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IN THE COURT OF APPEALS OF IOWA No. 9-685 / 08-1716 Filed December 17, 2009

IN RE THE MARRIAGE OF MICHELE L. JOHNSON AND JOHN T. JOHNSON Upon the Petition of MICHELE L. JOHNSON, Petitioner-Appellant, And Concerning JOHN T. JOHNSON, Respondent-Appellee ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Arthur E. Gamble, Judge.

Michele Johnson appeals the physical care and property provisions of a dissolution decree. AFFIRMED AS MODIFIED.

R.A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant. Vicki R. Copeland of Wilcox, Polking, Gerken, Schwarzkopf & Copeland, P.C., Jefferson, for appellee.

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

2 VAITHESWARAN, J. Michele Johnson appeals the physical care and property provisions of a dissolution decree. I. Background Facts and Proceedings. John and Michele Johnson married in August 1995. They had two

children. Michele moved out of the family home in late 2007, taking the children with her. She filed a petition for dissolution of marriage shortly thereafter. Michele initially agreed to let John see the children every other weekend and one night per week. John became dissatisfied with that arrangement and sought joint physical care pending trial. The district court granted John's

application, and the children spent alternating weeks at each parent's house. Before trial, both parties gave the court proposed decrees. After trial, the district court ordered John's attorney to prepare a decree. In the final decree, the court granted John physical care of the children, subject to liberal visitation with Michele. The court also divided the parties' property, awarding a 240 -acre and a 40-acre farm to John, and ordering John to pay Michele $153,500. On appeal, Michele claims the district court acted inequitably in (A) "adopting, nearly verbatim, the proposed findings of fact, conclusions of law and decree submitted by [John]"; (B) placing the children in John's physical care rather than in her physical care; and (C) dividing the property. II. Analysis. A. Decree. At the close of trial, the district court stated:

3 After awhile this afternoon I'm going to get together with the lawyers and I'm going to tell the parties or the lawyers what my decision is. The kids need to know where they're going to school next week and so I need to make a decision. There will probably not be any further record. I would state findings of fact for the record that we will use later to decide the case. .... . . . So I'll make a decision after lunch and I'm going to work out the details of it with the lawyers. One of the two lawyers is going to prepare a decree and the case is going to be done. No additional findings of fact were read into the record, but a calendar entry provided: "Trial held August 13 & 14, 2008. Ruling dictated to counsel in

chambers. Attorney Copeland [John's attorney] will submit a proposed decree within 10 days to the undersigned judge at chambers in Des Moines." Based on this record, Michele maintains that the court's "decision in this case is essentially the wholesale adoption of the proposed findings, conclusions and decree submitted by [John's] attorney." 1 As a result, she asserts "[t]here is no means by which an appellate court can ascertain the bases, factual or legal, for this Decree." See Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 435 (Iowa 1984) (noting that one purpose for rules requiring trial courts to prepare detailed written decisions is so that "appellate courts can readily ascertain the specific factual and legal bases for the court's decision"). Courts have been cautioned about the verbatim adoption of the proposed findings and conclusions submitted by only one of the parties. See Rubes v. Mega Life & Health Ins. Co., 642 N.W.2d 263, 266 (Iowa 2002); In re Marriage of Siglin, 555 N.W.2d 846, 848 (Iowa Ct. App. 1996). The district court did not engage in this practice here. As the court stated, school was to begin the week

1

The proposed decree prepared by John following the trial is not part of the record.

4 after trial and, at the time of trial, the parents had yet to reach an agreement on which school the children would attend. Because this issue required immediate attention, the court did not take the case under advisement in order to write a decree but instead stated it would "work out the details of [the decree] with the lawyers" in chambers. The court subsequently "dictated [the ruling] to counsel in chambers." Both parties were represented by attorneys. These attorneys

provided the court with proposed pre-trial decrees, were present when the court stated its plan of action, and apparently were present in chambers when the court dictated the decree. Under these circumstances, we are not persuaded that "the trial court delegate[d] to counsel its own responsibility to scrutinize the record, select apt principles of law, and fully articulate the bases for a sound, fair decision." Kroblin, 347 N.W.2d at 435. In any event, any concern with the court's action is ameliorated by the fact that "we review the evidence anew, disconnected, ultimately, from the trial court findings." Siglin, 555 N.W.2d at 849. B. 1. Physical Care. Joint Physical Care. Michele argues that the district court acted

inequitably in rejecting joint physical care as an option. We begin by noting that Michele's position on joint physical care changed over time. At trial, s he was opposed to this option, stating the temporary schedule was not working out. Her proposed decree only provided that she would be granted physical care and made no mention of joint physical care. Michele's opposition was a factor the trial court was authorized to consider. See Iowa Code

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