IN THE COURT OF APPEALS OF IOWA
No. 14-0131
Filed December 10, 2014
IN RE THE MARRIAGE OF KYLE FRANK SMITH
AND LACY KAY SMITH
Upon the Petition of
KYLE FRANK SMITH,
Petitioner-Appellant,
And Concerning
LACY KAY SMITH,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Gregory A. Hulse,
Judge.
A father appeals the provisions of the parties’ dissolution decree granting
the mother physical care of the parties’ child and ordering him to pay spousal
support. AFFIRMED.
Pamela A. Vandel, Des Moines, for appellant.
James R. Cook, West Des Moines, for appellee.
Considered by Mullins, P.J., Bower, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MAHAN, S.J.
A father appeals the provisions of the parties’ dissolution decree granting
the mother physical care of the parties’ child and ordering him to pay spousal
support. We decline to modify the court’s determination that it was in the child’s
best interests to be placed in the mother’s physical care. We affirm the court’s
conclusion the mother was entitled to spousal support of $500 per month for
twenty-four months while she returned to school. We determine the father
should be responsible to pay $1000 towards the mother’s appellate attorney
fees.
I. Background Facts & Proceedings.
Kyle and Lacy Smith were married in 2011. They have one child, who
was born in February 2012. After about fifteen months of marriage, the parties
separated in November 2012. Lacy moved out of the marital home, taking the
child with her. Kyle filed a petition for dissolution of marriage on December 20,
2012.
After the parties separated, Lacy permitted Kyle only minimal access to
the child until an order on temporary matters was entered on January 25, 2013.
Pursuant to this temporary order, the court granted the parties joint legal custody
and placed the child in their joint physical care. Kyle was ordered to pay child
support of $413 per month. Kyle was awarded the marital home, his vehicle,
personal property, and certain debts. Lacy was awarded her vehicle and
personal property. Kyle was ordered to pay Lacy a cash property settlement of
$3000. This order was approved as to form and content by the parties.
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Although Kyle had agreed to joint physical care at the time of the order on
temporary matters, he later requested physical care of the child, stating he was
concerned about Lacy’s stability. He filed an application for the appointment of a
custody evaluator. The court entered an order on April 4, 2013, appointing
Dr. Jerome Fialkov, a psychiatrist, to complete a custody evaluation. Dr. Fialkov
experienced unexpected complications from cataract surgery, which delayed his
report. He sent a letter to the court on July 25, 2013, stating he was going to
recommend Kyle have physical care of the child because he was the more stable
parent. A full report supporting his recommendation was filed later.
The dissolution hearing commenced on October 24, 2013. Kyle was then
twenty-six years old. He has an associate’s degree in computer technology.
Kyle was employed as the manager of the Albia location of Smith Fertilizer
& Grain, a company owned by other members of his family. He has annual
income of $61,641. Kyle purchased a house in Knoxville prior to the parties’
marriage and continued to reside in the same home, where he lived with Kristin
Spaulding. Kristin has two children, one of whom is in her physical care.1 Kyle
did not have any health concerns.
Lacy was twenty-two years old at the time of the dissolution hearing. She
had a high school degree and was studying cosmetology at the Iowa School of
Beauty. Lacy did not work outside the home during the marriage. At the time of
the trial she was working about ten hours per week as a waitress. She earned
1
Kristin’s other child is in the care of the child’s father, Kurtis Glenn. The relationship
between Kyle and Lacy was complicated by the fact Kurtis was in a relationship with
Lacy for a period of time. Kurtis and Kristin had problems in their own child custody
arrangements.
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about $4862 per year. After the parties separated, Lacy and the child lived with
her parents, then with Lee Sandmeier (a paramour) for a month or two, then back
with her parents, and then in her own residence in Knoxville. Lacy experienced
some depression after the birth of the child.
The district court issued a dissolution decree for the parties on
December 30, 2013. The court placed the child in the parties’ joint legal custody,
with Lacy having physical care. The court did not follow the recommendation of
Dr. Fialkov, finding he was biased in favor of Kyle, who had paid for the
evaluation. The court found Lacy had been the primary caretaker prior to the
order on temporary matters. Kyle was granted visitation one evening each week,
alternating weekends, alternating holidays, and three weeks in the summer.2
Kyle was ordered to pay child support of $829 per month. He was also ordered
to pay rehabilitative alimony of $500 per month for twenty-four months. Kyle was
ordered to pay $8500 for Lacy’s trial attorney fees. Kyle now appeals the
physical care and spousal support provisions of the dissolution decree.
