In re the Marriage of Wood ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0454
Filed February 6, 2019
IN RE THE MARRIAGE OF BRIDGETT MARIE WOOD
AND CLINTON ANDREW WOOD
Upon the Petition of
BRIDGETT MARIE WOOD,
Petitioner-Appellee,
And Concerning
CLINTON ANDREW WOOD, n/k/a CLINTON ANDREW LUNDEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Andrew Chappell,
Judge.
Clinton Lunden appeals the physical care, visitation, and child support
provisions of the decree dissolving his marriage to Bridgett Wood. AFFIRMED AS
MODIFIED.
Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar
Rapids, for appellant.
Crystal L. Usher of Nazette, Marner, Nathanson & Shea, LLP, Cedar
Rapids, for appellee.
Heard by Tabor, P.J., Bower, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
MAHAN, Senior Judge.
Clinton Lunden appeals the physical care, visitation, and child support
provisions of the decree dissolving his marriage to Bridgett Wood. Upon our
review, we affirm as modified to provide Clinton additional visitation during the
summer.
I. Background Facts and Proceedings
Clinton and Bridgett married in 2009.1 They have two children together,
I.W. and F.W., born in 2011 and 2014. Clinton and Bridgett purchased a home in
Cedar Rapids in 2008, where they lived until they separated. Clinton shared
physical care of two children from a prior marriage, who also lived with them when
they were not with their mother.
Clinton is thirty-eight years old. He has a degree in human services. He
worked for ASAC from 2008 to 2015. He has also worked as a journeyman
plumber and a custodian. He has some physical injuries relating to prior worker’s
compensation claims, and he has two pending worker’s compensation claims. He
has been unemployed since July 2016. He testified he has applied for disability
and was approved through vocational rehabilitation to be educated in a different
field. Clinton testified he receives financial assistance through monetary gifts from
a couple he refers to as his godparents.
Bridgett is twenty-nine years old. She has degrees in criminal justice and
business management and a master’s degree in business administration. She
worked for the Linn County Auditor’s Office until 2016 and then at an appliance
1
Pursuant to an affidavit executed in 2008, Clinton and Bridgett declared themselves to
be common law married in 2006.
3
store in Iowa City. At the time of trial in August 2017, Bridgett testified she was
seeking different employment in order to receive better health insurance and
benefits and she was applying for jobs in the Iowa City, Cedar Rapids, and
Waterloo areas.
The parties separated in late 2015, and Clinton moved from the family
home. Bridgett filed a petition for dissolution of marriage in November 2015. That
same day, she filed a petition for relief from domestic abuse, alleging physical
abuse and threats by Clinton. The district court entered a protective order by
consent agreement.2
In January 2016, the district court entered an order on temporary matters,
ordering physical care of the children with Bridgett and visitation with Clinton
overnight every Tuesday and Thursday and every other weekend.3 The temporary
order found it “equitable to impute income to [Clinton] at the level he was earning
before becoming unemployed in September 2015” and ordered Clinton to pay child
support in the amount of $565.81 per month. Bridgett was ordered to continue to
maintain health insurance for the children.
Bridgett remained in the marital home until September 2016, when the
home was foreclosed and she moved into an apartment. Bridgett began a
relationship with Brian, who was on parole for convictions of robbery and willful
injury stemming from an incident when he was nineteen years old. Brian testified
2
At Bridgett’s request, the court extended the no-contact order for an additional year in
November 2016.
3
The court ordered the weekend visitations to coincide with the weekends Clinton had his
other children.
4
he had “grown up a lot” following the incident and his time in prison, and he stated
he no longer used drugs.
Clinton moved in with his girlfriend Angela in Hiawatha in October 2016.
Angela also has no children. Both Clinton and Bridgett testified to the long term
plans of their respective relationships. Testimony presented from both parties’
witnesses indicated Brian and Angela were supportive and stable influences for
the parties’ children.
Clinton, without consulting Bridgett, began services through Tanager Place
for I.W. Although Bridgett did not agree to the services, she participated. There
was no indication I.W. needed to continue attending therapy, and Bridgett was
concerned Clinton would also enlist services for F.W.
