In Re Marriage of Anderson

509 N.W.2d 138, 1993 Iowa App. LEXIS 138, 1993 WL 501035
CourtCourt of Appeals of Iowa
DecidedOctober 5, 1993
Docket92-1931
StatusPublished
Cited by16 cases

This text of 509 N.W.2d 138 (In Re Marriage of Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Anderson, 509 N.W.2d 138, 1993 Iowa App. LEXIS 138, 1993 WL 501035 (iowactapp 1993).

Opinions

SACKETT, Judge.

Petitioner-appellant/cross-appellee Eileen Buske Anderson appeals and respondent-ap-pellee/cross-appellant Wayne D. Anderson cross-appeals from a decree dissolving their marriage. Eileen contends (1) the trial court punished her for her religious views, (2) the award of physical care to Wayne placed the importance of the children’s contact with extended family over the importance of the children’s contact with her, (3) her constitutional rights were jeopardized by certain procedures, (4) the trial court abused its discretion in awarding attorney fees to Wayne, (5) the property division was not equitable, (6) she should have been awarded alimony, (7) there is no evidence supporting certain of the trial court’s findings, (8) the trial court should have let one of Eileen’s witnesses render an opinion, and (9) certain letters should not have been admitted into evidence. Wayne on his cross-appeal asks the decree be affirmed in all respects but that he be given tax dependency exemptions. We affirm on both appeals.

Eileen, born in 1954, and Wayne, bom in 1952, were married in 1975 and have three children born in 1980, 1982, and 1985. This was a first marriage of both of the parties. They both grew up in the Pocahontas-Webster County area and continued to live there after marriage. They both had supportive parents who have assisted them in a number of ways.

[141]*141The trial court in the decree awarded the parties joint custody of the children and awarded Wayne physical care of the children. Eileen makes challenges to the physical care award contending, in making the award, the trial court punished her for her religion, gave too much emphasis to the children spending time with their extended families, did not consider the children's wishes, considered evidence it should not have considered and excluded evidence it should have considered, and employed procedures that denied her due process.

Eileen and Wayne are both fine people. They are both educated, articulate, responsible, and truly concerned about their children’s well being and their future. Wayne holds a degree in business and sociology from Buena Vista College and Eileen has an A.A. degree from Iowa Central Community College in community service, a degree in social work from the University of Nebraska at Lincoln, and a Master’s degree in social work from the University of Nebraska at Omaha. The parties have both, during various times of the children’s lives, been the primary caretaker of the children. Either party would make an excellent physical custodian. The question is whether we agree with the trial court that the evidence shows Wayne is the better custodian.

In assessing this issue, we need to look first at certain challenges Eileen makes to the trial court’s findings. Eileen contends the trial court gave improper consideration to her religious beliefs in arriving at its decision. We have read the trial court’s findings and do not agree with Eileen that the trial court concluded Eileen’s religious beliefs and practices were a factor that prevented her from receiving physical care. However; even if the trial court did consider Eileen’s religious beliefs as a factor weighing against Eileen’s being awarded physical care of the children, we, on our de novo review, do not. We agree with Eileen that she has the constitutional right to practice the religion of her choosing. See Loney v. Scurr, 474 F.Supp. 1186, 1196 (S.D.Iowa 1979). And it would be unconstitutional for us to put any restraint on the exercise of her religious freedom. We do not favor one religion over another in a custody determination. See In re Marriage of Rodgers, 470 N.W.2d 43, 45 (Iowa App.1991); see also Gould v. Gould, 116 Wis.2d 493, 342 N.W.2d 426, 432-33 (1984). On our de novo review of the record, we find nothing about Eileen’s religious practice that threatens the physical or mental health of the children. Eileen, in her religion, subscribes to values such as honesty, kindness, and responsibility to family. We consider these values to her credit in assessing the custody issue. See McNamara v. McNamara, 181 N.W.2d 206, 209-10 (Iowa 1970). In McNamara 181 N.W.2d at 209, the court, in awarding child custody to a father, considered the moral environment where the child would be raised and the fact the father, who conscientiously adhered to religious teaching, presented a more desirable environment than the mother.

This was a lengthy trial. A number of witnesses for both sides on the custody issue testified and rendered their respective opinions. We have read that testimony carefully. To set it forth in this opinion would serve no useful purpose. The evidence reveals both Eileen and Wayne are responsible and caring individuals. We reiterate that either party would be an excellent custodial parent and the children’s best interests would be served by awarding physical care to either parent.

The children wrote letters to the judge expressing a desire to live with their mother. Eileen contends the preferences of the children, as shown in letters, should have been given greater weight. A child’s preference is not controlling. In deciding how much weight to give the preference, the following factors should be considered:

1. The children’s respective ages and education levels;
2. The strength of their preference;
3. Their intellectual and emotional makeup;
4. Their relationship with family members; and
5. Their reasons they give for their preference.

In re Marriage of Behn, 416 N.W.2d 100,102 (Iowa App.1987); In re Marriage of Eller[142]*142broek, 377 N.W.2d 257, 258-59 (Iowa App.1985).

The trial court found the children susceptible to subtle persuasion and Eileen in a subtle way brought the children to the conclusion they want to live with their mother. The court also was not convinced the children would have known to write to the court of their preference without their mother’s help.

In reviewing the evidence we, of course, give deference to the trial court’s assessments of the credibility of the witnesses. See Iowa R.App.P. 14(f)(7). The trial court had the opportunity to have the parties and their witnesses before it. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). We find no reason to disagree with the trial court’s assessment on this issue.

Eileen has made several specific complaints about evidentiary issues that run to child custody. Eileen contends the trial court improperly considered letters written to Eileen by a friend and failed to allow a domestic abuse worker to render an opinion.

A dissolution action is tried in equity and reviewed de novo on appeal. In re Marriage of Whelchel, 476 N.W.2d 104, 106 (Iowa App.1991). The trial court should have received objections to evidence but not ruled on the objections and allowed the evidence in the record.

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In Re Marriage of Anderson
509 N.W.2d 138 (Court of Appeals of Iowa, 1993)

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Bluebook (online)
509 N.W.2d 138, 1993 Iowa App. LEXIS 138, 1993 WL 501035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-anderson-iowactapp-1993.