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In re Marriage of Wosepka

Court of Appeal of Iowa

June 12, 2013

IN RE THE MARRIAGE OF PENNY J. WOSEPKA AND MARK A. WOSEPKA Upon the Petition of PENNY J. WOSEPKA, Petitioner-Appellant, And Concerning MARK A. WOSEPKA, Respondent-Appellee.

Appeal from the Iowa District Court for Butler County, Rustin T. Davenport, Judge.

Appellant Penny Wosepka appeals the district court's refusal to modify the physical placement provisions of the dissolution decree.

Paul W. Demro of Correll, Sheerer, Benson, Engels, Galles & Demro, P.L.C., Cedar Falls, for appellant.

Teresa A. Rastede of Klatt, Odekirk, Augustine, Sayer, Treinen & Rastede, P.C., Waterloo, for appellee.

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


Penny Wosepka appeals the district court's ruling on her petition to modify the physical care provisions of the decree dissolving her marriage to Mark Wosepka. Penny asserts the court erred in finding there was no substantial and material change in circumstances since the dissolution decree. She also claims she has established herself as the superior parent. Finally, she claims the court erred in its child support calculations. She claims Mark has a higher income than the amount the district court used, she should be granted a greater reduction in her support obligation due to her expanded visitation, and she should have been awarded at least one of the tax dependency exemptions. For the reasons stated below, we affirm as modified and remand for a recalculation of child support.


Penny and Mark were divorced November 8, 2007. They have two children together, and the district court placed the physical care of those children with Mark. In making the physical care determination, the district court noted both parties had performed the normal duties associated with child-raising. Penny had a tumultuous relationship with one of the children. The court agreed with the recommendations of the counselor treating that child, who testified joint physical care was not in the children's best interests due to the parties' different communication styles, minimal or absent self-discipline, criticisms of the other parent's parenting styles, and a lot of blaming. The counselor also noted that the parties' conflicts developed "triangulation" with one of the children which exacerbated the conflict. The court was also concerned with the presence of

Penny's ex-husband, Daniel Cox, who had physically abused Penny in the past and threatened to kill one of the children. Cox was also at that time facing criminal charges of sexual abuse and lascivious acts with a child. The court entered a no-contact order between Cox and the children and found Mark was better able to minister to the long-range best interests of the children. The court set the visitation schedule and calculated the child support to be $571.38 per month.

Penny filed an Iowa Rule of Civil Procedure 1.904(2) motion, which was partially granted awarding her additional visitation. The court also then amended the child support to take into consideration this additional visitation and lowered the monthly amount to $457.10. Penny appealed the dissolution decree, which was affirmed in part and reversed in part by this court. See In re Marriage of Wosepka, No. 08-0292, 2008 WL 5235375, at *5 (Iowa Ct. App. Dec. 17, 2008).

Penny filed a petition to modify the decree in October 2011. The case proceeded to trial in July 2012. The district court found little had changed since the dissolution decree, except Penny had ended her contact with Cox. The parties were still unable to communicate, though the children were continuing to do well either because of or in spite of their parents. The court also concluded a joint care arrangement was not likely to be successful in light of the parties' inability to communicate and show mutual respect. However, the court did conclude that the original decree did not contemplate Mark's parenting time would be so limited that he would be unable to exercise two weeks of uninterrupted time in the summer, each week consisting of seven-consecutive days. The court thus modified the summer schedule permitting Mark to select his two weeks of uninterrupted parenting time first followed by Penny selecting her six weeks of parenting time. The court also lowered Penny's child support to $411.92 per month. Penny appeals from this ruling.


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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