In re the MARRIAGE OF Susan Kay MILLER and Dwight Andrew Miller. Upon the Petition of Susan Kay Miller, Appellant, And Concerning Dwight Andrew Miller, Appellee.
No. 85-891
Supreme Court of Iowa.
July 23, 1986.
390 N.W.2d 596
Subsection 321.281(11) provides:
If a defendant is convicted of a first offense of this section and the defendant‘s license or permit to operate a motor vehicle is revoked under section 321.209 or chapter 321B for the occurrence from which the arrest arose, the period of revocation shall be the period provided for such a revocation or until the defendant reaches the age of nineteen whichever period is longer. A person whose license to operate a motor vehicle is revoked pursuant to this subsection may be issued a temporary restricted driving permit by the department allowing the person to drive to and from the person‘s home and place of employment and in the course of the person‘s employment and to attend evaluation, treatment or educational services for alcohol or drug dependency.
Fundamental principles of statutory construction were summarized in Beier Glass Co. v. Brundige, 329 N.W.2d 280, 283 (Iowa 1983), and need not be quoted here. We think the department is on firm ground in urging the temporary restricted permit provision is a mere appendage to special legislation aimed at youthful drivers.
The thrust of subsection 321.281(11) is to target convicted drivers nineteen years of age and younger for a suspension that would probably be longer than one imposed on older drivers under section 321.209(2) (previously quoted). The younger driver suspensions, under the provision, are for not less than the regular period but would extend until their nineteenth birthdays. The two sentences in the subsection were added by 1984 Iowa Acts chapter 1292. The second, the one at issue here, provides for the temporary permits but only as a part of the special treatment accorded the younger drivers.
This interpretation is borne out by the preamble to the Act. The preamble is to be considered in interpreting the statute. In re Marriage of Cernetisch, 376 N.W.2d 598, 600 n. 3 (Iowa 1985);
AN ACT relating to the offense of operating a motor vehicle while intoxicated ... by providing a special revocation period for persons age nineteen or under ....
1984 Iowa Acts ch. 1292.
We agree with the district court‘s conclusion that the petitioners were not entitled to hearings on their revocations. We however conclude that the district court erred in holding that subsection 321.281(11) authorizes the department to issue temporary restricted licenses to persons over nineteen years of age. The case must be remanded for entry of a judgment in conformance with this opinion.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
William R. Tysseling, of Tysseling & White, Ames, for appellant.
John L. McKinney, Ames, for appellee.
The principal issue is whether joint custody of children is an appropriate disposition in this dissolution action. The trial court awarded the petitioner Susan K. Miller custody of the parties’ two children and granted the respondent Dwight Andrew Miller specific visitation rights. Susan appealed, challenging the extent of visitation and the economic provisions of the decree. Dwight cross-appealed, contesting the custody award. The court of appeals affirmed the trial court in all respects, except that it modified the award of sole custody to provide for a joint custody arrangement with
I. Principles concerning visitation and joint custody. In marriage dissolution actions, our present statutory scheme directs the court to provide ample visitation with both parents and, upon the request of one parent, to consider granting joint custody, subject to the considerations of the best interests of the child and reasonableness.
The present emphasis on the award of joint custody is a relatively new concept in family law in this state. Recently, we comprehensively described the legislative history and case law which outlines joint custody in modern dissolution actions. In re Marriage of Weidner, 338 N.W.2d 351, 354-56 (Iowa 1983). In discussing the principles governing joint custody, we rejected the suggestion that the legislature created a presumption that joint custody is in the best interests of the children; however, we acknowledged that our statutes now express our preference for joint custody over
Since Weidner, the legislature has further strengthened the visitation rights of the noncustodial parent and has augmented the court‘s duty by requiring it to spell out reasons for denying joint custody. Section 598.41 (1983) was amended, eliminating language in subsection 1 that required the court to allow a child “frequent and continuing” contact with both parents, and adopting the present language requiring “the opportunity for maximum continuing physical and emotional contact with both parents.” 1984 Iowa Acts ch. 1088, § 2 (codified at
II. Visitation and joint custody in this case. We first address the issue of joint custody of the children by both parents. The trial court found that the best interests of the children required that Susan have their custody; however, the court did indicate that both parents were equally capable of taking care of the children. Even so, the trial court rejected joint custody, stating:
There has been a problem with visitation. These parents do not agree regarding the children. Petitioner does not believe respondent can properly care for Andrew. These folks are at odds regarding care of the children. This is not a case for joint custody.