II. Standard of Review.
Our review in dissolution cases is de novo. Iowa R. App. P. 6.907; In re
Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). We examine the entire
record and determine anew the issues properly presented. In re Marriage of
Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We give weight to the factual
findings of the district court, but are not bound by them. In re Marriage of Geil,
509 N.W.2d 738, 741 (Iowa 1993).
2
The summer vacation increases to four weeks when the child is old enough to attend
kindergarten.
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III. Physical Care.
A. Kyle first claims the district court improperly disregarded the
recommendation of Dr. Fialkov. He states Dr. Fialkov’s recommendation was
based on the results of tests and the scores on those tests speak for themselves.
He also states it is not evidence of bias that Dr. Fialkov knew the result of his
evaluation prior to filing his report because all of the tests had been completed by
the time he made his preliminary recommendation.
The court determines the weight to be given to the recommendation in a
child custody evaluation. In re Marriage of Crotty, 584 N.W.2d 714, 717 (Iowa
Ct. App. 1998). A lack of neutrality by the evaluator is a factor the court takes
into consideration in assigning weight to the recommendation. In re Marriage of
Rebouche, 587 N.W.2d 795, 799 (Iowa Ct. App. 1998). We note the
recommendation in a child custody evaluation is simply that, a recommendation.
See id. (noting an expert’s recommendation is not binding on the court).
Dr. Fialkov’s recommendation is but one factor in our overall consideration of the
evidence.
B. Kyle contends the district court should have granted him physical care
of the parties’ child. He states he is the more stable parent. He points out he is
living in the same home and has the same employer as at the time the parties
married. He states Lacy has moved more often, lacked commitment to
completing her education, and has an unstable work history. He also states he is
willing to support Lacy’s relationship with the child, while Lacy permitted him to
have only minimal contact with the child between the time she moved out of the
home until the temporary order was entered.
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The critical issue before us is the best interests of the child. Iowa R. App.
P. 6.904(3)(o). This must, of necessity, be the first and governing consideration
in our discussion. Rebouche, 587 N.W.2d at 797. The factors the court
considers in awarding custody are enumerated in Iowa Code section 598.41
(2011) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The
court should select a custodial parent who can minister more effectively to the
long-range best interests of the child. In re Marriage of Kramer, 297 N.W.2d 359,
363 (Iowa 1980). The objective should always be to place the child in the
environment most likely to bring him to a healthy physical, mental, and social
maturity. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Each
custody decision is based on its own particular facts. In re Marriage of Will, 489
N.W.2d 394, 397 (Iowa 1992).
Much time and energy in the dissolution trial was spent in presenting
evidence concerning allegations of infidelity by both of the parties. “[W]hile a
parent’s moral misconduct is a serious consideration, it is only one of several
factors to be considered.” In re Marriage of Hart, 547 N.W.2d 612, 614 (Iowa Ct.
App. 1996). It is a factor to be “weighed most heavily only in those cases where
the misconduct occurred in the presence of the children.” In re Marriage of
Roberts, 545 N.W.2d 340, 343 n.1 (Iowa Ct. App. 1996). Thus, there are only
two instances that are of interest to this court—Lacy’s decision to move with the
minor child into Lee’s home and Kyle’s decision to live with Kristin while he was
exercising joint physical care. To the extent we consider moral misconduct in
this case at all, it does not weigh more heavily against one party or the other.
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An important factor in determining the appropriate parent to provide
physical care for a child is to look at which parent was the primary caretaker
during the marriage. Hansen, 733 N.W.2d at 696 (“[S]tability and continuity of
caregiving have traditionally been primary factors.”). “[T]he successful caregiving
by one spouse in the past is a strong predictor that future care of the child[] will
be of the same quality.” Id. at 697. Lacy was the primary caregiver from the time
the child was born until joint physical care was established in the temporary
order.
Lacy’s testimony detailed activities she engaged in with the child. She
showed that she involved him in play activities with other children and in activities
with other family members. Lacy was the parent who took the child to medical
appointments. We also note, as did the district court, that there were no
problems with Kyle having access to the child after the temporary order was
entered.
