In Re the Marriage of Blume

473 N.W.2d 629, 1991 Iowa App. LEXIS 46, 1991 WL 133829
CourtCourt of Appeals of Iowa
DecidedMay 29, 1991
Docket90-1330
StatusPublished
Cited by12 cases

This text of 473 N.W.2d 629 (In Re the Marriage of Blume) 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 the Marriage of Blume, 473 N.W.2d 629, 1991 Iowa App. LEXIS 46, 1991 WL 133829 (iowactapp 1991).

Opinion

OXBERGER, Chief Judge.

Joann and Donald Blume were married in 1977. They have two children, Michael and Donna. Following a trial, the Blume's marriage was dissolved by a decree filed July 20, 1990.

Donald, thirty-six years old at trial time, is a farmer. Joann, thirty years old at trial time, worked on the farm throughout the marriage and has little employment experience and no specialized training.

The dissolution decree placed the two children in the couple’s joint legal custody and in Joann’s primary physical care. The trial court found that Joann was the children’s primary caretaker throughout the marriage.

The Blumes owned two tracts of farmland. The decree awarded Joann an 80-acre farm (the Moser farm) which the court valued at $42,000. The decree awarded Don a 95-acre farm (the Lenth farm) with a net value of $34,000 after deducting an unpaid contract balance. The trial court awarded Don all the farm-related personal property, including machinery, livestock, stored grain and growing crops. This farm-related property was valued at $166,-000. Each party received various vehicles, personal effects, and small bank accounts. In order to equalize the division of property, the trial court directed Don to pay Joann a cash property award of $60,000, payable in six annual installments bearing interest at the rate of ten percent per year. The trial court also granted Joann a judicial lien against the farm awarded to Don as security for payment.

*631 The decree directed Don to pay Joann child support of $600 per month for both children. He was also ordered to contribute $1500 toward Joann’s trial attorney fees.

Don has appealed the dissolution decree, and Joann has cross-appealed.

Don contends the children should be transferred to his physical care. In the alternative, he requests reduction of his child support obligation. Don also challenges the division of property and the award of trial attorney’s fees to Joann. Finally, Don contends the district court erred by allowing Joann’s attorney to summarize the prospective testimony of certain witnesses by means of professional statements, without presenting the witnesses themselves. The witnesses were present in court and available for cross-examination.

In her cross-appeal, Joann contends she should receive a larger share of the property. She requests an additional $11,000 in cash and argues the district court gave Don too much credit for property he allegedly brought into the marriage.

Joann also requests attorney fees on appeal.

SCOPE OF REVIEW. In this equity action, our review is de novo. Iowa R.App.P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). 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. 14(f)(7).

CHILD CUSTODY. In child custody cases, the best interests of the children is the first and governing consideration. The factors to consider 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 determination of what will be in the long-term best interests of the children. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the children is which parent will do better in raising them; 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).

The physical custody of siblings should be separated only for good and compelling reasons. In re Marriage of Winter, 223 N.W.2d at 168 (citations omitted). A minor child’s preference with respect to which parent he or she wishes to live with, although not controlling, is relevant and cannot be ignored. In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa App.1985) (citation omitted). In determining the weight to give to a child’s preference we consider, among other things, the child’s age, educational level, maturity, relationship with family members and reasons given for his or her decision. See Id. at 258-59.

Michael, who was twelve years old at the time of trial, has expressed a strong desire to live with his father. He has also expressed an intent to pursue farming as a career. Don currently works closely with his father who is also a farmer. Michael participates in many activities on the farm with Don. Donna, who was nine years old at the time of trial, has been less expressive about her preferences, but the record tends to indicate she prefers to live with her mother. During the Blume’s separation prior to the trial, Michael lived with Don and Donna lived with Joann. Both parents currently cohabit with another adult.

The trial court found that although both parents were capable of parenting the children, Joann had been the children’s primary caretaker during the marriage and could more effectively meet the children’s needs as the custodial parent. Additionally, the trial court found insufficient evidence in the record to warrant separating the children in order to place each child in his or her preferred custodial situation.

*632 We agree Joann was the children’s primary caretaker throughout the marriage prior to the couple’s separation. While the evidence indicates Michael prefers to live with Don, the trial court declined to allow Michael to testify during the proceedings in order to ascertain his specific reasons for his preference. Joann currently lives on a farm approximately seven miles from where Don lives. It appears Michael will have ample opportunity to work with Don on his farm. After considering all the factors which bear on the decision of which parent can better minister to Michael and Donna’s future needs, we do not find Michael’s preference determinative. Although, Michael appears to be a mature twelve year old child, he is still a twelve year old child with many needs that must be provided by a parent who is able to spend the time with him necessary to meet those needs. Don repeatedly asserts the woman he lives with can spend time with Michael and meet his daily needs. We are not prepared to give that factor great weight in comparison to the fact Michael’s mother has met his daily needs the majority of his life and is prepared and capable of continuing to meet those needs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re the Marriage of Darville
Court of Appeals of Iowa, 2026
In Re the Marriage of Keener
728 N.W.2d 188 (Supreme Court of Iowa, 2007)
State Ex Rel. Pfister Ex Rel. Pfister v. Larson
569 N.W.2d 512 (Court of Appeals of Iowa, 1997)
In Re the Marriage of Pundt
547 N.W.2d 243 (Court of Appeals of Iowa, 1996)
In Re the Marriage of Harris
530 N.W.2d 473 (Court of Appeals of Iowa, 1995)
In Re the Marriage of Robbins
510 N.W.2d 844 (Supreme Court of Iowa, 1994)
In Re the Marriage of Sires
506 N.W.2d 813 (Court of Appeals of Iowa, 1993)
Lanza v. Lanza
634 A.2d 152 (New Jersey Superior Court App Division, 1993)
In Re the Marriage of Riddle
500 N.W.2d 718 (Court of Appeals of Iowa, 1993)
In Re the Marriage of Bonnette
492 N.W.2d 717 (Court of Appeals of Iowa, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
473 N.W.2d 629, 1991 Iowa App. LEXIS 46, 1991 WL 133829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-blume-iowactapp-1991.