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In re Marriage of Enke

Court of Appeals of Iowa

November 21, 2018

IN RE THE MARRIAGE OF SARAH ANNE ENKE AND JASON A. ENKE Upon the Petition of SARAH ANNE ENKE, Petitioner-Appellant, And Concerning JASON A. ENKE, Respondent-Appellee.

          Appeal from the Iowa District Court for Cerro Gordo County, Gregg R. Rosenbladt, Judge.

         A mother appeals the ruling on a petition to modify child custody, awarding physical care to the father. AFFIRMED.

          Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, LLP, Charles City, for appellant.

          Jacqueline R. Conway of Heiny, McManigal, Duffy, Stambaugh & Anderson, P.L.C., Mason City, for appellee.

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

          POTTERFIELD, Presiding Judge.

         Sarah Enke appeals the ruling granting Jason Enke's petition to modify the child-custody provisions of their divorce decree. Sarah argues there was not a substantial change in circumstances to warrant modifying the decree. In the alternative, she argues this court should modify the district court's ruling to provide equal parenting time. Jason requests appellate attorney fees.

         I. Background Facts and Proceedings.

         The parties married in 1999. They have four children: D.E., born in 2000; J.E., born in 2002; B.E., born in 2006; and P.E., born in 2008. The parties divorced in April 2014 through a stipulated agreement. Both parties agreed to share joint legal custody and physical care. According to the stipulation, Sarah had the children from Monday to Wednesday, Jason had the children from Wednesday to Friday, and the parties alternated weekends. The parties split childcare expenses equally, and Jason was ordered to pay child support.

         In September 2014 Jason filed an application for rule to show cause. He argued Sarah failed to inform him she had scheduled the children's school conferences, foster the children's feelings of affection for him by declaring he was "unsafe," notify him of her new address, communicate regarding co-parenting beyond one e-mail per week, be flexible with visitation, and she did not accurately account for her share of expenses.

         In October, Sarah filed a counterclaim, arguing Jason failed to consult her before signing the children up for activities, support her reasonable disciplinary actions, foster the children's feelings of affection for her, notify her of the children's enrollment in flag football or notify her of the schedule, and accurately account for shared expenses. Also in October, Sarah applied for and was granted a protective order against Jason.

         In December, the district court denied Jason's application for rule to show cause, finding Sarah had not violated the custody agreement. The district court found Sarah had notified Jason of the school conferences (but suggested they attend separate conferences); had not disparaged Jason in front of the children; properly notified Jason of her change in address; and that her attempts to limit communication to one e-mail per week, in light of Jason's "barrage of text messages," was appropriate barring any emergency. The district court found both parents were inflexible with the visitation schedule, and it had to resolve several disputes between the parties as to what constitutes a necessary expense that the parties should split. The district court found Jason in contempt regarding disparaging comments he made about Sarah in front of the children.

         Jason filed a petition to modify physical care in April 2015, asking the court to grant him physical care. Jason argued Sarah refused to modify her protective order against him, making it difficult to co-parent and impossible to attend the children's activities. He also argued Sarah failed to share expenses according to the decree and refused to foster affection between him and the children. Sarah's counterclaim also requested physical care.

         The district court modified the original decree in November 2015. The district court determined the parties had difficulty communicating with each other and sharing parenting expenses. The district court found joint physical care was ...


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