IN THE COURT OF APPEALS OF IOWA
No. 23-1802 Filed March 19, 2025
IN RE THE MARRIAGE OF JEFFREY ADAM THOENE AND KERRI LYNN THOENE
Upon the Petition of JEFFREY ADAM THOENE, Petitioner-Appellee,
And Concerning KERRI LYNN THOENE, n/k/a KERRI LYNN WEBBER, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
The wife in this dissolution-of-marriage proceeding appeals the district
court’s decree granting the parties joint physical care of their child. AFFIRMED.
Katie M. Naset of Hope Law Firm & Associates, P.C., West Des Moines, for
appellant.
Maria K. Pauly of Maria K. Pauly Law Firm, P.C., Davenport, for appellee.
Considered by Tabor, C.J., and Ahlers and Sandy, JJ. 2
AHLERS, Judge.
Kerri Webber (formerly known as Kerri Thoene) appeals the district court’s
decree dissolving her marriage to Jeffrey (Jeff) Thoene. She only challenges the
district court’s decision to grant the parents joint physical care of their child (born
in 2012). Kerri contends the court should have granted her physical care instead.
Each party seeks an award of appellate attorney fees from the other.
I. Standard of Review
We review dissolution-of-marriage actions de novo. In re Marriage of Miller,
966 N.W.2d 630, 635 (Iowa 2021). We give weight to the district court’s fact
findings, particularly as to witness credibility, but we are not bound by them. Iowa
R. App. P. 6.904(3)(g). In making a physical-care determination, the child’s best
interests are our primary consideration. In re Marriage of Hansen, 733 N.W.2d
683, 695 (Iowa 2007). The goal is to place the child in the environment most likely
to result in the child’s good health and social maturity. Id.
II. Physical-Care Determination
Jeff requested the court to grant the parties joint physical care of their child,
while Kerri requested the court to grant her physical care. In determining whether
joint physical care is in the best interests of a child, courts consider four key,
although not exclusive, factors: (1) stability and continuity of caregiving
(sometimes referred to as “approximation” of the historical caregiving
arrangement); (2) the parents’ ability to communicate with and show respect to
each other; (3) the degree of conflict between parents; and (4) the degree to which
parents agree about their approach to day-to-day matters. Id. at 696–99. We also 3
consider the factors listed in Iowa Code section 598.41(3) (2022) and those spelled
out in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). Id. at 696.
Kerri contends the district court erred in awarding joint physical care of the
child. She argues the balance of these factors strongly supports the conclusion
that granting her physical care is in the best interest of the child.
As to the first factor, it is undisputed that Kerri was historically the primary
caregiver for the child before the parties separated. Her flexible work schedule
enabled her to meet the child’s daily needs, such as school pickups, preparing
dinner, and creating a schedule to track extracurricular activities. The child is
heavily involved in competitive dance, which requires daily practices, weekend
competitions, and occasional out-of-state travel. Kerri has consistently been the
parent responsible for ensuring the child attends these events. While Jeff has
remained involved in the child’s life, his frequently changing work schedule and the
need to work overtime to meet the family’s financial obligations often prevented
him from being as engaged in the child’s day-to-day care.
After the parties separated, Jeff adjusted his work schedule so his hours
were more conducive to raising a child without a partner’s support. He loads up
his overtime on the days he does not have the child in his care so he can attend
to the child’s needs when he does. This change in work schedule facilitated the
parties’ agreeing to a joint-physical-care arrangement while these proceedings
were pending. The parties followed that joint-physical-care agreement for around
seven months leading up to trial. While the parties certainly had hiccups along the
way, they were able to effectively navigate joint physical care well enough to
ensure the child’s needs were being met during that time. 4
To the extent Kerri suggests that she had the child more days than Jeff even
after the stipulation on temporary matters was filed and approved, we are not
persuaded the minimal disparity in the number of days is consequential. We reach
this conclusion partly because the disparity was caused to some degree by Kerri’s
sometimes overly strict enforcement of the parenting schedule—for example,
calling the police on Jeff’s parents when they came over to watch the child when
Jeff had to work. In any event, exact equality is not required for joint physical care
to work. See In re Seay, 746 N.W.2d 833, 835–36 (Iowa 2008) (“While joint
physical care does require equal responsibility on routine, daily decision-making,
it does not require that the residential arrangements be determined with
mathematical precision.”). We find the parties successfully maintained a workable
joint-physical-care arrangement for the seven months leading up to the trial, and
as long as both continue to put forth the same level of effort, we see no reason to
change the arrangement based on the first factor.
The second and third factors focus on the relationship between the parties,
centering on the level of conflict and the ability to communicate respectfully with
one another. It is clear that both parties struggle with these factors, as evidenced
by their arguments focused on criticizing one another over various issues. Some
of the concerns raised are reasonable and relate to the child’s well-being, while
others are largely immaterial disputes that can frequently arise at the end of a
relationship. Our review focuses on the communication issues we find most
impactful to the child.