The court of appeals agreed with Dwight‘s contention that the award of sole custody to Susan was inappropriate, and awarded joint custody to both parties with the physical care in Susan, but did not change the trial court‘s prescription as to visitation.
An examination of the trial court‘s decree in its entirety reveals a deficiency in citing evidence expressly, but also provides insight into the court‘s reasoning. Initially, we believe the trial court failed to adequately state clear and convincing evidence, as required by section 598.41(2), that makes joint custody unreasonable. While it did not state reasons in detail, the court correctly concluded that the best interest of the child is the heart of a custody issue. Indirectly, the court revealed its reasons for denying joint custody. It referred to and focused on disagreements regarding the care of the children, and lack of communication between the parties. The court referred to the oldest child‘s anxiety attacks prior to visitation and the psychologist‘s explanation of the attacks. It exhorted Susan and her parents to improve their attitudes concerning Dwight‘s visitation. Although the trial court limited its advice to visitation, it suggested to both parties that they should put aside their animosity and cooperate in the best interests of the children.
The omission of the required citation of clear and convincing evidence does not necessitate a reversal of the trial court‘s award of custody for two reasons. First, the controlling issue on appeal concerns the correctness of the award of custody, not the lack of stated reasons. Second, Dwight could have moved for an en-
In our review of the trial court‘s findings of fact and conclusions regarding custody, it is apparent that the trial court assessed the credibility of the witnesses, including the parties and the child psychologist appointed by the court. The trial court relied heavily on the psychologist‘s recommendations in determining its award of custody. We give weight to the trial court‘s findings, especially the assessment of the credibility of witnesses, because we are unable to form impressions based on the demeanor of the witnesses during the presentation of the evidence. In re Marriage of Zabecki, 389 N.W.2d 396, 400 (Iowa 1986). We now turn to the pertinent facts.
Susan, age 28, and Dwight, age 31, were married in 1975. Early in the marriage, Dwight was in the Air Force as a mechanic. Susan completed nursing school and was employed as a nurse. Since the birth of their first child in 1979, she has been a full-time housewife and has had the primary care of the children. In 1978, Dwight completed his military duties and the parties returned to Iowa. He was employed in his father-in-law‘s business until the parties’ separation. Since then he has trained as an aircraft mechanic. Susan has moved in with her parents. She receives ADC benefits; however, Dwight is paying support under an arrangement established by the Child Support Recovery Unit.
The parties have severe problems in communicating with one another. Prior to separation and up to the very time of the dissolution, the parties were embroiled in conflicts. They show little capacity to discuss and resolve their mutual problems.
We find credible Susan‘s testimony that days would go by in which he would not speak to the oldest child or to her. Susan appears to be quite religious; Dwight has negative feelings about church and religion and refuses to go to church. One of the incidents that led to the dissolution involved a disagreement between the parties concerning godparents for their youngest child. Shortly before the christening, Dwight objected to Susan‘s selection of her parents’ friends as the godparents. Because Susan did not change the arrangements, Dwight did not attend the church service or the dinner that took place afterwards at the maternal grandparents’ home.
The final separation was precipitated by a dispute over visiting her parents for Thanksgiving. Dwight claimed Susan assumed he would be willing to go, but he refused. As an outgrowth of this dispute, Susan decided to leave Dwight and called her parents. When her parents arrived, Susan and Dwight had a physical tug-of-war involving the children. Following this unfortunate event, Dwight and Susan‘s parents engaged in a physical altercation. Although the physical confrontations now have ceased, the parties have continued to disagree on most matters. At trial neither party referred to the other by name.
While the dissolution action was pending, the parties had problems concerning the children‘s activities, including a disagreement over rules for the children‘s bicycle riding and a refusal by Dwight to return certain dolls to the children. On two occasions Dwight‘s refusal to make a timely return of a child after visitation has necessitated the intercession of law enforcement personnel.
