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Upon the Petition of

February 13, 2013

UPON THE PETITION OF JOHN DAVID TROTTER, PETITIONER-APPELLEE,
AND CONCERNING KENNA LYNN BYERS, RESPONDENT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.

The opinion of the court was delivered by: Bower, J.

A mother appeals the district court's order denying her application to modify physical care and granting the father's application for temporary assignment of his physical care parenting time during the father's active duty military service. AFFIRMED.

Considered by Doyle, P.J., and Mullins and Bower, JJ.

A mother appeals the district court's order denying her application to modify physical care and granting the father's application for temporary assignment of his physical care parenting time during the father's active duty military service. We affirm.

I. Background Facts and Proceedings.

Kenna Byers and John Trotter are the parents of five-year-old X.B. Kenna and John were never married and X.B. is their only child. Kenna lives in Iowa.*fn1

X.B. was removed from Kenna's care in July 2008 pursuant to a juvenile court order.*fn2 X.B. was placed in the care of John's brother, then John's mother, until he was placed with John.*fn3 X.B. has resided with John since early 2010. The juvenile court proceedings regarding X.B. were closed in April 2010.

John married Dolores in 2009, and they have a one-year-old daughter, P.T. John is a member of the United States Army and has been stationed in Hawaii, South Carolina, and Lousiana. John has also served three tours of duty in Iraq.

A decree entered in December 2010 by the district court provided for joint custody of X.B. with physical care with John, listing specific findings that "John has consistently provided a stable and nurturing home for X.B." and "John has shown a willingness to maintain Kenna and X.B.'s relationship." The court further found that X.B.'s stepmother, Dolores, "has taken an active and caring role in X.B.'s life" and that "[t]here is no indication of any concerning behaviors or criminal activity in Dolores's history," whereas Kenna resided with a paramour who was "currently on federal parole for a drug related offense." Kenna was required to make child support payments.*fn4

In early 2012, John notified Kenna he was being deployed to South Korea in April 2012 until March 2013. In February 2012, Kenna filed an application for modification seeking permanent physical care of X.B., child support from John, and temporary physical care pendente lite. Kenna alleged a substantial change in circumstances had occurred in part because John would soon be deployed to South Korea for one year and that it was in X.B.'s best interests to be placed with her while John was deployed.

In March 2012, John, through an attorney, filed an answer to Kenna's application. John also filed an application for temporary assignment of his physical care parenting time pursuant to Iowa Code section 598.41D (2011) (allowing a parent granted physical care to "temporarily assign" physical care parenting time "to a family member of the minor child, as specified by the parent"). John alleged it was in X.B.'s best interests for John's physical care parenting time to be assigned to Dolores, X.B.'s step-mother, during John's deployment. Following an unreported hearing, the district court denied Kenna's application for modification, and granted John's application for temporary assignment of his physical care parenting time to Dolores. The court observed it had "not been presented with clear and convincing evidence that modification of temporary placement as requested by Kenna is in X.B.'s best interest," and found that "[i]t is in the best interest of X.B. for John's right of primary physical custody of X.B. to be assigned to X.B.'s step-mother, Dolores Trotter, during John's deployment." Kenna now appeals.*fn5

II. Constitutional Issues.

Kenna contends Iowa Code section 598.41C is unconstitutional "as applied in this case," and that section 598.41D is unconstitutional "as applied in this case" and "on its face." We review constitutional issues de novo. Lewis v. Jaeger, 818 N.W.2d 165, 175 (Iowa 2012). Statutes are presumed constitutional, imposing on the challenger the heavy burden of rebutting that presumption. State v. Tripp, 776 N.W.2d 855, 857 (Iowa 2010); Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 8 (Iowa 2004). If a statute is susceptible to more than one construction, one of which is constitutional and the other not, we are obliged to adopt the construction which will uphold it. ...


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