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IN THE COURT OF APPEALS OF IOWA No. 0-746 / 10-0362 Filed December 22, 2010

IN RE THE MARRIAGE OF CHRISTINE ANN ELDRED AND JOSEPH ALAN ELDRED Upon the Petition of CHRISTINE ANN ELDRED, Petitioner-Appellant, And Concerning JOSEPH ALAN ELDRED, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

Christine Eldred appeals from the child custody, visitation, and support provisions of the parties dissolution decree. AFFIRMED AS MODIFIED.

Mark Fisher, Cedar Rapids, and Monty L. Fisher, P.L.L.C., Fort Dodge, for appellant. Thomas S. Viner of Jacobsen, Johnson & Viner P.L.C., Cedar Rapids, for appellee.

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

2 DANILSON, J. Christine Eldred appeals the custody and visitation provisions of the parties dissolution decree. Both parents are capable and willing to provide

physical care. In light of Christines sudden, month-long absence, we find no reason to disturb the courts award of physical care to Joseph. However, we modify the visitation provisions of the decree. I. Background Facts and Proceedings. Joseph and Christine were married in 1998. Unable to have children of their own, they adopted a newborn daughter in 2004. This was a private

adoption, and the infant came to live with them shortly after her birth. Christine, who was working full-time before the adoption, became a stay-at-home mother. She did continue to work during the tax seasons however. Joseph has worked in retail management for about ten years, which entails working many hours, holidays, and weekends. Both parties have support from their extended families. Joseph and Christine were presented with an opportunity to again adopt in 2008. They were experiencing some marital difficulties but nonetheless decided to proceed to adopt a second child (born in June 2008) and work on the issues in their marriage. The adoption was finalized, but the couple separated shortly thereafter. On September 19, 2008, Joseph returned from an out-of-town work trip to find Christine had had a visit from Ryan Harding, a man with whom she had been corresponding by telephone and the Internet for "the last year," but whom she had not previously met in person. Joseph told Christine she needed to make arrangements to leave the family home. Christine left that day with Harding and

3 drove to Utah. Joseph was required to make childcare arrangements quickly, but he did so and continued to maintain his employment. Christine called Joseph from Utah to say that she had arrived and to talk to their daughter. Christine also called on a number of other occasions to speak with their daughter. She returned to Iowa with little notice on October 22, 2008. Upon her return, Christine lived with various family members, visiting and providing routine care for the children during the day. From January to April 15, 2009, Christine worked forty-five to sixty hours per week as a tax preparer. By agreement, Christine moved into the marital home in mid-February 2009. She filed a petition for dissolution of marriage on February 26, 2009, and moved into her own apartment in April 2009. Until the end of tax season, the children were in Josephs care the majority of the time. From mid-April 2009 until August 2009 Joseph had the children four overnights each week, and Christine had them three. On August 18, 2009, Christines "Application for Temporary Custody and Support" came before the court. Both parties sought physical care of the

children. Based on affidavits and arguments of counsel, the court entered an order granting the parties joint legal custody and Christine temporary physical care. Joseph was granted visitation Wednesdays from 4:30 to 8:00 p.m. and every other weekend from Friday at 4:30 p.m. until Sunday at 5:00 p.m. Trial was held December 16-17, 2009, after which the district court found "both parties are willing and capable of providing prim ary physical care for the

4 children and both parties request to be awarded primary physical care is based upon their sincere devotion to the children."1 The district court wrote: While in Utah, Christine got a part-time job and occasionally called to check on her children . . . . Christine claims this trip was a pre-planned vacation and that she went with her friend ,,Ryan only because he was going to take her hunting. The Court finds Christines story to be incredible and her attempt to convince the Court this was simply a vacation raises serious questions about her overall credibility. Moreover, Christine has maintained throughout this case that Joseph cannot adequately care for the needs of [the children]. Christines leaving the children with Joseph for what was at the time an undetermined amount of time, without making any arrangements for their care, is inconsistent with this assertion. On the other hand, if Christine truly believed Joseph was incapable of providing adequate care for the children, her leaving the children for a month without making any arrangements for others to assist in their care suggests a serious disregard for their well-being. .... After carefully considering the credible evidence presented in this case, the Court finds awarding the parties joint legal custody and primary physical care to Joseph is in the best interests of the children. Christine will be awarded liberal visitation. The decision as to the primary physical placement of the children was a close call for the court. There is more to being a parent than simply earning an income or keeping watch over the kids. Ultimately, the Court finds Joseph will best attend to the physical, emotional, educational, and social needs of the children as they grow. Christines spontaneous trip to Utah in September 2008 played a significant role in the Courts decision. Not only was Christines characterization of this trip as a vacation unbelievable, it called her overall credibility into question with the Court. By awarding Joseph primary physical care of [the children], the Court is not punishing Christine for this conduct; rather, the Court finds this conduct was not consistent with the best interests of the children. The district court set forth a visitation schedule, which included Wednesdays from 4:30 p.m. to 8:00 p.m., overnights every other weekend, and

The court also noted that neither party had requested joint physical care and thus such an award would not be made. See Iowa Code

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