Kerri takes issue with the district court’s critical analysis of her behavior and
argues more consideration should have been given to Jeff’s recent domestic 5
disturbances with his new girlfriend.1 We acknowledge this behavior by Jeff is
concerning, but without more information in the record, we have limited knowledge
on the details surrounding these events. What is clear from the record is that none
of these disturbances occurred in front of the child. Conversely, Kerri instigated
two instances that escalated to the point of police involvement in the presence of
the child. Kerri used the child to enter Jeff’s home after the couple had been
separated for over a year, leading to an altercation with his girlfriend that resulted
in the police being called. As previously noted, Kerri also called the police on Jeff’s
parents when they were at his home preparing to take the child to school, as she
wanted to take the child to school herself.
Jeff and Kerri also struggle to communicate respectfully regarding the
child’s daily schedule. Both are at fault in this regard. Kerri puts significant effort
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IN THE COURT OF APPEALS OF IOWA
No. 23-1802 Filed March 19, 2025
IN RE THE MARRIAGE OF JEFFREY ADAM THOENE AND KERRI LYNN THOENE
Upon the Petition of JEFFREY ADAM THOENE, Petitioner-Appellee,
And Concerning KERRI LYNN THOENE, n/k/a KERRI LYNN WEBBER, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
The wife in this dissolution-of-marriage proceeding appeals the district
court’s decree granting the parties joint physical care of their child. AFFIRMED.
Katie M. Naset of Hope Law Firm & Associates, P.C., West Des Moines, for
appellant.
Maria K. Pauly of Maria K. Pauly Law Firm, P.C., Davenport, for appellee.
Considered by Tabor, C.J., and Ahlers and Sandy, JJ. 2
AHLERS, Judge.
Kerri Webber (formerly known as Kerri Thoene) appeals the district court’s
decree dissolving her marriage to Jeffrey (Jeff) Thoene. She only challenges the
district court’s decision to grant the parents joint physical care of their child (born
in 2012). Kerri contends the court should have granted her physical care instead.
Each party seeks an award of appellate attorney fees from the other.
I. Standard of Review
We review dissolution-of-marriage actions de novo. In re Marriage of Miller,
966 N.W.2d 630, 635 (Iowa 2021). We give weight to the district court’s fact
findings, particularly as to witness credibility, but we are not bound by them. Iowa
R. App. P. 6.904(3)(g). In making a physical-care determination, the child’s best
interests are our primary consideration. In re Marriage of Hansen, 733 N.W.2d
683, 695 (Iowa 2007). The goal is to place the child in the environment most likely
to result in the child’s good health and social maturity. Id.
II. Physical-Care Determination
Jeff requested the court to grant the parties joint physical care of their child,
while Kerri requested the court to grant her physical care. In determining whether
joint physical care is in the best interests of a child, courts consider four key,
although not exclusive, factors: (1) stability and continuity of caregiving
(sometimes referred to as “approximation” of the historical caregiving
arrangement); (2) the parents’ ability to communicate with and show respect to
each other; (3) the degree of conflict between parents; and (4) the degree to which
parents agree about their approach to day-to-day matters. Id. at 696–99. We also 3
consider the factors listed in Iowa Code section 598.41(3) (2022) and those spelled
out in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). Id. at 696.
Kerri contends the district court erred in awarding joint physical care of the
child. She argues the balance of these factors strongly supports the conclusion
that granting her physical care is in the best interest of the child.
As to the first factor, it is undisputed that Kerri was historically the primary
caregiver for the child before the parties separated. Her flexible work schedule
enabled her to meet the child’s daily needs, such as school pickups, preparing
dinner, and creating a schedule to track extracurricular activities. The child is
heavily involved in competitive dance, which requires daily practices, weekend
competitions, and occasional out-of-state travel. Kerri has consistently been the
parent responsible for ensuring the child attends these events. While Jeff has
remained involved in the child’s life, his frequently changing work schedule and the
need to work overtime to meet the family’s financial obligations often prevented
him from being as engaged in the child’s day-to-day care.
After the parties separated, Jeff adjusted his work schedule so his hours
were more conducive to raising a child without a partner’s support. He loads up
his overtime on the days he does not have the child in his care so he can attend
to the child’s needs when he does. This change in work schedule facilitated the
parties’ agreeing to a joint-physical-care arrangement while these proceedings
were pending. The parties followed that joint-physical-care agreement for around
seven months leading up to trial. While the parties certainly had hiccups along the
way, they were able to effectively navigate joint physical care well enough to
ensure the child’s needs were being met during that time. 4
To the extent Kerri suggests that she had the child more days than Jeff even
after the stipulation on temporary matters was filed and approved, we are not
persuaded the minimal disparity in the number of days is consequential. We reach
this conclusion partly because the disparity was caused to some degree by Kerri’s
sometimes overly strict enforcement of the parenting schedule—for example,
calling the police on Jeff’s parents when they came over to watch the child when
Jeff had to work. In any event, exact equality is not required for joint physical care
to work. See In re Seay, 746 N.W.2d 833, 835–36 (Iowa 2008) (“While joint
physical care does require equal responsibility on routine, daily decision-making,
it does not require that the residential arrangements be determined with
mathematical precision.”). We find the parties successfully maintained a workable
joint-physical-care arrangement for the seven months leading up to the trial, and
as long as both continue to put forth the same level of effort, we see no reason to
change the arrangement based on the first factor.
