In Re the Marriage of Berning

745 N.W.2d 90, 2007 Iowa App. LEXIS 1302, 2007 WL 4965441
CourtCourt of Appeals of Iowa
DecidedDecember 12, 2007
Docket07-0371
StatusPublished
Cited by183 cases

This text of 745 N.W.2d 90 (In Re the Marriage of Berning) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Berning, 745 N.W.2d 90, 2007 Iowa App. LEXIS 1302, 2007 WL 4965441 (iowactapp 2007).

Opinion

HUITINK, P.J.

Sheri Berning appeals the physical care provisions of the district court’s dissolution decree. We affirm.

I. Background Facts and Proceedings

Vern and Sheri Berning began living together in 1999. Sheri gave birth to their son, Ethan, in June 2001. Vern and Sheri were married in 2003.

Sheri was forty years old and working as a teacher’s aide at the time of the dissolution hearing. She was married previously. This previous .marriage produced two children. The children were placed with their father pursuant to the 1992 dissolution decree.

Vern was fifty-three years old at the time of the dissolution hearing. Vern has been employed with the railroad since 1978. He works a unique work schedule where he works eight consecutive days, often away from home, and then does not work for the next seven consecutive days. Vern was also previously married. This previous marriage produced two children, one of whom was placed with Vern pursuant to the dissolution decree. Both children are now adults living outside of the home.

Sheri took twelve weeks of family leave from work to care for Ethan when he was born. In February 2003 Sheri left her job for eight months and stayed home to care for Ethan. She began working again in October 2003, and Ethan was placed in daycare.

Sheri filed a petition for dissolution of marriage on March 31, 2006. Sheri and Ethan moved to a new residence a few miles away. Shortly after the petition was filed Vern, without advice from counsel, signed a stipulation, indicating that Sheri would have temporary physical care and he would receive “reasonable and liberal visitation as agreed between the parties.” Vern also agreed to pay $587.68 per month in child support.

Vern and Sheri met with a licensed psychologist on four occasions for their marital difficulties, and then met individually with the psychologist on other occasions. Sheri stopped attending the counseling sessions, but Vern continued on. Sheri met a man over the Internet and began traveling to Canada to visit him. Ethan stayed with Vern during Sheri’s numerous trips to Canada.

The parties eventually ágreed to an arrangement whereby they would alternate care for the child. Vern cared for Ethan during the seven days he was off from work, and Sheri cared for Ethan during the eight days he was away at work. However, in late August Sheri determined this schedule was not appropriate during the school year so she decided to end the arrangement. Vern filed a motion to modify temporary custody, and the court ordered that Sheri would have temporary physical care and Vern would have visitation from Thursday evening through Sunday during the weeks he was not working.

At the dissolution hearing, Sheri requested primary physical care, and Vern requested joint physical care. On January 3, 2007, the district court entered an order awarding both parties joint physical care. The physical care arrangement shadowed Vern’s work schedule. The court also distributed the marital assets, ordered Vern *92 to pay a reduced amount of monthly child support, and ordered him to pay a portion of Sheri’s attorney fees.

On appeal, Sheri claims the district court erred in granting joint physical care. Vern resists, arguing the joint physical care arrangement is appropriate. Both parties request appellate attorney fees.

II. Standard of Review

We review claimed error in dissolution of marriage decrees de novo. See In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). “Although we decide the issues raised on appeal anew, we give weight to the trial court’s factual findings, especially with respect to the credibility of the witnesses.” In re Marriage of Witten, 672 N.W.2d 768, 778 (Iowa 2003).

III. Applicable Law

“Joint physical care” means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child. Iowa Code § 598.1(4) (2005). The rights and responsibilities include, but are not limited to, shared parenting time with the child, maintaining homes for the child, and providing routine care for the child. Id. With joint physical care, “neither parent has physical care rights superior to the other parent.” Id. Iowa Code section 598.41(5)(a) (Supp. 2005) provides:

If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent.... If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.

Our supreme court recently devised a nonexclusive list of factors to be considered when determining whether a joint physical care arrangement is in the best interests of the child. In re Marriage of Hansen, 738 N.W.2d 683, 697 (Iowa 2007). The factors are (1) “approximation” — what has been the historical care giving arrangement for the child between the two parties; (2) the ability of the spouses to communicate and show mutual respect; (3) the degree of conflict between the parents; and (4) “the degree to which the parents are in general agreement about their approach to daily matters.” Id. at 697-99.

IV.Merits

Generally, we give considerable deference to the district court’s credibility determinations because the court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). The district court noted it was “somewhat skeptical of Sheri’s credibility” in this case. This credibility finding is reflected throughout the court’s ruling.

Upon our de novo review of the record, we agree with this court’s credibility finding. Sheri’s testimony in this case paints a much different picture than that of other witnesses who have no interest in this case. For example, Sheri contends that she and Ethan’s preschool teacher determined Ethan’s behavioral problems at preschool coincided with his visits with Vern. However, the preschool teacher’s testimony revealed no such correlation; instead, she labeled his behavioral problems as “sporadic.” Also, Sheri’s description of an incident at the daycare provider where she called the sheriff to keep Vern from taking Ethan contradicts the provider’s description of the incident and the proportionate response by the authorities. Finally, the *93 psychologist who counseled both parties testified that Sheri was originally amenable to a joint care arrangement. However, Sheri said she never told the psychologist she was amenable to a joint care arrangement.

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Bluebook (online)
745 N.W.2d 90, 2007 Iowa App. LEXIS 1302, 2007 WL 4965441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-berning-iowactapp-2007.