The psychologist indicated that joint custody would not serve any purpose as far as the children are concerned. She indicates that “poor communication prompts me to suggest that the court make the children‘s right to access to their father through visitation very specific, leaving very little space for the Millers to work out the arrangements by ‘mutual agreement.‘” The psychologist does point out that the anxiety of the oldest child concerning visitation “appears to be more related to her mother‘s reaction and to her parents’ reactions to each other than to her actual experiences.” While the psychologist recom-
With these facts and events in mind, we must determine whether the trial court erred in awarding sole custody to Susan and in rejecting an award of joint custody. We shall consider the best interests of the minor children by considering the factors stated in section 598.41(3).
Our consideration of these factors individually produces mixed results. Factors indicating that joint custody is viable are as follows: (1) Each parent would be a suitable custodian for the child. (2) Both parents have actively cared for the children since the separation. Although Dwight waited approximately six months after the dissolution proceedings to get a temporary order for visitation, he did exercise visitation prior to that time. This factor weighs only minimally in favor of joint custody because Dwight‘s actual care of the children before and since the separation has been infrequent and of limited duration. (3) Although the parents do not live in the same community, their relative geographic proximity would present no great problem if joint custody were awarded. Neutral factors include the following: (1) The psychological and emotional needs of the children will not go unmet due to a lack of active contact with and attention from both parents. The liberal visitation awarded by the trial court will compensate for the additional attention that might have been derived from joint custody. (2) Because of the children‘s ages, their wishes do not present a dispositive factor. According to the psychologist, the six-year-old daughter has allied with her mother in the conflict between the parents; however, she appears to be comfortable with her father and enjoys his company. The following are factors indicating that joint custody is not in the best interests of the children: (1) Both parties do not agree to joint custody. Susan opposed an award of joint custody and had an active part in the parties’ failure to communicate with each other. Although neither Susan‘s opposition to joint custody nor her role in the parties’ inability to communicate with each other shows her to be so inflexible as to be unsuitable for sole custody, we wish to point out that the determination of fitness for sole custody may be affected in some cases by one parent‘s attempting to prevent joint custody from working. (2) The parents fail to communicate with each other regarding the children‘s needs.
Our review of the record indicates that this communication problem existed prior to the dissolution and was the major cause of the dissolution. We will not detail all of the disputes of the parties; however, we believe that the parties have exhibited a total lack of ability to reason and deal with each other which exceeds the bounds of the normal acrimonies present in a dissolution action. The parties have obvious differences as to religious goals and family relationships, and have shown an inability to discuss and resolve these problems. These differences have led to physical confrontations, problems with visitation that required police intervention, and the complete failure of attempted joint counseling. While we would hope that these matters would improve after the dissolution decree, we believe the differences between the parties that caused the lack of communication will continue to exist. We conclude that the parties will be unable to agree on decisions affecting the children‘s legal status, medical care, education, extra-curricular activities, and religious instruction. See
When we weigh these factors together, we must agree with the trial court‘s assessment that the best interests of the children require that sole custody be placed in Susan. The factors involving lack of communication and mutual support of the other parent are so negative that they outweigh the other factors which support the preference for joint custody. Joint custody requires equal participation with equal
We conclude that there is clear and convincing evidence that joint custody is unreasonable in this case, and not in the best interests of the children as provided in section 598.41(2)-(3). We believe that the hostility between the parents and their inability to communicate effectively prevent their equal participation in decisions affecting upbringing of the children.
III. Visitation and other issues. We believe that the court of appeals was correct in failing to modify the trial court‘s decree regarding visitation of the children. Basically, the trial court awarded alternate weekend visitations, four weeks visitation each summer, and one week at Christmas. We believe that this specific order of liberal visitation fits the statutory guidance of section 598.41(1) by assuring the children the opportunity for “the maximum continuing physical and emotional contact with both parents.” Although this conflicts with the psychologist‘s suggestion as to the appropriateness of extended visitation, we believe that the alternate weekend visitation will prepare the children for the extended period in the summer.
We have considered the other issues concerning the economic provisions of the dissolution decree which were raised on appeal but not on the petition for further review. We find no error on the part of the trial court.
DECISION OF COURT OF APPEALS VACATED; AFFIRMED.
All justices concur except CARTER, J., who dissents.
CARTER, Justice (dissenting).
The legislative preference for joint custody is not aimed at the problems of physical care but is a limitation placed on the power of the court to terminate or dilute basic parental rights. Joint custody should be ordered by the court except where it clearly appears that the parent not having physical care will fail to exercise such rights in a responsible manner. In the present case, it has not been demonstrated persuasively that Dwight will fail to perform adequately in this regard.