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In re Marriage of Tribolet

Court of Appeals of Iowa

September 11, 2019


          Appeal from the Iowa District Court for Taylor County, Patrick W. Greenwood, Judge.

         A former wife appeals a district court order following cross applications to modify the custody provisions of a dissolution decree.

          Andrew J. Zimmerman of Nielsen & Zimmerman, PLC, Corning, for appellant.

          Rodney K. Maharry, Clive, and Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for appellee.

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

          TABOR, JUDGE.

         In their 2015 divorce decree, the district court granted Lisa and Jonathan Tribolet joint physical care of their two sons. In 2017, the parties petitioned to modify that physical care arrangement. Finding Lisa's move from Bedford to Atlantic qualified as a substantial change in circumstances, the district court granted modification. The court ordered split physical care, awarding Lisa physical care of their older son and Jonathan physical care of their younger son.

         On appeal, Lisa challenges this arrangement, arguing both children would do better in her physical care. Because we find the court-ordered arrangement is in each child's best interests, we affirm. But we remand for the district court to enter an order on appellate attorney fees.

         I. Facts and Prior Proceedings

         Lisa and Jonathan married in November 2008 and lived in Bedford. They separated a year later but did not file for divorce until 2015.

         Lisa and Jonathan have two sons, J.A.T., born in 2004, and J.P.T., born in 2008. J.P.T. is the biological son of Lisa and Jonathan. J.A.T. is Lisa's biological son, adopted by Jonathan. Lisa also has two adult children. While Lisa and Jonathan were separated, the two boys lived with Lisa during the week and spent weekends with Jonathan. When they divorced, Lisa and Jonathan agreed to joint custody and shared physical care. They split the weekdays and alternated weekend parenting times. Both Lisa and Jonathan lived in Bedford, and the boys went to Bedford schools.

         After the separation, Jonathan moved in with his parents and sister. In this extended family setting, Jonathan's parents took on many of the daily caregiving duties for J.A.T. and J.P.T. Although undiagnosed until 2013, Jonathan had developed a brain tumor. He could not work and the condition may have contributed to his lack of involvement in caregiving duties. Jonathan received treatment and achieved an almost full recovery except for some minor memory lapses. He returned to work at a manufacturing plant in Corning.

         After divorcing Jonathan, Lisa married Robert Hitch. Robert has physical care of his thirteen-year-old daughter from a prior marriage. In June 2017, Lisa and Robert moved to Atlantic- about one hour away from Bedford. Lisa now works as a nurse consultant for an insurance company from an office in her home. Before that, she worked as a hospice nurse, which required traveling a "considerable distance" to see patients.

         Two months after her move, Lisa petitioned to modify the decree, seeking physical care of the children. She alleged a substantial change in circumstances arose when Jonathan moved in with his fiancée, Megan, leaving the boys in his parents' home. Jonathan delegated most of his parenting duties to his parents and sister, according to Lisa's application. And she alleged Jonathan's family- especially his mother-treated J.A.T. less favorably than J.P.T. Lisa believed the favoritism hurt both boys. Lisa asserted she could minister to their needs better as a primary caregiver.

         Jonathan answered, alleging Lisa's move to Atlantic was a substantial change in circumstances.[1] Jonathan believed both boys would fare better in his physical care. He pointed to Lisa's lack of involvement with the children's schooling and extracurricular activities. He alleged her disengagement contributed to J.A.T.'s ongoing behavioral and academic issues.

         While awaiting trial, Lisa and Jonathan agreed to a temporary custody arrangement keeping J.P.T. in Jonathan's physical care and transferring care of J.A.T. to Lisa. J.A.T. began attending school in Atlantic.

         Before trial, the court appointed a custody evaluator to provide an impartial opinion on the care arrangement. Dr. Sheila Pottebaum conducted a series of interviews with Lisa, Jonathan, J.A.T., and J.P.T., in several configurations: the parents individually and together; the children individually and together; and the children with each parent. She also interviewed Robert and Megan. She considered the parents' medical and employment records, the children's school records, and letters of support from friends and family.

         Dr. Pottebaum concluded both Lisa and Jonathan are competent and loving parents. She found both had relied on extended family to help out. But Jonathan did not "appear as though he took on many of the routine parenting tasks" since he moved in with his parents in 2009. The evaluator further noted, "While it is very possible that Jon's family members provided solid structure and routine, they are not the parents . . . and it remained Jon's responsibility to provide the parenting." The boys reported Jonathan sometimes has dinner with them but spends nights at Megan's residence. The boys also reported Jonathan takes them to their sports activities.

         Megan told the evaluator Jonathan lived with her for about six months until news came that the court would reevaluate the parenting plan. During that stretch, Megan said Jonathan would spend about an hour on weeknights with the boys at his parents' house and would stay overnight there on weekends. Megan discussed the likelihood she would marry Jonathan in 2020. She explained that she loved Jonathan's sons, but "was not ready to take on raising children in her home at this time."

         Dr. Pottebaum observed Lisa and Robert have a more "traditional" family arrangement and together handle all household and parenting duties for their blended family.

         More noteworthy than Jonathan's conduct though was that of his mother. Dr. Pottebaum believed the "major point of contention appears to be the difficulty [J.A.T.] has experienced with his paternal grandmother. . . . [J.A.T.'s] perceptions have been verified by [J.P.T.] and, to some degree, by Jon as well." J.A.T. reported his grandmother belittled him and spoiled or "babied" J.P.T. She excluded J.A.T. from family activities. And the boys recalled her making comments about J.A.T. not being "a blood family member." J.P.T. said his father would not stand up to their grandmother. Dr. Pottebaum recommended J.A.T. live mainly with Lisa in Atlantic, as he had been doing under the temporary orders.

         Dr. Pottebaum also opined the brothers would benefit from growing up in the same household. The boys both professed a preference for living together. For J.A.T. specifically, Dr. Pottebaum stated, "Now that [J.A.T.] has moved to Atlantic, a move back to Bedford against his volition would be poorly advised." That meant, she concluded, J.P.T. should live with J.A.T. at Lisa's house in Atlantic with ample visitation time for Jonathan.

         The trial court considered Dr. Pottebaum's evaluation but chose to go another way. The court modified the decree to split custody: it placed J.A.T. in Lisa's physical care and J.P.T. in Jonathan's care. The court also ordered a visitation schedule so that the boys spend ...

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