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IN THE COURT OF APPEALS OF IOWA No. 7-718 / 07-0814 Filed January 16, 2008

IN RE THE MARRIAGE OF CHRISTINE MARIE WEBER AND JAMES MICHAEL WEBER Upon the Petition of CHRISTINE MARIE WEBER, Petitioner-Appellant/Cross-Appellee, And Concerning JAMES MICHAEL WEBER, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Mitchell E. Turner, Judge.

Christine Weber appeals and James Weber cross-appeals from the physical care provisions of the trial court's decree dissolving their marriage. AFFIRMED AS MODIFIED AND REMANDED.

Sharon A. Mellon of Mellon & Spies, Iowa City, for appellant. Randall B. Willman of Leff Law Firm, L.L.P., Iowa City, for appellee.

Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.

2 HUITINK, P.J. Christine Weber appeals and James Weber cross-appeals from the physical care provisions of the trial court's decree dissolving their marriage. We affirm as modified and remand. I. Background Facts and Proceedings Christine and James were married in 1996. They have three children-- Alexis, born in 1996; Mikayla, born in 1998; and Jacob, born in 2003. At the time of trial, Christine was thirty-four years old. She was employed as a part-time nurse at the University of Iowa Hospitals. James was forty years old. He was employed as a pharmaceutical consultant, salesman, and trainer with Millennium Pharmaceuticals, Inc. On October 14, 2005, Christine filed a petition for dissolution of marriage, requesting temporary and permanent primary physical care of the children. The trial court's December 1, 2005 order awarded Christine temporary primary physical care of the children and James liberal visitation. The trial court's March 23, 2007 dissolution decree granted James's request for joint physical care and denied Christine's request for primary physical care of the children. The trial court's decree provides: Historically, James and Christine have worked together very admirably to accommodate each other's schedules and still provide superior care for all of their children. While it is true that Christine provided more than 50 percent of the daily care of the children in recent years, James has always provided significant, meaningful, and excellent care of the children as well. Contrary to the Petitioner's assertions, James is not a "Daddy come lately" in the lives of his children, nor, so far as the Court can see, has he placed his desires above the best interests of his children. . . . This Court is very confident that these parties absolutely have the ability to communicate with one another in a respectful and nondictatorial

3 fashion so as to accommodate (if necessary) each other's work schedules in the future, just as they have in the past. . . . Without recounting the specifics, the Court finds that both Christine and James are bonded to and have superior relationships with all three children. Further, the Court finds from the testimony adduced at trial that all of the children love and are bonded to each of their parents. . . . Christine's complaint that James only encourages those activities in which he, personally, has an interest has not been borne out by the evidence. This Court's primary concern in evaluating the custodial status issue, quite frankly, is Christine's repeated sentiment that she deserves to be awarded primary physical care of the children (testifying in at least one instance that she should really get sole custody of the children because of all of the aggravation and turmoil and that James has selfishly put her through), and that she has "earned" the right to be the children's primary caretaker. These sentiments are disturbing. The custody and custodial access schedule for these children should neither be considered to be a reward for alleged good conduct, nor a punishment for perceived bad conduct. Christine has somewhat inflexibly adopted the position that whatever is in her best interests or the best interests of her family is automatically in the best interests of the children. This belief is not necessarily accurate and appears to have led to many of the minor communication problems which Christine cites as being an impediment to a shared care arrangement. Based upon the demeanor of the parties testifying during this trial, this Court believes that once some ground rules are established by this Decree, the parties will have little difficulty communicating with one another as they have for years in the past with respect to the children, in a respectful and nondictatorial fashion by both parties. No valid reason exists to deny James' request for a shared-care arrangement. Stated differently, this Court believes that both Christine and James are excellent parents and that the children should have the maximum opportunity to spend time with both of them without one parent granting or withholding access to the children based upon the myopic perception of how that parent is being treated. Based on these findings of fact, the trial court ordered the following weekly care schedule: Mondays and Tuesdays with Christine, Wednesdays and Thursdays with James, with each parent having the children every other Friday, Saturday, and Sunday. The trial court also ordered an alternating holiday care schedule.

4 On appeal, Christine claims the trial court erred in denying her request for primary physical care of the children and in awarding joint physical care of the children. On cross-appeal, James claims (1) the trial court's award of joint

physical care of the children should be affirmed and (2) if shared care is not in their best interests, he should be awarded primary physical care. II. Standard of Review Our review of this equitable action is de novo. Iowa R. App. P. 6.4. We examine the entire record and decide anew the legal and factual issues properly presented and preserved for our review. In re Marriage of Reinhart, 704 N.W.2d 677, 680 (Iowa 2005). We accordingly need not separately consider

assignments of error in the trial court's findings of fact and conclusions of law but make such findings and conclusions from our de novo review as we deem appropriate. Lessenger v. Lessenger, 261 Iowa 1076, 1078, 156 N.W.2d 845, 846 (1968). We, however, give weight to the trial court's findings of fact,

especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6)(g). III. Merits "Joint physical care" means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child, including, but not limited to, shared parenting time with the child, maintaining homes for the child, providing routine care for the child and under which neither parent has physical care rights superior to the other parent. Iowa Code

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