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In re Petition of Chisholm

Court of Appeals of Iowa

November 26, 2014

Upon the Petition of BRIAN CHISHOLM, Petitioner-Appellee/Cross-Appellant, And Concerning AMANDA DIERKSEN, Respondent-Appellant/Cross-Appellee

Editorial Note:

This decision is published in table format in the North Western Reporter.

Appeal from the Iowa District Court for Clinton County, Stuart Werling, Judge. Amanda Dierksen appeals the district court's grant of joint physical custody.

Robert J. McGee of Robert J. McGee, P.C., Clinton, for appellant.

Adrienne C. Williamson of Pillers & Richmond, Clinton, for appellee.

Considered by Danilson, C.J., and Vogel and Bower, JJ.

OPINION

BOWER, J.

Amanda Dierksen appeals the district court's order granting her and Brian Chisholm joint physical care of their two children. Amanda claims it is in the best interests of the children to award her physical care. Amanda also asks for appellate attorney fees. On cross-appeal, Brian claims the district court erred in awarding Amanda attorney fees. We find it is in the best interests of the children to grant Amanda physical care of the children. We remand this matter to the district court for determination of Brian's visitation schedule and child support obligation. As Amanda has prevailed on appeal, we grant her request for appellate attorney fees, in part, and award her $1500. We decline to disrupt the district court's grant of attorney fees to Amanda. We reverse and remand on direct appeal, and affirm on cross-appeal.

I. BACKGROUND FACTS AND PROCEEDINGS

Brian Chisholm and Amanda Dierksen are the parents of two children, O.C., born in 2008, and R.C., born in 2010. Brian and Amanda were never married. The couples' relationship began while they attended Clinton High School. Amanda became pregnant with O.C. when she was in eleventh grade. She subsequently transferred to the alternative high school where she attained a GED. Brian dropped out of high school in ninth grade. He attained a GED in 2003. In 2010, he attended a college in Michigan for about one year. During this time, Brian returned home once every month for three or four days at a time.

Brian currently resides in Clinton. Amanda lives in nearby Camanche with her boyfriend. Both Brian and Amanda are employed full time. Brian's past is marked by encounters with law enforcement, including multiple convictions for operating while intoxicated. These offenses occurred before the birth of O.C. The record shows Brian and Amanda had ties to the National Socialist or Nazi Party. Testimony at trial shows Brian still holds these beliefs, but he claims the beliefs are based on his heritage and not on racism. He expressed his intent not to proselytize his beliefs to the children, which the district court found persuasive.

We incorporate the court's conclusions on Brian and Amanda:

It is clear that Brian has acted in the past in a manner which is neither mature nor in the best interest of the children. However, within the last three years he appears to have made significant effort to act in a mature and responsible way as a father toward his sons, including providing them with financial support and a stable home in which he can raise them in a loving environment. If Brian can suppress his need to be an iconoclast[1], then he stands the chance of raising two healthy, well-adjusted members of society.. . . .
It is equally clear to the Court that Amanda is devoted and loving mother. Amanda's witnesses testified that she will put the children's needs above her own and she will do without in order to make sure that the children have the essentials of life. She has sought out fulltime employment in order to provide for her children when Brian's financial support was absent or minor. These are the hallmarks of a loving parent. Amanda ...

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