Preview:

IN THE COURT OF APPEALS OF IOWA No. 0-139 / 09-1557 Filed May 12, 2010 IN RE THE MARRIAGE OF AMY N. PETERSON AND HAROLD OSCAR PETERSON Upon the Petition of AMY N. PETERSON, Petitioner-Appellee, And Concerning HAROLD OSCAR PETERSON, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Jasper County, Darrell Goodhue, Judge.

Appeal from the child custody and attorney fee provisions of a decree of dissolution. AFFIRMED AS MODIFIED AND REMANDED.

Lynn C.H. Poschner and Eric Borseth of Borseth Law Office, Altoona, for appellant. Lee M. Walker and Jane Odland of Walker, Billingsley & Bair, Newton, for appellee.

Heard by Sackett, C.J., and Doyle and Danilson, JJ.

2

SACKETT, C.J. Harold Peterson appeals from the October 8, 2009, decree dissolving his marriage to Amy Peterson. Harold contends he and Amy should have received joint physical care of their young son and that he should not have been ordered to pay Amy's attorney fees. We affirm as modified and remand. SCOPE OF REVIEW. We review dissolution cases de novo. In re

Marriage of Cooper, 769 N.W.2d 582, 585 (Iowa 2009). Although our review is de novo we give weight to the trial court's factual findings, especially with respect to the credibility of the witnesses. In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003). BACKGROUND. Amy was born in 1981 and Harold in 1977. They met in September of 2004 while both of them were working for United Hands, a stagehand company. The couple was married in 2005 and their son was born the same year. Amy has two associate degrees received in 2002 and 2003 from Kirkwood Community College in Cedar Rapids and in 2008 was certified in dog grooming after taking a nine-week course at a Colorado facility. At the time of the hearing she owned Pet-A-Coat Grooming. It is located at Green Acres Boarding, which her parents own. She anticipated she would gross $14,000 in the calendar year 2009. Harold has a high school education and has taken courses in a facility management program. He is employed as an operations manager for Global Spectrum, the company that manages the Iowa Events Center in Des Moines.

3

His annual salary in 2008 was $62,000. He says in season he works forty to forty-five hours a week. Harold lives and works in Des Moines while Amy lives and works in the Newton area. PROCEEDINGS. The parties separated several times before Amy filed a petition for dissolution on August 18, 2008. She asked, among other things, that the parties' son be placed in her temporary and permanent custody. Harold answered the petition seeking conciliation counseling and if that was not successful, asking that the child be placed in the joint legal and physical care of both parents. On September 30, 2008, a temporary order was entered providing the parties should share physical care of the child on a weekly basis, exchanging him each Wednesday evening at 7 p.m. Harold was ordered to pay Amy temporary child support of $328.03 a month. The order remained in place with no further court involvement in the time between when it was issued and the trial commenced on July 16, 2009. At trial the parties appeared to have agreed that they should have joint legal custody. Amy sought primary physical care and Harold sought joint

physical care. Harold introduced an exhibit entitled "Request for Relief ," which set forth his request for a parenting schedule if the parties did not agree on one. It called for sharing care in alternating weeks and provided for an allocation of certain holidays. It asked that the child attend school in a Des Moines metro area school unless the parties agreed otherwise and provided that they should discuss and agree on that issue. It set forth Harold's request for allocation of

4

health care expenses, health insurance expenses, child support, and tax exemptions. It also included Harold's request for a provision in the decree that the parties would first try mediation before filing any request for court relief. On July 20, 2009, the district court filed findings. The court determined that the parties should have joint legal custody, but denied Harold's request for joint physical care and determined Amy should be the primary physical care parent. The district court, in denying Harold's request for joint physical care, found: (1) no parenting plan was in place, (2) Amy was the primary caretaker when the parties lived together, (3) Harold's schedule is dependent on his mother providing babysitting services, (4) though Amy works and relies on her parents for child care, her place of employment is closer to her mother's home, making it more convenient for her to be involved with the child on a regular and consistent basis, (5) the distance between the parties and the impending school year are issues, (6) there is uncertainty as to the abilities of the parties to communicate and significant disagreements are developing relative to preschool, (7) Harold agreed to terminate his parental rights to a child who lived with him for a year, and (8) Harold has misused alcohol, and a third conviction for operating while intoxicated (OWI) would result in a prison sentence. On July 27, 2008, Harold filed a motion seeking to enlarge and amend asking the district court to amend, among other things, to (1) find he was a substantial if not equal caregiver, (2) find he would move to Newton if it was decided the child would attend school in Newton, (3) omit from its consideration that he consented to the adoption of an older biological child and correct the

5

erroneous finding that the child lived with him for a year, and (4) find, contrary to the district court's findings, he did present a parenting plant in his "Request for Relief," which was admitted as an exhibit. The district court ruled on the motion on September 9, 2009, and amended its findings to state that Amy was home full-time with the child for his first four months of his life, when she worked it was primarily part-time, she was only occasionally gone overnight, and Harold conceded she was the primary caretaker though 2006.1 The court also noted that Amy had been absent from Iowa for nine weeks while attending dog grooming school in Colorado and, because Amy's parents and Harold's mother provided care for the child, Harold could not be considered the primary caretaker during that period. The court found no agreement had been made as to the school the child would attend, the parties live about thirty-six miles apart and in different school districts, and they have no history of resolving conflicts through mediation. The court also said it did not question that it was in Harold's older son's best interest that Harold agree to terminate his parental relationship with that child because Harold was then unstable, but the court questioned whether Harold had gained stability. The

court also noted that Harold's mother gave him substantial assistance with the child at issue here. A decree of dissolution was then filed on October 6, 2009, ordering that the parties have joint legal custody, Amy have primary physical care, Harold have set visitation time, and that he pay Amy $583.60 a month in child support.
1

A review of the record reflects that Harold conceded only that she was the primary care parent from December 2005 to April 2006.

6

Harold was also ordered to pay $3500 towards Amy's attorney fees and the costs of the action.2 Harold filed a notice of appeal on October 14, 2009. JOINT PHYSICAL CARE. Harold contends the parties should have been awarded joint physical care in that it would provide stability and a continuity of care for the child. "Legal custody" carries with it certain rights and responsibilities, including but not limited to "decision making affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction." Iowa Code

Download IN RE THE MARRIAGE OF AMY N. PETERSON AND HAROLD OSCAR PETERSON Upon the Petitio

Iowa Law