In Re The Marriage Of Michael A. Fredrickson And Heather L. Fredrickson
| Decision Date | 14 July 2010 |
| Docket Number | No. 0-410 / 09-1907,0-410 / 09-1907 |
| Parties | IN RE THE MARRIAGE OF MICHAEL A. FREDRICKSON AND HEATHER L. FREDRICKSON Upon the Petition of MICHAEL A. FREDRICKSON, Petitioner-Appellant/Cross-Appellee, And Concerning HEATHER L. FREDRICKSON, Respondent-Appellee/Cross-Appellant. |
| Court | Iowa Court of Appeals |
Lynn Wiese of Barker, McNeal, Wiese & Holt, Iowa Falls, for appellant.
Melissa Nine of Kaplan, Frese & Nine, L.L.P., Marshalltown, for appellee.
Appeal from the Iowa District Court for Kossuth County, Don E. Courtney, Judge.
Petitioner appeals from the child custody, visitation, and support provisions of the decree dissolving the parties' marriage. AFFIRMED AS
Considered by Sackett, C.J., and Eisenhauer and Mansfield, JJ.
Michael A. Fredrickson appeals, and Heather L. Fredrickson crossappeals, from the decree dissolving their July 2002 marriage. Michael challenges Heather receiving primary care of their daughter, born in September of 2003. Both parties challenge certain provisions concerning visitation with the child and other financial aspects of the decree. We affirm as modified and remand.
SCOPE OF REVIEW. We review dissolution decrees de novo. Iowa R. App. P. 6.907 (2007); In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). We examine the entire record and adjudicate anew the issues properly presented on appeal. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1982). 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. 6.904(3)(g); In re Marriage of Grady-Woods, 577 N.W.2d 851, 852 (Iowa Ct. App. 1998). We approach from a gender-neutral position avoiding sexual stereotypes. In re Marriage of Pratt, 489 N.W.2d 56, 58 (Iowa Ct. App. 1992); see also In re Marriage of Bethke, 484 N.W.2d 604, 608 (Iowa Ct. App. 1992).
BACKGROUND. The parties met in 2000. Heather was married at the time and she and her husband had a son and a daughter who were then seven and six years of age. Heather subsequently left her first marriage and moved in with Michael, who had never been married. Michael and Heather married on July 13, 2002. At the time of the marriage Heather was suffering from post-traumatic stress disorder and depression. Her first husband had been abusive. Michaeland Heather were living Titonka, Iowa, when Heather became unhappy in her marriage to Michael, and she became romantically involved with Randy Rosenboom. In April of 2008 Heather moved to Estherville, moving in with Rosenboom. She took her two older children with her but left the child at issue in Michael's care. It had been agreed the child would stay with Michael until Heather's move was completed, at which time the child would move from home to home on a weekly basis.
On April 18, 2008, Michael filed a petition for separate maintenance. Heather subsequently filed an answer to the petition in which she included a counterclaim asking for dissolution of the marriage. On June 11, 2008, Michael filed an application for a custodial evaluation. Heather responded to the application asking that Michael be required to pay for same. On July 7, 2008, the district court ordered that the Des Moines Child and Adolescent Guidance Center be appointed, pursuant to Iowa Code section 598.12 (2007), to conduct a custody evaluation and file a report of conclusions.
On July 25, 2008, Heather, who had become unhappy with the fact the child attended a preschool in Titonka where Michael's sister taught, filed an application for temporary custody, visitation, child support, spousal support, and attorney fees. An order setting the matter for hearing on September 2, 2008 was entered and the parties were ordered to present affidavits and financial statements. The district court found as to temporary custody that the parties should have joint legal custody, Heather should have primary physical care, and Michael should have secondary physical care and visitation. In arriving at theprimary care decision the court noted it gave consideration to the principal that children of broken homes should be kept together and that also includes half siblings. Michael was ordered to pay child support and provide the medical and dental insurance for the child.
