January 11, 2017
IN RE THE MARRIAGE OF MALISSA NIKOLE MOURTON AND RUSSELL EDWARD MOURTON Upon the Petition of MALISSA NIKOLE MOURTON, Petitioner-Appellant, And Concerning RUSSELL EDWARD MOURTON, Respondent-Appellee.
from the Iowa District Court for Hamilton County, Michael J.
mother appeals from the provision of the dissolution decree
giving the parties joint physical care. AFFIRMED.
McGrevey, Fort Dodge, for appellant.
A. Kenville of Kenville Law Firm, P.C., Fort Dodge, for
Considered by Vaitheswaran, P.J., and Potterfield and Bower,
Mourton appeals from the provisions of the district
court's dissolution decree concerning her three minor
children with Russell Mourton. Malissa challenges the
court's placement of the parties' children in joint
physical care of the parents rather than awarding Malissa
physical care of the children. Russell did not file a brief
in this matter. We affirm.
Background Facts and Proceedings
2009, Justin and Malissa were married in Webster City after
living together since 2004. Justin and Malissa have three
minor children: B.N.M., who was born in 2001; A.R.M., who was
born in 2005; and, A.H.M. who was born in 2007.
works as a lineman for the City of Webster City under a
traditional forty-hour workweek (7:00 a.m. to 4:00 p.m.). He
is also required to be on call one week per month (4:00 p.m.
to 7:00 a.m.). Malissa does not work outside the home and
suffers from systemic lupus and bipolar disorder. Prior to
the lupus diagnosis, Malissa experienced a variety of medical
complications resulting from autoimmune issues, including
seizures, chronic pain, and headaches. The record indicates
that her current treatment plan controls the most serious
side effects. Although her current symptoms are sporadic, she
sometimes suffers from fatigue and impaired mental function.
The long-term prognosis of Malissa's medical conditions
is unclear from the record.
to the dissolution action, Malissa primarily cared for the
children with her parents' assistance. Malissa's
parents moved to Webster City and purchased a house in the
same neighborhood as the marital home. The relocation allowed
them to help Malissa with her medical conditions and the
day-to-day activities of child rearing. Malissa's parents
intend to remain in Webster City indefinitely.
attended the children's musical concerts, soccer games,
Cub Scout meetings, and she participated in local church
activities. When Russell was not at work, he spent time with
the children by attending their musical concerts, soccer
games, Cub Scout Meetings, and school conferences. Russell
also enjoyed various outdoor activities with the children.
Both Malissa and Russell intend to remain in Webster City.
25, 2015, Malissa filed a petition for dissolution of
marriage asking, in part, for physical care of the children.
On July 10, 2015, Russell filed an answer also seeking
physical care of the children.
and Malissa both remained in the marital home during the
pre-trial proceedings. Although Malissa had requested
exclusive possession of the marital home during the temporary
orders proceeding, the court did not grant her request. The
temporary order provided for joint physical care of the
children as long as the parents were both living in the
marital home. As time went on, the already tense environment
in the marital home worsened. In August 2015, Russell was
arrested for child endangerment, but the charges were
eventually dismissed by the court. The Iowa Department of
Human Services (DHS) investigated multiple abuse allegations,
including the incident from the arrest and another incident
involving Russell and the children. DHS categorized both
investigations as "not confirmed and not placed"
and determined the home to be safe.
April 21, 2016, the district court filed a dissolution decree
for the parties. The court determined Malissa and Russel
should have joint legal custody of their children and joint
physical care and awarded Malissa the marital home. Malissa
appeals the physical-care provision of the decree, arguing
joint physical care is inappropriate because of the
parties' inability to communicate and Russell's
conduct, including his absence from the children's lives
during the dissolution proceedings.
Scope and Standard of Review
review cases tried in equity, such as dissolution cases, de
novo. Iowa R. App. P. 6.907; In re Marriage of
Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa 2012). We
give weight to the factual findings of the district court,
especially when considering the credibility of witnesses, but
we are not bound by them. Iowa R. App. P. 6.904(3)(g).
"Prior cases are of little precedential value, except to
provide a framework for analysis, and we must ultimately
tailor our decision to the unique facts and circumstances
before us." In re Marriage of Kleist, 538
N.W.2d 273, 276 (Iowa 1995).
physical care is at issue in marriage dissolution cases, the
district court may grant the parents joint physical care or
choose one parent to be the caretaker of the children. In
re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007).
