IN RE THE MARRIAGE OF LARONNA LEA ORR AND DAVID WAYNE ORR Upon the Petition of LARONNA LEA ORR, Petitioner-Appellee, And Concerning DAVID WAYNE ORR, Respondent-Appellant.
from the Iowa District Court for Linn County, Kevin McKeever,
father appeals the physical care and visitation provisions of
a decree of dissolution of marriage. AFFIRMED.
Richard F. Mitvalsky of Gray, Stefani, & Mitvalsky,
P.L.C., Cedar Rapids, for appellant.
Caitlin L. Slessor and Kerry A. Finley of Shuttleworth &
Ingersoll, P.L.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
and LaRonna Orr married in August of 2002. Two children were
born to the marriage: L.O., in 2003, and I.O., in 2005. This
is an appeal from a decree dissolving their marriage. The
district court awarded the parties joint legal custody of the
children, LaRonna physical care of the children, and David
liberal visitation. David timely filed this appeal,
contending he should be awarded physical care of the children
and contending the summer visitation schedule should be
actions are tried in equity and reviewed de novo on appeal.
See Iowa R. App. P. 6.907; In re Marriage of
Hansen, 733 N.W.2d 683, 690 (Iowa 2007); In re
Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). We
review the entire record and adjudicate anew those issues
properly preserved and presented for appellate review.
See In re Marriage of Anderson, 522 N.W.2d 99, 101
(Iowa Ct. App. 1994). "Although our review is de novo,
we exercise our review with deference to the district
court." Kaczinski v. Welch, No. 16-1522, 2017
WL 1088118, at *1 (Iowa Ct. App. Mar. 22, 2017). If a
district court decision has failed to do equity, we may
depart from its ruling. See In re Marriage of Mauer,
874 N.W.2d 103, 106 (Iowa 2016).
general rule, in equity, a trial court should receive
evidence subject to any objections made to allow for de novo
review of the record. See In re Marriage of
Anderson, 509 N.W.2d 138, 142 (Iowa Ct. App. 1993). Here
the district court ruled on objections and excluded certain
evidence, but neither party objected to the procedure
"so we consider the record as made at the trial court
Iowa Code defines "physical care" as "the
right and responsibility to maintain a home for the minor
child and provide for the routine care of the child."
Iowa Code § 598.1(7) (2014). In making the physical care
determination, we look to the factors set forth in Iowa Code
section 598.41(3) and enumerated in our case law. See In
re Marriage of Hansen, 733 N.W.2d 683, 696-700 (Iowa
2007); In re Marriage of Winter, 223 N.W.2d 165,
166-67 (Iowa 1974). "Each factor, however, does not
necessarily impact the decision with equal force."
In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa
Ct. App.1997). In considering these factors, our ultimate
objective "is to place the child in the environment most
likely to bring him to healthy mental, physical, and social
maturity." McKee v. Dicus, 785 N.W.2d 733, 737
(Iowa Ct. App. 2010). "The controlling consideration is
the best interests of the child." Stieneke,
2016 WL 2745058, at *1. The "best interest of the child
includes but is not limited to the opportunity for maximum
continuous physical and emotional contact possible with both
parents, unless direct physical or significant emotional harm
to the child may result from this contact. Refusal by one
parent to provide this opportunity without just cause shall
be considered harmful to the best interest of the
child." We will "ultimately decide[ ] by
determining under the whole record which parent can minister
more effectively to the long-range best interests of the
award of joint physical care is impracticable under the
circumstances presented. During the course of their marriage,
the parties resided in Marion. They separated in 2014, and
LaRonna relocated to Iowa Falls to obtain a teaching
position. By the time of trial, LaRonna had relocated to
Hubbard, her hometown, to obtain a permanent teaching
position. Hubbard is approximately two hours from Marion by
car. The physical distance between the parties'
residences makes an award of joint physical care infeasible.
Where, as here, joint physical care is not appropriate, we
"must choose one parent to be the primary caretaker,
awarding the other parent visitation rights." In re
Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). In
making the determination, there is a presumption against
separating siblings. See In re Marriage of Will, 489
N.W.2d 394, 398 (Iowa 1992).
novo review, upon consideration of all of the relevant
factors, we conclude awarding LaRonna physical care of the
children is appropriate. First, LaRonna historically has
served as their primary caregiver. See Hansen, 733
N.W.2d at 697 (discussing approximation principle). Second,
LaRonna's work schedule is more conducive to maximizing
parental contact with the children. See Will, 489
N.W.2d at 398 ("Dwight's work schedule is very
demanding and he is often away from home for long hours
trucking. Janel's work schedule is flexible and can be
adjusted to fit the children's school attendance.").
LaRonna works as a teacher, and her work schedule would be
synchronized with the children's schedule. In contrast,
David works as a banker, has longer hours, and has to travel
some for work. Third, LaRonna is better positioned to
minister to the particular needs of I.O. I.O. had an
Individualized Education Plan (IEP) for special educational
needs and continues to have a Section 504 plan that provides
her accommodations at school. LaRonna's training as a
special education teacher is beneficial to I.O. See In re
Marriage of Scott, No. 15-2228, 2016 WL 6636929, at *5
(Iowa Ct. App. Nov. 9, 2016) (affirming grant of primary care
to mother with special-education background where one child
had IEP); In re Marriage of Rickels, No.
14-0952, 2015 WL 576378, at *2 (Iowa Ct. App. Feb. 11, 2015)
(discussing with approval special-education-teacher
mother's plan to address child's ADHD); In re
Coats, No. 06-0452, 2006 WL 2265488, at *2 (Iowa Ct.
App. Aug. 9, 2006) (affirming physical care award to mother
where child was in early childhood development and
mother's educational emphasis was in early childhood
development). Fourth, while David appears to be the better
communicator, we have little doubt LaRonna is willing and
able to communicate information regarding the children to
David and is willing and able to facilitate the
children's relationship with David.
raises several arguments in support of awarding him physical
care of the children. He argues LaRonna's decision to
move with the children without prior notice to him
demonstrates her unsuitability as the primary caregiver.
LaRonna's decision to relocate the children without
discussion was improper; however, under the circumstances we
find it non-dispositive. LaRonna had genuine concerns
regarding her safety had she given David prior notice. David
contends keeping the children in Marion will provide them
with greater stability. They would remain in the family home,
attend the same schools, and maintain their social networks.
While that is true, we conclude it does not outweigh the
other considerations discussed above. Finally, David contends
the school district in Marion is superior. As a factual
matter, the record does not support the contention. See
In re Marriage of Hoffman, 867 N.W.2d 26, 36 (Iowa 2015)
(comparing urban and rural school districts and concluding
"the record does not establish that the children's
educational interests dictate that they should reside in
the" more urban district). Both school districts afford
the children excellent educational and extracurricular
opportunities. They can thrive in either setting.
concluded LaRonna should be awarded physical care, we next
address visitation. In the summer, the parties exercise a
"week-on, week-off" visitation schedule. At trial,
David proposed that, if he were given primary care, LaRonna
have an additional week of summer visitation. Now that
LaRonna has been awarded physical care, David requests his
proposed summer schedule be adopted in his favor. He argues
this will allow him extended vacations with the children and
will provide "greater balance in parenting time
overall." LaRonna ...