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In Re the Marriage of Jeremy West and Laurie E. West

March 13, 2013

IN RE THE MARRIAGE OF JEREMY WEST AND LAURIE E. WEST UPON THE PETITION OF JEREMY WEST, PETITIONER-APPELLANT, AND CONCERNING LAURIE E. WEST, RESPONDENT-APPELLEE.


Appeal from the Iowa District Court for Page County, J.C. Irvin, Judge.

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

A father appeals the district court's order regarding custody and child support. AFFIRMED.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ.

Jeremy West appeals the district court's order granting his former wife, Laurie West, physical care of their three children. He claims this was not in the best interests of the children and the district court erred in its application of the factors from In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007). He also argues Laurie's desire to move is an attempt to sever his relationship with the children. Finally, he contests the court's computation of child support, asserting Laurie voluntarily lowered her income. Laurie did not file a brief on appeal. Because the factors weigh against joint physical care and the child support determination did not result in an injustice, we affirm the district court's determinations.

I. Background Facts and Proceedings

Jeremy and Laurie were married on March 31, 1995, and have three children, ages seventeen, fourteen, and eight at the time of trial. After their separation in July, 2011, Jeremy and Laurie moved from Shenandoah, Iowa, to separate apartments in the same apartment complex in Bellevue, Nebraska. To accomplish the move, Jeremy agreed to pay Laurie $700 a month in support so they could attempt a "fifty/fifty" split of custody. A petition for dissolution was filed on September 13, 2011. A hearing on temporary matters was held and the parties agreed to share physical care equally, with care of the children being exchanged weekly. Since the temporary hearing and pursuant to that order, Jeremy only pays Laurie $231.73 per month.

The dissolution trial was held on April 25, 2012, in which Jeremy, Laurie, and their oldest child testified. The district court granted Laurie physical care of the children subject to reasonable and liberal rights of visitation in Jeremy. Child support was readjusted to $1114.99 per month according to the child support guidelines. A "Motion for Expanded Findings, Reconsideration and New Trial" was filed alleging many of the same claims now before us on appeal. An order was filed correcting Jeremy's address and rejecting the other claims, holding "while the court agrees with [Jeremy] that joint physical custody had been somewhat satisfactory in the past, [Laurie's] anticipated move from the State of Nebraska to a location at least fifty miles away, made joint physical custody no longer a viable option." Jeremy appeals.

II. Standard of Review

Our review of dissolution decrees is de novo. In re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa Ct. App. 2009). While we are not bound by the district court's factual findings, we do "give them deference because the district court had the opportunity to view, firsthand, the demeanor of the witnesses when testifying." In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa Ct. App. 1998).

III. Joint Physical Care

On appeal, Jeremy argues the district court should have granted the parties joint physical care of the children. He does so by arguing they had "effectively co-parented" the children for the preceding nine months, and the district court made its determination without setting out specific findings of fact and conclusions of law.

In determining whether joint physical care is appropriate, our primary consideration is the best interests of the children. See Hansen, 733 N.W.2d at 695 ("Any consideration of joint physical care . . . must still be based on Iowa's traditional and statutorily required child custody standard-the best interest of the child."). Moreover, in making a physical care determination it is our intention to place children in the environment that is "most likely to bring them to health, both physically and mentally, and to social maturity." Id.

Our supreme court has articulated several factors which courts are to consider when determining if joint physical care is in the best interests of the child. First, where there are two suitable parents, consideration is given as to the stability and continuity of care giving, which "tend[s] to favor a spouse who, prior to divorce, was primarily responsible for physical care." Id. at 696. A second factor is the ability of the parents to communicate and show mutual respect. Id. at 698. The third factor is the degree of conflict between the parents, because joint physical care requires "substantial and regular interaction between divorced parents on a myriad of issues." Id. The court has also noted where one party objects to joint physical care, the likelihood of its success is reduced. Id. A fourth factor is the degree to which the parties agree about their approach to daily matters concerning the children. Id. at 699. While these four factors are significant to determining the appropriateness of joint physical care, they are not exclusive, and we must consider "the total setting presented by each unique case." Id.

In this case, it is evident both parents love their children very much. However, we agree with the district court's decision Laurie should be granted physical care of the children. Laurie has historically been the primary caregiver of the children. According to Jeremy's testimony, after the temporary hearing provided for joint care alternating weeks, the children were only with Jeremy "every other weekend, a few hours on Wednesday nights, and Sunday ...


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