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Gaswint v. Robinson

Court of Appeal of Iowa

August 21, 2013

BRADLEY GENE GASWINT, Plaintiff-Appellant,
DIANE ROBINSON, Defendant-Appellee.

Appeal from the Iowa District Court for Plymouth County, Steven J. Andreasen, Judge.

A father appeals from the district court's order granting joint physical care of his minor child.

Rebecca A. Nelson of Rawlings, Ellwanger, Jacobs, Mohrhauser & Nelson, L.L.P., Sioux City, for appellant.

Brian B. Vakulskas of Vakulskas Law Firm, P.C., Sioux City, for appellee.

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


Brad Gaswint appeals the findings of fact, conclusions of law, judgment, and order entered by the district court. He contends the district court erred in granting joint physical care of his and Diane Robinson's son, NBG, and in its determination of a school for the minor child. With the proposed change of custody agreement, he requests child support pursuant to the Iowa Child Support Guidelines. He also requests appellate attorney fees. In response, Diane requests we affirm the order of the district court and seeks an award of appellate attorney fees. Because neither party requested joint physical care, we modify the award and grant Brad sole physical care of NBG. Upon our de novo review, we affirm the order as modified and remand for further proceedings.

I. Background Facts and Proceedings.

Diane and Brad had an eleven-year romantic relationship but were never married. Near the end of the relationship, in 2007, Diane gave birth to their son, NBG. Although the parties never lived together after the birth of their child, they shared parenting responsibilities. At times, when NBG was an infant, Brad would spend the night at Diane's house to help care for NBG. Similarly, when Brad underwent back surgery and was on bed rest, Diane brought NBG and stayed with him at Brad's home so the two could still spend time together. The parties had an informal parenting schedule in which each party was responsible for NBG about half the time. They shared the responsibility of transporting NBG—both to and from daycare, and also to and from each other's homes—and providing all necessary care for him. NBG slept at each parent's home about half the time.

The informal agreement continued until Brad filed a petition to establish custody, child support, and medical support on October 10, 2011. Following a hearing, the court issued a temporary order which granted the parties joint legal custody and shared physical custody. The parties each had alternating weeks with NBG with some mid-week visitation provided for the noncustodial parent each week.

Trial in this matter was held on June 13, 2012. The issues at trial included the physical care arrangement, child support, and determining which school NBG would attend for kindergarten. Each party asked the court to discontinue the shared physical care award and to award primary care of the minor children to that party. After trial, but prior to the entry of a final record, Brad filed a petition to reopen the record. Diane resisted the motion. However, the district court granted the motion and a hearing was held on October 11, 2012. The request was granted to permit additional evidence relative to the child's behavior issues that had arisen since the trial and before the court had entered its ruling.

At the time of the trial, Diane had been employed as a secretary for Woodbury County Social Services for approximately three years. She had recently surrendered her home to the bank because she could no longer afford the mortgage payments. She and her seventeen-year-old son from a previous relationship had moved to an apartment in the same general area of Sioux City, Iowa. Brad was employed as a terminal operator for Magellan Pipeline and had been employed with the company since 1994. He lived on a rural acreage just north of Sioux City in a home he had purchased in February 2009 and on which he subsequently completed significant improvements.

On November 2, 2012, the district court entered its findings of fact, conclusion of law, judgment, and order. In it, the court granted the parties joint physical care of NBG, stating:

In reaching this conclusion, the Court again recognizes that neither party requested joint physical care. This fact is certainly evidence weighing against an award of joint physical care, as it reflects a lack of agreement between the parties. The Court believes, however, that much of the "disagreement" is prompted by the custody proceeding. Considering all of the factors outlined in Hansen, [1] the Court concludes that joint or shared physical care is warranted, appropriate, and in the child's best interest.

The court then set a parenting schedule for the parties, ordered Brad to pay Diane $278.18 per month in child support, and determined NBG should attend the Sioux City Community school district, unless the parties otherwise agreed, because ...

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