IN RE THE MARRIAGE OF GEORGE THOMAS DAVIS III AND LIZETH MARIE BARCELO AVILES Upon the Petition of GEORGE THOMAS DAVIS III, Petitioner-Appellee, And Concerning LIZETH MARIE BARCELO AVILES, Respondent-Appellant.
from the Iowa District Court for Polk County, Rebecca
Goodgame Ebinger, Judge.
Barcelo appeals the custody, property distribution, and
attorney fee provisions of the decree dissolving her marriage
to George Thomas Davis III. AFFIRMED AS MODIFIED.
S. Kaplan and C. Aron Vaughn of Kaplan & Frese, L.L.P.,
Marshalltown, for appellant.
E. Eichmann of Eichmann Law Firm, Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
VAITHESWARAN, Presiding Judge.
Barcelo appeals a provision of a dissolution
decree granting George Thomas Davis III sole legal custody of
the parents' two children. She also challenges various
other provisions of the decree.
Background Facts and Proceedings
and Davis had a short-lived marriage. As Barcelo explains,
"[Although the seven days of trial, hundreds of
exhibits, and 1200 page transcript may not suggest it, this
was a marriage of only 3 years." What the voluminous
record does suggest is that this was a highly fraught
marriage and an equally fraught divorce proceeding.
trial, the district court granted Davis sole legal custody
and physical care of the children. The court awarded Davis
the family home and ordered Barcelo to pay $20, 000 towards
Davis' trial attorney fee obligation within thirty days
of the decree, liquidating assets if necessary. Barcelo moved
for enlarged findings and conclusions. The motion was denied,
and Barcelo appealed.
Joint Legal Custody
The legislature has defined joint legal custody as follows:
"Joint custody" or "joint legal custody"
means an award of legal custody of a minor child to both
parents jointly under which both parents have legal custodial
rights and responsibilities toward the child and under which
neither parent has legal custodial rights superior to those
of the other parent. Rights and responsibilities of joint
legal custody include but are not limited to equal
participation in decisions affecting the child's legal
status, medical care, education, extracurricular activities,
and religious instruction.
Iowa Code § 598.1(3) (2015). "The court may provide
for joint custody of the child by the parties."
Id. § 598.41 (1)(a). If the court finds that a
party has a history of domestically abusing a spouse, a
rebuttable presumption arises against ordering joint custody.
Id. § 598.41 (1)(b); see also id.
§ 598.41(3)(j) (considering "[w]hether a history of
domestic abuse . . . exists"). An un-rebutted finding of
a history of domestic abuse outweighs any other statutory
custody factor. Id. § 598.41 (2)(c).
denying Barcelo joint legal custody of the children, the
district court relied on "a history of domestic abuse .
. . with Ms. Barcelo as the aggressor and Mr. Davis as the
victim." The court cited a September 2014 incident in
which Barcelo "used a dangerous weapon to assault Mr.
Davis in the presence of one of her children." The court
stated, "This is a severe and deeply concerning
incident, but it is not an isolated event." The court
determined, "The [statutory] rebuttable presumption
against joint legal custody is therefore applicable."
The court further determined the remaining statutory factors