IN RE THE MARRIAGE OF LEAH BETH DEIKER ABLER AND DAVID BENEDICT ABLER Upon the Petition of LEAH BETH DEIKER ABLER n/k/a LEAH BETH BARBER, Petitioner-Appellant, And Concerning DAVID BENEDICT ABLER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-546 / 08-1885
Filed September 2, 2009
IN RE THE MARRIAGE OF LEAH BETH
DEIKER ABLER AND DAVID BENEDICT ABLER
Upon the Petition of
LEAH BETH DEIKER ABLER
n/k/a LEAH BETH BARBER,
Petitioner-Appellant,
And Concerning
DAVID BENEDICT ABLER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
A mother appeals a district court ruling modifying a joint physical care
parenting plan. AFFIRMED.
Patricia Shoff of Belin, Lamson, McCormick, Zumbach, Flynn, a
Professional Corporation, Des Moines, for appellant.
Anjela Shutts and Diana Miller of Whitfield & Eddy, P.L.C., Des Moines,
for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
2
VAITHESWARAN, J.
Leah Barber appeals a district court ruling modifying a joint physical care
parenting plan.
I.
Background Facts and Proceedings
David Abler and Leah Abler (n/k/a Leah Barber) divorced in 2005 pursuant
to a stipulated decree.
The decree authorized the parents to exercise joint
physical care of their three-year-old child and set forth a parenting schedule for
the immediate future. The decree also stated, “Once the minor child has reached
the age of five years, the parties shall have parenting time on a 4 day/3 day
alternating basis.”
In 2007, Leah applied to modify the decree to grant her physical care of
the child.
Shortly thereafter, the parents signed a temporary mediation
agreement establishing a new parenting schedule. David was to have parenting
time from 5:00 p.m. Thursday to 5:00 p.m. Sunday and 5:00 p.m. Thursday to
3:00 p.m. Saturday on alternating weeks.
Following trial, the district court concluded that Leah did not prove she
was entitled to physical care of the child. The court then turned to the joint
physical care parenting schedule.
The court addressed and rejected Leah’s
contention that the parenting schedule set forth in the mediation agreement
remained in effect. Based on its conclusion that the schedule expired prior to
trial, the court also rejected Leah’s argument that David was “attempting to
modify the schedule reached during mediation.” The court stated that the sole
question to be addressed was how to “effectuate the language in the original
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decree on an appropriate parenting schedule now that [the child] has reached the
age of five.” On that question, the court wrote,
It is clear from a reading of the original decree that whatever was
meant by a “4 day/3 day alternating basis” once Juanita turned five,
a parenting schedule approximating a 50/50 allocation of parenting
time was contemplated.
Based on expert testimony at trial, the court concluded that this equal division of
time could best be accomplished with the following schedule: Leah would have
the child “every Monday beginning after school, until the following Wednesday
after school,” David would have the child “every Wednesday from after school,
until the following Friday after school,” and “[t]he parties shall alternate having the
minor child on the weekends from Friday until the following Monday, with the
respondent exercising the first parenting weekend.”1
Both parents filed post-trial motions seeking enlargement of the court’s
findings and conclusions. See Iowa R. Civ. P. 1.904(2). After considering those
motions, the court changed the schedule as follows:
alternating care from
Monday through Wednesday after school, Wednesday through Friday after
school, and Friday through Monday after school.
Leah appealed.
II.
Analysis
Leah does not contest the district court’s denial of her request for physical
care of the child. Her only challenge is to what she characterizes as the court’s
1
Although the court stated it was effectuating the original decree, the final schedule
deviated from the four-day/three-day schedule required by that decree. Therefore, we
believe it is appropriate to apply a modification standard as discussed below rather than
to construe the decree based on the intent of the parties. See In re Marriage of
Goodman, 690 N.W.2d 279, 283 (Iowa 2004) (noting that the decree should be
construed according to its evident intention).
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“visitation schedule.”
She asserts “that the evidence at trial was more than
sufficient to justify continuing the parenting schedule which the parties had been
following under the Mediation Agreement.”
David does not appear to dispute Leah’s characterization of the parenting
plan as a visitation schedule nor does he dispute Leah’s statement of the burden
of proof for modification of visitation schedules. Instead, he contends that Leah
improperly shifted that burden to him and did not satisfy her burden.
To the best of our knowledge, no published Iowa opinion equates a joint
parenting plan with a visitation schedule.
To the contrary, some opinions
suggest that the two are different. See In re Petition Seay, 746 N.W.2d 833,
835 (Iowa 2008) (discussing distinction between “liberal visitation” and “joint
physical care” in child support context); In re Marriage of Hansen, 733 N.W.2d
683, 691 (Iowa 2007) (“Visitation rights are ordinarily afforded a parent who is not
the primary caretaker.”). Nonetheless, there is also no published Iowa opinion
holding that the two concepts cannot be equated. As the district court did not
discuss this issue and David does not challenge Leah’s characterization of the
joint parenting plan as a visitation schedule, we will assume without deciding that
the plan before us was a “visitation schedule.” For the same reasons, we will
assume without deciding that the burden is as the parties describe it.
That burden is as follows:
“[A] much less extensive change of
circumstances need be shown in visitation rights cases.”
In re Marriage of
Jerome, 378 N.W.2d 302, 305 (Iowa Ct. App. 1985). All that is required is that
there be a change in circumstances that relates to the child’s welfare. See id.
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This standard was met. At the time of the divorce, David was working
from his home. He later starting working outside his home and continued to do
so through the modification hearing.
changed circumstance.
The alteration of his work day was a
That alteration affected the child’s welfare, as David
transitioned from working at home and simultaneously caring for the child to
working outside the home for forty hours per week and using more day care
services than he previously used. The change, therefore, justified a modification
of the “visitation schedule” from the “4 day/3 day alternating” schedule identified
in the decree.2 See id.
As for the specifics of the modified plan, David argues that the schedule
adopted by the district court was in the best interests of the child. We agree this
is the ultimate consideration. See In re Marriage of Thielges, 623 N.W.2d 232,
235–36 (Iowa Ct. App. 2000).
The district court relied heavily on the testimony of Mary Hilliard, a clinical
social worker who assisted David and Leah. The court stated:
[T]he court accepts as appropriate the concerns of Mary Hilliard
that a parenting schedule for a child as young as Juanita needs to
allow for no more than four days apart from any one parent, while
also utilizing neutral transitions for such times as after school rather
than going from one parent almost immediately to the other. Lastly,
the schedule should allow both parties to parent not only on the
weekends but also during the week.
Based on this reasoning, the court ultimately adopted a plan that Hilliard
recommended. On our de novo review, we find ample support for this plan and
2
We fully concur with the district court that the relevant schedule is the one contained in
the decree rather than the one contained in the mediation agreement, as the mediation
agreement expired prior to trial.
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conclude that it was in the child’s best interests.
district court.
AFFIRMED.
Accordingly, we affirm the
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