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In re Marriage of Toop

Court of Appeals of Iowa

January 9, 2020

IN RE THE MARRIAGE OF ANGELA JOY TOOP AND BRIAN SCOTT TOOP Upon the Petition of ANGELA JOY TOOP, Petitioner-Appellant, And Concerning BRIAN SCOTT TOOP, Respondent-Appellee.

          Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.

         A mother appeals the provision of a dissolution decree ordering the shared physical care of the couple's children.

          J. Nick Capellupo of Viner Law Firm, P.C., Cedar Rapids, for appellant.

          Dana A. Judas of Nazette, Marner, Nathanson & Shea LLP, Cedar Rapids, for appellee.

          Heard by Bower, C.J., and May and Greer, JJ.

          BOWER, Chief Judge.

         Angela Toop (Angela) appeals the shared physical care provision of the decree dissolving her marriage with Brian Scott Toop (Scott). We find shared physical care is in the best interest of the children and affirm.

         I. Background Facts & Proceedings

         Angela and Scott married in 2011. Two children were born of the marriage in 2014 and 2017. The younger child has faced intestinal health complications since birth requiring a special diet and regular doctor appointments. At the time of trial, the older child attended school and the younger child stayed at an in-home day care during the morning. A nanny takes care of both children in the afternoon and often into the early evening.

         Since 2015, Angela has been a behavior analyst at Balance Autism. Angela works at the clinic for forty-two to forty-five hours each week, Monday to Friday. Twice a week, Angela is required to stay until the clinic closes at 6:30 p.m. She lives in the three-bedroom marital home in Cedar Rapids.

         Scott works as armed security for Duane Arnold Energy Center. Scott works from 5:45 p.m. to 6:00 a.m. on a two-week rotation.[1] He occasionally works overtime hours with a week's notice. Scott usually sleeps from 8:30 a.m. to around 4:30 p.m. He currently lives in a two-bedroom apartment located in Cedar Rapids.

         On April 19, 2018, Angela filed a petition for dissolution of marriage. During the parties' separation, Angela refused to allow the younger child to stay overnight with Scott. She also did not support and facilitate Scott's continuing relationship with the children. For example, after Angela excluded Scott from planning the younger child's first birthday party, Scott arranged an alternate birthday celebration for the younger child. Despite knowing about Scott's planned celebration, which was during Scott's expected visitation time with both children, Angela arranged for the older child to have lunch, go shopping, and then bake cookies on the same afternoon with the maternal grandmother.

         On November 13, following attempts at mediation, the court entered temporary orders for physical care and child support. The court placed the minor children in Angela's physical care with scheduled visitation for Scott, including overnights with both children. The court noted Angela's historical role as primary caretaker for the children, but expressed concerns about the parties' lack of communication and mutual respect, as well as Angela's apparent unwillingness to foster the relationship between Scott and the children. The court did not find joint physical care appropriate based on the information available.

         After the temporary order, Angela asked to visit the children during Scott's visitation periods. She also continued to schedule medical appointments for the children-or reschedule appointments set up by Scott-without checking if Scott could attend. For his part, Scott did not request or make arrangements for additional time with the children by picking them up early from the nanny and he missed classes he had agreed to attend for the older child. Scott did not always pay his half of the children's care expenses or the court-ordered child support in a ...


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