Trial took place over three days in August 2017. The main issue before the
court was which party would receive physical care of the children. The court heard
testimony from Bridgett, Brian, two of the children’s previous daycare providers,
the parties’ former neighbor, Bridgett’s sister, Clinton, Angela, Clinton’s ex-wife,
Clinton’s ex-wife’s husband, two Tanager Place caseworkers, Clinton’s mother,
and Clinton’s godmother.
At the time of trial, I.W. was five years old and just starting first grade; she
was described as smart, creative, loving, and caring. F.W. was two years old and
just starting preschool; he was described as bright, fun, and playful.
In October 2017, before the court entered a decree, Clinton filed a motion
to reopen the record, alleging Bridgett had located employment in Waterloo and
intended to move there with the children. The court allowed the parties to
supplement their trial testimony by affidavit to be heard on the issue of Bridgett’s
5
new employment and relocation. Bridgett’s affidavit confirmed she had obtained
employment with the Black Hawk County Public Health Department, earning
$48,000 (an increase of approximately $12,000 per year) starting October 23.
Bridgett stated she would have “significant” benefits after sixty days of
employment, including health, dental, and vision insurance for herself and the
children. She further stated she had researched housing “in the Urbana area,” but
she was unable to find any three-bedroom apartments or homes in her price range;
instead, she planned to move into the home Brian had recently purchased in
Waterloo so they could share expenses. Bridgett stated she had enrolled F.W. in
daycare and I.W. in elementary school in Waterloo, to start at the beginning of the
next trimester. Bridgett acknowledged the move would result in the parties living
“47 minutes apart,” which was “30 minutes more” than they currently lived, but she
believed it was in the children’s best interests for her to accept the job due to the
increase in pay and because it was the only offer she had received after applying
for many different jobs.
Clinton responded, essentially refuting Bridgett’s statements that she could
not find housing in Urbana and that the Black Hawk County job was the only one
available to her. He acknowledged he was behind on child support but stated he
pays “what I currently am able.”4 Clinton also stated he “offer[ed] to watch the
children,” but Bridgett “chose to incur daycare costs.”
In December 2017, the district court entered its decree, ordering joint legal
custody of the children and physical care to Bridgett with liberal visitation to Clinton
4
Bridgett testified as of July 25, 2017, Clinton owed $2233.34 in back child support.
6
(“as agreed upon by the parties,” or if they could not agree, every Wednesday
overnight and every other weekend, Friday to Monday morning). The court
“imputed $11 per hour of fulltime income, for $22,500 annually” to Clinton, and
after giving credit for extraordinary visitation, ordered him to pay child support in
the amount of $432 per month. The court distributed the marital assets,5 and the
court ordered Clinton to pay $3800 of Bridgett’s attorney fees.
Clinton filed a motion to modify, amend, or enlarge, which the district court
denied. Clinton appeals.
II. Scope and Standard of Review
We review dissolution cases, which are tried in equity, de novo. Iowa R.
App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa
2012). While we give weight to the factual findings of the district court, especially
when considering the credibility of witnesses, we are not bound by them. Iowa R.
App. P. 6.904(3)(g). “Precedent is of little value as our determination must depend
on the facts of the particular case.” In re Marriage of Fennelly, 737 N.W.2d 97,
100 (Iowa 2007) (citation omitted).
III. Physical Care
Clinton appeals the district court’s decision placing the children in Bridgett’s
physical care. At trial, both parents requested physical care, and Clinton requested
shared physical care only in the alternative.6 “Physical care” involves “the right
5
The court noted the parties had both emerged from bankruptcy proceedings and
“[r]egarding personal property, . . . have very little to divide.” Property distribution
provisions of the decree are not at issue on appeal.
6
The court must consider joint physical care if requested by either party, see Iowa Code
§ 598.41(5)(a) (2015). Although the district court observed, “One could interpret these
positions as an agreement that joint physical care is not appropriate for the parties,” the
court stated it would still consider joint physical care.
7
and responsibility to maintain a home for minor child and provide for the routine
care of the child.” Iowa Code § 598.1(7). We consider a number of factors in
determining which parent should have physical care of a child. See id. § 598.41(3);
In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The fundamental
goal in determining physical care of a child in an action for dissolution of marriage
is to place the child in the care of the parent who will likely accommodate the long-
range best interests of the child. Winter, 223 N.W.2d at 167. “[T]he basic
framework for determining the best interest of the child” is well established. In re
Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007); see Iowa Code § 598.41.
