IN RE THE MARRIAGE OF VICKI LIN REIGHARD AND PAUL ALLEN REIGHARD Upon the Petition of VICKI LIN REIGHARD, Petitioner-Appellant/Cross-Appellee, And Concerning PAUL ALLEN REIGHARD, Respondent-Appellee/Cross-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-736 / 08-1582
Filed December 30, 2009
IN RE THE MARRIAGE OF VICKI LIN REIGHARD
AND PAUL ALLEN REIGHARD
Upon the Petition of
VICKI LIN REIGHARD,
Petitioner-Appellant/Cross-Appellee,
And Concerning
PAUL ALLEN REIGHARD,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Washington County, Daniel F.
Morrison, Judge.
Vicki Reighard appeals from a district court’s decree and post decree
rulings dissolving her marriage to Paul Reighard.
AFFIRMED AND
REMANDED.
Constance Stannard, Iowa City, for appellant.
Paul Reighard, Washington, pro se.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
2
VOGEL, P.J.
Vicki Reighard appeals from a district court’s decree and post decree
rulings dissolving her marriage to Paul Reighard. She contests the district court
decision to order a “shared custody arrangement” of the three children, as well as
a self-executing provision that the party who moves from the children’s current
school district would forfeit shared physical care temporarily until the court had
the opportunity to determine what arrangement would be in the children’s best
interests. She also asserts the district court’s method of calculating child support
was not correct and the property division was inequitable.
We affirm and
remand.1
I. Background Facts and Proceedings
Paul and Vicki were married in 1991 and three children were born of the
marriage, Mariah in 1995, McKenna in 1997, and Ryan in 1999. Paul and Vicki
both worked outside the home, and their schedules allowed each to be a part of
the children’s daily routines. Vicki got the children up in the mornings and ready
for school and Paul was able to be home when the school day was done,
transport the children to their various after-school activities, and prepare supper
for them.
But for the communication problems between Paul and Vicki, this
arrangement worked well, providing the children good care by each parent.
Marital discord began increasing, and in March 2007, Vicki moved out of the
family home. Shortly thereafter, both Paul and Vicki began relationships with
other people. The district court specifically noted the “poor decisions made by
1
Paul’s pro se brief does not comply with the rules of appellate procedure.
3
each of the parties to move into relationships with others who also have
children.” Vicki filed a petition for dissolution on July 27, 2007.2
The parties attempted a shared care arrangement, but based on Paul and
Vicki’s inability to communicate, this arrangement was unsuccessful. On January
25, 2008, after consideration of the affidavits submitted, the district court entered
an order for temporary custody and support. The order granted Vicki physical
care of the children, “subject to the reasonable and liberal visitation privileges of
[Paul], not less than after school every day until [Vicki] gets home from work,
Wednesdays until 8:00 p.m., and every other weekend.”
The matter went to trial in May 2008, and the district court ordered Vicki
and Paul joint legal custody of the parties’ three children and a “shared custody
arrangement” for physical care. The shared care arrangement was set as:
Vicki having physical custody of the children from August 20 of
each year until the day after school recesses for the summer. Paul
shall have physical custody of the children from the day after school
recesses for the summer until August 20.
The district court also included a provision, stating “if either parent moves from
the Washington School District, the remaining parent shall become the physical
custodial parent until such time as the court has an opportunity to address what
arrangement will be in the child’s best interest.”
On September 30, 2008, Paul filed an application for rule to show cause,
claiming that Vicki moved from Washington to North Liberty, triggering a change
2
Delays occurred prior to trial, as Vicki filed an application to enter a default judgment,
and the court entered a default order on November 9, 2007. Paul then filed a motion to
set aside default, which was sustained at a January 4, 2008 hearing.
4
of custody.3 On October 2, 2008, Vicki filed a notice of appeal of the district
court’s decree and subsequent child support order. A hearing began on October
14, 2008 on Paul’s motion to enlarge or amend judgment. Vicki requested a
continuance, and until further contempt proceedings commenced, the court
ordered the parties comply with the original dissolution decree, and Vicki was
instructed to “immediately turn physical care of the children over to [Paul] subject
to her visitation rights.”4 Vicki appeals.
II. Standard of Review
We review custody orders de novo.
Iowa R. App. P. 6.907 (2009).
