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IN THE COURT OF APPEALS OF IOWA No. 0-812 / 10-0732 Filed December 22, 2010

IN RE THE MARRIAGE OF CHRISTINA L. DETERMANN AND ROBERT L. DETERMANN Upon the Petition of CHRISTINA L. DETERMANN, Petitioner-Appellant, And Concerning ROBERT L. DETERMANN, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.

Christina Determann appeals from the physical care provision of the parties dissolution decree. AFFIRMED AS MODIFIED AND REMANDED.

Maria K. Pauly and Edward N. Wehr of Wehr, Berger, Lane & Stevens, Davenport, for appellant. Adam W. Blank of Pillers & Richmond, De Witt, for appellee.

Heard by Mansfield, P.J., and Danilson and Tabor, JJ.

2 DANIILSON, J. Christina Determann appeals the physical care provision of the parties dissolution decree, in which the district court awarded joint physical care of the parties two-year-old son. Considering, among other facts, Robert Determanns prior domestic abuse, his repeated violations of the protective order, and the confirmed report of child abuse naming Robert as the perpetrator, we conclude the childs interests are best served by awarding Christina primary physical care. We therefore modify the decision of the district court ordering joint physical care and order physical care of the child with Christina, and remand to the district court to award liberal visitation to Robert. I. Background Facts and Proceedings. Robert and Christina were married in December 2007. They had one child together in May 2008. Christinas two older children, ages two and nine, from different fathers, also lived with the family during the parties marriage. The parties agreed that Christina would be a stay-at-home mother for the children. Robert was employed by Determann Industries as an equipment operator, where he worked from about 5:30 a.m. to 5:00 p.m. In October 2008, Robert stopped working for Determann Industries, the parties purchased a semi truck, and Robert became a truck driver for CNRD Trucking, L.L.C.1 The marriage was mostly stable until an incident in March 2009 at a firemans fundraiser in Buffalo. Apparently Christina was not ready to leave

Robert testified at trial that he made $45,000 per year as a truck driver. However, the district court found that Robert "was less than forthcoming about his income," and noted that the record showed Roberts gross income in 2009 to be $63,200.

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3 when Robert wanted to, and Robert grabbed Christinas arm in an attempt to force her to leave, leaving bruises on her arm. Another incident occurred in April 2009, when Robert became upset with Christinas oldest child, chased the child upstairs to his bedroom, and threw him onto his bed, causing him to strike the wall. Robert denied that he threw the child onto the bed, but admitted that he grabbed the child by the leg and turned him over. Robert then forced Christina to get out of the shower and yelled at her to discipline the child. The incident resulted in a confirmed but not registered child abuse report by the Iowa Department of Human Services. Based on this altercation, Christina gathered the children and their clothing, left the familys home in Camanche, and moved in with Christinas parents in Davenport. Christina soon rented an apartment in Davenport where she lived with the children. As a result of these incidents, Christina filed a petition for relief from domestic abuse. The district court entered a temporary protective order on

April 21, 2009, awarding Christina temporary custody of the parties child and exclusive use and possession of the parties 2006 Mercury Mountaineer. On May 13, 2009, after a hearing, the court entered a permanent protective order finding that Robert committed a domestic abuse assault against Christina. The order also granted Robert visitation Tuesdays from 3:00 p.m. to 8:00 p.m. and every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., with the condition that Roberts mother transport the child to and from Christinas home. Meanwhile, Christina also filed a petition for dissolution of marriage. In July 2009, the court entered an order setting temporary child support and medical support. In September 2009, Christina filed an application for rule to

