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In re Marriage of Freiberg

Court of Appeals of Iowa

January 9, 2020

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.

          Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.

         Brian Freiberg appeals, and Amanda Freiberg cross-appeals, the district court's denial of their respective requests to modify their dissolution decree.

          Eric Borseth of Borseth Law Office, Altoona, for appellant.

          Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellee.

          Heard by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.

          VAITHESWARAN, PRESIDING JUDGE.

         Brian 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).

         The 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.

         Following 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 cross-appealed.

         Brian 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.

         I. Denial of Sole Legal Custody

         "Joint 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).

         The 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).

         The 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 ...


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