IN RE THE MARRIAGE OF DAVID L. STEVENS AND JENNIFER L. STEVENS Upon the Petition of DAVID L. STEVENS, Petitioner-Appellant, And Concerning JENNIFER L. STEVENS, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-475 / 06-0174
Filed November 16, 2006
IN RE THE MARRIAGE OF DAVID L. STEVENS
AND JENNIFER L. STEVENS
Upon the Petition of
DAVID L. STEVENS,
Petitioner-Appellant,
And Concerning
JENNIFER L. STEVENS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers,
Judge.
The petitioner appeals from the child custody provisions of the decree
dissolving his marriage.
AFFIRMED AS MODIFIED; REMANDED WITH
DIRECTIONS.
Martha McCall Whitmer, Davenport, for appellant.
Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for
appellee.
Heard by Huitink, P.J., and Vogel, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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VOGEL, J.
The petitioner, David Stevens, appeals from the child custody provisions
of the decree dissolving his marriage to respondent Jennifer Stevens. Upon our
de novo review, we believe a joint physical care arrangement is in the best
interest of their daughter, Danielle. We therefore affirm as modified and remand
with directions.
Background Facts and Proceedings.
David and Jennifer were married in June of 1999. One child, Danielle,
was born to the marriage in May of 2002. David served in the military on funeral
detail. As a result of this emotionally demanding duty, David developed a stress
and depression disorder, which was being managed by medication. At the time
of trial, David was not working, but was attending school fulltime and his only
source of income was a veteran’s benefit of $775 per month.
He hoped to
complete his education within three to four years.
By agreement of the parties, Jennifer did not work while David was in the
military, although she holds a cosmetology license.
After their separation in
November of 2004, Jennifer began working in order to support her financial
needs.
At the time of trial, she was working full-time as an administrative
assistant.
On November 16, 2004, David filed a petition seeking to dissolve the
parties’ marriage. In February of 2005, Jennifer filed a petition for relief from
domestic abuse and received an ex parte temporary protective order. However,
in May of 2005 the application was dismissed by agreement of the parties and no
finding of abuse was ever made. Around this time, the court entered a visitation
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order that had been agreed upon by the parties. That order called for the parties
to alternate weeks in taking responsibility for the care of Danielle.
When David moved out of the parties’ marital residence, he moved in with
Emily McKittrick. Except for a brief period in July of 2005 when David moved in
with his mother, he has resided with Emily since the separation.
Jennifer
believes David’s relationship with Emily has made communication with David
more difficult.
After the separation, Jennifer initially remained in the marital
residence, but later moved in with her boyfriend, Gary Curtis.
Following a trial the court dissolved the marriage, awarded the parties joint
legal custody of Danielle, but allocated her physical care to Jennifer despite
David’s request for joint physical care. In doing this, the court expressed concern
about the parties’ ability to communicate effectively about Danielle’s best
interests. David appeals from this ruling, contending that the court should have
granted his request for joint physical care, or in the alternative should have
named him Danielle’s physical care parent.
Scope of Review.
We conduct a de novo review of physical care awards. In re Marriage of
Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Our overriding consideration is the
child’s best interests. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997).
We give weight to the fact findings of the district court, especially when
considering the credibility of witnesses, but are not bound by them. Iowa R. App.
P. 6.14(6)(g).
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Joint Physical Care.
The objective in a physical care determination is to place the child in the
environment most likely to bring her to healthy physical, mental, and social
maturity.
In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996).
A district court may award joint physical care when it is in the best interests of the
child, but the court is not required to do so. See Iowa Code § 598.41(5) (2005).
Our court has stated
the statute’s language following the 1997 amendment, as well as its
language following the 2004 amendment, constitutes neither a
ringing endorsement of joint physical care, nor a mandate for courts
to grant joint physical care unless the best interest of the child
requires a different physical care arrangement.
In re Marriage of Ellis, 705 N.W.2d 96, 101-02 (Iowa Ct. App. 2005).
Several factors are considered in determining the long-term best interests
of the child. See Iowa Code 598.41(3); In re Marriage of Ford, 563 N.W.2d 629,
631 (Iowa 1997). As each family is unique, the decision is primarily based on the
particular circumstances of each case. In re Marriage of Weidner, 338 N.W.2d
351, 356 (Iowa 1983).
Where parents respect [each other] and their children and
recognize that cooperation and communication are important to
their children’s welfare and they put that welfare ahead of their own
needs and petty differences, shared care can be beneficial to the
children because it allows both parents to remain a viable and a
real part of the children’s lives.
Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002).
Analysis.
In support of its decision to grant the parties joint legal custody of Danielle,
the district court provided the following detailed explanation:
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This young child’s individual needs can be best met if both of
her parents are active participants in her life. Both parents have
provided for the child’s care since their separation and each parent
has been able to demonstrate the ability to appropriately meet the
child’s daily care needs and has shown a strong interest in the
child’s development. The parents continue to reside in the same
community at this time and they have maintained efforts to
communicate with each other even though their ability to
communicate has not always been the best. Since their separation
the Court finds that each parent has demonstrated the ability to be
a good parent and demonstrated a commitment to the ongoing
needs of the child for care and attention from both of them. The
Court finds that these parties can work together and awards the
parents joint legal custody of the child.
