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In re Marriage of Davis

Court of Appeals of Iowa

October 11, 2017

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.

         Appeal from the Iowa District Court for Polk County, Rebecca Goodgame Ebinger, Judge.

         Lizeth Barcelo appeals the custody, property distribution, and attorney fee provisions of the decree dissolving her marriage to George Thomas Davis III. AFFIRMED AS MODIFIED.

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

          Carmen E. Eichmann of Eichmann Law Firm, Des Moines, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          VAITHESWARAN, Presiding Judge.

         Lizeth Barcelo[1] 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.

         I. Background Facts and Proceedings

         Barcelo 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.

         Following 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.

         II. 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).

         In 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 militated ...


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