In Re the Marriage of Malissa Nikole Mourton and Russell Edward Mourton Upon the Petition of Malissa Nikole Mourton, and Concerning Russell Edward Mourton

IN THE COURT OF APPEALS OF IOWA

No. 16-1099
Filed January 11, 2017

IN RE THE MARRIAGE OF MALISSA NIKOLE MOURTON
AND RUSSELL EDWARD MOURTON

Upon the Petition of
MALISSA NIKOLE MOURTON,
Petitioner-Appellant,

And Concerning
RUSSELL EDWARD MOURTON,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Hamilton County, Michael J. Moon,

Judge.

The mother appeals from the provision of the dissolution decree giving the

parties joint physical care. AFFIRMED.

Dan T. McGrevey, Fort Dodge, for appellant.

Alyssa A. Kenville of Kenville Law Firm, P.C., Fort Dodge, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

Malissa Mourton appeals from the provisions of the district court's

dissolution decree concerning her three minor children with Russell Mourton.

Malissa challenges the court's placement of the parties' children in joint physical

care of the parents rather than awarding Malissa physical care of the children.

Russell did not file a brief in this matter. We affirm.

I. Background Facts and Proceedings

In May 2009, Justin and Malissa were married in Webster City after living

together since 2004. Justin and Malissa have three minor children: B.N.M., who

was born in 2001; A.R.M., who was born in 2005; and, A.H.M. who was born in

2007.

Russell works as a lineman for the City of Webster City under a traditional

forty-hour workweek (7:00 a.m. to 4:00 p.m.). He is also required to be on call

one week per month (4:00 p.m. to 7:00 a.m.). Malissa does not work outside the

home and suffers from systemic lupus and bipolar disorder. Prior to the lupus

diagnosis, Malissa experienced a variety of medical complications resulting from

autoimmune issues, including seizures, chronic pain, and headaches. The

record indicates that her current treatment plan controls the most serious side

effects. Although her current symptoms are sporadic, she sometimes suffers

from fatigue and impaired mental function. The long-term prognosis of Malissa’s

medical conditions is unclear from the record.

Prior to the dissolution action, Malissa primarily cared for the children with

her parents’ assistance. Malissa’s parents moved to Webster City and

purchased a house in the same neighborhood as the marital home. The
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relocation allowed them to help Malissa with her medical conditions and the day-

to-day activities of child rearing. Malissa’s parents intend to remain in Webster

City indefinitely.

Malissa attended the children’s musical concerts, soccer games, Cub

Scout meetings, and she participated in local church activities. When Russell

was not at work, he spent time with the children by attending their musical

concerts, soccer games, Cub Scout Meetings, and school conferences. Russell

also enjoyed various outdoor activities with the children. Both Malissa and

Russell intend to remain in Webster City.

On June 25, 2015, Malissa filed a petition for dissolution of marriage

asking, in part, for physical care of the children. On July 10, 2015, Russell filed

an answer also seeking physical care of the children.1

Russell and Malissa both remained in the marital home during the pre-trial

proceedings. Although Malissa had requested exclusive possession of the

marital home during the temporary orders proceeding, the court did not grant her

request. The temporary order provided for joint physical care of the children as

long as the parents were both living in the marital home. As time went on, the

already tense environment in the marital home worsened. In August 2015,

Russell was arrested for child endangerment, but the charges were eventually

dismissed by the court. The Iowa Department of Human Services (DHS)

investigated multiple abuse allegations, including the incident from the arrest and

1
The Iowa Code requires a party to request joint physical care before a court can award
such a custody arrangement. See Iowa Code § 598.41(5)(a) (2015). While both parties
requested physical care in their filings, Russell alternatively requested a joint physical
care award during his testimony: “Q. Would you also be open to the idea of shared
physical care? A. Yes, I would.”
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another incident involving Russell and the children. DHS categorized both

investigations as “not confirmed and not placed” and determined the home to be

safe.

On April 21, 2016, the district court filed a dissolution decree for the

parties. The court determined Malissa and Russel should have joint legal

custody of their children and joint physical care and awarded Malissa the marital

home. Malissa appeals the physical-care provision of the decree, arguing joint

physical care is inappropriate because of the parties’ inability to communicate

and Russell’s conduct, including his absence from the children’s lives during the

dissolution proceedings.

II. Scope and Standard of Review

We review cases tried in equity, such as dissolution cases, de novo. Iowa

R. App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483–84

(Iowa 2012). We give weight to the factual findings of the district court,

especially when considering the credibility of witnesses, but we are not bound by

them. Iowa R. App. P. 6.904(3)(g). “Prior cases are of little precedential value,

except to provide a framework for analysis, and we must ultimately tailor our

decision to the unique facts and circumstances before us.” In re Marriage of

Kleist, 538 N.W.2d 273, 276 (Iowa 1995).

III. Discussion

When physical care is at issue in marriage dissolution cases, the district

court may grant the parents joint physical care or choose one parent to be the

caretaker of the children. In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa

2007). “The critical question in deciding whether joint physical care is . . .
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appropriate is whether the parties can communicate effectively on the myriad of

issues that arise daily in the routine care of a child.” Id. at 580. The court

considers the following factors in determining whether to grant joint physical care:

(1) the historical care giving arrangement for the child between the parents, (2)

the ability of the spouses to communicate and show mutual respect, (3) the

degree of conflict between the spouses, and (4) the degree to which the parents

are in general agreement about their approach to parenting. In re Marriage of

Hansen, 733 N.W.2d 683, 697–99 (Iowa 2007); In re Marriage of Berning, 745

N.W.2d 90, 92 (Iowa Ct. App. 2007). Not all factors are given equal

consideration, and the weight of each factor depends on the specific facts and

circumstances of each case. In re Marriage of Williams, 589 N.W.2d 759, 761

(Iowa Ct. App. 1998). The primary consideration for custody determinations is

the best interests of the child. Iowa R. App. P. 6.904(3)(o).

Turning to the first factor, both parties have contributed to the physical

care of the minor children. Malissa was the primary caregiver as a stay-at-home

parent before the dissolution proceedings. However, she required assistance

from her parents. For example, the children would go to Malissa’s parents’

house after school to do their homework, and Russell testified that Malissa’s

parents substantially helped Malissa with caregiving. While “Russell has

assumed a more traditional role in the family of breadwinner,” as the district court

found, he also participated in the caregiving of the children before the filing of the

petition for dissolution by attending school and sporting events, doctor’s

appointments, engaging in recreational activities on the weekends, and
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participating in Cub Scout meetings. Both Malissa and Russell have shown a

long-term interest in providing care for their children.

The second and third factors are the ability to communicate and the

degree of conflict between the parents. Hansen, 733 N.W.2d at 698. During the

divorce proceedings, the parties struggled to communicate and conflict was

prominent; we believe this was likely aggravated by the parties’ living

arrangement. Furthermore, testimony regarding the parties’ relationship with

their children was inconsistent. Malissa testified that Russell was never home

and when he was, he would confine himself to the basement and ignore the

children. Conversely, