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In re Marriage of O'Toole

Court of Appeals of Iowa

October 9, 2019

IN RE THE MARRIAGE OF LAURA ELIZABETH O'TOOLE AND SEAN DAVID O'TOOLE Upon the Petition of LAURA ELIZABETH O'TOOLE, Petitioner-Appellee, And Concerning SEAN DAVID O'TOOLE, Respondent-Appellant.

          Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.

         Sean O'Toole appeals several provisions of the decree dissolving his marriage to Laura O'Toole.

          Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office, Davenport, for appellant.

          Jennifer M. Triner Olsen of Olsen Law Firm, Davenport, for appellee.

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

          VAITHESWARAN, PRESIDING JUDGE.

         Sean and Laura OToole married in 2010 and divorced in 2018. They have one child, born in 2016. The district court granted Laura physical care of the child, subject to visitation with Sean. On appeal, Sean contends the district court acted inequitably in failing to (1) grant the parents joint physical care of the child and (2) provide more expansive visitation.

         I. Joint Physical Care

         "Any consideration of joint physical care . . . must . . . be based on Iowa's traditional and statutorily required child custody standard-the best interest of the child." In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007) (citing Iowa Code § 598.41 (5)(a) (2017)). A list of nonexclusive factors for determining a child's best interests is set forth in Iowa Code section 598.41(3). Id. at 696. Certain key factors in deciding whether to order joint physical care are (1) "stability and continuity of caregiving," (2) "the ability of spouses to communicate and show mutual respect," (3) "the degree of conflict between parents," and (4) "the degree to which the parents are in general agreement about their approach to daily matters." Id. at 696-99. Other case-specific factors also may bear on the decision. Id. at 699-700.

         The district court applied each of the enumerated factors before opting against a joint physical care arrangement. The court determined:

[J]oint physical custody is not appropriate in this case in light of Laura's role as the primary caregiver during the marriage, the lack of open and complete communication, the parties' different approach to daily matters, and Laura's greater dedication to making decisions that benefit [the child]. . . . [T]he Court believes that both parties are good parents who truly love [the child]. However, Laura has consistently put [the child] at the forefront of her decision-making and has dedicated herself to being an excellent mother with [the child] as her first priority. While Sean believes that he has acted in the same manner, the evidence does not support this as being true. As noted above, Sean placed his own interests in fun activities such as going out after work, socializing, golfing, and hunting ahead of spending time with [the child]. Sean could do this because he knew that Laura would be home caring for [the child]. After Laura filed for divorce, Sean's amount of time tending to [the child's] needs did increase, which is to Sean's credit. However, Sean continued his poor decision-making by making multiple bad decisions concerning finances and not considering the impact of those decisions, both financially and morally, upon [the child]. In this case, Laura has been the primary custodian and has shown a dedication to placing [the child's] interests at the forefront. The Court finds that Laura is the proper parent to have primary physical care of [the child].

         On our de novo review of the record, we find support for the district court's determination.

         Laura testified she "was the caretaker" of the child during her nine weeks of maternity leave. After she returned to work, she continued her role as primary caretaker. Although Sean was "there," she stated he was "[n]ot necessarily actively participating" in the child's care. After Laura filed her dissolution petition, Sean began helping with the child's feedings, dinner preparation, and bed and bath time. But, in Laura's words, his involvement was "hit and miss." She testified, "He drank and would come home intoxicated, you know, a couple times a week maybe." Although he cared for the child on his weekends, she stated he had no compunction about staying out late on other occasions because she was at home caring for the child.

         Sean disputed Laura's characterization of his involvement with the child. Although he acknowledged Laura saw the child and was "more present" than him, he testified, "[F]or the most part, [he] was active." He described a "very flexible" work schedule and noted that travel obligations took him no more than two to two- and-a-half hours away from home. He characterized Laura as "controlling" and ...


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