“The objective of a physical care determination is to place the children in the
environment most likely to bring them to health, both physically and mentally, and
to social maturity.” Hansen, 733 N.W.2d at 695.
Clinton contends he should be awarded physical care of the parties’
children. To support his contention, Clinton claims: “[t]he credibility determinations
of the district court do not hold up under this review”; “[t]he factors of continuity and
stability strongly weigh in favor of placement of [the children] with Clint”; he has
“always put the children first” whereas “Bridgett had other priorities”; “Bridgett does
not value Clint as a parent, and does not have any ability to support his relationship
with the children”; and “denying [the children] the ability to be together [with his
older children] is not in their best interests.” We address these contentions in turn.
The district court’s decree included detailed findings of fact and credibility
determinations. Without reciting each of the court’s credibility determinations, we
observe the court found Clinton’s testimony “self-serving” and “not at all
convincing”; “When testifying, he made a constant habit of equivocating instead of
8
providing direct, honest answers.” And although the district court acknowledged
“some of Bridgett’s testimony [about Clinton’s controlling actions] appeared to be
somewhat overstated,” the court concluded “it was still more convincing than
Clinton’s about these matters.” Moreover, the court found Bridgett’s testimony to
be corroborated by other witnesses. Specifically, the court found Bridgett’s
testimony regarding a history of domestic violence by Clinton to be “largely
corroborat[ed]” by Clinton’s ex-wife,7 who Clinton called as a witness. The court
further found Bridgett’s testimony regarding Clinton’s controlling and angry actions
to be “corroborated” by Bridget’s sister, who the court observed to be “very credible
overall.” It is unclear why Clinton would choose to draw attention to the court’s
credibility determinations when the record clearly belies his contention. We give
the district court’s findings considerable weight. See In re Marriage of Vrban, 359
N.W.2d 420, 423 (Iowa 1984).
“[S]tability and continuity of caregiving are important factors that must be
considered in custody and care decisions.” Hansen, 733 N.W.2d at 696. In
determining the best interests of the children, a parent’s ability to maintain stability
in a child’s life is significant. See id. The fact that I.W. and F.W. have changed
daycare providers is in part due to Bridgett’s change in employment; we cannot
fault Bridgett for the steps she took to secure employment that allows her to better
provide for the children, particularly given the circumstances of Clinton’s
unemployment. Change is a natural result of divorce, and it appears both parties
7
Clinton’s ex-wife has a diagnosis of post-traumatic stress disorder relating from domestic
abuse from Clint “amongst many other things.” She also had a prior no contact order
against Clinton.
9
have adapted to find more stability as they have established lives separate from
each other.
Clinton and Bridgett both testified they were the primary caregivers for the
children, but the district court found, and we agree, that “the record supports a
finding that they likely divided parenting responsibilities relatively evenly given their
respective schedules over the course of the marriage.” The record in this case is
extensive and there is more than enough acrimony between these parties as a
result of these proceedings; we need not reiterate their views of the other’s
shortcomings. It is apparent both parties were greatly involved in the children’s
lives. The testimony at trial indicates the parties are both able to provide for the
children’s physical and emotional needs.
“The parent awarded physical care is required to support the other parent’s
relationship with the child.” Id. at 700. The district court found “both parties have
severe communication issues and issues showing mutual respect.” And the court
observed Bridgett “could be somewhat more flexible in adjusting the children’s
schedule when possible.” But overall, we believe Bridgett is capable of working
with Clinton to co-parent the children effectively and working with Clinton to resolve
issues in the best interests of the children.
Clinton also claims the court erred by separating I.W. and F.W. from their
half-siblings. We recognize there is a strong interest in keeping siblings together,
and this includes half-siblings. Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa
Ct. App. 1994). However, circumstances can arise which demonstrate that
separation is in the long-term best interest of the children. Id. In this case, we find,
10
as did the district court, that the long-term interests of I.W. and F.W. in this case
are best served by being in the physical care of Bridgett rather than Clinton.
The overriding concern is the best interests of the children. Iowa R. App.
P. 6.904(3)(o); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). We
conclude it is in the children’s best interests to be placed in the physical care of
Bridgett. Upon our de novo review of the record and the nonexclusive factors set
forth in section 598.41 and Iowa law, along with a careful study of the issues raised
by Clinton on appeal, we affirm the physical care decision made by the district
court.
