In Re the Marriage of Pundt

547 N.W.2d 243, 1996 Iowa App. LEXIS 39, 1996 WL 240336
CourtCourt of Appeals of Iowa
DecidedFebruary 28, 1996
Docket95-0740
StatusPublished
Cited by12 cases

This text of 547 N.W.2d 243 (In Re the Marriage of Pundt) 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 Pundt, 547 N.W.2d 243, 1996 Iowa App. LEXIS 39, 1996 WL 240336 (iowactapp 1996).

Opinions

HUITINK, Judge.

Jeanice and Ricky Pundt were married in 1980. They have three children: Derrick, born on August 27, 1982; Danielle, born on May 10, 1985; and Devin, born on December 19, 1987. During the marriage the parties lived in State Center.

Jeanice was thirty-four years old at the time of the dissolution hearing. She is a high school graduate and has a degree as a dental assistant. She is presently taking classes in business administration. Jeanice is employed by the United States Postal Service.

At the time of the dissolution hearing, Ricky was thirty-five years old. He has a high school decree. He is employed in his parents’ grocery store in State Center. He plans on eventually buying his parents’ interest in the store.

The parties separated in February 1994, when Jeanice moved to Marshalltown with the two girls, Danielle and Devin. Derrick stayed in State Center with his father. In May 1994, the parties entered into a stipulation which continued this split physical care arrangement, with Jeanice having physical care of Danielle and Devin, and Ricky having physical care of Derrick. Jeanice later changed her mind and decided to seek custody of all three children.

At the dissolution hearing, Jeanice testified she felt Ricky was polarizing the family along gender lines. She stated Ricky favored Derrick and did not exhibit much interest in the girls. She felt that while in Ricky’s care, Derrick began to exhibit more of a disparaging attitude towards the gilds. She testified the girls missed Derrick, and she felt it would be better not to separate the children.

Ricky only sought custody of Derrick. He stated he and Derrick had similar interests, such as watching sports and playing basketball. Ricky testified Derrick was his best friend.

Derrick testified he preferred to live in State Center with Ricky. He stated Ricky helped him with schoolwork and sports. Derrick expressed interest in his grandparents’ grocery store. He also stated he had many friends in State Center and did not want to move.

The court appointed Kenneth Riedel, an administrator for the Iowa Department of Human Services, to conduct a custody evaluation. Riedel’s first recommendation was to maintain the present situation, with Jeanice having physical care of Danielle and Devin, and Ricky having physical care of Derrick. This recommendation was based primarily on a concern that Derrick would have a difficult time adjusting to moving to Marshalltown. In the alternative, Riedel recommended that [245]*245Jeanice receive physical care of all three children.

The district court entered a dissolution decree for the parties on April 24,1995. The district court granted the parties joint legal custody of the children, with Jeanice having primary physical care. The court found Je-anice had been the primary caretaker for all three children prior to the separation. The court questioned Ricky’s level of maturity and his dependence on his parents. The court stated Ricky needed to be more of a parent to Derrick instead of a “best friend.” The court decided split physical care was inappropriate in this case. Ricky was granted visitation with the children and ordered to pay child support.

Ricky has appealed the custody provision of the parties’ dissolution decree. He seeks to have primary physical care of Derrick. Ricky asserts the children have been in a split physical care situation since February 1994, with no ill effects. He believes the trial court misinterpreted his testimony that Derrick was his best friend. Ricky states they simply have the same interests and like to do things together. Ricky claims the court did not give enough weight to Derrick’s preference to live with him.

Our review of this equitable action is de novo. Iowa R.App.P. 4. We are not bound by the district court’s findings of fact, but we do give them deference because the district court had an opportunity to view, firsthand, the demeanor of the witnesses when testifying. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).

The best interests of the children dominate our consideration in child custody eases. In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa App.1994). Numerous factors exist to supplement the best interests standard, which are enumerated in Iowa Code section 598.41(3). Id. The critical issue in determining the best interests of the child is which parent will do better in raising the child into a healthy, content, well-adjusted young adult. Id.

Split physical care occurs when each parent has physical care of at least one child. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). There is a presumption that siblings should not be separated. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994). Split physical care is generally opposed because it deprives children of the benefit of constant association with one another. Will, 489 N.W.2d at 398. The rule is not ironclad, however, and circumstances may arise which demonstrate that separation may better promote the long-range best interests of children. Id. Good and compelling reasons must exist for a departure. In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993).

We initially disagree with the district court’s characterization of Ricky’s relationship with Derrick. The court’s concern that Ricky was unable to separate the concept of “buddy” from parent is inaccurate and overstated. This characterization of Ricky’s relationship is notably absent from any assessment made by the mental health professional involved in this case. As Ricky testified, they have similar interests, and enjoy each other’s company. We find Ricky and Derrick had a positive father-son relationship.

We find several factors in this case which would support split physical care of the children. Both of the parents are capable of caring for the children. The custody evaluator recommended split physical care based on a finding Derrick was established in State Center. By staying in State Center, Derrick has stability in his home, school, and friends. Moreover, the parties were in a split physical care arrangement from the time they separated in February 1994 until the dissolution decree was entered in April 1995. This situation does not appear to have been detrimental to the children.

Furthermore, we consider Derrick’s stated preference to live with Ricky. When a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment, his or her wishes, though not controlling may be considered by the court, with other relevant factors, in determining child custody rights. In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa App.1991). A minor child’s preference to live with one parent is relevant and cannot be ignored. In re Mar[246]*246riage of Blume, 473 N.W.2d 629, 631 (Iowa App.1991).

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