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Upon Petition of Fuerstenberg

Court of Appeals of Iowa

May 3, 2017

Upon the Petition of KORY M. FUERSTENBERG, Petitioner-Appellant, And Concerning LEAH L. FRETTE, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.

         Kory Fuerstenberg appeals the district court's decree establishing custody, physical care, visitation, and support for the parties' minor child.

          Barry S. Kaplan, and C. Aron Vaughn of Kaplan & Frese, L.L.P., Marshalltown, for appellant.

          David L. Brown and Tyler R. Smith of Hansen, McClintock & Riley, Des Moines, for appellee.

          Considered by Mullins, P.J., and Bower and McDonald, JJ.

          MULLINS, Presiding Judge.

         Kory Fuerstenberg appeals the district court's decree establishing custody, physical care, visitation, and support for the parties' minor child, challenging the district court's award of physical care to Leah Frette. We affirm as modified.

         I. Background Facts and Proceedings.

         The district court aptly provided the following facts:

Kory and Leah are the parents of a girl who was born in October of 2015. Kory and Leah met on an online dating site approximately 2.5 years ago. They did not marry and the record shows they did not reside together, although Leah occasionally stayed at Kory's home in Mitchellville.
Kory is 30 years old. He has an [Associate of Arts] degree in general studies from [Des Moines Area Community College (DMACC)]. He works as a sergeant for the Iowa Department of Corrections (DOC) at the Newton facility. He makes approximately $65, 495 per year. His work is approximately 25 miles from his home. He currently works a night shift from 10:00 p.m. to 6:00 a.m., although he can move to a day shift to best meet the needs of his daughter. Kory owns his own home.
Leah is 23 years old. She took some classes in the DMACC dental program but did not finish. She currently works as a sales associate and teller at Midwest Heritage. She makes approximately $27, 560 per year. Leah usually works from 8:45 a.m. to 5:00 p.m., but she has to close one night per week and work every other weekend. Her bank has longer hours because it is housed in a Hy-Vee store. The bank works well with employees to make hours flexible. Leah has worked one prior bank job and has consistently worked since her high school graduation. She lives with her mother in a condo in Urbandale. She intends to move out on her own once she establishes some support from Kory.
Each party testified that the other is a good parent. It is clear that both love their child and wish to serve her best interests. . . .
There is no question that Kory has been an involved parent. He attended Leah's pre-birth medical appointments, witnessed the birth of the baby, and stayed at the hospital until check-out. He has provided for all the child's needs when staying at his home and he provides all care when alone with the child. He has seen the child as often as four times per week depending on Leah's work schedule. He estimated he has paid approximately $2, 000 for day care expenses, money to Leah, medical bills, and other supplies that Leah needed for [the child]. The court does not question Kory's commitment to [the child]. As discussed above, Leah does not question his abilities as a parent.

(Footnote and citations omitted.)

         On November 6, 2015, Kory filed a petition to establish custody, physical care, visitation, and support of their child. Following a hearing held July 21, 2016, the district court entered its decree, awarding joint legal custody of the child and physical care to Leah. Kory appeals, challenging the district court's refusal to award shared physical care. Additional facts, as relevant, will be discussed below.

         II. Standard and ...


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