In Re Marriage of Oakes

462 N.W.2d 730, 1990 Iowa App. LEXIS 455, 1990 WL 192326
CourtCourt of Appeals of Iowa
DecidedSeptember 26, 1990
Docket89-1398
StatusPublished
Cited by7 cases

This text of 462 N.W.2d 730 (In Re Marriage of Oakes) 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 Oakes, 462 N.W.2d 730, 1990 Iowa App. LEXIS 455, 1990 WL 192326 (iowactapp 1990).

Opinions

OXBERGER, Chief Judge.

Susan Oakes and Tim Moleski were married in 1984. They have one child, Sean Moleski born in November 1984.

Tim is a mechanical engineer and has earned over $35,000 per year for several years. Susan was a full-time homemaker during much of the marriage; she is now employed as an office manager for a fledgling business enterprise, earning about $1,000 per month. She has a college degree in textiles and clothing merchandising.

The district court placed the parties’ child in joint legal custody and in Susan’s primary physical care. The district court characterized both Susan and Tim as good parents, but concluded that Susan is “marginally to be preferred as the primary caretaker;” the court noted that Susan has been the primary caretaker in the past and that the child has flourished under her care. The court concluded that Tim should also have extensive contact with the child and extensive child care responsibilities; the court declined to characterize Tim’s periods of care as visitation, and the court commented that “the decree attempts to maximize the amount of time that [Tim] will have with the child, consistent with giving the child a definite home to which he can become attached.” Susan in her brief asks us to affirm the trial court in all respects.

The court directed Tim to pay Susan child support of $500 per month for ten months per year. The support obligation is to be suspended during the months of June and July, when Tim will have the child in his care. The child support award is subject to “cost of living” increases keyed to the Consumer Price Index.

[732]*732The court directed Tim to pay Susan $27,152 as a division of marital assets. The assets in question were primarily retirement accounts and investment accounts; the payment to Susan was to be effectuated by a division of some of these accounts. (The parties had stipulated to the disposition of their nonfinancial assets, including their house; the court adopted the provisions of the stipulation, and none of those provisions is controverted in this appeal.)

Finally, the court directed Tim to contribute $3,000 toward Susan’s trial attorney’s fees.

Tim has appealed from the dissolution decree. Tim contends the parties’ child should be transferred from Susan’s primary care to his primary care. Tim further contends the awards to Susan of property and attorney’s fees are excessive. Tim argues that Susan’s cash property award should be reduced to $20,001, and that her award of trial attorney’s fees should be reduced to $2,000.

Susan requests attorney’s fees on appeal.

I.

Tim contends that the district court erred in awarding Susan primary physical care of Sean.

Our review in this matter is de novo. In re Marriage of Bowen, 219 N.W.2d 683, 687 (Iowa 1974); Iowa R.App.P. 14(f)(15). In child custody cases, the best interests 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) and in In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). All factors bear on 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).

Tim accuses Susan of drug abuse, financial irresponsibility and involvement with a man who would be a negative influence on his child.

Susan admitted using drugs on a casual basis, however, she wisely has discontinued this practice. Susan has admitted that using drugs was a mistake. There is no evidence which suggests that her denial is anything other than correct. Regarding financial irresponsibility, there is not enough evidence to support Tim’s position. The evidence shows typical financial problems besetting young married couples. We find the financial difficulties were derived from these basic facts far more than from the irresponsibility of the petitioner.

Tim further claims that Susan’s current boyfriend would be a negative role model for Sean. There is testimony that revealed both Susan and Jim have been mindful of the effect on Sean of Jim remaining overnight at Susan’s while Sean is present. Tim failed to present any evidence that shows any detrimental effect on Sean due to Susan and Jim’s relationship. Jim acknowledges numerous affairs with married women and that he was a very heavy drinker for a substantial period of time. Jim claims that these problems no longer exist.

Susan has been the child’s primary caretaker and the child has flourished. We find Susan’s bond to the child is warmer and more emotional than that of Tim. Susan is, no doubt, the child’s primary psychological parent. We affirm the district court.

II.

The trial court awarded Susan $32,-868. Susan possessed $5,716 of marital assets at the time of dissolution. At the time of separation this asset was valued at $5,245. The trial court concluded that Susan was entitled to a net value of $27,152 from the net increase in the marital assets which occurred following the parties’ marriage and before the date of trial.

[733]*733The parties disagree as to the division of the premarital assets and the property accumulated after the date of separation. Tim asserts the district court erred in awarding Susan $32,868 in the property settlement.

The court in In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988) stated the division of property is based upon each marital partners right to a just and equitable share of property accumulated during the marriage as a result of their joint efforts. The partners in the marriage are entitled to a just and equitable share of the property accumulated through their joint effort. In re Marriage of Havran, 406 N.W.2d 450, 452 (Iowa App.1987).

Tim contends the trial court erroneously divided his Merrill Lynch IRA in the property division. This IRA was valued at $2,012 on the date of marriage and accrued to $4,530 by the date of separation. Tim claims it would not be just and equitable to divide between Tim and Susan any of the property accumulated after the separation of the parties, as these assets were not jointly accumulated by the parties.

In In re Marriage of Muelhaupt, 439 N.W.2d 656

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In Re the Marriage of Campbell
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563 N.W.2d 640 (Court of Appeals of Iowa, 1997)
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500 N.W.2d 718 (Court of Appeals of Iowa, 1993)
In Re Marriage of Hornung
480 N.W.2d 91 (Court of Appeals of Iowa, 1991)
In Re Marriage of Oakes
462 N.W.2d 730 (Court of Appeals of Iowa, 1990)

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Bluebook (online)
462 N.W.2d 730, 1990 Iowa App. LEXIS 455, 1990 WL 192326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-oakes-iowactapp-1990.