In Re the Marriage of Miller

390 N.W.2d 596, 1986 Iowa Sup. LEXIS 1249
CourtSupreme Court of Iowa
DecidedJuly 23, 1986
Docket85-891
StatusPublished
Cited by14 cases

This text of 390 N.W.2d 596 (In Re the Marriage of Miller) is published on Counsel Stack Legal Research, covering Supreme Court 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 Miller, 390 N.W.2d 596, 1986 Iowa Sup. LEXIS 1249 (iowa 1986).

Opinions

SCHULTZ, Justice.

The principal issue is whether joint custody of children is an appropriate disposition in this dissolution action. The trial court awarded the petitioner Susan K. Miller custody of the parties’ two children and granted the respondent Dwight Andrew Miller specific visitation rights. Susan appealed, challenging the extent of visitation and the economic provisions of the decree. Dwight cross-appealed, contesting the custody award. The court of appeals affirmed the trial court in all respects, except that it modified the award of sole custody to provide for a joint custody arrangement with [598]*598Susan having physical care of the children. We vacate the decision of the court of appeals and affirm the judgment of the trial court.

I. Principles concerning visitation and joint custody. In marriage dissolution actions, our present statutory scheme directs the court to provide ample visitation with both parents and, upon the request of one parent, to consider granting joint custody, subject to the considerations of the best interests of the child and reasonableness. Iowa Code § 598.41 (1985).1 The statute emphasizes maximum physical and emotional contact between each parent and child, and gives preference to a joint custody arrangement, when such an arrangement is requested by either parent.

The present emphasis on the award of joint custody is a relatively new concept in family law in this state. Recently, we comprehensively described the legislative history and case law which outlines joint custody in modern dissolution actions. In re Marriage of Weidner, 338 N.W.2d 351, 354-56 (Iowa 1983). In discussing the principles governing joint custody, we rejected the suggestion that the legislature created a presumption that joint custody is in the best interests of the children; however, we acknowledged that our statutes now express our preference for joint custody over [599]*599other custodial arrangements and do not allow one-party vetoes of joint custody arrangements. Id. at 356. We reiterated that our first and foremost consideration in determining custody is the best interest of the child involved, but acknowledged that the specific factors listed by the legislature in section 598.41(3) are to be considered when a parent requests joint custody. Id. The best interest of a child includes the opportunity for a continuous relationship with both parents. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986).

Since Weidner, the legislature has further strengthened the visitation rights of the noncustodial parent and has augmented the court’s duty by requiring it to spell out reasons for denying joint custody. Section 598.41 (1983) was amended, eliminating language in subsection 1 that required the court to allow a child “frequent and continuing” contact with both parents, and adopting the present language requiring “the opportunity for maximum continuing physical and emotional contact with both parents.” 1984 Iowa Acts ch. 1088, § 2 (codified at Iowa Code § 598.41(1)). Further revision of the 1983 section deleted language in subsection 2 which required the court to “state in its decision the reasons for denying joint custody” and substituted the present language: “the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interests of the child to the extent that the legal custodial relationship between the child and a parent should be severed.” Id. These changes reflect a legislative preference for maximum parent-child contact in determining reasonable visitation, and require a court denying a request for joint custody to expressly cite clear and convincing evidence supporting its decision.

II. Visitation and joint custody in this case. We first address the issue of joint custody of the children by both parents. The trial court found that the best interests of the children required that Susan have their custody; however, the court did indicate that both parents were equally capable of taking care of the children. Even so, the trial court rejected joint custody, stating:

There has been a problem with visitation. These parents do not agree regarding the children. Petitioner does not believe respondent can properly care for Andrew. These folks are at odds regarding care of the children. This is not a case for joint custody.

The court of appeals agreed with Dwight’s contention that the award of sole custody to Susan was inappropriate, and awarded joint custody to both parties with the physical care in Susan, but did not change the trial court’s prescription as to visitation.

An examination of the trial court’s decree in its entirety reveals a deficiency in citing evidence expressly, but also provides insight into the court’s reasoning. Initially, we believe the trial court failed to adequately state clear and convincing evidence, as required by section 598.41(2), that makes joint custody unreasonable. While it did not state reasons in detail, the court correctly concluded that the best interest of the child is the heart of a custody issue. Indirectly, the court revealed its reasons for denying joint custody. It referred to and focused on disagreements regarding the care of the children, and lack of communication between the parties. The court referred to the oldest child’s anxiety attacks prior to visitation and the psychologist’s explanation of the attacks. It exhorted Susan and her parents to improve their attitudes concerning Dwight’s visitation. Although the trial court limited its advice to visitation, it suggested to both parties that they should put aside their animosity and cooperate in the best interests of the children.

The omission of the required citation of clear and convincing evidence does not necessitate a reversal of the trial court’s award of custody for two reasons. First, the controlling issue on appeal concerns the correctness of the award of custody, not the lack of stated reasons. Second, Dwight could have moved for an en[600]*600largement of the findings and conclusions of the trial court. Iowa R.Civ.P. 179(b). Without such a motion, we need not consider the absence of particular findings of fact or conclusions of law on appeal. See Nowlin v. Scurr, 331 N.W.2d 394, 396 (Iowa 1983).

In our review of the trial court’s findings of fact and conclusions regarding custody, it is apparent that the trial court assessed the credibility of the witnesses, including the parties and the child psychologist appointed by the court. The trial court relied heavily on the psychologist’s recommendations in determining its award of custody. We give weight to the trial court’s findings, especially the assessment of the credibility of witnesses, because we are unable to form impressions based on the demeanor of the witnesses during the presentation of the evidence. In re Marriage of Zabecki, 389 N.W.2d 396, 400 (Iowa 1986). We now turn to the pertinent facts.

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In Re the Marriage of Miller
390 N.W.2d 596 (Supreme Court of Iowa, 1986)

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Bluebook (online)
390 N.W.2d 596, 1986 Iowa Sup. LEXIS 1249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-miller-iowa-1986.