IN RE THE MARRIAGE OF CASI CUMMINS AND DAMIAN CUMMINS Upon the Petition of CASI CUMMINS, n/k/a CASI SHULTZ, Petitioner-Appellant, And Concerning DAMIAN CUMMINS, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-238 / 06-1208
Filed April 25, 2007
IN RE THE MARRIAGE OF CASI CUMMINS
AND DAMIAN CUMMINS
Upon the Petition of
CASI CUMMINS, n/k/a CASI SHULTZ,
Petitioner-Appellant,
And Concerning
DAMIAN CUMMINS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Larry J. Conmey,
Judge.
Casi Cummins appeals from the order modifying the child custody
provision of the decree dissolving the parties’ marriage. AFFIRMED.
R.L. Sole of Glasson, Sole, McManus & Pearson, P.C., Cedar Rapids, for
appellant.
Delmer D. Werner, Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
VAITHESWARAN, J.
Damian and Casi Cummins divorced in 2002. Under a stipulated decree,
the parties agreed to joint physical care of their son and two daughters.
Approximately two years after the dissolution decree was entered, Damian
petitioned to modify physical care. He alleged (1) he had the children over fifty
percent of the time, (2) the children were late or absent from school when in
Casi's care, (3) he lost jobs due to Casi's failure to pick up the children, (4) Casi
moved multiple times after the decree was entered, (5) Casi did not contribute to
childcare costs, and (6) Casi quit her job. Casi counterclaimed for physical care.
She alleged Damian (1) did not share equal responsibility in caring for the
children, (2) did not provide health insurance for the children, and (3) caused one
of the children to break her finger.
Following trial, the district court modified the decree to grant Damian
physical care of the children. Casi appealed.
On appeal, the parties concede that there has been a substantial change
of circumstances since the decree was entered. See In re Marriage of Walton,
577 N.W.2d 869, 870 (Iowa Ct. App. 1998). They disagree on which parent is
able to provide superior care. See Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa
Ct. App. 2002).
Where the parties shared joint physical care, neither parent is
automatically deemed the superior parent. Id. Instead, the petitioning party, in
this case, Damian, has the burden of showing he will provide superior care. Id.
On this question, Casi contends that the district court failed to consider
Damian's "predilection for corporal punishment."
She maintains "[a]t a
3
minimum . . . the fact of physical discipline merits consideration by the trial court
in making a custody determination." 1
We agree with Casi that physical abuse is a factor that should be
considered. In re Marriage of Clifton, 526 N.W.2d 574, 576 (Iowa Ct. App. 1994).
On our de novo review, we further agree there is troubling evidence concerning
the method of discipline used by Damian. For instance, Damian admitted that he
struck his son with a belt when he was four years old. He also admitted he
struck his daughters with a belt at least once. 2
This, however, is not the only evidence of questionable use of force.
Damian testified that Casi slapped Chase "right off the couch." He also testified
that she dragged Jaden across the floor, causing rug burns. Finally, he noted
that Casi refused to take Courtney to the doctor after she ran into a wall at her
day-care center. He ultimately took her to a hospital, where her forehead was
sutured. Given these methods of discipline by Casi, we believe Damian’s acts do
not defeat his application for physical care.
We turn to the remaining factors cited by the parties in their respective
pleadings.
At the time of the modification hearing, Damian had flexible
employment that allowed him to attend to the children's needs.
His fiancée
provided day care for Chase, even on days when Casi exercised physical care
under the joint physical care arrangement. Casi conceded the children liked
Damian’s fiancée "a lot." Damian was also in the process of purchasing a six1
Although this factor was not raised in Casi’s counterclaim, it was raised during the
modification hearing.
2
With respect to Casi’s allegation that he broke one of his daughter’s fingers, Damian
testified this happened as he was rolling up a car window and all witnesses who testified
on the subject acknowledged it was an accident.
4
bedroom home from his parents. His employment allowed him to cover most of
the children’s expenses, including day care costs. Additionally, Casi conceded
that Damian paid her cell-phone bill on two or three occasions so that the parents
could maintain communication.
While Casi noted that Damian had not
maintained health insurance as ordered by the court, the record reflects she was
receiving public assistance that covered the children’s medical bills.
Meanwhile, there was evidence that Casi’s life was turbulent before the
modification action was filed. She moved several times, lived in a home that was
too small for three children, and overslept, making one of her daughters late for
school.
She also failed to pick up the children from Damian as scheduled,
causing him to lose several construction jobs.
We recognize that, by the time of the modification hearing, Casi had
moved to a mobile home that accommodated all three children and had access
to a car, making it easier to transport the children. We also recognize that, on at
least one occasion, Damian was responsible for his daughter’s school tardiness.
Finally, there is evidence suggesting Casi was the parent largely responsible for
scheduling speech therapy sessions for one of her daughters. Notwithstanding
this evidence, the overall record supports the district court’s finding that Damian
“can provide a stable home for the children” and “has been attentive and
dedicated to the children’s everyday needs and wellbeing.”
We conclude Damian established he could furnish superior care.
Accordingly, we affirm the district court’s modification of the stipulated joint
physical care arrangement set forth in the decree.
AFFIRMED.
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