*1 сorrect in by carrier waived. insurance nonadmitted entering summary judgment. Insurance Division. purpose, arrangement, its view prompted the interests that especially the trust to demand the Iowa commissioner
fund, persuaded qualification that arewe precedent was a condition
by Victoria district court to the fund. The
entitlement ruling.
was correct Georgia re II. The commissioner In re the MARRIAGE OF Sandra J. precedent if exist sponds a condition Harry L. PETTIT and Pettit. it “A to a contract was waived. performance of a is entitled to the who Upon thе Petition Sandra J. ex precedent may waive it either condition Pettit, Petitioner-Appellee, indicating waiver.” pressly by or conduct Pettit, Concerning Harry L. And Blythe, Mosеbach v. Respondent-Appellant. Georgia App.1979). The commission fully performed er contends that Victoria 92-12. No. providing by contract rein the reinsurance ARDI, сoverage and ARDI surance by accept precedent condition waived the coverage. Georgia is faced with commissioner questions
grave preservation-of-error issue, rejec- to rest our but we choose argument the waiver on its merits.
tion of argument stands on the claim
The waiver earned. In fact premiums
that have been
they thing, For one Victo- been. providing any pro- incapable
ria became insolvency.
tection argument is importantly
More the waiver that ARDI had the
at bottom a contention to authorize the withdrawal of
pоwer of a trust commissioner’s demand up, fund set not to
fund. The trust premiums, interest in the
protect Victoria’s obligations of Arabian or to secure the a reinsurer to ARDI. Claims
Victoria as ARDI,
against such as environmental costs, made well into the
cleanup could be Ind., Inc. v. A.Y McDonald
future. See Am., 475 Company N.
Insurance The Iowa require ARDI apt
commissioner indefinitely.
maintain the fund appear it does not that Victoria
Because protec- the reinsurance
has or can precedent the condition promised,
tion *2 Dougherty and M.G. Ouderkirk
James S. Indianola, Firm, peti- fоr Law of Ouderkirk tioner-appellee. OXBERGER, C.J., and
Heard SACKETT, JJ. SCHLEGEL and SCHLEGEL, Judge. respondent appeals the cus-
The husband provisions a todial and economic of dissolu- the district court tion decree. He contends custody of the granting physical erred parties’ children his wife. computed improperly he claims the petitioner The obligation. his child requests attorney fees on wife on Harry and Pettit were married 2, 1970, grad- January shortly after Sandra high from uated school. minors:
four two of whom are 23, 1976, Dawn, May born оn Jo, 8, February on born years forty old at the time of Sandra was good hearing and in health. dissolution sporadically during worked She has marriage computer operа- a as a cook and years forty-three age tor. hearing good and in health. the time of Upon discharge Army, Harry a to work as truck driver. He went currently employed dispatcher a work- as earning ing fifty $8.75 hours week a of one per hour. bonus employer every one load his of Har- In 1989 the amount $6,500. ry’s In 1990 the bonus was also net of works cоp- selling scrap aluminum and weekends parties separated, Harry per. Since driving a on has been truck the weekends. anticipate continuing the He does nоt week- trucking currently runs works end since seventy-eight sixty-four and hours between per week. on petition for dissolution
Sandra filed a February 15,1991. hearing October was held unemplоyed since she had been testified moved times May and she had several Artis Reis Reis Bowman Law I. & following separation. Office, Moines, respondent-appel- with the сhildren Des recently she she stated had lant. ner, 338 N.W.2d paramour, into a home with moved Winter, testified he had in Pearson. Pearson assaulting pleaded guilty to All factors reсently 166-67 bear hitting her consideration,” admitted to wife and former “first and *3 marriage. A of wit- during the number determination in the court’s of what will be regard- behalf nesses testified long-term the bеst interests of the child. poor reputation in the com- ing Pearson’s Vrban, Marriage In re 359 N.W.2d of Bobby Jo testified munity. Both Dawn and 1984). (Iowa 424 The critical issue in deter to hearing they рrefer live at the interests of the child is best their mother. with raising in the which will do better child; irrelevant, par is and neither testimony of all the wit- Following the greater ent should have а burden than the nesses, findings court issued its the district attempting gain custody in other in to The court found both from the bench. proceeding. Marriage In re the children. fit custodians of рarents to be of Ullerich, App. 299 testimony weight to the of gave The court 1985). its children and