McKee v. Dicus

785 N.W.2d 733, 2010 Iowa App. LEXIS 534, 2010 WL 2089631
CourtCourt of Appeals of Iowa
DecidedMay 26, 2010
Docket09-1945
StatusPublished
Cited by91 cases

This text of 785 N.W.2d 733 (McKee v. Dicus) 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
McKee v. Dicus, 785 N.W.2d 733, 2010 Iowa App. LEXIS 534, 2010 WL 2089631 (iowactapp 2010).

Opinion

MANSFIELD, J.

Lora Myott appeals from the district court’s order granting Thomas McKee physical care of their son. She contends that she should have been granted physical care and challenges the calculation of child support. We affirm.

I. Background Facts and Proceedings.

Lora and Thomas met in 1983 and had an on-again, off-again relationship for several years, but never married. The parties ended their romantic relationship pri- or to July 1994, when their second son, Austin, was born. After his birth, Thomas did not want a relationship with Austin. In 1995 a district court order, entered at the request of the State of Iowa, established paternity and ordered Thomas to pay child support and provide health insurance for Austin. Thomas did pay child support, but did not provide health insurance even though he had it available through work. Austin lived with Lora for the following fifteen years. During the *735 first ten of those years, Thomas had essentially no relationship with Austin. As he put it, “I was an a_hole. I do not know. I was a workaholic. Just worked.”

Lora, however, encouraged Austin to have a relationship with his father. When Austin was ten years old, Lora began bringing Austin to Thomas’s work in order to facilitate contact between the two. After that, Thomas had sporadic contact with Austin, which Thomas described as “once a month, not even that.” Approximately two years before trial, Austin started spending more time with Thomas. During the summer of 2008, Austin had extended visitation with Thomas.

As Austin was growing up, Lora moved a number of times. As a result, Austin changed residences and schools several times. When Lora and Austin were living in Sergeant Bluff and Austin was in seventh/eighth grade, Lora met Mike Myott, whom she eventually married. During one somewhat difficult time for Austin, Lora was taking Austin every day after school from Sergeant Bluff to Storm Lake, so she could stay overnight with Mike, then returning the next morning to drop Austin at school. Eventually though, Lora and Mike moved with Austin to Hinton. At the time of trial, Austin was still attending the Hinton schools, although his mother and stepfather had moved to Sergeant Bluff. According to Austin, Lora and Mike’s residence was out in the country and has some characteristics of a “junkyard.” In addition to Austin, the residence was shared by Lora, Mike, Lora’s grown son Jeff, Jeffs five-year-old son, nine dogs, and a horse.

Thomas, meanwhile, lives in Beresford, South Dakota. Thomas has been self-employed for twenty-one years. He is a part-owner of Jet Services Center, Inc., a truck stop, repair shop, towing business, and metal crushing business located in Beres-ford. He works “at least sixty hours” per week, and stated that he usually goes to work at 8:00 to 8:30 a.m. and comes home between 9:00 p.m. to 2:00 a.m. Thomas has a two-bedroom house in Beresford. One of the bedrooms is for Austin when he is staying there.

As Thomas’s time with Austin has increased, he has involved Austin with his work and taught him many things related to the business. They enjoy working on cars together.

On November 25, 2008, Thomas filed a petition requesting physical care of Austin. Thomas then began exercising regular visitation with Austin. The parties agreed to a temporary visitation schedule, whereby physical care of Austin would remain with Lora, and Thomas would have visitation with Austin every other weekend. Austin spent a significant portion of the 2009 summer with Thomas.

Trial was held on November 10, 2009. Austin, who was fifteen years old and a sophomore in high school, testified that he loved his mother but wanted to live with his father. He enjoyed working on cars and going to work with his father.

Thomas testified that if Austin lived with him, he would attend a school in Beresford that is located about three blocks from the house, within walking distance. Thomas also acknowledged that he would not generally make meals for Austin, but stated that he was old enough to take care of his own meals.

Lora testified that she believed Austin’s desire to live with his father was sincere, but that it was based, in part, upon the fact that there were no rules in Thomas’s house and no supervision. She also expressed concern about hundred dollar bills that Thomas had bestowed upon Austin, although Thomas claimed this was for work he performed at the truck stop. Ad *736 ditionally, Lora was concerned that if Austin lived with Thomas, he would not have a “home life,” but instead his life would revolve around Thomas’s work.

As of the time of trial, Thomas had not attended any of Austin’s school events, including teacher/parent conferences, and had only attended one of Austin’s doctor’s appointments, which was because Austin had broken his wrist while in Thomas’s care.

On December 10, 2009, the district court entered a decree. The district court found that Lora has been Austin’s primary caregiver since his birth and “has been exemplary in her treatment of Austin’s desire to have meaningful contact with his father.” As to Austin’s testimony, the court found, “It is clear that this action was prompted in large part by Austin’s wishes to live with his father.” The court ultimately concluded that it was in Austin’s best interests to be allowed to live with his father, stating, “The Court is convinced that Austin will be best served if he can have a significant period of time to spend with his father, which will replace that void left by Tom’s past absences.” The court therefore granted joint legal custody to Lora and Thomas and physical care to Thomas. Additionally, Lora was ordered to pay child support. Lora appeals.

II. Standard of Review.

We review child custody and support orders de novo. Iowa R.App. P. 6.907; In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). However, we recognize that the district court was able to listen to and observe the parties and witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Consequently, we give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Sullins, 715 N.W.2d at 247. Our overriding consideration is the best interests of the child. In re Marriage of Bevers, 326 N.W.2d 896, 898 (Iowa 1982).

III. Analysis.

A. Initial Custody Determination or Modification Action.

At the outset, the parties disagree whether this is an initial custody determination or a modification action. The question is important here. If this case is treated as a modification action, then Thomas had the burden of proving (1) a material and substantial change in circumstances and (2) his ability to provide superior care. In re Marriage of Frederick 338 N.W.2d 156, 158 (Iowa 1983).

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Cite This Page — Counsel Stack

Bluebook (online)
785 N.W.2d 733, 2010 Iowa App. LEXIS 534, 2010 WL 2089631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckee-v-dicus-iowactapp-2010.