IN THE COURT OF APPEALS OF IOWA
No. 1-537 / 11-0250
Filed July 27, 2011
Appeal from the Iowa District Court for Worth County, James M. Drew,
Jeremy Lohmann appeals the award of physical care of the parties’ child
to Tracey Severson. AFFIRMED.
Douglas A. Krull of Krull Law Office, Northwood, for appellant.
Jeffrey H. Greve of Greve Law Office, Northwood, for appellee.
Considered by Eisenhauer, P.J., and Potterfield and Tabor, JJ.
Jeremy Lohmann appeals the award of physical care of the parties’ child,
age two and a half, to Tracey Severson.
He argues the court should have
awarded joint physical care. Because we defer to the credibility assessments of
the district court and adopt the trial court’s findings as our own, we affirm.
I. Background Facts and Proceedings.
Tracey and Jeremy are the parents of a daughter, Natalee, born ten
weeks prematurely in December 2008. The parties were in a relationship and
living together when Natalee was born. Natalee needed special medical care
and was moved to a hospital in Des Moines for ten weeks following her birth.
Tracey, too, came to Des Moines to be near Natalee. Jeremy stayed in Des
Moines for the first week following Natalee’s birth and then returned to work in
Manly, Iowa, but traveled to Des Moines on the weekends when he could
arrange transportation.1 Natalee was discharged from the hospital in February
2009. Tracey returned to work part-time on March 26, 2009, and full-time in early
May. Tracey works in a radiology office earning $22,880 annually. Jeremy is a
physical therapist with annual earnings of $75,242.
The parties separated in September 2009, at which time Tracey and
Natalee temporarily moved in with Tracey’s parents. Tracey filed a petition for
custody, visitation, and support on September 23, 2009.
asking that he be awarded physical care, or in the alternative, that the parties be
awarded joint physical care.
On October 28, 2009, an order on temporary
Jeremy does not have a driver’s license as a result of three operating while intoxicated
convictions; he does, however, have a work permit.
parenting was filed. The court noted the parties “have had significant difficulty
compromising on the terms of Jeremy’s time with Natalee. Neither party has
acted admirably in resolving these parenting issues.”
Tracey was granted
temporary physical care and Jeremy was to “exercise parenting time” every
Tuesday and Thursday evening from 5:00 to 8:00 p.m. and every Sunday from
noon to 8:00 p.m.
In April 2010, Jeremy married Carrie, who has two daughters from a
previous relationship. Tracey purchased a home in Mason City and moved there
with Natalee in June 2010.
Tracey’s residence is approximately twenty-five
minutes away from Jeremy’s residence.
A custody-related psychological evaluation was conducted by Mark
Peltan, a licensed psychologist.
Peltan met with each parent three times,
conducting interviews and psychological testing, and observing each with
Natalee. In a November 10, 2010 letter, Peltan noted “Natalee lives primarily
with her mother but her father has faithfully followed the visitation schedule
decreed . . . a year ago.”
Peltan observed that both parents “have stable
employment and living arrangements,” but “dramatically different personalities
and communication styles.” Tracey was viewed as “painfully introverted” and
“overly inhibited”; Jeremy as “self-aggrandizing” with a “bombastic manner.” Yet,
despite their differences, Peltan believed “Natalee will continue to benefit from
frequent contact with her father.” Peltan suggested a “gradual implementation of
a shared custody arrangement,” which might be an “alternating three day/four
day sort of schedule” by the time Natalee is three and a half years old. Peltan
Things may be more complicated when Natalee starts kindergarten
just because her parents don’t live in the same town. In reality, it
would be helpful to everyone involved if they could somehow
manage to reside in the same school district.
At the December 15, 2010 trial, the evidence supported Peltan’s view that
the two parents have vastly different personalities and have had difficulty
communicating with each other. There is no question both parents care deeply
for their daughter and understand the importance of the other in Natalee’s life.
Tracey opined both she and Jeremy could work harder on communicating and
there was no reason they could not talk together. Jeremy, too, acknowledged
both could do a better job communicating. He continually stressed he wanted to
have a major role in Natalee’s life.
The district court entered its custody and support decree on January 4,
2011. The court noted that “[d]espite the conflicts between them both Jeremy
and Tracey love Natalee very much and desire what is best for her. The court is
not always faced with parents who want to maximize their role in their child’s life.”
