In Re the Marriage of Kunkel

555 N.W.2d 250, 1996 Iowa App. LEXIS 99, 1996 WL 649165
Court of Appeals of Iowa·Decided August 30, 1996·No. 95-953·Published·Cited by 37 cases

Opinions

[252] HUITINK, Judge.

Dewey L. Kunkel appeals the custodial provisions of the decree dissolving his marriage to Angie Kunkel. We affirm the decree as modified and remand for further proceedings.

Dewey and Angie were married in September 1992. They have one child, Brandon, bom on March 5,1993.

Angie was twenty-two years old at the time of trial. She is a high school graduate and has completed one year of clerical studies at AIB in Des Moines. Her employment experience includes work as a daycare provider, and she was working at Younkers Warehouse in Ankeny as of the trial date. Her net monthly income is $824.

Dewey was thirty-three years old at the time this case was tried. After graduation from high school, Dewey attended Iowa Central College earning a degree in carpentry. Dewey works as a union carpenter in Des Moines. His net monthly income is $1,929. Dewey and Angie were both raised in the Baxter, Iowa area and have lived in Baxter since they were married. Both have extended family living in or near Baxter.

Angie and Dewey shared Brandon’s custody and physical care for alternating two week periods during the time this case was pending. The record indicates this arrangement worked “reasonably well with no conflicts or serious incidents.”

The district court ordered a home study at Dewey’s request. The “custody study report” assessed Dewey and Angie’s respective custodial capability. This report included the following conclusions:

There is a consistent pattern of reporting control problems regarding temperament and actions on the part of the mother. These reports are varied as to context and source but are consistent as to description and content. They come from a variety of persons, some of whom might be expected to be “in her comer.” They are buttressed and made credible by the founded child abuse allegations.

The report also states:

Dewey by all accounts and by his history is a person of stability and dependability.
He has extensive family support. He has demonstrated and verbalized willingness to be supportive of Brandon’s relationship with the mother and would be supportive of visitation with the maternal grandparents.

The report recommended Brandon be placed with Dewey.

The founded child abuse report refers to a 1994 incident involving Angie and a 15-month-old child entrusted to her care. A child abuse investigation by the Department of Human Services implicated Angie as the person responsible for bruises found on the child’s buttocks. Angie denies physically abusing this or any other child.

Angie also submitted a favorable home study report prepared by another custody evaluator. This report was, however, excluded from the trial because it was not timely submitted pursuant to the terms of a pretrial order.

The district court found that both parents were capable of providing physical care for Brandon. The decree includes the following assessment of the parties by the district court:

Angie’s personality is abrasive and argumentative when she tries to make a point or state a fact. She has been very judgmental of Dewey and his family. She is negative in her assessment of Dewey. Dewey’s assessment of Angie has been quite generous and complimentary.

The district court also found:

The parents’ backgrounds are somewhat different in that Dewey is probably the more stable of the two when reacting to situations and other persons. Angie has a tendency to be abrasive and argumentative in responding to questions, and she is somewhat immature in her expectations.

Concerning Dewey, the district court stated:

Dewey is committed to Brandon and Dewey will probably put Brandon number one in his life, but the court does not find this would be in Brandon’s best interest. Angie has other romantic interests and the court does not know if Brandon would [253] always come out first in these relationships.

The district court awarded Brandon’s physical care to Angie. The court reasoned that:

Angie has been the primary care giver of Brandon since his birth. Based upon that factor and that factor alone, physical custody of Brandon should be in Angie.

On appeal Dewey contends the district court’s physical care award conflicts with its own findings. He also argues the district court ignored the recommendation made by the custody evaluator. Angie cross appeals citing the district court’s exclusion of the home study she submitted.

Our review in this case is de novo. Iowa RApp. P. 4. Prior cases have little prece-dential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court’s findings of fact, but we are not bound by them. Iowa RApp. P. 14(f)(7).

The critical issue is not which parent possesses the greater right to the child, rather the controlling consideration must be the best interest of the child. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). This decision requires selection of a custodial parent who can minister more effectively to the long range best interest of the child. The objective should always be to place the child in the environment most likely to bring that child to healthy physical, mental and social maturity. See In re Marriage of Winter, 223 N.W.2d 165, 167 (Iowa 1974). The court should also consider the characteristics and needs of the child, the characteristics of the parents, the capacity and desire of each parent to provide for the needs of the child, the relationship of the child with each parent, the nature of each proposed environment and the effect of continuing or changing an existing custodial status. Id.

There is no presumption in favor of the mother or the father. See In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974). Greater primary care experience is one of many factors the court considers but it does not ensure an award of physical care. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa 1995). In so far as is reasonable and in the best interest of the child, the court should make an award of custody which- will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents and which will encourage the parents to share the rights and responsibilities of raising the child. See Iowa Code § 598.41(1) (1995). To effectuate that policy the court must consider the willingness of each party to allow the child access to the other party. In re Marriage of Burham, 283 N.W.2d 269, 276 (Iowa 1979).

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In Re the Marriage of Kunkel, 555 N.W.2d 250, 1996 Iowa App. LEXIS 99, 1996 WL 649165 (iowactapp 1996).

555 N.W.2d 250 (In Re the Marriage of Kunkel) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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