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In re Marriage of Mourton

Court of Appeals of Iowa

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.

         Appeal from the Iowa District Court for Hamilton County, Michael J. Moon, Judge.

         The mother appeals from the provision of the dissolution decree giving the parties joint physical care. AFFIRMED.

          Dan T. McGrevey, Fort Dodge, for appellant.

          Alyssa A. Kenville of Kenville Law Firm, P.C., Fort Dodge, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.

          POTTERFIELD, Judge.

         Malissa 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.

         I. Background Facts and Proceedings

         In May 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.

         Russell 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.

         Prior 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.

         Malissa 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.

         On June 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.[1]

         Russell 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 ...


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