The court, however, denied Jeremy’s request for joint physical care writing:
Like Dr. Peltan, this court has a favorable attitude towards
joint physical care arrangements so long as the circumstances are
appropriate. Here, the relevant factors do not support an award of
joint physical care. Historically Tracey has been the primary
caregiver. The parties do not communicate well and, although it is
not severe, there is a bothersome level of conflict between Tracey
and Jeremy. For the foreseeable future it is unlikely they will be in
general agreement about their approach to daily matters. Thus, it
does not appear a joint physical care arrangement would be in
Natalee’s best interests.
The district court noted that “[a]lthough Jeremy seems to have a sincere
desire to be more involved in Natalee’s life, the fact remains that Tracey has
provided the majority of Natalee’s care.”
The court observed “Natalee has
thrived in her care” and is “outgoing, happy and intelligent.” The court concluded
it “sees no reason to interfere with what has been effective caregiving.”
The court also observed that Tracey has shown she is willing to support
and encourage the relationship between father and child, as she has provided
much of the transportation necessitated by Jeremy’s lack of a driver’s license.
The court found Jeremy’s “last alcohol-related offense was not so long ago as to
remove cause for concern.” The distance between the parties’ residences and
Jeremy’s inability to legally transport Natalee weighed in favor of physical
custody with Tracey.
Jeremy appeals, arguing joint physical care is in Natalee’s best interests.
In the alternative, he seeks an award of physical care.
II. Standard of Review.
Our review of equity cases is de novo. Iowa R. App. P. 6.907. We give
weight to the findings of the district court, “especially when considering the
credibility of witnesses,” but are not bound by them. Iowa R. App. P. 6.904(3)(g).
III. Physical Care.
Jeremy contends Natalee should have been placed in the parties’ joint
physical care. Joint physical care is an option if it is in the best interests of the
child. In re Marriage of Hansen, 733 N.W.2d 683, 692 (Iowa 2007). We examine
the propriety of joint physical care on “the unique facts” of each custody case and
do not entertain the presumption that joint physical care is disfavored. Id. at 695.
Many factors go into a determination of whether joint physical care is
warranted. As a starting point, the factors listed in Iowa Code section 598.41(3)
(2011) regarding joint legal custody are relevant to the question of joint physical
care.2 Id. at 696. Where both parents are suitable caregivers and the question is
whether joint physical care will be in the child’s best interests, the Hansen
decision directs us to four key considerations: (1) stability and continuity of
caregiving; (2) the ability of the parents to communicate and show mutual
respect; (3) the degree of conflict between the parents; and (4) the degree to
which parents are in general agreement about their approach to daily matters.
Id. at 696–99. “[T]he courts must examine each case based on the unique facts
and circumstances presented to arrive at the best decision.” Id. at 700.
Although Jeremy has been an active parent, Tracey has been Natalee’s
primary caretaker and responsible for her day-to-day needs. See id. at 696 (“In
considering whether to award joint physical care where there are two suitable
parents, stability and continuity of caregiving have traditionally been primary
factors.”). And, as the district court noted, Natalee has thrived in Tracey’s care.
We also give weight to the district court’s finding that there is a “bothersome level
of conflict between Tracey and Jeremy.”
We defer to the credibility assessments of the district court and adopt the
trial court’s findings as our own. The district court’s written ruling reflects that it
Those factors include: (a) whether each parent would be a suitable custodian for the
child; (b) whether the psychological and emotional needs and development of the child
will suffer due to lack of active contact with and attention from both parents; (c) whether
the parents can communicate with each other regarding the child’s needs; (d) whether
both parents have actively cared for the child before and since the separation;
(e) whether each parent can support the other parent’s relationship with the child;
(f) whether the custody arrangement is in accord with the child’s wishes or whether the
child has strong opposition, taking into consideration the child’s age and maturity;
(g) whether one or both of the parents agree or are opposed to joint custody; (h) the
geographic proximity of the parents; (j) whether the safety of the child, other children, or
the other parent will be jeopardized by the awarding of joint custody or by unsupervised
or unrestricted visitation; and (j) whether a history of domestic abuse, as defined in
section 236.2, exists. Iowa Code § 598.41(3).
considered all of the appropriate factors in making a physical care award.
Therefore, we affirm the district court’s physical care decision.