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In re Marriage of Rosonke

Court of Appeals of Iowa

July 3, 2019

IN RE THE MARRIAGE OF MARIE ROSONKE AND BRIAN ROSONKE Upon the Petition of MARIE ROSONKE, Petitioner-Appellant, And Concerning BRIAN ROSONKE, Respondent-Appellee.

          Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.

         Marie Rosonke appeals from the order modifying the decree dissolving her marriage to Brian Rosonke.

          Crystal L. Usher of Nazette, Marner, Nathanson & Shea LLP, Cedar Rapids, for appellant.

          Christopher O'Donohoe of Elwood, O'Donohoe, Braun & White, LLP, New Hampton, for appellee.

          Considered by Potterfield, P.J., and Doyle and May, JJ.

          DOYLE, JUDGE.

         Marie Rosonke appeals from the order modifying the decree dissolving her marriage to Brian Rosonke. She contends the court erred in placing the children in Brian's physical care and in ordering her to terminate health insurance coverage available through her employer. She argues the district court judge erred in failing to recuse himself from the proceedings. She requests an award of her appellate attorney fees.

         I. Background Facts and Proceedings.

         Marie and Brian were divorced in June 2016. They have three children, who were born in 2007, 2009 and 2013. Pursuant to the parties' stipulation, the decree granted them joint legal custody and shared physical care of their three children. Pursuant to the stipulation, the parties alternated care of the children on a weekly basis.

         Since the divorce, Marie has been in a relationship with Josh Funk. Josh lives in Elkader, approximately fifty-eight miles from New Hampton, where the children attend school. In December 2017, Marie petitioned to modify the custody provisions of the decree to grant her physical care of the children based in part on her planned move to Elkader. In his answer, Brian requested physical care of the children.

         Marie began staying with Josh in Elkader in January 2018 before formally moving there in April. Because of the amount of travel required to transport the children from Elkader to school while in Marie's care, Brian moved the court for a temporary custody order placing the children in his physical care during the week for the remainder of the school year. The district court granted the temporary order following an April hearing.

         The modification action came to trial in July 2018. The district court entered its order modifying the decree the following month. The court found that although the parties had "some communication problems, they generally got along well and co-parented," and "the children were all doing very well under the shared care arrangement." However, it found that Marie's move outside of the children's school district was a substantial change in circumstances warranting modification of the custody provisions of the dissolution decree. Because her move eliminated the possibility of continuing a shared physical care arrangement, the court went on to determine to whom it should award physical care. Although the court found both Marie and Brian have "demonstrated an equal ability to care for the children," it determined that placing the children in Brian's physical care would serve their best interests. The court noted the lack of connections the children have in Elkader, where only their mother and her boyfriend live, versus those they have established in New Hampton, where they have lived and attended school their whole lives and have family and friends in the community.

         II. Modification of Custody.

         We review the modification order de novo. See In re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give weight to the district court's fact-findings, especially those concerning witness credibility, though we are not bound by them. See id. "We recognize that the district court 'has reasonable discretion in determining whether modification is warranted and that discretion will not be disturbed on appeal unless there is a failure to do equity.'" See id. (quoting In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998)). We afford the district court "considerable latitude" in its ...


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