In Re the Marriage of Drury

475 N.W.2d 668, 1991 Iowa App. LEXIS 322, 1991 WL 208785
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1991
Docket90-445
StatusPublished
Cited by17 cases

This text of 475 N.W.2d 668 (In Re the Marriage of Drury) 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 Drury, 475 N.W.2d 668, 1991 Iowa App. LEXIS 322, 1991 WL 208785 (iowactapp 1991).

Opinion

DONIELSON, Judge.

Kathryn and Jeffrey Drury were married in 1987 in Central City, Iowa, when Jeffrey was twenty-one years old and Kathryn was seventeen. They have one child, a boy born in August 1987.

Jeffrey enlisted in the Marine Corps shortly after the marriage and was a member during most of the marriage. However, he received an honorable discharge from the Corps in 1989 for failure to comply with the weight limits. He presently resides in Taylorville, Illinois, and holds a part-time job as a nurse’s aide. The district court found that he earns $3.75 per hour for an average work week of twenty-two and one-half hours; the court further found that his gross income is $370.00 per month and his net income is $290.00 per month.

Kathryn lives near Stanwood, Iowa, works in a motel and reports a gross income of about $400.00 per month.

The dissolution decree placed the parties’ one child in joint legal custody and in Kathryn’s primary physical care. The decree *670 also awarded Jeffrey visitation rights including two weeks in the summer and various weekends and holidays.

The district court initially directed Jeffrey to pay child support of $190.00 per month. However, in a later amendment, the district court reduced the amount of child support to $52.00 per month on the basis of amended findings about Jeffrey’s income.

The parties had little property, and its division is not controverted. The district court directed Jeffrey to contribute $1,500.00 toward Kathryn’s trial attorney’s fees.

Jeffrey has appealed from the dissolution decree, as amended, and Kathryn has cross-appealed. Jeffrey contends the district court should have allowed him a longer period of summer visitation. He asks that the summer visitation be expanded from two weeks to eight weeks. Jeffrey also challenges the requirement that he contribute $1,500.00 toward Kathryn’s trial attorney’s fees.

In her cross-appeal, Kathryn contends her child support award is inadequate. She argues that Jeffrey’s earning potential is much higher than his actual present income. She suggests the district court should have considered other factors concerning Jeffrey’s earning potential, rather than merely applying the child support guidelines to his actual present income. Kathryn also requests attorney’s fees on appeal.

I. Visitation. Jeffrey first argues the district court erred in limiting his summer visitation period to two weeks, thereby placing, in his view, an unreasonable restriction on his ability to develop a relationship with his son. He contends the district court’s use of the child’s young age as the sole articulated reason for the two-week limitation was inappropriate.

Our review of an action in equity is de novo. Iowa R.App.P. 4. While we are not bound by the findings of the district court, we do give weight to them, especially when considering the credibility of witnesses. Iowa R.App.P. 14(f)(7). A district court “is greatly helped in making a wise decision about the parties by listening to them and watching them in person.” In re Marriage of Vrban, 359 N.W.2d 420, 423 (1984) (citing In re Marriage of Callahan, 214 N.W.2d 133, 136 (1974)). We modify the district court’s judgment by increasing the summer visitation period to four weeks.

In determining visitation rights the governing consideration is, as always, the best interest of the child. Petition of Deierling, 421 N.W.2d 168, 171 (Iowa App.1988). Liberal visitation rights are in the best interest of the child. In re Marriage of Kerber, 433 N.W.2d 53, 54 (Iowa App.1988), In re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa App.1987). Iowa Code section 598.41(1) (1989) provides in pertinent part:

The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent, and which will encourage parents to share the rights and responsibilities of raising the child.

In awarding Jeffrey two weeks of summer visitation, the district court’s amended decree states “The child in this matter is extremely young, and the Court feels that the visitation rights as set forth are reasonable.” Jeffrey contends the child’s age is not a proper factor to be considered by the court in determining summer visitation terms. In support of this contention, Jeffrey cites In re Marriage of Kerber, 433 N.W.2d 53, 54 (Iowa App.1988).

In Kerber, we modified a decree which had limited parental visitation to daylight hours. See id. The district court had stated:

The father is entitled to a close association with his son [Eric]. This must, however, be moderated by Eric’s age. Eric *671 is now just two years old. The parties have been separated since July. A child that young has a very short memory. Eric and his father are now virtual strangers.

We held a child’s age alone is not a factor properly used to limit parental visitation to daytime hours. Id.

Our holding in Kerber governs the first issue presented in the instant case. A limitation on the number of days is no different than a limitation on the time of day. The child's age alone is not an appropriate consideration for limiting a parent’s summer visitation rights.

In support of the district court’s reasoning, Kathryn cites In re Marriage of Glass, 213 N.W.2d 668, 671 (Iowa 1973). In Glass, the Iowa Supreme Court modified an alternate year, one week, Christmas visitation provision. See id. The court stated:

At his present age and for the next few years we believe it would be unduly disruptive of Brian’s life to take him from California to Iowa for one week at Christmas. He is still quite young; the time is short; the journey is long; and the weather may present a hazard. When he is a few years older that visitation provision may well be appropriate but for the present and near future it is not.

The Glass case supports Kathryn’s contention that the child’s age is one of many appropriate factors to be considered in setting visitation periods, generally.

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Bluebook (online)
475 N.W.2d 668, 1991 Iowa App. LEXIS 322, 1991 WL 208785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-drury-iowactapp-1991.