However, the district court had the advantage of listening to and observing the
parties and witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa
1986). Consequently, we give weight to the factual 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); In re Marriage of Sullins, 715 N.W.2d 242,
247 (Iowa 2006). Our overriding consideration is the best interests of the child.
Iowa R. App. P. 6.904(3)(o).
III. Shared Custody
Vicki first asserts the court erred in awarding “a shared custody
arrangement,” awarding Vicki physical custody during the school year, and Paul
physical custody during the summer.5
3
She argues this is actually “divided
Paul also filed a motion for new trial, motion to enlarge and amend judgment, but this
was mooted by Vicki’s filing of this appeal.
4
Vicki filed a motion to stay the implementation of the court’s custody order, but the
motion was denied.
5
Neither party challenges the granting of joint legal custody.
5
custody” and neither she nor Paul requested shared care.
See Iowa Code
§ 598.41(5)(a) (2007) (“If joint legal custody is awarded to both parents, the court
may award joint physical care to both joint custodial parents upon the request of
either parent.”). Absent a request for shared care, Vicki asserts the court erred in
making such a determination.
In child custody cases the first and governing consideration is the best
interests of the children. Iowa Code § 598.41(3). Next, it is important to discuss
the differences between joint legal custody and joint physical care.
In re
Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). “Legal custody” carries
with it certain rights and responsibilities, including but not limited to “decisionmaking affecting the child’s legal status, medical care, education, extracurricular
activities, and religious instruction.” Iowa Code § 598.1(3), (5); Hansen, 733
N.W.2d at 690. When joint legal custody is awarded, “neither parent has legal
custodial rights superior to those of the other parent.” Iowa Code § 598.1(3);
Hansen, 733 N.W.2d at 690. On the other hand, “physical care” involves the
right and responsibility to maintain a home for the minor child and provide for
routine care of the child. Hansen, 733 N.W.2d at 690. If joint physical care is
awarded, “both parents have rights to and responsibilities toward the child
including, but not limited to, shared parenting time with the child, maintaining
homes for the child, [and] providing routine care for the child . . . .”
Id. at
§ 598.1(4).
Joint physical care anticipates that parents will have equal, or roughly
equal, residential time with the child. In re Marriage of Hynick, 727 N.W.2d 575,
579 (Iowa 2007). Under joint physical care, the parties are equally responsible
6
for routine, daily decisions to be made regarding the children regardless of
residential arrangements at the time. In re Seay, 746 N.W.2d 833, 835 (Iowa
2008). While joint physical care does require equal responsibility on routine,
daily decision-making, it does not require that the residential arrangements be
determined with mathematical precision. Id. at 835-36.
The district court awarded Vicki physical custody from August 20 of each
year until the day after school recesses for the summer. Paul was awarded
physical custody from the day after school recesses for the summer until August
20. The non-physical care parent was awarded minimum visitation of every other
weekend from Friday at 5:00 p.m. until Sunday at 7:00 p.m. and every
Wednesday from 5:00 p.m. until 7:00 p.m.
The district court ordered the
arrangement, stating that “In order to maximize the contact with each parent, the
court finds that a shared custody arrangement is in the children’s best interest.”
We agree with Vicki that this appears to be more of a divided care arrangement;
the school year with Vicki and the summer with Paul. However, the inference
from the district court’s label of “shared custody arrangement” is that neither
parent would have the advantage over the other for the decisions which normally
fall to the physical care parent. The result is discussed below. We find the
district court set a schedule which would provide the children the most stability
and consistency. With an extensive pattern of providing shared care on a daily
basis for the children, we affirm the district court’s order of shared physical care.
7
IV. Automatic Change of Primary Care
Vicki next asserts the self-executing or triggering portion of the district
court decree was both “unreasonable and unconstitutional.”6 The district court
order stated “if either parent moves from the Washington School District, the
remaining parent shall become the physical custodial parent until such time as
the court has an opportunity to address what arrangement will be in the child’s
best interest.” (emphasis added). Late in September 2008, Vicki moved out of
the Washington Community School District to North Liberty, Iowa, thus triggering
the above provision of the decree. Although the children had already begun the
school year in the Washington school district, Vicki enrolled them in the North
Liberty school district. A hearing was held on October 14, 2008, on Paul’s rule to
show cause. The district court then ordered Vicki to “immediately turn physical
care of the children over to [Paul],” as the paragraph in the decree triggering a
change in physical care “is operative until or unless an appropriate court enters a
stay order.” Vicki sought a stay order, which was denied by our supreme court
on October 31, 2008.