4 show cause, requesting Robert be held in contempt of court for failing to make support payments. The court determined that as of October 2009, Robert had "a child support arrearage of $2,587.50." Robert had also stopped making

payments on the Mercury Mountaineer Christina was driving and the vehicle was repossessed. Apparently Robert paid his child support arrearage sometime in October 2009, because the court approved the satisfaction and dismissed the rule to show cause on October 23, 2009. The court also ordered Robert to give Christina the 1996 Mercury Tracer that she owned prior to the marriage. In the meantime, Christina was unable to make the payments on her apartment, because the rental amount was based on income, which included Roberts child support that she was not receiving. In October 2009, Christina and the children moved in with Christinas boyfriend, Cody Pittman, and his two young daughters from a prior marriage that lived with him every other weekend. The relationship between the parties during these proceedings was tumultuous to say the least. Among other things, Robert was upset that Christina moved out of the family home and was involved in a new relationship. Christina blamed Robert for being controlling and abusive, and alleged that he had accessed Internet dating sites throughout their marriage and that women had called the family home for Robert day and night. After moving out of the family home, Christina began working as a bartender at the Pour House in Davenport. She only worked at the Pour House for "a few months," however, because Robert made harassing phone calls to the Pour House while she was at work. In addition, she was having problems with the childs visitation, because Roberts

5 mother refused to drop the child off with a babysitter at Christinas house while Christina was at work. Robert violated the protection order "at least four times." He and a friend appeared at Christinas apartment and sat in a vehicle in the parking lot; he seized the parties Mercury Mountaineer Christina was ordered to use ; he appeared at the family home during the court-appointed time Christina was to pick up her belongings; and he appeared with his mother during visitation exchanges. During these interactions, Robert was harassing and threatening to Christina. It is clear that Christina contributed to the vulgar exchanges, as did Roberts mother and Roberts sister. Unfortunately, the child was present for at least some of these interactions. The dissolution trial was held over two days in February 2010. The court entered its decree in March 2010 and awarded the parties joint physical care of the child. In reaching its conclusion, the district court noted: In reflecting on the issues stated above, the Court is still convinced that both parties genuinely love and care for the child. The child has the opportunity to be involved with both parents extended families in that they both live in this area. In weighing the factors stated above, the Court finds that at this point in the childs life it is in his best interest to have maximum contact with both parents, despite their issues they have with each other. Even though the parties live approximately 40 minutes from each other, the Court finds that joint physical custody can be accomplished if the exchange is done on a weekly basis. The district court set forth a physical care schedule, in which the parties alternated physical care every other week at 6:00 p.m. on Sunday, and each received two weeks of uninterrupted visitation in the summer. Christina filed a motion to amend or enlarge, requesting the court award her primary physical

6 care. After a hearing, the court confirmed its original physical care determination. Christina now appeals. II. Scope and Standard of Review. Because this is an action in equity, our review is de novo. Iowa R. App. P. 6.907. We are not bound by the district courts findings of facts, but we give them deference because the district court has a firsthand opportunity to view the demeanor of the parents and evaluate them as custodians. Iowa R. App. P. 6.904(3)(g); In re Marriage of McCurnin, 681 N.W.2d 322, 327 (Iowa 2004); see In re Marriage of Witten, 672 N.W.2d 768, 778 (Iowa 2003). III. Physical Care. The sole issue on appeal involves the physical care provision of the parties dissolution decree awarding the parties joint physical care of their twoyear-old son. Christina contends the turmoil and level of conflict between the parties produces a "situation where joint physical care will not work," and states that as the childs "primary caretaker from birth," she should be awarded physical care. Christina alleges that the inability of the parties to communicate and

cooperate is exacerbated by the nearly forty-mile distance between their residences, which "increases concerns how the parties will be able to make joint decisions that are necessary" in a joint physical care arra ngement. In further support of her contention that she should receive physical care, Christina points to Roberts "anger issues"; his violations of the domestic abuse protective order; his controlling, abusive, and threatening behavior; and his overall failure to support her relationship with the child.

7 The primary consideration in any physical care determination is the best interests of the child. Iowa R. App. P. 6.904(3)(o). ,,[T]he courts must examine each case based on the unique facts and circumstances presented to arrive at the best decision." In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). The following nonexclusive factors are to be considered when determining whether a joint physical care arrangement is appropriate: (1) "approximation," or what has historically been the care giving arrangement for the children between the parents; (2) the ability of the parents to "communicate and show mutual respect"; (3) the "degree of conflict" between the parents; and (4) the ability of the parents to be in "general agreement about their approach to daily matters." Id. at 697-99; In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007). If the court denies a 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 interests of the child." Iowa Code

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