IN THE COURT OF APPEALS OF IOWA



IN THE COURT OF APPEALS OF IOWA

No. 2-371 / 01-1793

Filed August 14, 2002

DANIEL JOSEPH HERRERA,

Petitioner-Appellant,

vs.

SHERRY LYNN BULLARD,

Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Larry J. Eisenhauer, Judge.

Daniel Herrera appeals a district court order granting physical care of the parties’ child to Sherry Bullard. AFFIRMED AS MODIFIED AND REMANDED.

Jane White of Parrish, Kruidenier, Moss, Dunn, Montgomery Boles & Gribble, L.L.P., Des Moines, for appellant.

Ryan Genest of Borseth, Genest & Seibrecht, Altoona, for appellee.

Considered by Sackett, C.J., and Huitink and Hecht, JJ. Eisenhauer, J., takes no part.

HUITINK, J.

I. Background Facts and Proceedings.

Daniel Herrera and Sherry Bullard are the unmarried parents of Natalie Bullard, born December 28, 2000. Daniel and Sherry are both twenty-one years old and fulltime college students. At the time of trial, Sherry resided with her parents in Clive, Iowa. Daniel resides in Vermillion, South Dakota.

After their brief relationship ended, Daniel learned that Sherry was pregnant. During the intervening months, the parties unsuccessfully attempted to negotiate a parenting plan for their expected child. Following Natalie’s birth, Sherry refused to allow Daniel to visit Natalie. Daniel subsequently initiated this action to establish paternity and secure physical care of Natalie.

The trial court granted the parties joint legal custody of Natalie. Sherry was granted primary care because the court found “the child appears to be thriving in the mother’s care and no reason exists to disrupt the child’s custodial arrangements.” Daniel was granted the right to visit Natalie on the following terms:

a. Until the child is two years old, the Petitioner shall receive three visits per week with the child, each visit to last approximately four to five hours in duration. The Respondent shall cooperate with the Petitioner in arranging times, dates and locations for these visitations to occur. . . . The Petitioner shall be solely responsible for transportation for these visitations.

b. Once the parties’ minor child reaches the age of two years and until the child is enrolled in school full time, the Petitioner shall be entitled to have the child every other weekend. Visitation shall occur from 8:00 a.m. Saturday until 8:00 p.m. Sunday.

c. Once the child is enrolled in Kindergarten, the Petitioner shall be entitled to the following rights of visitation:

i. Alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m.

ii. The parties shall alternate the holidays of Easter, Memorial Day, Independence Day, Labor Day, and Thanksgiving. . . .

iii. The parties shall alternate the child’s Christmas break . . . .

The trial court also ordered Daniel to pay $300 per month child support. The amount of support ordered was less than the $522 per month required by the child support guidelines. The court’s reason for making a downward deviation from the guidelines was premised on the following findings:

However, the Court finds that the Respondent does not object and it would be in the child’s best interests to allow the Petitioner for a limited time to pay a reduced amount of child support which is less than what would be required by the Uniform Child Support Guidelines. The Court specifically finds that it is in this child’s best interests to allow the Petitioner to pay less than guideline support amount so as to allow the Petitioner to pursue higher education which should result in the Petitioner’s earning capacity to be increased, thereby ultimately providing a greater amount of support for the parties’ minor child.

Daniel was also ordered to pay $1926 of unpaid medical expenses related to Natalie’s birth and $1000 of Sherry’s trial attorney fees.

On appeal Daniel contends the record supports his demands for physical care of Natalie and the trial court erred in reaching a contrary result. He alternatively argues that the visitation arrangement ordered is inadequate. In addition, Daniel argues the court’s child support and attorney fee awards are excessive. Sherry does not cross appeal and seeks only an award of appellate attorney fees.

II. Standard of Review.

Our review of these equitable proceedings is de novo. Iowa R. App. P. 6.4. It is our duty to examine the entire record and adjudicate anew rights on the issues property presented. In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct. App. 1993). 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. 6.14(6)(g).

III. Physical Care.

In child custody cases, the critical issue is not which parent possesses the greater right to the child; rather the controlling consideration must be the best interests of the child. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). This decision requires selection of a custodial parent who can minister more effectively to the long-range best interests of the child. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996). The objective should always be to place the child in the environment most likely to bring that child to healthy physical, mental, and social maturity. See In re Marriage of Rebouche, 587 N.W.2d 795, 797 (Iowa Ct. App. 1998). The court should also consider the characteristics and needs of the child, including the child’s age, the characteristics of the parents, the capacity and desire of each parent to provide for the needs of the child, the relationship of the child with each parent, the nature of each proposed environment and the effect of continuing or changing an existing custodial status. In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).

There is no presumption in favor of the mother or the father. See In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974). Greater primary care experience is one of many factors the court considers, but it does not ensure an award of physical care. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct. App. 1995). Insofar as is reasonable and in the best interests of the child, the court should make an award of custody which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents and which will encourage the parents to share the rights and responsibilities of raising the child. See Iowa Code § 598.41(1) (1999).

