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John D. Fitch v. Shelly E. Wurtz

March 13, 2013

JOHN D. FITCH, PLAINTIFF-APPELLEE,
v.
SHELLY E. WURTZ, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.

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

A mother appeals from a district court ruling establishing joint physical care, child support, and a notice requirement before relocating. AFFIRMED.

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

Shelly Wurtz appeals from the district court ruling on John Fitch's petition regarding their child. She contends the district court erred in three ways: by not awarding her physical care of the child, by not ordering John to pay child rearing expenses in addition to support, and by placing a requirement of advance notice before relocation. She also requests appellate attorney fees. We affirm, finding the physical care, child support, and relocation notice provisions of the decree to be in the best interests of the child. We decline to award appellate attorney fees.

I. Facts and Proceedings.

Shelly and John were in a relationship from May of 2010 until August of 2011, during which their child, S.L.F. was born.*fn1 After Shelly and John separated, John filed a petition to establish paternity, custody, visitation, support, and related matters on October 7, 2011. A temporary order granted Shelly physical care and awarded John visitation. John exercised his visitation and cared for S.L.F. almost exactly fifty percent of the time prior to trial. Trial took place in July of 2012. At the time of trial, John was a six-year veteran patrolman with the police department; Shelly worked part time and attended community college.

At trial, the court heard testimony from John and Shelly, as well as Shelly's mother, John's father, and John's friend. Both parties introduced exhibits. These exhibits included records of text messages sent between the parties documenting communications regarding S.L.F. Both testified regarding these communications, as well as the level of conflict between the two parties. The court found John minimized communication problems and Shelly exaggerated them. It noted "[b]oth parents have engaged in conduct which is contrary to generally recognized joint custody principles." However, it concluded, "While neither party is perfect, the Court finds that they generally have been able to make joint decisions, even though sometimes they initially don't agree."

The court granted the parents joint legal custody and joint physical care, and alternated the dependency tax exemption. The court also ordered John to maintain health insurance for S.L.F., to pay $376.36 per month to Shelly in child support, and to pay $2500 towards Shelly's attorney fees. The court ordered that if either parent relocated more than thirty miles away from Sioux City, they were required to give ninety days' written notice to the other parent. Shelly appeals from these proceedings.

II. Analysis.

Our review of child custody proceedings is de novo. In re Marriage of Hansen, 733 N.W. 2d 683, 690 (Iowa 2007). "We give weight to the findings of the district court; especially to the extent credibility determinations are involved." Id.

A. Physical Care.

Shelly argues the court should have awarded her physical care of S.L.F.; she cites a lack of communication as the primary argument against joint physical care. When determining whether joint physical care is appropriate, "our case law requires a multi-factored test where no one criterion is determinative." Id. at 697.

We continue to believe that stability and continuity of caregiving are important factors that must be considered in custody and care decisions. . . . All other things being equal, however, we believe that joint physical care is most likely to be in the best interest of the child where both parents have historically contributed to physical care in roughly the same proportion. . . . A second important factor to consider in determining whether joint physical care is in the child's best interest is the ability of spouses to communicate and show mutual ...


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