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In re Marriage of Berns

Court of Appeal of Iowa

August 7, 2013

IN RE THE MARRIAGE OF ROBERT LOUIS BERNS AND SALLY LYNN BERNS Upon the Petition of ROBERT LOUIS BERNS, Petitioner-Appellee, And Concerning SALLY LYNN BERNS, Respondent-Appellant.

Appeal from the Iowa District Court for Allamakee County, John J. Bauercamper, Judge.

A mother appeals the district court's refusal to modify the physical care and child support provisions of the dissolution decree.

Erik W. Fern of Putnam Law Office, Decorah, for appellant.

Robert L. Sudmeier of Fuerste, Carew, Juergens & Sudmeier, Dubuque, for appellee.

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

MULLINS, J.

Sally Berns appeals the district court's denial of her petition to modify the terms of the decree dissolving her marriage to Robert Berns. Sally asserts on appeal the district court erred by not finding a substantial change in the circumstances to change the physical care provisions. She also claims the district court should have ordered the parties to participate in co-parenting counseling, should have awarded her child support, and should have fixed a holiday parenting schedule. Lastly, both parties seek appellate attorney fees. For the reasons stated herein, we affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

Sally and Robert divorced in January of 2004 after more than twenty years of marriage. The parties filed legal separation documents in March of 2001, and then attempted to reconcile. The only child at issue in this case was born during the period of time between the legal separation and the divorce. The parties' other three children have since reached majority. The decree of divorce provided for shared physical care with exchanges occurring weekly on Sundays. The decree also provided for no child support to be paid due to the fact both parties earned substantially equal incomes. The decree had no provision regarding parenting time during holidays, and the child would spend the holiday with the parent who had parenting time that week.

The parties have had a very acrimonious and contentious relationship since the divorce with multiple interventions from law enforcement. Robert has refused to communicate with Sally in order to avoid the conflict. The hostile relationship has often placed the children in the middle.

Sally filed a petition to modify the decree in September 2010, seeking an order for Robert to participate in family counseling, she be given the first option to care for the child in the event Robert cannot care for her during his parenting time, and such other orders as are indicated after the completion of counseling. Robert filed an answer and counterclaim seeking physical care of the child and also asking the court to enforce the health insurance and postsecondary education provisions of the 2004 decree.[1] As a result of Robert's counterclaim, Sally amended her petition to modify seeking physical care of the child and for the court to order a specific holiday visitation schedule.

The modification action proceeded to trial in November 2012. The child at issue was ten years old at that time. After hearing from the witnesses including two therapists for the child and two of the three adult children, the court concluded the evidence was "not sufficient to carry the burden of proof in favor of a change in custody/placement." The court maintained the joint physical care arrangement as it found it to be in the child's best interests despite the parties' communication difficulties. The court accepted Robert's child support calculation worksheet as best representing the parties' income and concluded child support should not be awarded because the incomes remained roughly equal. It enforced the requirement Sally maintain health insurance for the child and provided no specific holiday schedule "because communication on these subjects promotes conflict between the parties."

Sally now appeals. Robert does not file a cross-appeal and only defends the district court's action.

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 decision ...


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