In Re the Marriage of O'Brien

491 N.W.2d 202, 1992 Iowa App. LEXIS 246, 1992 WL 301855
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1992
Docket91-1967
StatusPublished
Cited by5 cases

This text of 491 N.W.2d 202 (In Re the Marriage of O'Brien) 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 O'Brien, 491 N.W.2d 202, 1992 Iowa App. LEXIS 246, 1992 WL 301855 (iowactapp 1992).

Opinions

SACKETT, Judge.

Respondent-appellant Mark Thomas O’Brien challenges the custody and economic provisions made by the trial court in dissolving Mark’s marriage to petitioner-appellee Patricia O’Brien. Mark also contends the trial court abused its discretion in failing to grant him a continuance. We affirm as modified.

Mark and Patricia were married in 1974. Neither party brought assets of any significance into the marriage. They have three boys bom in 1974, 1977, and 1981.

Mark is working in the area of construction, and since 1980 has been the owner of a business that sells and erects metal buildings. Patricia has been employed outside the home at a number of jobs, and has a current L.P.N. certification. At the time of trial, Patricia held a full-time job with a feed company and a part-time job as a cashier.

Patricia filed for the dissolution. On the day of trial, Mark requested a continuance of the case. Mark contended he had just secured an attorney and did not have sufficient time to prepare for trial. The trial court denied Mark’s continuance. Mark contends, under the facts of this case, the trial court abused its discretion in denying his motion for continuance.

The dissolution petition and an application for a writ of injunction was filed by Patricia on August 31, 1989. Also on August 31, 1989, there was filed an order setting the application for hearing. There is no evidence the scheduled hearing was held. There are no further filings until August 5, 1991, when Patricia’s attorney filed a trial certificate. There was a certification on the trial certificate that on August 2, 1991, the trial certificate was mailed to Mark. Then on August 5, 1991, an order, signed August 2, 1991, setting the trial for September 12, 1991, was filed, and on August 12, 1991, an order signed August 9, 1991, setting the matter for the 3rd day of September, 1991, was filed. And on August 19,1991, an order setting a pretrial conference for September 3, 1991, was signed by the Court Administrator. On September 3, 1991, the court made a calendar entry setting the matter for hearing on September 9, 1991.

Mark did not employ an attorney to represent him until September 6, 1991. Patricia was represented by an attorney throughout the proceedings.

On September 9, 1991, Mark filed his motion for continuance reciting he had not secured an attorney until September 6, 1991, and he did not have sufficient time to prepare for trial. The motion was denied.

Mark contends the continuance should have been granted. He contends on appeal he saw no reason to hire an attorney until less than a week before the final trial date was set. Mark alleged he and Patricia were going to counseling and they continued to cohabit in the family home until the day of the final hearing, and he believed they would reconcile.

Mark was to later testify at trial about his understanding of the necessity to hire an attorney:

Q. It is my understanding that you’ve been living together up until today? (referring to the date of trial) A. Yes.
Q. You were together last night? A. Yes.
* * * * * *
[204]*204A. Was my opinion that things were taken care of, smoothed over or whatever, up to go as far as on several different occasions. We went camping last week and talked about it. I thought it was— The next day a hearing. And then I thought she wasn’t here. Well, it’s over with.
Then only way I found out about — The way I found out I even had to be here now was that her lawyer called J and R Tax Service which does all my accounting. He called them and wanted some information on the business.
And they wouldn’t give it to him without my permission. And they called me and asked me if they could do it. I told them to get it ready and then we sent it to them on Friday.
That’s the only reason I knew I was going to be here today. Then we talked about it Thursday night also because I didn’t want to hire a lawyer if it wasn’t going to go through. And I thought it. was going to be called off again.
And then it came right down to the last minute before I contacted your office to be here today.

The question is whether the trial court abused its discretion in refusing to grant Mark a continuance. See In re Marriage of Rosalez, 417 N.W.2d 226, 228 (Iowa App.1987). This dissolution action was not dismissed when the parties reconciled. The dissolution had basically laid dormant for two years. The parties reconciled and were living together until time of trial. However, the trial court was not given this information when the continuance was requested. This information only came out after the trial was in progress. We look only to the reasons advanced when the motion for continuance was made in our review of this issue. Additionally, Mark has not shown how he was prejudiced by the trial court’s refusal to grant the requested continuance. We affirm on this issue.

Mark’s second contention is that he has shown he can most effectively minister to his sons, and he should have been the parent receiving primary physical care.

Our review is de novo. Iowa R.App. P. 4. The critical issue is which parent will do the better job of raising the children. See In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa App.1985). The parent who has the ability to do the better job of raising the child or children during their minority is the parent who should be granted custody. See In re Marriage of Urban, 359 N.W.2d 420, 424 (Iowa 1984).

We give weight in making these decisions to the fact-findings of the trial court, especially when considering credibility of witnesses. Iowa R.App. P. 14(f)(7). We are hindered in our review because the trial court has made no fact-finding on the issue of custody and, consequently, has given us no guidance as to the reasons Patricia was awarded primary care. We, therefore, look first to the facts advanced by the parties in support of their positions in their briefs.

Mark contends he should be the custodial parent. He points out that Patricia has low self-esteem, and she admits she has problems disciplining her sons. Mark also directs us to the evidence in the record where he receives strong support from four witnesses who testified Mark would be the superior parent.

Patricia contends Mark has been abusive to her; that the witnesses who testified for Mark were not aware of the abuse. Patricia contends these factors, together with the fact she has spent considerable time with the children, support the trial court decision making her the custodian.

The parties obviously both love their children. They both have shown an interest in the children. They both have the ability to assume custodial responsibility for the children. While they have given conflicting testimony about the alleged physical abuse, they both admit they had some extremely strong arguments in front of their children.

Patricia testified in her own behalf and had one additional witness, a counselor with Lutheran Social Services.

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In Re the Marriage of O'Brien
491 N.W.2d 202 (Court of Appeals of Iowa, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
491 N.W.2d 202, 1992 Iowa App. LEXIS 246, 1992 WL 301855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-obrien-iowactapp-1992.