Daniel’s custodial claims are primarily based on Sherry’s failure to support his relationship with Natalie. The record includes abundant evidence supporting Daniel’s claim that Sherry refused to allow him to see or visit Natalie. Sherry acknowledges her failure in this regard but explains that she was anxious about Daniel’s ability to appropriately care for a child Natalie’s age.

While Sherry’s behavior towards Daniel and failure to respect his parental rights weigh against her, we do not find it sufficient to reverse the trial court’s physical care award. The trial court correctly noted Sherry’s greater primary care experience and strong extended family support. The resulting stable and secure environment has served Natalie well and we, like the trial court, conclude that granting Sherry physical care offers the best opportunity for its preservation. We therefore affirm on this issue.

Lastly, we note our express disapproval of Sherry’s past failure to respect Daniel’s relationship with Natalie and frustration of his attempts to visit her. Sherry is expressly admonished that continued disregard of Daniel’s visitation or interference with his relationship with Natalie may result in dramatic consequences, including but not limited to a possible contempt citation or modification of Natalie’s physical care.

IV. Visitation.

Liberal visitation rights are in the best interest of the child. In re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa Ct. App. 1987). The court shall order liberal visitation rights, where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents. Iowa Code § 598.41(1). Although liberal visitation is the benchmark, our governing consideration in defining visitation rights is the best interests of the children, not those of the parent seeking visitation. See In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App. 1992).

With the exception of holiday visitation, we find the trial court’s visitation order strikes an appropriate balance between Natalie’s primary care needs and Daniel’s entitlement to liberal visitation. We, however, see no justification for deferring holiday visitation and accordingly modify the decree by ordering the immediate commencement of holiday visitation.

V. Child Support.

Daniel also challenges the amount of his child support obligation. He argues that the district court erred in failing to include Sherry’s earning capacity or Sherry’s parents’ income in determining his child support obligation.

Both parents have a legal obligation to support their children, not necessarily equally but in accordance with his or her ability to pay. See In re Marriage of Craig, 462 N.W.2d 692, 693 (Iowa Ct. App. 1990). The amount of child support a parent is ordered to pay is determined by application of the supreme court's child support guidelines. Iowa Code § 598.21(4)(a). The court must enter its findings concerning the parties' net monthly income as defined in the child support guidelines. In re Marriage of Powell, 474 N.W.2d 531, 533 (Iowa 1991). The court must make this determination based on the most reliable evidence presented. In re Marriage of Krone, 530 N.W.2d 468, 471 (Iowa Ct. App. 1995).

Earning capacity rather than actual earnings may be used upon a finding by the court that the use of actual earnings would create a substantial injustice or that adjustments would be necessary to provide for the needs of the children and to do justice between the parties. In re Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct. App. 1992). The relevant factors to consider in assessing earning capacity include employment history, present earnings, and reasons for failing to work a regular workweek. See Iowa Dep't of Human Servs. ex rel. Gonzales v. Gable, 474 N.W.2d 581, 583 (Iowa Ct. App. 1991).

The record supports the trial court’s findings that Sherry has no current earning capacity. Sherry has no significant employment history and was unemployed at the time this case was tried. Additionally, Sherry’s availability for employment is limited by her status as a fulltime student and her primary care obligations. We also note that any arguable inequity resulting from this determination is sufficiently mitigated by the trial court’s downward deviation from the child support guidelines amount.

Daniel cites no authority for the proposition that Sherry’s parents’ income should be considered in calculating his child support obligation in his brief and we find no indication that he presented this argument to the district court at trial. We accordingly decline to address it. See Iowa R. App. P. 6.14(1)(c) (“Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.”); In re Marriage of Gulsvig, 498 N.W.2d 725, 727 (Iowa 1993) (appellate court will not review an issue which was not presented to the trial court).

VI. Fees.

Daniel also challenges the district court order requiring him to pay $1,926 in uncovered medical expenses and $1000 toward Sherry’s attorney fees. Iowa Code section 600B.25 provides that upon a finding of paternity a court “may order the father to pay amounts the court deems appropriate for . . . reasonable and necessary expenses incurred by or for the mother in connection with prenatal care, the birth of the child, and postnatal care of the child and the mother . . . [and] reasonable attorney fees.” Both awards of medical expenses and attorney fees rest in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion. See Iowa Code § 600B.25; In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Because we do not find either of these awards unreasonable, we affirm the district court on this issue.

VII. Appellate Attorney Fees.

Sherry requests attorney fees for this appeal. Appellate attorney fees are discretionary. In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996). We are to 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 trial court's decision on appeal. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct. App. 1998). Given the circumstances present in this action, we find equity does not warrant an award of appellate attorney fees to Sherry.

The district court decision is affirmed as modified and remanded for entry of judgment in conformity with this opinion.

AFFIRMED AS MODIFIED AND REMANDED.

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