In Re the Marriage of Worthington

504 N.W.2d 147, 1993 WL 286865
CourtCourt of Appeals of Iowa
DecidedMay 26, 1993
Docket92-996
StatusPublished
Cited by6 cases

This text of 504 N.W.2d 147 (In Re the Marriage of Worthington) 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 Worthington, 504 N.W.2d 147, 1993 WL 286865 (iowactapp 1993).

Opinions

DONIELSON, Judge.

Marc Worthington appeals the district court’s dissolution decree.

Marc and Michele Worthington were married in 1983. They have three children: Mackenzie, born in 1985; Spencer born in 1988; and Connor, born in 1990.

Marc is a high school graduate who currently operates a farm. Due to the large amount of depreciation claimed on his machinery and equipment, Marc has not shown a profit from farming for several years. In 1990, Marc’s income tax return showed a loss of $6378 and depreciation in the amount of $33,522.

Michele has a B.A. degree from Central College. She is currently employed by Iowa Power and Light Company and has [149]*149been since 1984. In 1990, Michele earned a net monthly income of $2013.

In June 1991, Marc filed a petition for dissolution of marriage. In January 1992, the matter proceeded to a bench trial. After trial, the court awarded the farm to Marc and ordered him to pay Michele $20,-500 in yearly installments of $5000. The court granted the parties joint legal custody and awarded primary physical care of the children to Michele. The district court applied the child support guidelines and disallowed any depreciation expense on his farm equipment. The court determined Marc’s net monthly income to be $2262 and ordered Marc to pay $790 per month in child support.

Marc now appeals. He contends he did not receive a fair trial because of the partiality of the district court judge. Marc also contends he should have been awarded primary physical care of the three children. Finally, Marc argues the court erred in calculating his net income for purposes of applying the child support guidelines by disallowing any deduction for his depreciation expenses.

In this equity action, our review is de novo. Iowa R.App.P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 14(f)(7).

I. Whether Marc Received a Fair Trial Marc first contends he did not receive a fair trial. He specifically points to the fact the court interrupted his witnesses and his cross-examination of Michele’s witnesses on numerous occasions. He points to several comments made by the court during the pendency of trial. He argues the court was “overzealous” in protecting Michele. Finally, Marc criticizes the district court for giving too much weight to evidence that Marc had fathered two children out of wedlock, that Marc had purchased a stolen computer, and that Marc had filed a questionable insurance claim.

There is a substantial burden imposed upon one who seeks to prove the district court judge was not impartial. State v. Farm, 325 N.W.2d 107, 110 (Iowa 1982). In order to constitute the prejudice necessary to necessitate a different judge, the alleged bias “ ‘must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.’ ” Id. (citations omitted).

To the extent the district court improperly considered certain evidence, we review only for an abuse of discretion. State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985). As property division, child support, and child custody were all at issue, it was well within the discretion of the district court to consider evidence regarding Marc and the two other children he had fathered, his actions surrounding the stolen computer, and his truthfulness with his insurance company. The admission of and the weight given to this evidence did not deny Marc a fair trial.

Regarding the judge's comments and questioning of the witnesses, we find the judge acted impartially. “A trial judge is allowed greater latitude to comment during a bench trial than might be acceptable during a jury trial.” 75 Am.Jur.2d Trial § 276. That is, the concerns regarding making inadvertent comments which may prejudice a jury simply are not present in a bench trial. Also, the district court may direct questions to a witness so long as the questioning is impartial and not prejudicial. 75 Am.Jur.2d Trial § 274.

On our review, we note the district court was unusually active in examining the witnesses who testified at trial. This case involved numerous issues, including custody and the determination of child support. Marc’s economic situation as a self-employed farmer demanded careful attention. Many of the questions asked by the district court were simply intended for the protection of the three children’s best interests in [150]*150what this court perceives to be a complicated dissolution case. We find the judge acted impartially and Marc was not denied a fair trial.

II. Child Custody. Marc next contends the district court should have awarded him primary custody of the three minor children.

In child custody cases, the best interests of the child is the first and governing consideration. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.41(3), in In re Marriage of Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983), and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). All factors bear on the “first and governing consideration,” the court’s determination of what will be in the long-term best interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the child is which parent will do better in raising the child. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa App.1985). Gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding. Id.

We find the issue of primary physical custody is definitely a close call. Both Marc and Michele appear to care deeply for the three children and their welfare. However, on our review, we find Michele will offer the three children an emotionally stable environment which will better serve the long-term best interests of the children.

Michele has held a steady position as an accountant for Iowa Power since 1984. She presently lives in a home one mile from her parent’s home and several miles from her brother. Her home has more than adequate room for the three children.

After Spencer and Connor were born, Michele informed Marc of her wish to stay home with the children. However, Michele testified Marc was insistent she return to work. Despite the fact Michele has worked throughout most of her children’s lives, she still appears to have been the primary caregiver for the children. During the daytime, the children stayed in daycare and not with Marc. During the weekends, Michele often took the children with her while she shopped and ran other errands.

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