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In re Marriage of Marsh

Court of Appeals of Iowa

August 16, 2017

IN RE THE MARRIAGE OF CHRISTIAN A. MARSH AND SALLY J. MARSH Upon the Petition of CHRISTIAN A. MARSH, Petitioner-Appellant, And Concerning SALLY J. MARSH, Respondent-Appellee.

         Appeal from the Iowa District Court for Clinton County, Henry W. Latham II, Judge.

         Christian Marsh appeals a district court order denying his request to modify the physical-care provision of the decree dissolving his marriage to Sally Marsh. AFFIRMED.

          J. Drew Chambers of Holleran, Shaw, Murphy & Stoutner, Clinton, for appellant.

          James D. Bruhn of Farwell & Bruhn Law Firm, Clinton, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          TABOR, Judge.

         He went from being unemployed and living with his parents to holding a professional job, buying a house, and starting a family with his new wife. Christian Marsh contends his increased stability constitutes a material and substantial change in circumstances not contemplated seven years ago when he and Sally Marsh divorced just four months after the birth of their son, N.J.M. Christian appeals the district court's denial of his request to modify the physical-care provision of the divorce decree. Although Christian's steady employment, housing, and family commitment may qualify as a substantial change in circumstances, we do not find N.J.M.'s best interests would be served by switching from placement in Sally's physical care to shared physical care. Accordingly, we affirm the district court's order.

         I. Facts and Prior Proceedings

         Christian and Sally Marsh divorced in 2010. They have one child together, N.J.M., who is now seven years old. At the time of the decree, Christian did not have a job and stayed with his parents. Sally worked for the local school district, teaching students with behavior disorders.

         The decretal court awarded the parties joint legal custody of N.J.M. and Sally physical care.[1] The court granted Christian visitation on alternating weekends, as well as one to two evening visits each week. Over the summers, Christian was to have one full week of visitation, increasing to two nonconsecutive weeks once N.J.M. turned three. The court ordered Christian to pay $300 a month in child support.

         In the ensuing years, Christian furthered his education and gained employment as a registered nurse. Sally continued to work as a teacher. A few months after the entry of the decree, Sally agreed to allow Christian to exercise additional visitation, as his schedule allowed, and from that point on, he generally had N.J.M. for several overnight visits each month. Christian attended N.J.M.'s school conferences and, when his schedule allowed it, N.J.M.'s medical appointments and extracurricular activities. Christian never exercised his allotted two weeks of summer visitation but, on at least two occasions, took N.J.M. on multiple-day out-of-town trips.

         On May 27, 2016, Christian filed an application for modification of the decree, alleging "material and substantial changes in circumstances entitling [Christian] to be named as the person having principle physical care of [N.J.M.] as well as requiring [Sally] to pay child support for and on behalf of the minor child." Sally filed a counterclaim requesting additional child support from Christian due to the increase in his income.

         Christian remarried in September 2016, and by the time of the modification hearing in February 2017, Christian and his new wife were expecting a baby and in the process of purchasing a home.

         At the modification hearing, Christian revised his request to shared care rather than physical care, reasoning his visitation with N.J.M. had been "approaching" 50% of the time. The parties agreed Christian had between eight and twelve overnight visits with N.J.M. each month leading up to the modification hearing, but the parties disagreed about the amount of visitation taking place before Christian petitioned the court to modify the decree. Christian contended Sally had allowed slightly more visitation in the ...


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