In Re the Marriage of Karla J. Bevers and Anthony J. Bevers Upon the Petition of Karla J. Bevers, and Concerning Anthony J. Bevers

IN THE COURT OF APPEALS OF IOWA
No. 14-0857
Filed March 25, 2015
IN RE THE MARRIAGE OF KARLA J. BEVERS
AND ANTHONY J. BEVERS
Upon the Petition of
KARLA J. BEVERS,
Petitioner-Appellant,
And Concerning
ANTHONY J. BEVERS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dickinson County, Carl J.
Petersen, Judge.
Karla Bevers appeals the dissolution of marriage decree granting joint
physical care. AFFIRMED AS MODIFIED.
John L. Sandy of Sandy Law Firm, P.C., Spirit Lake, for appellant.
William H. Larson of Klass Law Firm, L.L.P., Sioux City, for appellee.
Heard by Danilson, C.J., and Potterfield and Bower, JJ.
2
BOWER, J.
Karla Bevers appeals the district court’s dissolution decree granting her
and her former spouse, Tony Bevers, joint physical care of their two minor
children. Based on our de novo review, we agree with the district court that joint
physical care is appropriate as it will allow the children to have the maximum
amount of contact with each parent and is in their best interests. We affirm the
judgment of the district court, but modify the visitation provision to allow the
parent without the children the right to care for the children should the parent with
the children be unavailable for four or more hours.
I. BACKGROUND FACTS AND PROCEEDINGS
Karla and Tony were married in 1999. The parties have two children, who
were seven and five years old at the time of trial. We incorporate the district
court’s background findings of the couple:
The parties have moved on several occasions during the
term of the marriage. Karla received her BS in elementary and
special education in 2000. Tony received his associate’s degree in
agriculture at approximately that same time period. Initially after
graduation the parties concentrated on Karla’s career wherein she
started her teaching career at the Iroquois school near Huron,
South Dakota, working two years in the reading program. The
parties then moved to Harrisburg, South Dakota, to allow Karla to
work for the Cornbelt Education Cooperative. During that time
period, Tony began his interest in technology and worked for an
office supply company near Huron, South Dakota. Tony began his
own business when the parties moved to Harrisburg, South Dakota.
Also during that time period Tony began a four-year degree
process through Colorado Technical University graduating in 2006.
In 2008 Tony obtained a job at the Watertown School District and
moved to Watertown to begin that employment. Karla remained in
the family home in Harrisburg from February of 2008 until August of
2008. Thereafter Karla obtained an elementary position with the
Watertown School District, and the parties moved and eventually
purchased a home in Castlewood, South Dakota. Again, then in
3
July of 2011, Tony obtained employment with the Sibley-
Ocheyedan School District as a technology director, and Karla
remained in Watertown from July 2011 to January 31, 2012.
Thereafter Karla moved to the acreage in George, lowa, with the
children.
The marriage began to breakdown in 2012. Tony testified that verbal
altercations between the couple began on an increasingly frequent basis. During
this time, Karla claimed Tony’s behavior changed and he became secretive.
Karla perceived Tony as a threat to her and the children. At trial, Karla recounted
two incidents (which Karla recorded the audio of on her phone1) she claimed
evidenced the toxic nature of the couples’ relationship and its negative emotional
impact on the children. Karla received counseling from a domestic abuse agency
to create a “safe house plan” for her and the children if needed.
The parties separated on May 24, 2013. On that date, without informing
Tony, Karla picked up the children from school and did not return to the family
home. Tony contacted Karla multiple times to find out where the children were.
Karla responded the children were with her and they were fine. Karla did not
allow Tony to see the children or disclose their location, for the next three weeks.
Tony was allowed to see the children on Father’s Day weekend. Then, Karla did
not allow him to see the children until the court made its determination at the
temporary custody hearing, several days later.
The district court entered a temporary custody order on July 3, 2013. The
court found Karla’s allegations of abuse by Tony were fabricated. The court
found Karla had denied even minimal contact between the children and Tony
1
The district court did not consider the two recordings as reliable evidence at trial. The
court likened Karla’s act of recording Tony to entrapment.
4
from the end of May through the date of the temporary custody hearing. As a
result of Karla’s actions, the district court granted Tony immediate and
substantial contact with the children consisting of full custody of the children from
July 5 through August 4.