"The critical question in deciding whether joint
physical care is . . . appropriate is whether the parties can
communicate effectively on the myriad of issues that arise
daily in the routine care of a child." Id. at
580. The court considers the following factors in determining
whether to grant joint physical care: (1) the historical care
giving arrangement for the child between the parents, (2) the
ability of the spouses to communicate and show mutual
respect, (3) the degree of conflict between the spouses, and
(4) the degree to which the parents are in general agreement
about their approach to parenting. In re Marriage of
Hansen, 733 N.W.2d 683, 697-99 (Iowa 2007); In re
Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App.
2007). Not all factors are given equal consideration, and the
weight of each factor depends on the specific facts and
circumstances of each case. In re Marriage of
Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). The
primary consideration for custody determinations is the best
interests of the child. Iowa R. App. P. 6.904(3)(o).
to the first factor, both parties have contributed to the
physical care of the minor children. Malissa was the primary
caregiver as a stay-at-home parent before the dissolution
proceedings. However, she required assistance from her
parents. For example, the children would go to Malissa's
parents' house after school to do their homework, and
Russell testified that Malissa's parents substantially
helped Malissa with caregiving. While "Russell has
assumed a more traditional role in the family of breadwinner,
" as the district court found, he also participated in
the caregiving of the children before the filing of the
petition for dissolution by attending school and sporting
events, doctor's appointments, engaging in recreational
activities on the weekends, and participating in Cub Scout
meetings. Both Malissa and Russell have shown a long-term
interest in providing care for their children.
second and third factors are the ability to communicate and
the degree of conflict between the parents. Hansen,
733 N.W.2d at 698. During the divorce proceedings, the
parties struggled to communicate and conflict was prominent;
we believe this was likely aggravated by the parties'
living arrangement. Furthermore, testimony regarding the
parties' relationship with their children was
inconsistent. Malissa testified that Russell was never home
and when he was, he would confine himself to the basement and
ignore the children. Conversely, Russell testified that
although he worked more during the proceedings for financial
reasons, he was still able to watch cartoons with the
children and help put them to bed. Russell also claimed that
part of the reason he spent less time with the children
during the proceedings was because Malissa took the children
to her parents' house when he was home.
made multiple accusations of domestic abuse, one supported by
the school counselor, following the filing of the petition.
Russell denied these allegations and DHS found no abuse
during the course of its investigations. Certainly, the
dissolution proceedings combined with the parties' living
situation magnified the conflict and poor communication
between the parties, as illustrated by the timing of the
events. However, the parties demonstrated the ability to
communicate before the dissolution proceedings by jointly
attending school conferences and medical appointments.
Furthermore, we believe the above facts are in accord with
the district court's findings that "[Russell] will
resume his previous quality relationships with the children
once the angst caused by these proceedings has
final factor is the degree to which the parents are in
general agreement about their parenting approach.
Id. at 699. In order to ensure success in a joint
physical care arrangement, "the parents must generally
be operating from the same page on a wide variety of routine
matters." Id. However, "[i]t would be
unrealistic . . . to suggest that parents must agree on all
issues all of the time . . . ." Id. According
to the testimony, both parents will remain in Webster City,
and they value the importance of the minor children's
relationship with the other parent. Both parents also
encourage counseling for their children and stress the
importance of education. Certainly, Malissa and Russell have
at times disagreed on some parenting strategies, but it is
apparent from the record that both encourage their
children's growth and development through counseling,
education, recreational activities, and religious services.
that joint physical care is in the best interest of the
children under the present facts. Indeed, the parties
suffered from conflict and communication breakdowns. However,
those setbacks appeared to peak during the divorce
proceedings. We see no reason why the parties cannot
communicate effectively and avoid conflict following the
dissolution proceedings. Furthermore, the parties have
illustrated shared values in encouraging the development,
well-being, and growth of their minor children. We agree with
the district court: "Both parties seem to be genuinely
interested in doing what is in the long-term best interests
of the children. Both love the children." Accordingly,
we affirm the district court's decision to place the
children in joint physical care of the parties. In reaching
this conclusion, we recognize that the district court had the
opportunity to hear the evidence and view the witnesses
firsthand. See id. at 690.
 The Iowa Code requires a party to
request joint physical care before a court can award such a
custody arrangement. See Iowa Code §
598.41(5)(a) (2015). While both parties requested physical
care in their filings, Russell alternatively requested a
joint physical care award during his testimony: "Q.
Would you also be open to the idea of shared physical care?
A. Yes, I would."