Marriage of Wiarda, In re, 92-1287
| Decision Date | 29 June 1993 |
| Docket Number | No. 92-1287,92-1287 |
| Citation | 505 N.W.2d 506 |
| Parties | In re the MARRIAGE OF Sally Ann Petefish WIARDA and Stephen Ross Wiarda, Upon the Petition of Sally Ann Petefish Wiarda, Appellant, and Concerning Stephen Ross Wiarda, Appellee. |
| Court | Iowa Court of Appeals |
Harvey L. Harrison, Des Moines, for appellant.
James D. Robertson of Haupert, Robertson & Weiss, Marshalltown, until his withdrawal, and then Eric Borseth, Des Moines, for appellee.
Heard by SCHLEGEL, P.J., and HAYDEN and HABHAB, JJ.
Sally Petefish Wiarda (Sally) appeals the district court's decree of dissolution of marriage from Stephen Ross Wiarda (Stephen). Sally claims the court erred in: (1) dividing the parties' property; (2) fixing the child support award; (3) determining the visitation schedule; (4) refusing to grant Sally primary physical care of the two children of the marriage; and (5) considering her sexual orientation in its custody decision. We affirm as modified.
While Sally raises all of the above issues in her appeal, by far the controlling issue is the question of the physical custody of the two children of this marriage. We address that issue first. Two children have been born of this marriage. Sarah, born October 6, 1979, was twelve years old at the time of trial, and Sadie, born February 13, 1988, was four years of age at the time of trial. The trial court granted joint legal custody to the parties, with Stephen receiving primary physical custody of the children. Sally was granted visitation.
Our review in this matter is de novo. Iowa R.App.P. 4. In child custody cases, the best interest of the child is the first and governing consideration. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41(3), In re Marriage of Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983), and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). All factors bear upon the "first and governing consideration," the court's determination of what will be in the long-term best interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the child is which parent will do better in raising the child; gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa App.1985).
In reaching its decision on this issue, the trial court gave consideration to the elements set out in In re Marriage of Winter, and the considerations enumerated in Iowa Code section 598.41(3) (1991). Based upon its consideration, the trial court stated:
[V]iewing the record in its totality within the range of permissible evidence in accordance with Section 598.41(3) and applicable case authority, the record herein establishes that the Respondent is better able to minister most effectively to the long-range best interests of the parties children.
Sally suggests that the court, in arriving at its decision on physical custody of the children, improperly relied upon her homosexual relationship with a woman friend with whom she had had an admitted homosexual relationship. There is nothing in this record, or in the rulings of the court to support that suggestion. This was, admittedly, a close call as to where the children should be principally housed. Both Sally and Stephen are outstanding parents to their children, and both have made efforts to support each other in their relationships with the children.
It appears from the record that Sally's relationship with her friend has not had a calming effect upon either the children or upon the difficult problems of the breakup of this marriage. It is certain that Sally's friend's presence in this matter has caused twelve-year-old Sarah certain anxieties and, from Sarah's viewpoint, has contributed to the continued breakdown of the relationship between Sally and Stephen. Such would likely be the case whether Sally's friend were a man or a woman. The trial court did not make its decision based upon its view of the homosexual nature of the relationship between Sally and her friend, although the court may well have decided the relationship was disruptive to the continued good relationship between the two children and both parents.
Sally also complains that in arriving at its decision as to physical custody the court improperly relied upon a home study made at the direction of the court. She also claims that study unnecessarily and improperly relied upon a report which had been excluded from evidence. Iowa Code section 598.12(2) (1991) provides:
The court may require that the department of human services or an appropriate agency make an investigation of both parties regarding the home conditions, parenting capabilities, and other matters pertinent to the best interests of the child or children in a dispute concerning custody of the child or children. The investigation report completed by the department of human services or an appropriate agency shall be submitted to the court and available to both parties. The investigation report completed by the department of human services or an appropriate agency shall be a part of the record unless otherwise ordered by the court.
The court utilized this section to...
To continue reading
Request your trial