In allocating Danielle’s physical care to Jennifer, the court expressed
concern about David’s problems with depression, which it found affected his
ability care for Danielle.
While the record does support that David has
experienced depression and other stress-related conditions which were
manifested in mood swings and excessive sleep during the marriage, there is
also evidence in the record that Jennifer suffers from similar issues.
David
expressed concerns with Jennifer’s mental health, and she admitted at trial that
she had threatened suicide on two or three occasions. Accordingly, we find the
evidence as to the parties’ mental health to be, at a minimum, in equipoise, and
not weigh against a joint physical care arrangement.
On the question of Danielle’s physical care, the court determined that a
shared arrangement was not suitable. It found that the temporary joint physical
care arrangement followed by the parties prior to the dissolution “demonstrated
minimal success during the parties’ separation and could be even less successful
as the parties’ life circumstances change in upcoming years.” It further noted
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concern with the parties’ ability to communicate, 1 and specifically mentioned the
strain caused by David’s relationship with his girlfriend Emily.
First, we believe the court’s statement of reasons rejecting joint physical
care appears to reflect a generalized disfavor of the very nature of such
arrangements. Iowa Code § 598.41(5) (2005) (announcing the viability of joint
physical care). In this regard, we note the following statement: “Continuing to
move Danielle back and forth between her parents’ households, either weekly, or
biweekly for the next fifteen years is an impractical arrangement . . . .” We find
that this reason fails to support the denial of David’s request for joint physical
care. The very nature of a joint physical care arrangement, rightly or wrongly, is
one in which a child spends regular intervals of time with each parent, thus
necessitating regular movements of the child between those two homes. As
noted, our legislature has determined that a joint physical care arrangement,
attendant with a regular movement between homes, is appropriate under certain
circumstances.
The court also noted concern about the parties’ inability to communicate.
It found that their communication has been hindered by David’s relationship with
his girlfriend Emily “and that the parties have not yet learned to communicate
directly with each other about their daughter without generating an argument.”
Upon our de novo review of the record, we agree that the parties’ communication
can and must be improved for Danielle’s sake. However, we believe the record
supports that the parties’ problems are more appropriately viewed as springing
1
While this concern was mentioned within the court’s discussion of the propriety of joint
physical care, it was fleshed out and relied upon more directly in its analysis of which
party would provide Danielle’s physical care.
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from both sides, rather than solely the fault of David. In addition, when placed in
the appropriate context of a contested dissolution of marriage action, these
communication problems appear to be no more than an unfortunate, perhaps
even anticipated, byproduct of the pending litigation. See Ellis, 705 N.W.2d at
103 (“However, when a marriage is being dissolved we would find excellent
communication and cooperation to be the exception and certain failures in
cooperation and communication not to be surprising.”).
For example, Jennifer faulted David for communicating through text
messaging. David testified that he chose to use this manner of communication
because they still argue and because “she gets off the subject and I get off the
subject. It’s a mutual thing.” In reviewing the text messages placed in the record
we
note
straightforward,
if
not
restrained
conversations,
inappropriately negative or destructive messages.
rather
than
To that end, using text
messaging appears to be a practical means of communicating for two individuals
who are involved in an understandably contentious divorce proceeding, but who
realize they must still discuss issues concerning the well-being of their child. The
district court also found that much of the parties’ communication problems were
prompted by David’s girlfriend, Emily. All complaints on this topic were made by
Jennifer, as David testified he was able to regularly communicate with Jennifer
with regard to co-parenting without difficulty.
Finally, given the district court’s findings with regard to the legal custody
determination which were quite complimentary toward both David and Jennifer’s,
parenting abilities, and for which there is full support in the record, we find it
difficult to reconcile the court’s subsequent rejection of David’s request for joint
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physical care. Clearly both parents are loving and nurturing to Danielle and have
proven their parenting capabilities.
Their communication difficulties are
understandable under the circumstances and the record does not reflect any
resulting harm to Danielle. We can discern no compelling reason to deny David’s
request for joint physical care of Danielle. Although moving back and forth from
one parent to the other in a joint-care arrangement has its drawbacks, Danielle
has, and will, benefit greatly from the maximum possible contact with both
parents.
Under the facts presented in this case, joint physical care is in
Danielle’s best interest.
Disposition.
We modify the decree of dissolution to provide that the parties shall have
joint physical care of Danielle. We modify the district court’s child support order,
which was based on Danielle’s physical care being placed with Jennifer. From
the issuance of procedendo and forward, the district court shall recalculate any
child support award. The court shall also order an appropriate joint physical care
arrangement, including provisions for transportation and for sharing holidays,
birthdays, and vacations.
We therefore remand to the district court for such further proceedings as
are necessary to establish a joint physical care schedule, child support, and to
resolve any other issues that may arise as a result of our modification of its
decree. Costs on appeal are taxed to Jennifer.
AFFIRMED AS MODIFIED; REMANDED WITH DIRECTIONS.
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