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IN THE COURT OF APPEALS OF IOWA No. 6-791 / 06-0669 Filed December 28, 2006

IN RE THE MARRIAGE OF KELLY LYNN RIXEN AND DAVID A. RIXEN Upon the Petition of KELLY LYNN RIXEN, Petitioner-Appellee, And Concerning DAVID A. RIXEN, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Clinton County, David H. Sivright, Jr., Judge.

David A. Rixen appeals the district court's ruling in his dissolution proceeding. AFFIRMED.

Christopher Farwell of Farwell & Bruhn, Clinton, for appellant.

Mary Lynn Wolfe of Wolfe Law Office, Iowa City, for appellee.

Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.

2 MAHAN, P.J. David A. Rixen appeals the district court's ruling in his dissolution proceeding. He argues the district court erred in (1) awarding physical care of the parties' child to Kelly Lynn Rixen; (2) failing to award joint physical care; (3) providing inadequate visitation; and (4) failing to grant a new trial. We affirm. I. Background Facts and Proceedings David and Kelly were married in February 2001. Their daughter was born in May 2002. Kelly filed a petition for dissolution on May 20, 2005. The primary issue at trial was their daughter's physical care. David was approximately forty years old at the time of trial. He works as a housepainter for his brother ten months out of the year. He collects

unemployment the remaining two months. Based on his income from painting and unemployment over the last four years, the district court determined his annual income was approximately $20,000. Currently, David lives with his sister Kim, using a converted porch as a bedroom. The couple's daughter also has a bedroom at Kim's house. David is in good health; he has had, however, some mental health issues in the past. 1 He has a thirteen-year-old son with whom he exercised sporadic visitation for a time, but whom he has not seen since July 2001. temper. According to witnesses, he occasionally has difficulty controlling his

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He testified he had an anxiety disorder, but witnesses testified he threatened suicide in July 2004 and was hospitalized for three days for psychiatric care. He stated that the panic attack was the result of a job change and he has returned to normal since he started working for his brother.

3 Kelly was approximately thirty years old at the time of trial. She works as the kitchen manager at an assisted living facility. Her annual income is $26,300. She also has physical care of a seven-year-old daughter from a previous marriage. The two girls get along well together and have "sister-like" bonds. Kelly received some psychiatric treatment related to the break-down of the marriage, but is no longer receiving the treatment. She also has a history of methamphetamine use from her first marriage. She and her first husband were arrested on drug charges in 1995, but the charges against her were later dropped. There is no evidence she continued to use methamphetamine,

although she testified both she and David have used marijuana occasionally in the past. Kelly has been dating a man named James since August 2005. He

occasionally stays at Kelly's home. James is employed and has two teenage children from his marriage. An action to dissolve that marriage is currently

pending. He has a good relationship with both of Kelly's daughters. The girls, however, reported to their counselor that David makes negative and threatening remarks about James. There is also a history of domestic abuse between David and Kelly. The district court determined that David had been, at times, verbally abusive toward Kelly. It found he was jealous and controlling. On the day Kelly intended to move out of the parties' marital home, David tried to prevent her from leaving with their daughter. The child was literally caught between the two during a struggle. Kelly dialed "911" on her cell phone. David smashed the phone and attempted to deflate the tires on Kelly's vehicle. Both were arrested for domestic

4 abuse assault and both spent the night in jail. Upon his release, David took the child to his sister Kim's house and denied Kelly any contact with her until a temporary custody order was entered two weeks later. After the parties' separation, they shared physical care of their daughter, exchanging her at 5:30 p.m. every fourth day. Kelly testified that the

arrangement was hard on the child. She argued her daughter was acting out as a result of lack of consistency and enrolled her in counseling and play therapy. Kelly's opinion is shared by both the child's therapist and the director of her daycare program. The district court specifically rejected continuing the parties' shared physical care. Instead it awarded joint legal custody, with Kelly responsible for physical care. David was awarded reasonable visitation, including but not limited to Wednesday from 5:30 p.m. to 8:00 p.m. and alternate weekends from 5:30 p.m. Friday to 8:00 p.m. Sunday. David was also awarded two

nonconsecutive weeks each summer, with two consecutive weeks the summer after the child completes kindergarten, and four weeks after she completes fifth grade. The parties were ordered to alternate Christmas Eve Day and Christmas Day until the child begins kindergarten, when they must begin dividing Christmas vacation from school. They were also ordered to share alternate holidays, giving Kelly Easter, July 4th, and Thanksgiving in odd-numbered years, and David Memorial Day and Labor Day in odd-numbered years. David filed a motion to enlarge the court's findings and motion for new trial arguing the court's findings were contrary to the law and not supported by sufficient evidence. He also requested shared physical care and increased

5 visitation. The district court granted the motion to enlarge and awarded David visitation from 5:30 p.m. the first Wednesday of every month to 8:00 p.m. the following Sunday, 5:30 p.m. the third Wednesday of every month to 8:00 p.m. the following Sunday, and every other Wednesday from 5:30 p.m. to 8:00 p.m.2 David appeals the award of physical care, and alternately, visitation. He also argues he should have received a new trial. II. Standard of Review We review dissolution decrees de novo. In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Though we are not bound by them, we give weight to the district court's factual findings and credibility determinations. Id. III. Merits A. Physical Care David argues he should have been awarded physical care of the couple's child. We review numerous factors in determining which parent should have physical care of a child. See Iowa Code

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