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IN THE COURT OF APPEALS OF IOWA No. 9-736 / 08-1582 Filed December 30, 2009

IN RE THE MARRIAGE OF VICKI LIN REIGHARD AND PAUL ALLEN REIGHARD Upon the Petition of VICKI LIN REIGHARD, Petitioner-Appellant/Cross-Appellee, And Concerning PAUL ALLEN REIGHARD, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Washington County, Daniel F. Morrison, Judge.

Vicki Reighard appeals from a district court's decree and post decree rulings dissolving her marriage to Paul Reighard. REMANDED. AFFIRMED AND

Constance Stannard, Iowa City, for appellant. Paul Reighard, Washington, pro se.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ.

2 VOGEL, P.J. Vicki Reighard appeals from a district court's decree and post decree rulings dissolving her marriage to Paul Reighard. She contests the district court decision to order a "shared custody arrangement" of the three children, as well as a self-executing provision that the party who moves from the children 's current school district would forfeit shared physical care temporarily until the court had the opportunity to determine what arrangement would be in the children's best interests. She also asserts the district court's method of calculating child support was not correct and the property division was inequitable. remand.1 I. Background Facts and Proceedings Paul and Vicki were married in 1991 and three children were born of the marriage, Mariah in 1995, McKenna in 1997, and Ryan in 1999. Paul and Vicki both worked outside the home, and their schedules allowed each to be a part of the children's daily routines. Vicki got the children up in the mornings and ready for school and Paul was able to be home when the school day was done, transport the children to their various after-school activities, and prepare supper for them. But for the communication problems between Paul and Vicki, this We affirm and

arrangement worked well, providing the children good care by each parent. Marital discord began increasing, and in March 2007, Vicki moved out of the family home. Shortly thereafter, both Paul and Vicki began relationships with other people. The district court specifically noted the "poor decisions made by

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Paul's pro se brief does not comply with the rules of appellate procedure.

3 each of the parties to move into relationships with others who also have children." Vicki filed a petition for dissolution on July 27, 2007.2 The parties attempted a shared care arrangement, but based on Paul and Vicki's inability to communicate, this arrangement was unsuccessful. On January 25, 2008, after consideration of the affidavits submitted, the district court entered an order for temporary custody and support. The order granted Vicki physical care of the children, "subject to the reasonable and liberal visitation privileges of [Paul], not less than after school every day until [Vicki] gets home from work, Wednesdays until 8:00 p.m., and every other weekend." The matter went to trial in May 2008, and the district court ordered Vicki and Paul joint legal custody of the parties' three children and a "shared custody arrangement" for physical care. The shared care arrangement was set as: Vicki having physical custody of the children from August 20 of each year until the day after school recesses for the summer. Paul shall have physical custody of the children from the day after school recesses for the summer until August 20. The district court also included a provision, stating "if either parent moves from the Washington School District, the remaining parent shall become the physical custodial parent until such time as the court has an opportunity to address what arrangement will be in the child's best interest." On September 30, 2008, Paul filed an application for rule to show cause, claiming that Vicki moved from Washington to North Liberty, triggering a change

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Delays occurred prior to trial, as Vicki filed an application to enter a default judgment, and the court entered a default order on November 9, 2007. Paul then filed a motion to set aside default, which was sustained at a January 4, 2008 hearing.

4 of custody.3 On October 2, 2008, Vicki filed a notice of appeal of the district court's decree and subsequent child support order. A hearing began on October 14, 2008 on Paul's motion to enlarge or amend judgment. Vicki requested a continuance, and until further contempt proceedings commenced, the court ordered the parties comply with the original dissolution decree, and Vicki was instructed to "immediately turn physical care of the children over to [Paul] subject to her visitation rights."4 Vicki appeals. II. Standard of Review We review custody orders de novo. Iowa R. App. P. 6.907 (2009).

However, the district court had the advantage of listening to and observing the parties and witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Consequently, we give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g); In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Our overriding consideration is the best interests of the child. Iowa R. App. P. 6.904(3)(o). III. Shared Custody Vicki first asserts the court erred in awarding "a shared custody arrangement," awarding Vicki physical custody during the school year, and Paul physical custody during the summer.5 She argues this is actually "divided

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Paul also filed a motion for new trial, motion to enlarge and amend judgment, but this was mooted by Vicki's filing of this appeal. 4 Vicki filed a motion to stay the implementation of the court's custody order, but the motion was denied. 5 Neither party challenges the granting of joint legal custody.

5 custody" and neither she nor Paul requested shared care. See Iowa Code

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