The dissolution trial was held on December 17, 2012 and January 13,
2014. The parties each testified at the trial and presented multiple witnesses to
speak to their fitness as parents. The district court found the testimony of these
witnesses carried varying degrees of credibility. Of the witnesses presented, the
court found the testimony of the Tony’s mother, Pauline, and Tony’s sister, Cory,
persuasive and stated:
Again, the Court notes the significance of the testimony of
Pauline and Cory compared to the other testimony wherein Karla is
sharing intimate details of her marriage. In those statements Karla
does not in any way set forth that Tony is a threat of violence to
herself or the children. However, she does relay many other very
sensitive issues such as affairs and lack of intimacy between her
and Tony. This is consistent with her statements to other
individuals including her friends and daycare providers. This is a
significant fact in that it demonstrates that Karla completely
fabricated the grounds to separate and remove the children from
Tony’s care without providing Tony any contact with the children for
an extended period of time.
The court also considered the testimony of mental health therapist Stacey
Ahrenstorff and her counseling of the Bevers children. Ms. Ahrenstorff and the
children met individually for eight sessions. On average, the sessions lasted for
approximately fifty minutes. Ms. Ahrenstorff testified about how the children were
coping with their parent’s divorce. She noted both of the children were
diagnosed as having an “adjustment disorder.” She stated this occurs when
“there’s a family breakdown and there’s two households that [the children] have
5
to share their time between, there is an adjustment period.” Ms. Ahrenstorff
opined the best arrangement for the children would be a “more typical one”
where the mother has physical care, and a joint physical care arrangement would
continue to make the children feel unstable. However, she did state, based on
her counseling sessions with the children, they “both love [dad], and they do want
to spend time with him.” Ms. Athrenstorff’s testimony was diminished, to some
extent, by the fact her services were initiated by Karla and she only
communicated with Karla. On this point, the court stated:
On whole, Ms. Ahrenstorff’s information is beneficial to the
Court; however, it is not significant because of the lack of
involvement of Tony in the opinion. To assert an opinion of custody
without involving the father is limited at best. The Court does not
understand why a professional would call the child’s teacher to
discuss the child’s interaction in the school setting, but not reach
out to the father to discuss behavior in the father’s home.
Therefore, Ms. Ahrenstorff’s opinion carries less weight than could
be considered if her evaluation was to the entire family.
The district court entered the dissolution decree on May 7, 2014. The
decree granted the parties joint legal custody and joint physical care. The decree
also set a visitation schedule requiring the parties to alternate caring for the
children on a weekly basis, the party without physical care during the week was
allowed an overnight visit on Wednesday. Each party was granted one two-week
period during the summer months with the children. Finally, the decree listed the
parties’ agreement that “should either parent be unavailable to care for the
children during his or her parenting time with the children for a period of eight
hours or longer” the parent without the children should have the right to care for
6
the children during that time before alternate arrangements were made. Karla
now appeals.
II. STANDARD OF REVIEW
We review dissolution of marriage cases do novo. In re Marriage of
McDermott, 827 N.W.2d 671, 676 (Iowa 2013). We have a duty to examine the
entire record and adjudicate anew the rights on the issues properly presented. In
re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Generally,
we give considerable deference to the district court’s credibility determinations
because the court has a firsthand opportunity to hear the evidence and view the
witnesses. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).
III. ANALYSIS
The sole issue on appeal concerns the physical care provision of the
parties’ dissolution decree granting the parties joint physical care of the two
children. Karla claims she was the primary caregiver during the marriage, and
joint physical care is not in the best interests of the children. Iowa’s traditional
and statutory child custody standard is “the best interest of the child.” Iowa Code
§ 591.41(1)(a) (2013); In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa
2007). This standard provides the necessary flexibility to take the unique facts of
each case into consideration. Hansen, 733 N.W.2d at 696. The Iowa Code
provides a non-exclusive list of factors to be considered in determining a
custodial arrangement that is in the best interest of a child. Iowa Code
§ 598.41(3); Hansen, 733 N.W.2d at 696. The goal is to assure the child “the
opportunity for the maximum continuing physical and emotional contact with both
7
parents after the parents have separated or dissolved the marriage.” Iowa Code
§ 598.41(1)(a). We seek to place the child in the environment “most likely to
bring [the child] to health, both physically and mentally, and to social maturity.”
Hansen, 733 N.W.2d at 695.
In Hansen, our supreme court outlined four non-exclusive factors to
consider in deciding whether joint care is appropriate. Hansen, 733 N.W.2d at696–700. Those factors include: (1) the stability and continuity of care-giving for
the child, (2) the ability of the parents to communicate and show mutual respect,
(3) the degree of conflict between the parents, and (4) the degree to which the
parents generally agree about their approach to daily child-rearing matters. Id.In this case, after our review of the record, we agree with the district
court’s comprehensive analysis of the Hansen factors and find the circumstances
in this case weigh in favor of the parents retaining joint physical care of the
children.
