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[T] In re Marriage of Robb10/15/2003
Julie Robb appeals the custody provisions of the decree dissolving her marriage to Mark Robb. AFFIRMED.
Julie and Mark Robb married in 1988. They had three children: Matthew, Jesse, and Preston. In February 2002, Julie filed for divorce , and Mark moved out of the family home and in with his parents. Their oldest son, Matthew, moved with Mark but the two younger sons stayed with Julie. Julie's paramour, Roger, moved in soon after. Jesse and Preston testified that while they did not have any specific complaints about Roger they did not feel comfortable living with him.
When the couple first separated, Mark was extremely upset. On one occasion he threatened to break Roger's legs, although this threat was not made in Roger's presence and there is no indication he attempted to follow through on the threat. Preston also had difficulties dealing with the impending divorce . In addition to seeing his school counselor regularly, he began acting out, especially towards Julie. Julie, in an attempt to control Preston's behavior, resorted to physical discipline.
Prior to trial, Julie and Mark agreed that Matthew, who would be turning eighteen shortly, would live with Mark. The primary issue to be resolved by the district court was the placement of Jesse, age fourteen, and Preston, age eight.
At the trial, Jesse and Preston both testified that they wanted to live together, and they wanted to live with their father because of Julie's extreme use of physical punishment with Preston. Preston testified that Julie pulled him by his hair and threw him on the ground. Jesse testified that Julie "beats on" Preston and described an incident in which she pushed him to the ground. In its decree of dissolution dated November 21, 2002, the district court awarded Mark physical care of Jesse and Preston, relying on the boys' testimony. The district court made specific findings regarding the intellectual and emotional maturity of the boys and their ability to make rational decisions about where they want to live. Julie appeals.
Our review of this case is de novo. In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct. App. 1996). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Marriage of Wessel, 520 N.W.2d 308, 309 (Iowa Ct. App. 1994). Our primary consideration is the best interests of the children. Id.
Julie contends placement of the children with her is more appropriate because Mark has a history of alcohol and marijuana use, as well as several convictions for drunk driving . She also points to the fact that he currently spends several nights a week with a female friend. Julie maintains that because she had been the primary caretaker prior to the separation and has no history of criminal charges or substance abuse, the children should be placed with her.
After a de novo review of the record, we conclude, as did the district court, the children should be placed with Mark. Although we do not in any way condone Mark's history of drunk driving and marijuana use, we note that his offenses are not recent and he testified that he has quit using marijuana. Julie does not contend Mark has ever endangered his children through his alcohol or marijuana use. We also note that although Mark initially reacted to the separation with hostility and threats, at the time of trial he was taking antidepressants and appeared to be coping well with appropriate temper control. Overall, the record indicates Mark has been a good father to his sons.
While we are certainly concerned about Mark's past substance abuse, we are equally concerned about Julie's recent relia
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