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Housley v. Holmlund

Court of Appeal of Iowa

June 12, 2013

MEGAN R. HOUSLEY, n/k/a MEGAN R. FRISON, Plaintiff-Appellant/Cross-Appellee,
v.
ZACHARY S. HOLMLUND, Defendant-Appellee/Cross-Appellant.

Appeal from the Iowa District Court for Scott County, Charles H. Pelton, Judge.

Megan Frison appeals and Zachary Holmund cross-appeals from the order modifying various provisions of the parties' prior stipulated child custody order.

Barbara K. Wallace, Davenport, for appellant.

Harold J. Delange II, Davenport, for appellee.

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

DOYLE, P.J.

Megan Frison appeals and Zachary Holmlund cross-appeals from the district court's order modifying the parties' prior stipulated child custody, child support, and visitation order. Both Megan and Zachary contend the court erred in several respects. Upon our review, we reverse in part, affirm in part, and remand.

I. Background Facts and Proceedings.

The parties are the parents of a child born in 2001. In 2006, the parties entered into a "stipulated order for custody, visitation, child support and tax exemption." The order provided for joint legal custody of their child, with Megan having primary physical care. Additionally, the order set forth a visitation schedule for Zachary and the child based upon Zachary's then work schedule, providing: "Zachary will have visitation on his days off from work, beginning in the morning of his first day off, and ending at 7:00 p.m. on his last day off . . . ."[1]Zachary was ordered to pay child support to Megan in the amount of $590 per month, as well as maintain health and medical insurance for the child. The order also stated, among other things, the parents would alternate years for claiming the child as an exemption on their tax returns.

In 2011, Megan filed her petition to modify custody, visitation, and child support. She asserted there had been a substantial change in circumstances since the entry of the order supporting modification of that order, namely Zachary's income and work schedule. Because Zachary now had more days off each week and alternating weekends off, [2] Megan requested the visitation schedule be tailored to Zachary's new work schedule. Additionally Megan requested Zachary's child support obligation be increased in correlation with the current incomes of the parties.

Zachary answered and generally denied Megan's statements in the petition. He admitted his work schedule had changed, but he did not believe it had changed to such an extent that there had been a substantial change in circumstances not contemplated by the parties at the time of the entry of the original order. Zachary stated that the change of his work schedule now permitted him to share custody equally with Megan, and he asserted shared care was the parties' de facto custodial arrangement at that time. He requested the court modify the original order to formalize their current shared care arrangement.

Thereafter, Megan filed her "Motion to . . . Clarify Visitation." She stated that "it was the intention of the parties in October 2006 that [Zachary] would have visitation with the minor child for one overnight visitation each week due to [Zachary's] rotating work schedule." She asserted it would be in the child's best interest for the court to clarify visitation and allow Zachary visitation with the child on Zachary's first two days off work each week, or in the alternative, temporarily modify the visitation to permit Zachary visitation on alternating weekends and alternating weekdays.

Following trial on the petition, the district court entered its ruling denying the father's request to change to joint physical care. The court found that both of the parties were "essentially credible, " and beginning in June 2011, "Zachary's visitation [had] evolved with Megan's acquiescence into him having [the child] one-half of the time." Nevertheless, it found Zachary had failed to prove a sufficient change of circumstances to modify the physical care arrangement. The court concluded joint physical care was not in the child's best interests, noting "these parents do not trust each other, respect each other, communicate or cooperate sufficiently to successfully raise [their child] in a joint physical care arrangement."

Additionally, the court granted the mother's request to modify visitation and child support. It found Zachary's visitation schedule in the prior order had been designed around his days off from work at that time, and the change in his current work schedule constituted a substantial change of circumstances not contemplated by the parties at the time the original custody order was entered. The court modified the visitation section of the original order as follows:

Zachary will have visitation with Tyler on each weekend that he is off from work on Saturday through Monday, beginning at 7:00 on Friday night, and ending at 7:00 on Sunday night when Tyler is in school, but ...

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