In re the Marriage of Knight

507 N.W.2d 728, 1993 Iowa App. LEXIS 126, 1993 WL 459784
CourtCourt of Appeals of Iowa
DecidedSeptember 2, 1993
DocketNo. 93-55
StatusPublished
Cited by5 cases

This text of 507 N.W.2d 728 (In re the Marriage of Knight) 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 Knight, 507 N.W.2d 728, 1993 Iowa App. LEXIS 126, 1993 WL 459784 (iowactapp 1993).

Opinions

HAYDEN, Judge.

Roger and Beatrice Knight were married on May 29, 1982. Three children were born of the marriage: Roger Jr., born March 13, 1985; Abigail, born May 10, 1988; and Phillip, born December 7, 1990.

Beatrice filed a petition for dissolution on December 10, 1991. At the time of trial, Roger was employed as a firefighter with the Iowa City fire department, and also served as a volunteer firefighter for the Coralville fire department. Roger earns a net income of $1695.76 per month. Beatrice was disabled and unemployed at the time of trial due to a bad back. Beatrice receives social security disability benefits in the amount of $593 per month, SSDI benefits of $296 per month, and Principal Financial disability insurance in the amount of $143.24 per month, for a total income of $1032.24 per month.

The parties jointly owned a home in Iowa City valued at $80,000, with an encumbrance of $56,956.45, for a net value of $23,043.55. They also jointly owned a mobile home in Coralville valued at $3000. The mobile home is currently rented at $330 per month. Roger and Beatrice also owned a 1988 Dodge Caravan, worth $9000, with an encumbrance of $5035.77. Roger owned an unencumbered 1975 Chevrolet truck worth $1000 and 1981 Citation worth $100. Beatrice is the owner of a TIAA retirement account worth $16,000 which grows at ⅜ rate of $1000 per quarter. Roger’s retirement account is worth $5000, and he has another account worth $3500. The parties also have numerous credit card debts and a $2000 outstanding loan to Delbert Knight.

The district court granted temporary custody of the three minor children to Beatrice. During the pendency of the divorce, there were numerous difficulties between the parties regarding Roger’s rights to visitation. On August 31, 1992, Beatrice petitioned for an injunction against Roger. While no injunction was issued, the parties entered into an agreement Roger would stay away from the home except for times of visitation.

The district court awarded physical custody ' of the three minor children to Roger. The court believed Roger was “more likely to foster smoother visitation and other contacts if he has primary care.” The court ordered Beatrice to pay $361 per month in child support and ordered Roger to maintain medical insurance on the children. The court ordered Roger to pay nominal alimony in the amount of $1 per year. Beatrice was awarded the income tax deduction for Roger Jr., and Roger was awarded the tax deduction for the other two children. The district court also ordered the marital home be sold and the net proceeds divided equally. Roger was awarded the mobile home. The court awarded each party his or her respective TIAA retirement accounts and personal [730]*730checking and savings accounts. Beatrice was awarded the 1988 Dodge Caravan, and Roger was awarded the 1975 truck and 1981 Citation.

The court divided equally the parties’ credit card debts between Beatrice and Roger. Beatrice was responsible for the $500 debt to Sears for new tires for the Caravan. The court awarded Roger the 1990 income tax refund but ordered him to pay a portion of the refund for the payment of debts. Beatrice has appealed, contesting the custodial and economic provisions of the dissolution decree. Roger has cross appealed.

Beatrice seeks custody of the children, maintaining Roger has physically abused the children in the past and threatened her with physical abuse. She maintains she was the primary caretaker of the children. Beatrice points out a court-ordered psychological profile of Roger indicated a degree of rigidity and inflexibility in his manner of disciplining children. Beatrice argues Roger is incapable of providing patience and understanding to Roger Jr., who suffers from an attention deficit disorder. Beatrice contends it is not in the children’s best interest Roger rely on his twenty-four-year-old niece to care for the children while he is at work. Beatrice also contests the alimony award and property distribution set forth by the district court.

Our review of this equity proceeding is de novo. Iowa R.App.P. 4. Although we are not bound by the findings of the district court, we give them weight, especially when considering, the credibility of witnesses. Iowa R.App.P. 14(f)(7).

I. Custody. In cases involving a custody dispute our first and governing consideration is the best interests of the children. In re Marriage of Lacaeyse, 461 N.W.2d 475, 476-77 (Iowa App.1990). In determining the best interests of the children we consider which parent will do better in raising the children; gender is irrelevant. In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa App.1991). The objective in resolving a custody dispute is to place the children in the environment most likely to bring them to healthy, physical, mental, and social maturity. Id. at 45 (citation omitted).

Beatrice contends the district court should have awarded custody of the children to her. Evidence shows Beatrice was the primary caretaker of the children during the parties’ marriage. The fact a parent was the primary caretaker prior to the parents’ separation does not assure he or she will be awarded custody of the children in a dissolution action. In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa App.1992) (citation omitted). However, consideration is given in a custody dispute allowing the children to remain with a parent who has been a primary caretaker so as to enable the children to have continuity in their lives. Id. (citations omitted). The results of a court-ordered psychological examination concluded Beatrice has the necessary parenting skills to provide for the needs of her children. This conclusion is important, especially in light of Roger Jr.’s special needs. Roger Jr. suffers from attention deficit disorder with hyperactivity. Beatrice also has a more flexible schedule. See In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992). We determine Beatrice can better minister to the needs of the children.

We are concerned about Roger’s violent tendencies because they expose the children to danger. See In re Marriage of Burwinkel, 426 N.W.2d 664, 665 (Iowa App.1988). At trial Roger admitted he had difficulty disciplining Roger Jr. and hit him on occasion before the parties’ separation. He explained his actions were due, in part, to the child’s hyperactive behavior. Roger stated the medication, which Roger Jr. began taking just prior to the separation, has caused those problems to subside. Roger’s testimony indicates, however, some tension builds up when he has the children for two or more days consecutively. Roger stated his son’s behavior begins to escalate over this period of time because he does not receive his medication during visits. Tami Miller, Roger’s niece with whom he has resided since the separation, testified she has seen Roger “swat Roger [Jr.] on the behind ... to get him to calm down.... ”

Roger’s ability to serve as a good role model is also questionable. See In re Marriage of O’Brien, 491 N.W.2d 202, 205 (Iowa [731]

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507 N.W.2d 728, 1993 Iowa App. LEXIS 126, 1993 WL 459784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-knight-iowactapp-1993.