IN RE THE MARRIAGE OF JOHN FLIBOTTE AND JAMIE FLIBOTTE Upon the Petition of JOHN FLIBOTTE, Petitioner-Appellant, And Concerning JAMIE FLIBOTTE, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-855 / 09-0331
Filed December 30, 2009
IN RE THE MARRIAGE OF JOHN FLIBOTTE
AND JAMIE FLIBOTTE
Upon the Petition of
JOHN FLIBOTTE,
Petitioner-Appellant,
And Concerning
JAMIE FLIBOTTE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gordon C.
Abel, Judge.
John Flibotte appeals from the economic and child custody provisions of
the district court’s dissolution decree. AFFIRMED AS MODIFIED.
Karen Dales, Council Bluffs, for appellant.
Joseph Hrvol, Council Bluffs, for appellee.
Heard by Eisenhauer, P.J., and Potterfield, J. and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
POTTERFIELD, J.
I. Background Facts and Proceedings
John and Jamie Flibotte met while on active duty in Texas and were
married on June 15, 2001.
Jamie gave birth to the first of the parties’ two
children in February of 2002. John was deployed to Iraq in December of 2002.
He finished his tour of duty in Iraq and returned to Texas in July of 2003. Shortly
after John’s return, the parties’ second child was born. In November of 2003
John ended his active duty service and moved with the children to North Carolina
while Jamie completed her active duty service obligation in Texas. In July of
2004, Jamie finished her service and moved to North Carolina to join the family.
Both John and Jamie remained members of the Army’s inactive reserve.
In October of 2004 John and Jamie decided to move the family to Omaha,
where they stayed only a short time before moving to Honey Creek, Iowa.
During this time, the parties were equally responsible for caring for their two
children.
In January of 2006, Jamie was called back to active duty.
Jamie
participated in stateside training for several months, during which she visited the
children as much as possible. John facilitated the reunions between Jamie and
the children.
After Jamie left for training, Jamie’s cousin, Kerry Aschinger,
Kerry’s fiancé, Nathan, and Nathan’s mother moved in with John to help with the
children and expenses.
Jamie left for Iraq in May of 2006. John testified at trial that he informed
Jamie prior to her departure for Iraq that he wanted to end their marriage. Jamie
testified that she and John had an argument before she left, but they had agreed
3
to work things out. However, on June 22, 2006, Jamie received an email from
John informing her that he wished to end their marriage.
At some point in time after Jamie was mobilized in January of 2006, John
became romantically involved with Jamie’s friend, Melissa. John testified that he
did not begin a relationship with Melissa until after he sent Jamie the email
ending their marriage. However, other testimony suggested John’s relationship
with Melissa began earlier, although John reportedly did not spend time with
Melissa until after the children were asleep. When Jamie returned to Iowa on a
two-week leave in August of 2006, John would not allow her into their marital
home. Jamie visited with the children at her father’s home.
While in Iraq, Jamie sustained injuries on two separate occasions when
her vehicle was blown up by improvised explosive devices.
incident, Jamie suffered a concussion and ruptured eardrums.
After the first
The second
incident was more serious, and Jamie was awarded a Purple Heart after
receiving shrapnel wounds to her right side.
In October of 2006, John moved to Council Bluffs with Melissa, her child,
and his and Jamie’s two children. John has been employed full-time with Union
Pacific since March of 2007.
Jamie completed her tour of duty in May of 2007 and returned to Omaha.
Jamie worked regularly until three weeks before trial when she quit her job so
she could stay at home with her children and receive treatment for the injuries
she incurred while in Iraq. Jamie testified that she was capable of working, but it
was difficult to schedule work around her doctor appointments.
4
Jamie and John agreed without a court order that Jamie would have the
children on weekends. John works Thursday through Monday, so this schedule
was amenable to both parties. The record shows that the parties have been
cooperative with one another in sharing time with the children. However, at trial,
John expressed a desire that Jamie’s visits with the children be reduced to every
other weekend so that he could spend time with the children on the weekends
after work.
On March 25, 2008, John filed a petition for dissolution of the marriage in
which he requested physical care of the children with reasonable rights of
visitation for Jamie. On April 25, 2008, Jamie filed an answer to the petition for
dissolution of marriage in which she requested physical care of the children with
reasonable and liberal rights of visitation for John. After trial the district court
awarded physical care of the children to Jamie with reasonable visitation for
John. The district court also ordered John to pay child support to Jamie in the
amount of $999.59 per month based on a finding that John’s annual income was
$52,000 and Jamie’s annual income was $15,600. John appeals from the district
court’s decree arguing the district court erred in: (1) awarding physical care of the
children to Jamie, (2) failing to make findings regarding the reasonableness of
joint physical care, and (3) calculating the child support award.
II. Standard of Review
Our standard of review in this equitable proceeding is de novo. Iowa R.
App. P. 6.907 (2009). We examine the entire record and adjudicate anew rights
on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702
(Iowa Ct. App. 1999). We give weight to the district court’s findings of fact,
5
especially in determining the credibility of witnesses, but are not bound by them.
Iowa R. App. P. 6.904(3)(g).
III. Custody
A. Joint Custody
John argues the district court erred by failing to comply with the
requirements of Iowa Code section 598.41(2)(b) (2007) by citing clear and
convincing evidence that joint custody is unreasonable and not in the best
interests of the children. Section 598.41(2)(b) applies to the district court’s award
of legal custody.
See Iowa Code § 598.1(3) (defining “joint custody” as “an
award of legal custody of a minor child”). Because the district court awarded joint
legal custody of the children, John’s argument implicates Iowa Code section
598.41(5)(a), which involves an award of joint physical care.
