Preview:

IN THE COURT OF APPEALS OF IOWA No. 2-210 / 11-1905 Filed June 13, 2012

IN RE THE MARRIAGE OF STEVE T. SCURR AND JENNIFER R. DRISCOLL Upon the Petition of STEVE T. SCURR, Petitioner-Appellant, And Concerning JENNIFER R. DRISCOLL, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Grundy County, David F. Staudt, Judge.

A father appeals the physical care provision of a dissolution decree. AFFIRMED.

Barry S. Kaplan of Kaplan, Frese & Nine, L.L.P., Marshalltown, for appellant. Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro, P.L.C., Cedar Falls, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

2 VAITHESWARAN, P.J. Steve Scurr appeals the physical care provision of a dissolution decree, which denied his requests for joint physical care or physical care of his child. I. Background Facts and Proceedings Steve Scurr and Jennifer Driscoll married in 2007 and had one child together in 2009. After marrying, Jennifer moved from Cedar Falls to Steve's home near Beaman, about forty-five minutes away. She commuted to Cedar Falls for work. Steve sought a divorce in 2010. The parents continued to live under the same roof after the filing. A month before trial, Jennifer moved back to Cedar Falls with the child, and the parents agreed to share his physical care until the trial. Following trial, the district court denied Steve's request for joint physical care and granted Jennifer physical care of the child. On appeal, Steve seeks a modification of the court's decree to provide for a joint physical care arrangement. In the alternative, he requests physical care of the child. We elect to bypass error preservation concerns raised by Jennifer and proceed to the merits, reviewing the record de novo. See Iowa R. App. P. 6.907; In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). II. Analysis In denying Steve's request for joint physical care and awarding Jennifer physical care, the district court reasoned as follows: The major obstacle to a resolution of the parties' disagreement as to physical care of [the child] exists because the parties have elected to live 45 minutes apart from one another. . . . [T]he court

3 does not believe it is in the best interests of the child to be facing approximately an hour and a half to an hour and forty-five minutes of travel time each day. [Steve's] solution to the initial three years prior to full-time school for the young man would be to have two daycares, one in Beaman and one in Cedar Falls. If the parties had agreed and would be mutually supportive of this type of arrangement, it's possible that it might work. Here, [Jennifer] is adamant against the two daycares as she believes that it would be disruptive to the child's schedule and well-being. The greater problem, as the court sees it, looms in the future if the parties were to be granted joint physical custody. It seems impractical to even attempt to create a workable solution for the raising of a child 45 minutes away from his school district every other week. . . . The court finds that in not residing in the same school district and residing approximately 45 minutes travel time apart ultimately creates problems in joint parenting that cannot be overcome. . . . [T]he court believes that the young child should be placed . . . under the physical care of his mother, Jennifer. As earlier stated, each party is an excellent parent but given the distance and travel time, it would be inappropriate to order joint physical custody on a permanent basis. On our de novo review, we concur in this reasoning. But for the distance

between the parents' homes, this would have been a paradigmatic case for joint physical care. See In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007) (setting forth factors for consideration, including (1) stability and continuity, (2) the degree of communication and mutual respect between the parties, (3) the degree of discord and conflict prior to dissolution, and (4) the extent to which the parties agree on matters involving routine care); see also Iowa Code

Download IN RE THE MARRIAGE OF STEVE T. SCURR AND JENNIFER R. DRISCOLL Upon the Petition

Iowa Law