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Potter v. Smith

Court of Appeals of Iowa

December 18, 2019

KRISTIN M. POTTER, Plaintiff-Appellee,
v.
ERIC J. SMITH, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.

         Defendant appeals the district court's order denying his request to modify a paternity order. AFFIRMED.

          Benjamin Folladori of Marberry Law Firm, P.C., Urbandale, for appellant.

          James R. Hinchliff of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellee.

          Considered by Doyle, P.J., and Tabor and Schumacher, JJ.

          SCHUMACHER, JUDGE

         Eric Smith (Eric) appeals from the district court order, which modified Eric's visitation and denied Eric's request for an award of physical care after the custodial parent moved to Arizona with the parties' nine-year-old daughter. On review of the entire record, we affirm the district court's ruling.

         I. Facts and Procedural History.

         Kristin Potter (Kristin) and Eric have never been married but are the parents of one child, J.S., born in 2009. On January 19, 2011, a document entitled "Consent Judgment Re: Paternity, Custody, Parenting Time and Child Support" was filed in Maricopa County, Arizona, granting Kristin and Eric joint custody. On November 28, 2011, a second order was entered in Arizona adopting an agreement of the parties that modified the parties' parenting time. While shortlived, the parties reconciled and moved to Colorado. Kristin and Eric then moved to Iowa in 2015.

         On June 17, 2016, Kristin filed an application for a civil protection order under Iowa Code chapter 236 (2016). On June 30, 2016, a consent order was entered prohibiting Eric from having any in-person contact with Kristin. The parties were allowed only written communication. On August 3, 2016, Kristin filed a petition to register a foreign judgment in Polk County, Iowa, and on September 19, 2016, Kristin filed a petition in Polk County, Iowa, requesting modification of the Arizona order. During the course of the initial Iowa proceedings, the court appointed Susan Gauger to conduct a child custody evaluation. The evaluation recommended the parties be awarded joint legal custody and Kristin be awarded physical care of J.S.

         On April 17, 2017, Kristin and Eric agreed to modify the previous order, with the parties remaining joint legal custodians of J.S. and Kristin being awarded physical care of J.S. Such agreement was approved by the Iowa court. Eric's visitation was set at every other weekend and an overnight every Wednesday. Additionally, for the weeks in which Eric did not have weekend visitation, he was also entitled to an overnight Thursday visit. The terms of the previously entered no-contact order in favor of Kristin were incorporated within that stipulation and modified order.

         On March 5, 2018, Kristin provided written notice to Eric of her intent to move back to Arizona. On April 9, 2018, Kristin filed a petition requesting modification of Eric's visitation in anticipation of such move. A child and family reporter was appointed by the court at the request of Kristin, over the objection of Eric. On August 22, 2018, Eric filed an application for an emergency temporary injunction to prohibit Kristin from moving with J.S. to Arizona. Following a hearing, the district court denied and dismissed Eric's application for injunctive relief. Eric then filed a counterclaim requesting he be awarded physical care of J.S. Prior to the final trial, Kristin and J.S. moved to Arizona, where Kristin, her fiancé, and J.S. now reside.

         Final trial on Kristin's petition for modification and Eric's counterclaim was held over a two-day period in December 2018. At the time of trial, Kristin was expecting a new baby and employed in Arizona as a nurse with an annual income of $56, 000. J.S. was enrolled in school in Arizona. Eric remained in Des Moines, residing with his girlfriend and her two children. He continued to work for a company based out of Chandler, Arizona, earning an annual income of $78, 000.

         Following the filing of the modified order, Eric filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). Such was denied in its entirety by the district court. His appeal followed.

         II. ...


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