Section 598.41(5)(a) provides:
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 . . . . If the court denies the request for joint
physical care, the determination shall be accompanied by specific
findings of fact and conclusions of law that the awarding of joint
physical care is not in the best interest of the child.
A review of the record reveals that neither party ever requested joint physical
care.
John’s petition for dissolution requests physical care, as does Jamie’s
answer to the petition. Further, both parties articulated at trial that they were
seeking physical care of the children.
Because neither party requested joint
physical care, the district court was not required to make specific findings. See
In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007) (stating no specific
findings were required when one party requested physical care and the other
6
party abandoned his prior request for joint physical care by asking for physical
care during trial and testifying that joint physical care was not appropriate).
B. Physical Care
John argues the district court’s decision to award physical care of the
children to Jamie is not supported by the record. When we determine physical
care, the first and governing consideration is the best interests of the children. In
re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct. App. 1995). We consider
the relevant factors outlined by Iowa Code section 598.41(3) and the Iowa
Supreme Court in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa
1974). The court considers stability and continuity of caregiving as important
factors, though a parent’s prior role as the primary caregiver does not necessarily
render that parent the primary caregiver permanently. In re Marriage of Hansen,
733 N.W.2d 683, 696 (Iowa 2007); In re Marriage of Fennell, 485 N.W.2d 863,
865 (Iowa Ct. App. 1992). Our primary objective is to place the child in the
environment most likely to bring him or her to healthy physical, mental, and social
maturity. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996).
We must also consider the willingness of each party to allow the child access to
the other party. Id.
The district court found that if given a chance, John would diminish the
amount of contact his children have with Jamie. We agree with John’s assertion
that this finding of the district court is not supported by the record. The record
shows that John is supportive of the children’s relationship with their mother.
John requested at trial that the court reduce Jamie’s visits so he could spend
time with the children on the weekends. However, John allowed Jamie to visit
7
the children every weekend without a court order.
He also allowed Jamie’s
family to visit the children every other weekend while Jamie was deployed.
Jamie testified that not only was John “cordial and abiding of the time [she] had
with the kids,” but further that she believed if she called John and asked to see
the kids, he would let her. John’s past performance belies the district court’s
suggestion that he would not encourage the children’s relationship with their
mother.
The record suggests that Jamie, on the other hand, may not be entirely
supportive of John’s relationship with the children. John and Melissa testified
that the children repeated snide and threatening remarks they claimed to have
heard from their mother, although Jamie denied making any such remarks.
Further, the record shows Jamie sent a threatening email to Melissa and called
the Iowa Department of Human Services alleging John physically abused the
children. The child abuse assessment found the incident was not confirmed and
that it was unlikely the injury was caused during a time period in which John was
watching the children. The record suggests Jamie’s actions may be motivated by
anger or retaliation against John.
The district court also found, “John’s credibility is challenged by his
deceitful conduct. John has had assistance with the children at every turn. Even
at the present time, he is often gone before the children are prepared for school
in the morning.” Aside from testimony that in 2006 John occasionally left the
children with a babysitter after they were asleep while he visited Melissa, the
record is void of evidence to support the district court’s finding that John’s
conduct was deceitful. Further, this conduct never placed the children in danger,
8
as John always ensured someone was at the house to care for the children.
Though John received help from family members and friends, Jamie also
received assistance, as have most parents. John leaves for work before the
children are prepared for school in the morning, but Melissa ensures that the
children are prepared for and taken to school. John is then available to spend
time with the children in the afternoons and evenings. John’s work schedule
prevents him from being available at all hours of the day, but the record does not
support a finding that he is careless in leaving his children in the temporary care
of others.
In determining John had engaged in “deceitful conduct,” the district court
likely considered John’s affair with Melissa while his wife was on active duty in
Iraq. Although moral misconduct is a consideration in custody determinations, it
is only one factor. Wilson, 532 N.W.2d at 495. Further, Jamie admitted to being
unfaithful to John on the weekend of their engagement. We believe the timing of
John’s relationship with Melissa is outweighed by other factors involving the best
interests of the children. See id.
After considering the factors described above, we determine it is in the
children’s best interests that John retain physical care. In deciding which parent
should be awarded physical care, “the factors of continuity, stability, and
approximation are entitled to considerable weight.” Hansen, 733 N.W.2d at 700.
John has had physical care of the children since October of 2006 with little help
from anyone other than Melissa, who lives with John and the children. John has
established a stable home for the children. The children attend school in the
area, and it is in their best interests that they continue in the same school. An
9
award of physical care to John best provides the children with continuity and
stability in their lives.
Further, at John’s house, the children spend time with Melissa’s daughter
and their half sister. According to the record, the children all get along and share
a bond with one another.
“Changes in custody which separate siblings are
discouraged under Iowa law.” In re Marriage of Hunt, 476 N.W.2d 99, 102 (Iowa
Ct. App. 1991). This principle applies to half siblings as well and should be
considered in determining the best interests of the children. In re Marriage of
Orte, 389 N.W.2d 373, 374 (Iowa 1986).
Disrupting John’s custodial status
would affect the children’s relationship with their half sister.
While we recognize this result seems harsh to Jamie, who loves her
children and is capable of caring for them, we believe it is in the children’s best
interests. See In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986).
(“Our focus . . . is on the long-range best interests of the child. . . . [T]he court is
not attempting to reward or punish either parent when making a custody
determination . . . .”). We modify the district court’s award of physical care and
name John as the physical custodian.
We remand to the district court to
determine Jamie’s visitation and child support obligation.
jurisdiction. Costs on appeal are assessed to Jamie.
AFFIRMED AS MODIFIED.
We do not retain
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.
