent the night at Jaime's home, while the children were present, two or three times. She and the children had spent the night at the paramour's home four or five times. When asked whether she thought it was appropriate for the children to be introduced to her paramour, Jaime said, “I've been trying to get divorced for a year and a half, so I think it's time we move on, yes.”
Thomas contends the district court put too much weight on his alcohol issues because he had never harmed the children in any way. He argues the court should have awarded him joint physical care with Jaime, which would require adding only one night per week to the existing schedule. He also requests that the drop-off time be changed from 7:00 a.m. to 8:00–8:15 a.m. and that he be allowed to drop the children off at school himself.
Thomas has made dubious personal choices regarding his consumption of alcohol and his conduct while intoxicated. Thomas insists most of the incidents involving alcohol took place prior to his marriage or the birth of the children. Yet, the incident with the bartender and the incident in the hotel—both resulting in criminal charges—occurred after the children were born. It is also clear from the testimony that Thomas's consumption of alcohol continued to affect their family life well after the children were born. The district court found Jaime's testimony regarding various incidents involving Thomas's drinking was credible. It further found Thomas's alcohol abuse was an issue in his life that would adversely affect the children. The court was so concerned it ordered him not to consume alcohol six hours...
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