indicated the two minor importance the adolescent in the belief findings give wеight to the fact The court residing their mother. girls with court, especially the trial when consider relationship with recognized that Sandra’s credibility the of witnesses. in her not a factor favor Pearson was 14(f)(7). R.App.P. We are not bound history unsta- employment her found determinations, these however. Id. Prior findings, the court upon these ble. Based value, precedential and we cases have little parties joint legal custody to both awarded primarily decision must base our physical custody of the chil- and awarded particular circumstances of the granted liberal dren Sandra. presently Marriage us. In re before rights. visitation Weidner, 338 N.W.2d the court ordered per in sum of pay child the $350 carefully the rec Having com- month child. Child mind, principles in be ord these we with by attributing a net puted appropriately award lieve the district in- to Sandra and a $585 legal custody of Dawn and joint ed $2,100 Harry. Harry’s come of receiving parties with Sandra Jo to both earnings of monthly income included children. Har primary physical cаre of the overtime) position as (including from his physical care ry contends should bonus, and mini- dispatcher, from his $458 so their lives are the minor children earnings selling scrap mеtal. mal relationship with disrupted by Sandra’s 18, 1991, the district court On December This contention is with Pearson. Robert dissolving parties’ mar- filed a decree suggests the evidence out merit. While riage reiterating position concern- regarded by the district is not well support. Harry filed ing custody and child large, record community at court or the appli- an application for a new trial and an has any indication that Robert is absent findings enlarge and amend the cation to children. While mistreated appeаl- denied. has which the court San condone the cohabitation of we do not requests at- and Sandra Robert, say this ar we cannot dra and torney fees. adversеly affect the chil rangement will de review this matter is
Our reveals the children dren. The evidence custody R.App.P. 4. In child novo. Iowa Robert. relate well with cases, interеsts of the child is the the best stated the children have The fac first and consideration. living their moth preference of awarding their the court considers custo tors 598.41(3)(f) (1991) Code section in Iowa Code section er. dy are enumerated 598.41(3)(1991), provides: Weid right, rests ney not a matter of arrange- fees is considering what par in the best the court’s discretion subsection
ment child, positions. In re of the minor financial interest ties’ Kern, App. consider ... whether with the child’s is in accord arrangement to consider needs We are strong has wishes or whether ability of the making request, party consideration the taking into opposition, pay, whether the party to other maturity. age and child’s obligated de request making decision on minor while fend the trial court’s preferences Castle, be controlling, relevant and cannot *4 Harry pay (Iowa App.1981). cаse. ignored in a child Burham, attorney 276 $1,000 Sandra’s toward appeal paid shall be costs of this fees. The by Harry. inappropri- argues the court Harry also ately considered awarding custody of the children. when of the trial court’s disagree.
We The basis OXBERGER, C.J., concurs. case not a mat- award rather, recognized SACKETT, J., dissents. gender; ter оf particular circumstances of SACKETT, Judge (dissenting). case, equipped is better Sandra the instant impermissibly I dissent. of these children. for the needs awarding custody. I gender in Next, сourt in Harry contends the mother’s serious concerns about the correctly included his overtime income boyfriend. his income in the determination superior I find to be thе custodian. monthly purpose income support determining the child award. modify custo- I make Brown, disagree. child pay order dial 1992), court ad according guidelines. suрport to the in the issue of whether overtime dressed establishing be considered in come should purposes of deter income support proper of child guidelines. The
under the child stated, “[ojvertime wages income used in
the definition for child
calculating net support purposes.” Id. Iowa, Appellant, STATE Lalone, Similarly, v. court held Jr., WEBB, Appellee. Edward Dale the hus- properly the trial court inсluded determining band’s bonus income No. 92-243. Id. at 698. award. case substantial- contends to do in this Harry’s bonus ly disagree. unfair. We speculative; income is not uncertain his em- one for each load
ployer amount of $6,500, in 1990 his
Harry’s bonus was
gross bonus award
Finally, requests her at
torney An of attor fees award