Concerning “stability and continuity,” the court found the evidence
supported a conclusion Karla had (historically) been the primary caretaker of the
children. The court conditioned its conclusion by noting Tony had been a
substantial participant in the care of the children except during the brief periods
when he resided out of the home due to work commitments.2 The court found
2
In February 2008, Tony moved from Harrisburg, South Dakota to Watertown, South
Dakota, for a new position as an IT director and a $25,000 salary increase. Tony
testified the move was necessary to remedy the family’s financial problems. Karla later
moved to Watertown in August 2008 after she obtained a teaching position at an
elementary school. In July 2011, Tony moved to his present residence in George, Iowa
for a more lucrative position at the Sibley-Ocheyedan School District. Karla later moved
8
Tony’s witnesses credible when they testified about the children adjusting to the
change from one household to two. Aside from minor concerns raised by Karla,
the record does not show any issues with the joint physical care arrangement in
the time since the separation. We find the record shows the children have been
coping well with their parents’ divorce, in light of the circumstances.
The court found some minor problems with the issues of communication,
ability to show respect, and degree of conflict; but none weighing against the joint
physical care arrangement. The court concluded there was no domestic violence
between the couple or toward the children.3 Based on the testimony presented,
the court found Karla fabricated the conflict in an effort to undermine a joint
physical care arrangement. The court also found Karla made an effort to hinder
the couples’ ability to communicate by minimally responding to Tony’s requests
to George in January, 2012. During this period, Tony returned to Watertown every
weekend to assist in caring for the children.
3
The court made the following findings/conclusions concerning Karla’s actions in this
case:
The Court is concerned that if Karla was the primary physical care
provider that she would undermine and affect Tony’s relationship with the
children. This is clearly evidenced by her poor judgment in absconding
with the children from the family home without telling Tony. For several
weeks she would not identify where they were residing and would not
allow the children to talk to Tony. This was done so without any evidence
of domestic or physical violence. Again, the Court provides no weight to
the audiotapes in which Karla entrapped Tony into an argument and
feigned domestic and physical violence. Further, this lack of evidence is
corroborated by the fact that Karla before and after the divorce did not
report to intimate friends, family and counselors that Tony was a threat of
physical violence or domestic abuse to her. Clearly, she was aware that
domestic violence would be a detrimental factor for Tony’s request for
shared physical care, and she decided that she would fabricate this fact
to insure her own custody. She was aware at the time of the separation
that Tony wanted shared physical care and took steps to avoid that.
Therefore, the Court concludes that Karla would undermine Tony’s
relationship with the children. This is further evidenced by the limited
visitation that she proposes in this case.
9
to coordinate the care of the children. The court reasoned if Karla was granted
primary physical care of the children she may continue to be non-communicative
toward Tony and disrupt his relationship with the children. We agree with the
court’s assessment that without a joint physical care arrangement Karla would
likely strive to limit Tony’s time with the children.
Finally, concerning the fourth factor, the court found the parties had similar
views on child rearing. While there is sparse evidence addressing the parents’
views on child rearing, the evidence does not reveal any significant disputes
between the couple on how best to raise the children. We agree with the court’s
evaluation of this factor and find the lack of dispute between the parents on child
rearing supports a finding for joint physical care.
Based on our de novo review, we agree with the district court that joint
physical care is appropriate in this case. The first Hansen factor is overcome by
compelling evidence demonstrating the long term best interests of the children.
Joint physical care will allow the children to have the maximum of amount of
contact with each parent. Though, we elect to amend one element of the parties’
visitation agreement. The divorce decree grants the party without the children
that week the first opportunity to care for the children should the party with care
of the children be unavailable for eight hours. We find the eight hour requirement
should be changed to four hours. Since Carla is a teacher and does not work
during the summer months, and Tony works full time year-round, Carla should be
allowed to care for the children during the day when the children are out of
school for summer vacation. Tony is agreeable to this idea and it will allow the
10
parties to save money on childcare expenses. Section (4) subsection (s) of the
divorce decree should be modified to state the following:
The parties agree that should either parent be unavailable to
care for the children during his or her parenting time with the
children for a period of four hours or longer, that the parent shall
have first contact with the other parent and allow him or her the
right to care for the children during the time before making alternate
arrangements
AFFIRMED AS MODIFIED.