IN RE THE MARRIAGE OF BRIAN L. FREIBERG AND AMANDA J. FREIBERG Upon the Petition of BRIAN L. FREIBERG, Petitioner-Appellant/Cross-Appellee, And Concerning AMANDA J. FREIBERG, Respondent-Appellee/Cross-Appellant.
from the Iowa District Court for Marshall County, John J.
Freiberg appeals, and Amanda Freiberg cross-appeals, the
district court's denial of their respective requests to
modify their dissolution decree.
Borseth of Borseth Law Office, Altoona, for appellant.
S. Kaplan and C. Aron Vaughn of Kaplan & Frese, LLP,
Marshalltown, for appellee.
by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.
VAITHESWARAN, PRESIDING JUDGE.
and Amanda Freiberg divorced in 2016. The district court
granted the parents joint legal custody of their two
children, assigned physical care to Amanda, and prescribed a
visitation schedule for Brian in the event the parents were
"unable to agree." The court later enlarged the
visitation portion of the decree. This court affirmed the
decree. See In re Marriage of Freiberg, No. 16-1135,
2016 WL 7394886, at *1-2 (Iowa Ct. App. Dec. 21, 2016).
following year, Amanda filed a petition to modify the
dissolution decree. She requested sole legal custody of the
children. Brian counterclaimed for physical care or, "in
the alternative[, ] . . . a specific liberal schedule of
visitation" and a concomitant adjustment of child
support. Brian also filed several contempt applications based
on assertions that Amanda denied him visitation. The district
court set the matters for a consolidated hearing.
the hearing, the district court denied Amanda's request
for sole legal custody and Brian's request for physical
care, found Amanda in contempt for failing to allow midweek
visitation during the school year but declined to punish her
for the contempt, modified the visitation schedule and a
no-contact order, and refused to order either parent to pay
the other's attorney fees. Brian appealed, and Amanda
challenges the district court's refusal to (1) impose
punishment for contempt; (2) adopt his proposed visitation
schedule; (3) transfer physical care of the children to him;
and (4) cite evidence "that occurred after the
dissolution trial but before the ruling and decree was
entered." Amanda challenges the district court's (1)
refusal to grant her sole legal custody of the children and
(2) finding of contempt. We will begin with Amanda's
cross-appeal and proceed to the issues raised by Brian.
Denial of Sole Legal Custody
legal custody" affords "both parents . . . legal
custodial rights and responsibilities toward the child"
and gives "neither parent . . . legal custodial rights
superior to those of the other parent." Iowa Code §
598.1(3) (2017). If a court refuses to grant parents joint
legal custody, the court "shall cite clear and
convincing evidence . . . that joint custody is unreasonable
and not in the best interest of the child to the extent that
the legal custodial relationship between the child and a
parent should be severed." Id. § 598.41
(2)(b). It follows that joint legal custody is the preferred
legal custodial arrangement. See In re Marriage of
Bartlett, 427 N.W.2d 876, 878 (Iowa Ct. App. 1988).
district court retained joint legal custody after finding
that both parents were actively involved in the
children's lives. Amanda argues the "continued
discord" between the parents warrants a change to sole
legal custody. See In re Marriage of Rolek, 555
N.W.2d 675, 677 (Iowa 1996).
record is replete with examples of discord. But discord was
nothing new. The decretal court referenced Amanda's
"bitterness and distrust of Brian" and stated that
her attitude "hinder[ed] effective communication."
This court similarly stated, "Amanda and Brian have
demonstrated an inability to communicate effectively."
Freiburg, 2016 WL 7394886, at *2. Because the
relationship was marked by conflict from the time of the
dissolution proceeding, Amanda failed to establish that the
tension amounted to a substantial change of circumstances not
contemplated at the time of the decree. See In re
Marriage ofHarris,877 N.W.2d 434, 440 (Iowa
2016) ("A party seeking modification of a ...