The ordered custody evaluation commenced on September 3, 2008, and continued through October 16, 2008. Keri Kinnaird, Ph.D. Psychology Supervisor with Orchard Place Child Guidance Center, conducted an extensive evaluation. She interviewed at length the parties, the child, and Rosenboom. She also had a telephone interview with the child's Head Start teacher. Her written report recommended:
Kinnaird testified at trial and affirmed her written recommendation.
On December 22, 2008, Michael filed an application asking the court to reconsider the temporary custody order, noting that in response to the order for custody evaluation the ordered report had been filed recommending that Michael be primary custodian of the child. Michael also noted that hearing on the dissolution was not set until May 13, 2009, some 359 days after Heather was served with notice of his petition, and that leaving the temporary order in place for an additional five months was contrary to the recommendation of the courtordered custody evaluation. The district court declined the application to modify temporary custody.
The matter came on for trial on May 13, 2009. At the time of the hearing Michael, who has a bachelor's degree, was gainfully employed. He testified he was focused on his child and was not interested at the time in establishing another romantic relationship. He has had stability in employment. He has the assistance of his extended family1 in Titonka to assist with the care of his child. He was born in September of 1960 and appears to be in excellent health.
At the time of the hearing Heather, who has an associate degree, was gainfully employed. She continued in her relationship with Rosenboom. Rosenboom was divorced, had children of his own, and appeared to have a good relationship with Heather's children. Kinnaird testified she had no concerns about Rosenboom. He holds several degrees and has stable employment. Heather had a difficult marriage prior to her marriage to Michael. She was thirtysix years old at the time of trial and had suffered from and had been treated for post-traumatic stress syndrome following an assault by her first husband. She suffered from depression and apparent blackouts. Kinnaird testified she questioned Heather's ability to cope with stressful situations over the long haul and how it would impact the child.
On December 8, 2009, over six months following the hearing, the district court filed its lengthy decision deciding a number of issues including primary physical care, child support, allocation of the income tax exemption for the child, health insurance, attorney fees, and a division of the parties' property. The portions of the decree (1) awarding Heather primary physical care, (2) granting Heather the tax exemption for the child, and (3) giving Michael's visitation are challenged on appeal. Heather has cross-appealed contending that (1) the district court erred in calculation of child support, (2) the property award was not equitable, and (3) she should be awarded appellate attorney fees.
PHYSICAL CARE. Michael contends he should have been awarded primary care of the parties' daughter. We consider numerous factors in determining which parent should have primary physical care of a child. See Iowa Code § 598.41(3). We look to which parent can administer most effectively to the children's long-term interests. In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). We also consider the emotional and environmental stability each parent offers. Id. at 762. There is no inference favoring one parent over the other. In re Marriage of Decker, 666 N.W.2d 175, 177 (Iowa Ct. App. 2003). The "critical issue is determining which parent will do a better job raising the children; gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain primary care in an original dissolution proceeding." Id.
The district court considered a number of these factors, found both parents able to serve as primary custodian, and indicated because of this the decision was difficult. The court then said:
Ultimately, this court's decision comes down to separating siblings, and that [the child] has been doing well in the temporary custody of Heather. Siblings in dissolution actions should be separated only for compelling reasons. The court finds no compelling reason to separate [the child] from her half siblings. Therefore, the court finds that Heather should be the primary caretaker for [the child].
Michael advances that Dr. Kinnaird, while considering the issue of separation of half siblings, concluded that the child's long-term best interest would be in Michael's primary care. Michael argues, citing In re Marriage of Pundt, 547 N.W.2d 852, 854 (Iowa Ct. App. 1996), and In re Marriage of Harris, 530 N.W.2d 473, 475 (Iowa Ct. App. 1995), that separation of children is justified where it better promotes their long-range best interests. He notes that one factor, aside from the caretaking capability of the parties, in determining whether separation is in the best interest of the child is the difference in the age of the children being separated. He notes that by 2012, Heather's son and her older daughter will have left Heather's home.2 He also argues that while the child's statements about her relationship with her older half sister were...
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