The record shows both Kyle and Lacy would be suitable caretakers for the
child. We find the following statement by the Iowa Supreme Court to be very
helpful in this circumstance:
There is good reason for us to pay very close attention to the trial
court's assessment of the credibility of witnesses. A trial court
deciding dissolution cases “is greatly helped in making a wise
decision about the parties by listening to them and watching them
in person.” In contrast, appellate courts must rely on the printed
record in evaluating the evidence. We are denied the impression
created by the demeanor of each and every witness as the
testimony is presented.
In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citations omitted).
The district court had the opportunity to observe the parties and the witnesses,
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and came to the conclusion it was in the child’s best interests to be placed in the
physical care of Lacy. We decline to modify the court’s determination.
IV. Spousal Support.
A. Kyle claims the district court improperly awarded Lacy spousal support
of $500 per month for twenty-four months. He asserts that at the time the
temporary order was entered the parties had entered into a stipulation on all
issues, including an agreement there would be no award of spousal support. A
stipulated dissolution decree was drawn up at that time, but was not submitted to
the court because the ninety-day waiting period found in section 598.19 had not
elapsed. Kyle later changed his mind about the issue of physical care. The
proposed stipulated decree was never submitted to the court.
Prior to the trial, Kyle asked the court to enforce the property distribution in
the proposed stipulated decree. Lacy asked the court to address the issues of
property division and alimony. At that time Kyle did not argue that the issue of
alimony had already been encompassed in the proposed stipulated decree.
Furthermore, the court did not address the issue of whether Lacy was precluded
from receiving alimony due to the proposed stipulated decree. Kyle did not file a
post-trial motion. See In re Marriage of Maher, 596 N.W.2d 561, 567 (Iowa
1999) (finding error had not been preserved when an issue had not been raised
at trial or in a post-trial motion). We conclude Kyle did not preserve error on his
claims regarding the stipulation.
B. Kyle also claims Lacy is not entitled to spousal support because he
has already assisted her in reestablishing her life through the distribution of
property. In the temporary order Kyle paid Lacy $3000, which he testified was to
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help her go back to school. He also agreed to pay off the debts on her vehicle
and wedding rings so that she left the marriage with very little debt.
“Property division and alimony should be considered together in
evaluating their individual sufficiency.” In re Marriage of Trickey, 589 N.W.2d
753, 756 (Iowa Ct. App. 1998). Spousal support is not an absolute right. In re
Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). Whether spousal
support is proper depends on the facts and circumstances of each case. In re
Marriage of Brown, 487 N.W.2d 331, 334 (Iowa 1992). When determining
whether spousal support is appropriate, we considered the relevant factors found
in section 598.21A. Hansen, 733 N.W.2d at 704.
In awarding Lacy spousal support, the district court noted the substantial
difference in the parties’ earning capacities, Lacy’s absence from the job market
during the marriage, her responsibility to care for the child, the time and expense
necessary to acquire training necessary to find appropriate employment, and the
fact there was no division of Kyle’s 401(k) account. We agree with the district
court’s determination Lacy will need a period of readjustment so that she can
complete her education and acquire the skills to be able to support herself in the
future. We conclude the court properly ordered Kyle to pay spousal support of
$500 per month for twenty-four months. A district court has considerable latitude
in making an award of spousal support, and we will disturb the court’s award only
if it is inequitable. In re Marriage of Schenkelberg, 824 N.W.2d 481, 486 (Iowa
2012).
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V. Appellate Attorney Fees.
Lacy asked for attorney fees for this appeal. “Appellate attorney fees are
not a matter of right, but rather rest in this court’s discretion.” In re Marriage of
Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We consider the needs of the party
seeking attorney fees, the ability of the other party to pay, and the relative merits
of the appeal. Id. We determine Kyle should be responsible for paying $1000
towards Lacy’s appellate attorney fees.
We affirm the decision of the district court. Costs of this appeal are
assessed to Kyle.
AFFIRMED.
In Re the Marriage of Kyle Frank Smith and Lacy Kay Smith Upon the Petition of Kyle Frank Smith, and Concerning Lacy Kay Smith
Combined Opinion