In Re the Marriage of Coulter

502 N.W.2d 168, 1993 Iowa App. LEXIS 60, 1993 WL 215470
CourtCourt of Appeals of Iowa
DecidedMay 4, 1993
Docket92-741
StatusPublished
Cited by11 cases

This text of 502 N.W.2d 168 (In Re the Marriage of Coulter) 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 Coulter, 502 N.W.2d 168, 1993 Iowa App. LEXIS 60, 1993 WL 215470 (iowactapp 1993).

Opinions

[170]*170DONIELSON, Judge.

Beth and Jon Coulter were married in 1984. They have a daughter, Ashley, who was born in 1987.

Beth was born in 1963. She is a high school graduate, and she has attended classes at Des Moines Area Community College and at the University of Northern Iowa. During the marriage, Beth worked in a clerical position for an insurance company and earned $5.50 per hour. After becoming pregnant with Ashley, she became a full-time homemaker. From September 1989 until March 1990, Beth worked twenty hours per week at the Yale Cooperative and earned $6.00 per hour. Beth took primary responsibility for the household duties during the marriage.

Jon was born in 1959. He received a bachelor’s degree in music education from Arizona State University in 1982. In the summer of 1983, Jon and his brother, Lyn, opened Coulter Marine near Lake Panorama, Panora. In June 1984, Lyn and Jon incorporated the business and became equal owners.

In May 1991, Beth filed a petition for dissolution of marriage. Following trial, the district court entered its findings of fact and conclusions of law. The court determined Jon’s interest in Coulter Marine was worth $15,000 on December 1, 1984, and had risen to $190,000 by the time of trial. The court awarded Beth one-half of the appreciation of the business. The court also awarded Beth $500 per month for thirty-six months as rehabilitative alimony.

The court also awarded joint legal and joint physical custody of Ashley. Each parent was to have Ashley in their care fifty percent of the year. The court ordered each party to pay support while Ashley was in the other parent’s care. Because Jon’s yearly support payments would exceed Beth’s payments by $1404, the court required Jon to pay Beth the difference in twelve monthly installments of $117. These payments would increase after Jon’s alimony obligation ended.

Beth appeals. She claims the district court erred in: (1) ordering shared physical custody of Ashley; (2) undervaluing Jon’s interest in his business, Coulter Panorama Marine, Inc.; (3) ordering the abatement of child support; and (4) awarding her insufficient alimony. She also requests appellate attorney fees.

Jon cross-appeals. He contends if this court determines shared physical custody is not proper, primary physical custody of Ashley should be awarded to him. He also claims the awards of both alimony and attorney fees at the district court level should be reduced.

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 district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 14(f)(7).

I. Shared Physical Custody. Beth first contends the district court erred in ordering shared physical custody of Ashley. She further claims the district court erred by failing to award her primary physical custody of Ashley. In his cross-appeal, Jon contends he should be awarded physical custody if it is determined shared physical custody of Ashley is not proper.

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), in In re Marriage of Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983), and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The critical issue in determining the best interests of the child is which parent will do better in raising the child. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa App.1985). Gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding. Id.

[171]*171We agree with the district court in its recognition of the “maturity, intelligence, stability, flexibility, [and] parenting skills” of both Jon and Beth. Both parents should be complimented for their ability to communicate with each other and to give priority to Ashley’s welfare. We also acknowledge the obvious gains to be received if Ashley is allowed to maintain as much contact as possible with both parents. See In re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa App.1987).

However, shared physical custody is disfavored by the courts except in the most unusual circumstances. In re Marriage of McElroy, 475 N.W.2d 221, 223 (Iowa App.1991); Muell, 408 N.W.2d at 776. Although a child’s best interests will be served by associating with both parents, “an attempt to provide equal physical care may be harmfully disruptive in depriving the child of a necessary sense of stability.” Muell, 408 N.W.2d at 776 (citing Note, Divided Custody of Children After Their Parents Divorce, 8 J.Fam.L. 58 (1968)). The supreme court in In re Marriage of Burham, 283 N.W.2d 269 (Iowa 1979) listed several reasons for the opposition to shared (or divided) custody:

divided custody is destructive of discipline, ... it tends to induce a feeling of not belonging to either parent, ... [and] in some instances it permits one parent to sow seeds of discontent concerning the other, which can result in a spirit of dissatisfaction in the children and their rebellion against authority.

Burham, 283 N.W.2d at 272 (citations omitted).

From our review of the record, we are unable to find the circumstances here rise to the level of unusualness to warrant an award of shared physical custody. Ashley is now five years old and most likely will begin school in the upcoming year. The importance of stability in Ashley’s life at this juncture cannot be overemphasized. In its decree, the district court even acknowledged the potential difficulties in this arrangement as Ashley develops physically, academically, and socially. As a result, the court had already ordered the issue of shared custody be reviewed in September 1994.

Although this court recognizes the deep roots each parent has in the community, the financial ability of each parent to provide for Ashley, and their genuine desire to raise Ashley, we do not find the current arrangement is in Ashley’s best interests. We therefore modify the decree and order primary physical care of Ashley be placed with one parent. We eliminate the shared physical custody arrangement. We will not determine with which parent primary physical custody of Ashley will be placed, and we remand to the district court for that determination.

Because of our result, we are unable from this record to create a visitation schedule or to compute the noncustodial parent’s child support obligation. We remand to the district court for that purpose and we do not retain jurisdiction. See In re Marriage of Craig,

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In Re the Marriage of Coulter
502 N.W.2d 168 (Court of Appeals of Iowa, 1993)

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