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In re Marriage of Cerwick

Court of Appeal of Iowa

May 30, 2013

IN RE THE MARRIAGE OF JUSTIN CERWICK AND MACHELLE CERWICK Upon the Petition of JUSTIN CERWICK, Petitioner-Appellant, And Concerning MACHELLE CERWICK, Respondent-Appellee.

         Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.

         Justin Cerwick appeals from a divorce decree awarding joint physical care of three children.

          Dan T. McGrevey, Fort Dodge, for appellant. Machelle Cerwick, Fort Dodge, appellee pro se.

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

          MULLINS, J.

         Justin Cerwick appeals from a divorce decree awarding joint physical care of three children to him and his former wife, Machelle Cerwick. Justin argues the issue of joint physical care was not properly before the district court because neither party requested it. He further contends that even if the issue of joint physical care were properly before the court, the court erred in awarding joint physical care and should have awarded him physical care. We affirm the divorce decree as modified and remand for further proceedings.

         I. Background Facts and Proceedings

         We are called upon to determine whether the district court erred in granting Justin and Machelle joint physical care of their three children—J.C. (born in 2005), N.C. (born in 2007), and S.C. (born in 2010)—upon their eventual divorce. At the time of their divorce in 2012, Justin was thirty years old and Machelle was twenty-eight years old.

         When Justin and Machelle met, both were high school graduates and in good health. Justin and Machelle worked together at the same company and were soon engaged to be married. Approximately eight months after the engagement Machelle learned she was pregnant with her first child, J.C. Around the same time she learned of her pregnancy, both Machelle and Justin were laid off. Machelle subsequently obtained a job at a local hospital while Justin began work at a facility manufacturing gypsum board.

         After their second child was born in 2007, Machelle returned to school to pursue an associate's degree in radiology technology. While she was in school,

          Justin supported the family financially and Machelle served as the children's primary caregiver. Machelle graduated in 2010. Although Machelle was unable to obtain a job in her desired field, she eventually secured employment at an animal food production company. Machelle worked from 3:00 p.m. to 11:00 p.m. for twelve days and then had two days off.

         In 2010, Justin was fired from his job. He and Machelle agreed that he would return to school to pursue an associate's degree as a diesel mechanic. While he was in school, Justin was not employed and served as the children's primary caregiver.

         At some point the couple's relationship began to deteriorate. Machelle asserted that they fought all the time and it was unhealthy for the children. While there was no evidence of physical abuse, Justin did punch a hole in the wall of their family home.

         In early 2011, the parties separated. Machelle left the marital home; Justin remained in the martial home with the children. Initially, Machelle lived with her father in his home. She ...


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