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In re Marriage of Saluri

Court of Appeal of Iowa

May 30, 2013

IN RE THE MARRIAGE OF LINDA SUE SALURI AND JOSEPH BRIAN SALURI Upon the Petition of LINDA SUE SALURI, n/k/a LINDA SUE ANDERSON, Petitioner-Appellee, And Concerning JOSEPH BRIAN SALURI, Respondent-Appellant.

         Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

         An ex-husband appeals the district court's denial of his application to modify the physical care provisions of a dissolution decree.

          Paul D. Burns of Bradley & Riley, P.C., Iowa City, for appellant.

          Leslie Babich and Kodi A. Brotherson of Babich Goldman, P.C., Des Moines, for appellee.

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

          MULLINS, J.

         Joseph Saluri appeals the district court's denial of his application for modification of the physical care provisions of the dissolution decree, which dissolved his marriage to Linda Anderson, formerly known as Linda Saluri. He asserts, contrary to the district court's findings, he has proven a material substantial change in circumstances that is more or less permanent and that affects the children's welfare, and he contends he is able to provide superior care. He also claims the district court erred in (1) ruling Linda was not in contempt of the dissolution decree for failing to pay or provide an accounting of her parenting expenses on a monthly basis, (2) assessing all court costs to him, and (3) ordering him to pay $25, 000 of Linda's trial attorney fees. For the reasons stated herein, we affirm the decision of the district court.

         I. BACKGROUND FACTS AND PROCEEDINGS.

         Joe and Linda were divorced in 2004. The stipulated decree provided for joint legal custody and joint physical care of the parties four children, who at the time of the dissolution ranged in age from eight to three. The parenting-time schedule articulated in the decree provided for weekly exchanges on Sunday evenings. It also provided that Linda would provide before and after school care for the children on Joe's weeks so long as she remained unemployed.

         The parties modified the decree by stipulation in December 2009. The modification reduced Joe's child support obligation, eliminated Linda's child support obligation, provided each parent with the right of first refusal to care for the children in the event the other parent was unable, required the parties to exchange an accounting of the monthly expenses for the children by the fifth day of the month, and required any amount over and above the other party's expenses to be paid within five days. It also provided for Linda to pay $125.00 per month to Joe for expenses that were in arrears as of December 2009.

         Following a difficult year for Linda, Joe filed another application to modify the decree in September 2011. He also filed a separate application to initiate contempt proceedings against Linda. The case went to hearing in May 2012. After two days of testimony, the court issued its decree June 1, 2012.

         The court denied Joe's modification request concluding many of the facts Joe relied on to support his assertion that there was a substantial permanent change in circumstances that affected the welfare of the children were well-known to him prior to the 2009 stipulation. In addition, he could not prove the changes alleged were permanent or affected the children's welfare. The court also found that Joe failed to prove he could provide superior care. However, the court did agree with the guardian ad litem that a parenting coordinator should be appointed to facilitate the shared care arrangement and to reunite the oldest child with Linda. The court eliminated the provision for Linda to provide before and after school care for the children and eliminated the right of first refusal. The court also required Linda to obtain the services of a mental health provider.

         On the contempt matter, the court concluded Linda had not willfully and intentionally failed to pay or comply with the expense reimbursement provisions of the modification decree as she was in bankruptcy and was unable to pay. However, the court ordered Linda to pay $6192.51 to Joe in expenses. Finally, the court ordered Joe to pay $25, 000 to Linda for her trial attorney fees and ordered him to pay all the court costs.

         Joe filed an Iowa Rule of Civil Procedure 1.904(2) motion asking the court to reconsider its ruling on several matters. The court generally denied the motion; however, it did eliminate the appointment of the parenting coordinator concluding it would be a waste of time and money, and unnecessary for continued joint physical care. It also anticipated Linda would obtain the services of a mental health ...


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