On appeal Vicki asserts such an automatic trigger is contrary to Iowa law,
and the physical care parent has the right to determine where the children live.
See In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996); In re
Marriage of Frederici, 338 N.W.2d 156, 159-60 (Iowa 1983). While we agree
with this basic concept, we are mindful that Vicki did not have sole physical care
6
As the constitutional claim was not raised before the district court, the issue was not
preserved as we have no ruling to review. Meier v. Senecaut, 641 N.W.2d 532, 540
(Iowa 2002).
8
of the children, but shared care. As such, Paul had an equal right to determine
where the children would attend school.
During the dissolution trial, the district court addressed the parents,
stating,
I have heard nothing but disappointing things about both of you.
Your behavior’s been childish, immature, certainly not up to the
standards of a parent. This is the picture that’s been painted of
both of you. You both tell me that you want physical care, which
means you care about your kids. You decide to split up, and the
first thing both of you do is go grab other partners who have kids
and you throw your kids into a mess when they’re still trying to
figure out what’s going on with their own parents. Those are
extremely poor judgment calls. I would doubt your kids have a clue
as to how to have a stable, normal relationship. I think you two
need to get off this, “He hit me,” “She hit me,” “I don’t like what she
does,” “I don’t like what he does.”
There is little if anything in this testimony about why either of
you is a better parent than the other or why either of you is a decent
parent.
Addressing the parties from the bench, the district court was not shy about its
assessment of both Vicki and Paul’s behaviors and how their actions impacted
their children. The language of the decree, while shorter on details than the
comments made from the bench, is nonetheless clear that the best interests of
the children would be served with a shared care arrangement.
The court then added the proviso that if either parent moved from the
school district where the children were enrolled, such a move would upset the
current sharing of physical care responsibilities, such that the other parent would
have physical care, “until such time as the court has an opportunity to address
what arrangement will be in the children’s best interest.” We infer from this that
the district court was protecting the children from further rash decisions by either
parent which would again upset their daily lives. At a minimum, it secured the
9
children’s daily routine and educational stability until another “arrangement” could
be assessed by the court. It is clear the district court placed the interests of the
children ahead of the desires of either parent.
Hansen, 733 N.W.2d at 695
(“Physical care issues are not to be resolved based upon perceived fairness to
the spouses, but primarily upon what is best for the child.”). We therefore affirm
the district court.
V. Calculation of Child Support with Shared Care
Vicki asserts the district court erred in calculating child support. We need
not address this issue as physical care of the children was changed to Paul.
However, we remand to the district court to recalculate and set child support
Vicki will pay to Paul based on the change of physical care of the children.
VI. Property Division
Vicki next asserts the district court should have ordered Paul pay her
$5000 as an equalization payment, as she claims Paul was awarded $10,000
more in assets than she received.
She also asserts she should have been
awarded one-half of Paul’s 401K plan through a Qualified Domestic Relations
Order (QDRO). In dissolution-of-marriage cases, marital property is to be divided
equitably. Hansen, 733 N.W.2d at 702. Equitable distribution depends upon the
circumstances of each case. In re Marriage of Schriner, 695 N.W.2d 493, 496
(Iowa 2005). An equitable division is not necessarily an equal division. In re
Marriage of Anliker, 694 N.W.2d 535, 542 (Iowa 2005). In its post trial ruling the
district court found,
“Given the debt division the court believes the personal property is
divided equitably. Given the fact that Paul is responsible for the
debts in this marriage, and has paid off over $6,000 in joint debt
10
prior to trial, [ ], it is equitable that he retain his Modine 401K in the
amount of $22,940. . . . In addition Vicki cashed in her retirement
during the marriage and consumed the funds.”
We have reviewed the record on appeal and find it is incomplete as to
valuations, findings and net distribution of the major assets of the parties.
Moreover, Vicki did not call the absence of such findings to the district court’s
attention. Accordingly, we are in no position to say that this property division was
inequitable. We therefore affirm the district court’s property division.
VII.
Appellate Attorney Fees
An award of attorney fees on appeal is not a matter of right, but rests
within the discretion of the court. In re Marriage of Gonzalez, 561 N.W.2d 94, 99
(Iowa Ct. App. 1997). Upon our review, we decline to award appellate attorney
fees. Costs assessed to Vicki.
AFFIRMED AND REMANDED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
