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In re Marriage of Leuer

Court of Appeal of Iowa

June 26, 2013

IN RE THE MARRIAGE OF SANDRA J. LEUER AND SCOTT A PETERSEN Upon the Petition of SANDRA J. LEUER, Petitioner-Appellant, And Concerning SCOTT A. PETERSEN, Respondent-Appellee.

Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde, Judge.

Sandra J. Leuer appeals from the trial court's refusal to modify the visitation provision of the parties' dissolution decree entered August 27, 2008.

Mark D. Fisher of Nidey, Erdahl, Tindal & Fisher, Cedar Rapids, for appellant.

Jacob R. Koller and Allison R. Slager of Simmons, Perrine, Moyer, Bergman, P.L.C., Cedar Rapids, for appellee.

Considered by Vaitheswaran, P.J., and Bower, J., and Goodhue, S.J. [*]

GOODHUE, S.J.

Sandra J. Leuer appeals from the trial court's refusal to modify the visitation provision of the parties' dissolution decree entered August 27, 2008.

I. Background Facts and Proceedings

The parties have a six year old son as the result of their marriage. The August 2008 decree adopted a stipulation which was the result of nearly a full year of negotiations, during which time both parties were represented by counsel. Both parties had children by prior marriages, and were obviously aware of custody and visitation issues. Almost six pages of the stipulation addressed custody and visitation in an apparent attempt to resolve all future disputes involving those issues.

During the marriage the parties had resided in Norwalk, Iowa, but Sandra left the marital home and moved to Cedar Rapids prior to the filing of the dissolution petition. She obtained full-time employment in Cedar Rapids and was making $69, 500 per year when the decree was entered. She is still working for the same company, with similar income. At the time the stipulation was negotiated there was an assumption that Scott would likely move to the Cedar Rapids area. Scott was awarded the marital home. He has tried to sell the home, but has been unable to do so and still resides in it. Scott did obtain employment for a short time in the Iowa City area, but the job did not work out. He has suffered health problems and is presently unemployed. He has financially survived by utilizing unemployment benefits, drawing on his retirement account, and borrowing against the equity in his house.

Even though the parties lived approximately 150 miles from each other, and still do, Scott was awarded liberal visitation. For the most part he has exercised the visitation allowed. The visitation is such that the parties' child has very little time with Sandra's twelve-year-old daughter. Sandra believes that it would be beneficial to the children if their visitation schedules coincided so they could spend more time together. Sandra also objects that the liberal visitation granted to Scott and the distance involved makes it difficult for their son to be in regular extra-curricular activities. Communication and cooperation between the parties is seriously lacking and reasonable accommodation outside the strict language of the decree is difficult to achieve. Sandra believes that as the custodial parent she should have more control over her son's activities, education, and life as a whole. Scott's liberal visitation thwarts her desires and she further believes that the liberal visitation is not in her son's best interests.

Scott is an indulgent, caring, and involved father. There is no serious contention to the contrary. He is cognizant of and has attempted to address his son's social, physical, educational, and other development needs. The parties' son did start and will be required to repeat his kindergarten class. Neither party blamed the other for the lack of progress and seemed to attribute it to his late August birthday.

Sandra brought action to modify the visitation schedule. Also at issue was Scott's request for a reduction in child support which was contemporaneously being addressed through Child Support Recovery. The petition to modify the visitation provision of the stipulation adopted by the decree was denied based on a lack of a change of circumstances. The child support set by Child Support Recovery was adopted by the trial court. ...


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