The second and third factors focus on the relationship between the parties,
centering on the level of conflict and the ability to communicate respectfully with
one another. It is clear that both parties struggle with these factors, as evidenced
by their arguments focused on criticizing one another over various issues. Some
of the concerns raised are reasonable and relate to the child’s well-being, while
others are largely immaterial disputes that can frequently arise at the end of a
relationship. Our review focuses on the communication issues we find most
impactful to the child.
Kerri takes issue with the district court’s critical analysis of her behavior and
argues more consideration should have been given to Jeff’s recent domestic 5
disturbances with his new girlfriend.1 We acknowledge this behavior by Jeff is
concerning, but without more information in the record, we have limited knowledge
on the details surrounding these events. What is clear from the record is that none
of these disturbances occurred in front of the child. Conversely, Kerri instigated
two instances that escalated to the point of police involvement in the presence of
the child. Kerri used the child to enter Jeff’s home after the couple had been
separated for over a year, leading to an altercation with his girlfriend that resulted
in the police being called. As previously noted, Kerri also called the police on Jeff’s
parents when they were at his home preparing to take the child to school, as she
wanted to take the child to school herself.
Jeff and Kerri also struggle to communicate respectfully regarding the
child’s daily schedule. Both are at fault in this regard. Kerri puts significant effort
into creating a schedule that accommodates both the child’s and Jeff’s challenging
schedules, but he often has trouble understanding the details and frequently needs
to ask questions.2 At times, both have been short, rude, or unhelpful in their
communications, but these difficulties and tensions are not uncommon given the
stress of managing a shared parenting relationship, especially during the litigation.
See Hensch v. Mysak, 902 N.W.2d 822, 826 (Iowa Ct. App. 2017). The parties
have managed to overcome their communication struggles to ensure the child is
1 At the time of trial, Jeff testified that he was no longer romantically involved with
the woman, but he did acknowledge assisting her with animal care and allowing her to borrow his vehicle in the weeks leading up to the dissolution trial. 2 To be clear, the onus of managing the parties’ and child’s schedules is not solely
on Kerri. Rather, as co-parents, the burden falls on Kerri and Jeff equally. As a co-equal parent, Jeff should take steps to understand the child’s schedule on his own rather than relying on Kerri to inform him. 6
cared for according to their agreed-upon schedule. While the conflict between the
parties does raise some concern, the record shows the parties are capable of
communicating and working together well enough to make a joint-physical-care
arrangement work. See id. (noting that only tension and communication difficulties
that go beyond typical acrimony that comes with family-law litigation is sufficient to
demonstrate that joint physical care will not work).
Turning to the fourth factor, Kerri contends the parties fundamentally
disagree on their approach to daily matters with the child. She cites Jeff’s refusal
to miss parenting time so that the child could attend one of her relative’s birthday
parties, but she overlooks instances in which she refused to give Jeff additional
time with the child when he wasn’t working. We do not view these situations as
fundamental disagreements on raising the child, but rather efforts by each parent
to spend as much time as possible with their child.
Both parties agree that the child is smart and outgoing, enjoys school with
friends, and participates in several extracurricular activities. While Kerri takes
issue with Jeff’s questioning of how much time and money competitive dance
requires and his struggle to understand the scheduling, both parties ensure the
child always arrives at school and other events prepared and on time. The child
has severe allergies, and both parties are prepared to manage emergency
situations and have taken precautions in their homes to prevent such emergencies.
The parties are not expected to be in absolute agreement, but rather a general
alignment on routine matters such as the child’s schedule, education, and
discipline. Hansen, 733 N.W.2d at 699. Kerri and Jeff have demonstrated their
ability to agree when it comes to the child’s needs. 7
Despite some conflict between the parties, it is clear that both are loving
parents who want the best for their child. The parties have demonstrated the ability
to work together well enough to ensure the child’s needs are met, and we believe
this will continue. Following our de novo review of the record, we agree with the
district court’s decision to grant joint physical care to Kerri and Jeff, finding it to be
in the best interests of the child.
III. Appellate Attorney Fees
Each party requests an award of appellate attorney fees from the other. An
award of appellate attorney fees rests in our discretion and is not a matter of right.
In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013). In exercising that
discretion, we consider the needs of the requesting party, the other party’s ability
to pay, and the relative merits of the appeal. Id.
As to Kerri’s claim, we recognize that she may have a need for an award
and Jeff has greater ability to pay. But we also recognize that she is not the
prevailing party. We decline to award Kerri appellate attorney fees.
As to Jeff’s claim, his needs for an award are minimal due to his
substantially greater income. Even though he is the prevailing party, we decline
to award Jeff appellate attorney fees.
IV. Conclusion
We affirm the district court’s decree granting Kerri and Jeff joint physical
care of their child, and we decline to award appellate attorney fees to either party.
AFFIRMED.