In Re the Marriage of Ertmann

376 N.W.2d 918, 1985 Iowa App. LEXIS 1512
CourtCourt of Appeals of Iowa
DecidedSeptember 24, 1985
Docket84-1982
StatusPublished
Cited by30 cases

This text of 376 N.W.2d 918 (In Re the Marriage of Ertmann) 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 Ertmann, 376 N.W.2d 918, 1985 Iowa App. LEXIS 1512 (iowactapp 1985).

Opinion

PER CURIAM.

Petitioner Debra Ertmann and respondent John Ertmann were married on May 23, 1981. John attends Hawkeye Technical School and is studying Marketing Management. He attends classes in the morning and is employed in a work-study program for fifteen hours a week. Debra works 17 to 25 hours a week in a restaurant for $3.35 an hour. She works Monday, Wednesday, Saturday and Sunday nights.

Their one child, Nicole, was born on January 22, 1982, and was two and a half years old at the time of trial. Nicole is a very intelligent, active, emotionally .and physically healthy child. It is not disputed that Debra was primarily in charge of Nicole’s care and supervision during the marriage. Debra’s placement in the child-rearing role was due to several factors. Nicole suffered a difficult birth and almost died. At first, Debra would not allow John to take care of Nicole and was over-protective. Furthermore, John grew up with the understanding that the mother takes care of children. This resulted in Nicole favoring her mother as a baby. However, when Nicole became a toddler, she showed more interest in her father and John began incurring more responsibility for the child. Since the parties’ separation, John has demonstrated that he is capable of caring for Nicole and he involves Nicole in stimulating educational and social activities during visitation.

A temporary visitation order allowed John to have Nicole on Wednesday evenings and every weekend from 5:00 p.m. Friday until noon on Sunday. John exercised all of his visitation opportunities. The trial court awarded sole custody to Debra. It found that the couple could not communicate to the degree necessary to make a joint custody arrangement workable. The court noted that “the parties can *920 not communicate personally without the communication degenerating into an argument or more serious controversy. The only ‘communication’ since the separation which has yielded any results has been through counsel.” The court found that such a láck of communication between the parents makes joint legal custody impossible. The decree awarded John visitation on alternating weekends and holidays. The court limited John’s visitation to prevent confusing Nicole by the “yo-yo” effect of constant physical transfer and to afford her a single stable home.

On appeal, John challenges the sole custody award. He contends that the trial court erred by not providing for joint custody of Nicole. He also requests that visitation be expanded to provide Nicole with maximum contact with both parents. Debra requests attorney fees on appeal.

Our review is de novo. Iowa R.App.P. 4. We are not bound by the trial court’s findings of fact, but we give them weight. Iowa R.App.P. 14(f)(7).

Joint Custody. The statutory criteria to be considered in awarding custody are found in Iowa Code section 598.41(3) (1983). No one factor on the statutory list of those to be considered is to be unduly emphasized. In re Marriage of Weidner, 338 N.W.2d 351 at 358 (Iowa 1983).

John contends that the trial court relied solely on the inability of John and Debra to communicate as the ground to justify denial of joint custody. John argues that the court ignored the other factors in section 598.41(3) and, therefore, did not sufficiently show that joint custody was not in Nicole’s best interests.

Whether the parents can communicate with each other regarding the child’s needs is one factor to be considered by the court in determining if joint custody is in the child’s best interest. Iowa Code § 598.-41(3)(c) (1983). It cannot be questioned that cooperation and communication between the parents is essential in joint custodial arrangements. However, our legislature was aware that in a divorce the parties are generally not getting along well and a custody contest magnifies the adversarial nature of the dissolution proceeding. To be significant enough to justify a denial of joint custody, a lack of ability to communicate must be something more than the usual acrimony that accompanies a divorce. “Tension between the parents is not alone sufficient to demonstrate [joint custody] will not work.” In re Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983). The Iowa Supreme Court in Bolin described the key to successful communication in a joint custodial arrangement:

Even though the parents are not required to be friends, they owe it to the child to maintain an attitude of civility, act decently toward one another, and communicate openly with each other. One might well question the suitability as custodian of any parent unable to meet these minimum requirements. Problems are likely to develop under any custodial arrangement. The adults must have the maturity to put their personal antagonisms aside and attempt to resolve the problems.

Id. at 447.

We believe that the communication difficulties John and Debra suffered did not warrant denial of a joint custodial arrangement. Both parties expressed a willingness to communicate for Nicole’s sake. Even though Debra vehemently opposed joint custody on the ground of lack of communication between the parties, she testified during trial as follows:

Q. Do you think that that sort of discussion [regarding visitation changes] can be worked out when holidays come along or when there is something that would require a change in the normal visitation?
A. If there is specific visitation rights or visitations for him, yes; and if extended, yes, we could talk about it.
* * * * * *
Q. You think this [communication] is something that will improve as the time goes along? You see any reason why it wouldn’t improve?
*921 A. It has to for Nicole’s sake.
Q. You are willing to make an effort to see that that occurs?
A. Right.

Both are supportive of the other’s relationship with Nicole. Despite the fact that their attorneys had to arrange the temporary visitation, the record demonstrates that no arguments arose between John and Debra during the temporary visitation period once a set schedule was established. Both parents give priority to Nicole’s welfare and will be able to communicate adequately regarding Nicole’s needs.

Contrary to John’s contention that the parties’ lack of communication was the sole ground for the trial court’s denial of joint custody, the court also highlighted another factor to justify its decision. The findings of fact emphasize that Debra was the primary caretaker of Nicole during the marriage. The record supports this finding and indicates that John did not assume active care for Nicole until after the parties’ separation. However, we have recognized that the focus of custody determinations should be on the long range best interests of the child and' not solely on past parenting behavior. See In re Marriage of Bauder,

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Bluebook (online)
376 N.W.2d 918, 1985 Iowa App. LEXIS 1512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-ertmann-iowactapp-1985.