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In Re the Marriage of Cynthia E. Aufdenberg and Paul A.

April 24, 2013


Appeal from the Iowa District Court for Montgomery County, James S. Heckerman, Judge.

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

Father appeals a district court order modifying a dissolution decree's physical care, child support, and health insurance provisions. Mother cross-appeals the award of extraordinary visitation to father and seeks attorney fees. AFFIRMED AS MODIFIED.

Heard by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

Paul Aufdenberg appeals a district court order modifying the physical care, child support, and health insurance provisions of a 2007 dissolution decree. Cynthia cross-appeals the award of extraordinary visitation to Paul and seeks attorney fees. We strike Paul's health insurance premium payment, award Cynthia appellate attorney fees, and affirm as modified.

I. Background Facts and Proceedings.

Paul and Cynthia married in 1994 and are the parents of three children, A.L., A.N., and W.Y. At the time of dissolution, the children were twelve, eight, and five. The stipulated decree provided for joint legal custody and joint physical care, a fifty/fifty shared-expense provision, and a change of households at 8:00 a.m. on Friday. Holiday visitation was not established. Paul was ordered to provide health insurance.

Cynthia is now married to Mark. Mark has two daughters and scheduled visitation. Paul is now married to Adriane, and her son, J.O., has been diagnosed with ADHD and a seizure disorder. Recently, Paul and Adriane qualified as foster parents, and they parented two young sisters for several months.

In 2010, Paul first sought modification of the decree requesting the court set holiday visitation and establish guidelines for phone calls from the non-physical care parent. Paul also sought an order requiring Cynthia to provide orthodontist coverage and to pay some expenses. Cynthia answered and sought physical care of the children. The parties attended mediation. A guardian ad litem was appointed, and he recommended continuing the existing physical care arrangements.

In the 2010 modification ruling, the court found both parties to be good parents and, based on the guardian ad litem's recommendation, continued joint physical care. The court also found:

Since the entry of the original decree in this matter, communication between the parties has deteriorated. Matters that require good communication [and] that previously were resolved with satisfactory communication can be resolved now only with difficulty. The failure to properly communicate with regard to the best interests of the children can be attributed to both parties. With the modifications made herein, the Court is optimistic that good communication between the parties, which is necessary for a successful, shared physical care arrangement, can and will be restored.

The court declined to order Cynthia to provide orthodontist coverage, but did require her to pay some expenses. The court ordered: (1) the parties follow the mediator's parenting plan, including the holiday visitation schedule; (2) Paul communicate with Cynthia only by telephone or in person and not by mail, email, or text messages; (3) due to J.O.'s seizure disorder, A.L. is not to baby-sit him; (4) A.L. should not be allowed to transport her siblings until she has a valid driver's license; (5) the parties will provide the children with cell phones on an alternating three-year basis; and (6) absent an emergency, a non-caretaker parent contacts a child's cell phone no more than two times per day. Further, "due to deteriorating communications . . . [and] to foster . . . improved communication, Cynthia and Paul shall, beginning in August 2010, meet for lunch on the first Sunday of each month with at least one [child]." The court continued the fifty/fifty shared expense provision, but it modified the process:

[R]equests for reimbursement together with copies of the receipts must be submitted to the other party within 60 days of the date shown on the receipt or reimbursement is waived. Expenses which would result in a reimbursement in excess of $50 shall be pre-approved by the parties. Said approval shall not be reasonably withheld.

Paul filed a motion to amend or enlarge seeking to allow A.L. to serve as a babysitter for J.O. due to financial hardship and seeking written communication with Cynthia. Cynthia agreed to limited written communication. In November 2010, the court ordered: (1) A.L. can baby-sit J.O. occasionally for no more than three hours at a time; (2) the parties can communicate in writing; and (3) monthly meetings of the parties "will continue if the parties deem same to be beneficial."

After the first modification, communication difficulties and financial disputes intensified. Among many examples, Paul did not follow the expense reimbursement process. Paul's job results in frequent periods of unemployment, and he did not inform Cynthia the children were switching back and forth between State-provided and employer-provided health insurance. Due to these health insurance variations, Cynthia eventually included the ...

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