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In re Marriage of Zimmerman

Court of Appeals of Iowa

July 24, 2019


          Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.

         Thaddeus Zimmerman appeals the physical care provisions of the decree dissolving his marriage to Jamie Zimmerman.

          David Burbidge of Johnston, Stannard, Klesner, Burbidge & Fitzgerald, P.L.C., Iowa City, for appellant.

          Jamie Zimmerman, Iowa City, pro se appellee.

          Considered by Vaitheswaran, P.J., Vogel, S.J., and Gamble, S.J. [*]


         Thaddeus Jeremiah ("T.J.") and Jamie Kay Zimmerman married in 2010 and divorced in 2018. The district court granted Jamie physical care of their child, born in 2010, subject to visitation with T.J. "from 7:30 p.m. on days before he does not work until 7:30 p.m. on the day before his work shift begins." In a posttrial ruling, the district court struck the visitation provision and replaced it with the following: "[T.J.] shall have care of the child on Wednesday beginning at 6:00 P.M. through Sunday at 9:00 A.M. [Jamie] shall have care of the child from Sunday at 9:00 A.M. through Wednesday at 6:00 P.M." The court ordered T.J. to pay Jamie $342.00 per month in child support.

         On appeal, T.J. argues the district court should have granted him physical care of the child or, in the alternative, should have ordered joint physical care. He requests modification of the child support order if we choose either option and modification of the visitation provision if we leave physical care with Jamie. Jamie did not file a responsive brief.

         The district court made the following findings and conclusions:

In listening to the witnesses in this case, the Court finds that this was certainly the tale of two stories which bore little resemblance to each other. [T.J.] and [Jamie] describe one another as being abusive and controlling. They both seem to be working on their issues since they both attend counseling regularly. The Court believes that they have had a volatile and unhealthy relationship. However, the Court also notes that they both appear to love and care for their child. It is noteworthy that the Court recognizes that there are signs that [Jamie] has been subjected to abuse and [T.J.] has displayed an unfortunate tendency to show anger and aggression. However, it is also noteworthy that by all recent accounts, [T.J.] seems to be managing his temperament in an appropriate way. The Court notes that both parties have accused one another of abuse. This is extremely concerning and is an indication to the Court that both parties have done the correct thing by enrolling in therapy.
The Court finds that a shared care arrangement is an arrangement that the Court would most like to impose. Unfortunately, the Court does not feel that the parties communicate well enough to support a shared care arrangement. This is extremely unfortunate because the child is strongly bonded to both parties. The parties have testified that there have been some difficulties communicating regarding the child. However, the child has been well cared for in both of their homes. Parents will often disagree regarding important issues in their child's life. The key is whether or not the parents can put their differences aside and make the best decision that they can. They do not have to always agree but they do need to focus on the well-being of their child. The Court would like to believe that these parties can do this. However, the Court would be remiss in ignoring the signs that shared care is unlikely to work.
In the absence of the ability to award shared care, the Court must select a primary caregiver for the child. Both parents have spent significant time with the child since the entry of the temporary order in November of 2016. By all objective accounts, the child is well adjusted, happy, intelligent, and strongly bonded to both parents. Although both parents have raised concerns about each other, the Court finds that those concerns have been largely exaggerated by both parties. Although there have been some concerning events since the current care arrangement was established, the child has thrived under the current care arrangement. The one concern that the Court believes should be addressed is the sheer number of exchanges that take place during the week. The Court believes that a very similar care arrangement with fewer exchanges would be in the best interest of the child. However, this is made extremely difficult by the Petitioner's current work schedule. Therefore, the Court concludes that the child's best interests would be served by continuing the current care schedule between the parties.

         We begin with the district court's rejection of joint physical care. "[A] stormy marriage and divorce presents a significant risk factor that must be considered in determining whether joint physical care is in the best interest of the children." In re Marriage of Hansen, 733 N.W.2d 683, 698 (Iowa 2007). The parents had a volatile relationship marked by domestic abuse dating back to 2014. T.J. testified both parties were "guilty of abusing each other." He claimed Jamie pulled and dragged him by his hair and punched him in the face. He admitted he assaulted Jamie shortly before the dissolution petition was filed by holding her in "a modified choke hold."

         T.J.'s conduct led Jamie to seek a domestic abuse protective order. T.J. followed up with his own petition for a protective order. Those petitions were considered in separate proceedings. In the dissolution proceeding, the district court enjoined the parents from ...

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