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In re Marriage of Barnhart

Court of Appeal of Iowa

May 30, 2013

IN RE THE MARRIAGE OF TAMI JEAN BARNHART AND BRADLEY DAVID BARNHART Upon the Petition of TAMI JEAN BARNHART, n/k/a TAMI JEAN LUBBEN, Petitioner-Appellee, And Concerning BRADLEY DAVID BARNHART, Respondent-Appellant.

         Appeal from the Iowa District Court for Delaware County, Lawrence H. Fautsch, Judge.

         A father appeals the district court's ruling modifying the physical care provisions of the dissolution decree.

          Daniel H. Swift, Manchester, for appellant.

          John M. Carr of Carr & Carr Attorneys, Manchester, for appellee.

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

          MULLINS, J.

         Bradley Barnhart appeals the district court's ruling modifying the physical care provisions of the dissolution decree and placing the four children at issue in Tami Lubben's care. Bradley asserts Tami failed to prove there had been a material and substantial change in circumstances affecting the welfare of the children since the entry of the decree. He also claims Tami failed to prove she could provide superior care. Finally, Bradley claims the district court erred in ordering him to pay $1000 of Tami's trial attorney fees. Because we agree with the district court that there has been a material and substantial change in circumstances affecting the welfare of the children and agree Tami can offer superior care, we affirm the district court's ruling. In addition, because Bradley has the superior ability to pay, we affirm the district court's award of trial attorney fees and award Tami $1000 in appellate attorney fees.

         I. BACKGROUND FACTS AND PROCEEDINGS.

         Tami filed for divorce in November of 2010 after eight years of marriage to Bradley. The parties had four children, who at the time of the dissolution ranged in age from eleven to four. The parties stipulated to joint legal custody and shared physical care. The children spent one week with each parent with the exchange on Sundays. The parties also split the holidays, agreed no child support would be paid, and specified that each party would be responsible to transport the children to the other party's residence each Sunday afternoon. The court entered a decree incorporating the parties' stipulation on April 25, 2011.

          Tami married Jason Lubben after the divorce and began living with him and his three children. Bradley refused to drop the children off at Jason's home, and Tami became concerned about the younger children's emotional health after the children told her what Bradley had been saying about her and Jason. Tami took the children to see a social worker, Mary Funke. After meeting with all of the children, it was Funke's opinion that the shared care arrangement should not continue and the children should be placed in Tami's physical care.

         Tami filed a modification action in February 2012, approximately ten months after the entry of the dissolution decree. The modification action proceeded to trial in October 2012. In November, the court granted Tami's modification petition awarding her physical care of the four children and granting visitation to Bradley on alternate weekends and for five weeks in the summer. It ordered Bradley to pay child support and $1000 of Tami's trial attorney fees. Bradley appeals.

         II. SCOPE AND STANDARD OF REVIEW.

         We review de novo an action to modify a dissolution decree as it is heard in equity. Iowa R. App. P. 6.907; In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). Because of its ability to see and hear witnesses first hand, we give weight to the factual findings of the district court, especially its assessment of credibility, though we are not bound by those findings. Iowa R. App. P. 6.904(3)(g). Case precedent has little value as we must base our ...


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