IV. Visitation
Clinton requests increased visitation “[i]n the event the Court declines to
grant [him] physical care.” The district court afforded Clinton liberal visitation, 8
including every Wednesday overnight and every other weekend, Friday afternoon
to Monday morning, as well as two non-consecutive weeks during the summer.
Clinton’s proposal of two overnights every week is not feasible considering the
distance between the parties and the location of their school and daycare provider.
Moreover, as the district court noted, the parties are free to agree upon additional
visitation, and the court was “hopeful” “better flexibility will be forthcoming from
both parents” “once the specter of divorce has lifted.”
Clinton also requests six weeks, rather than two weeks, of visitation during
the summer. We modify the decree to provide Clinton an additional two weeks of
8
Clinton mistakenly states the district court “limited [his] contact with his children to four
nights every two weeks,” but the decree provides Clinton five nights every two weeks.
11
visitation in the summer. We see nothing in the record to indicate that four weeks
of summer visitation is inconsistent with the best interests of the children.
V. Imputation of Income to Clinton
The district court calculated child support under the guidelines adopted by
the Iowa Supreme Court. See Iowa Ct. R. 9.2. The court used Bridgett’s annual
income of $48,000 and determined “some level of income should be imputed to
Clinton.” At trial, Clinton testified he worked for ASAC from 2008 to 2015, where
he “started out [at] like $15 an hour.” Clinton testified he was currently
unemployed, seeking vocational rehabilitation, and had several worker’s
compensation claims pending. The district court found, “Given his education and
prior experience, but factoring his physical limitations, . . . Clinton should be
imputed $11 per hour of fulltime income, for $22,880 annually.”
Clinton contends the court’s “deviation from the Child Support Guidelines
and imputation of income . . . is unjust, unfair, and unsupported by the record.”
Iowa Court Rule 9.11(4) allows a court to impute income to a parent “in appropriate
cases.” The rule identifies one appropriate case as a parent’s unemployment or
underemployment “without just cause.” Iowa Ct. R. 9.11(4). “One of the factors
we consider in determining if we will use a parent’s earning capacity, rather than a
parent’s actual earnings, in order to meet the needs of the children and do justice
between the parties is whether the parent’s inability to earn a greater income is
self-inflicted or voluntary.” In re Marriage of McKenzie, 709 N.W.2d 528, 533 (Iowa
2006). Here, the district court was “convinced that Clinton has the ability to work,”
12
but he “has no employment and no good plan for securing it.” 9 Under these
circumstances, the court acted equitably in using an amount reflective of Clinton’s
earning capacity rather than his actual income. Cf. id. at 534.
VI. Trial Attorney Fees
Clinton contends the district court abused its discretion in ordering him to
pay $3800 of Bridgett’s trial attorney fees.10 Whether attorney fees should be
awarded depends on the parties’ respective abilities to pay. In re Marriage of
Sullins, 715 N.W.2d 242, 255 (Iowa 2006). In addition, the fees must be fair and
reasonable. In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). An award
of trial attorney fees rests in the sound discretion of the trial court and should not
be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of
Romanelli, 570 N.W.2d 761, 765 (Iowa 1997).
Considering the district court’s fact findings regarding Clinton’s finances,
including but not limited to the monetary gifts and loans from his godparents,
removal of money from the parties’ joint bank account, and misrepresentations
about his worker’s compensation settlement, we do not believe the court abused
its discretion in ordering him to pay a portion of Bridgett’s attorney fees.
VII. Appellate Attorney Fees
Both parties seek an award of appellate attorney fees. An award of
appellate attorney fees is not a matter of right but rests within this court’s discretion.
In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining
9
The court further noted Clinton “owes significant back child support, despite being
ordered to pay a minimal amount.”
10
The court specified, “Due to Clinton’s current financial situation, he shall make monthly
payments of no less than $100 on this obligation.”
13
whether to award attorney fees, we consider the needs of the party making the
request, the ability of the other party to pay, and whether the party making the
request was obligated to defend the district court’s decision on appeal. Id. In
consideration of these factors, we decline to award either party attorney fees on
appeal. Costs on appeal are assessed equally between the parties.
AFFIRMED AS MODIFIED.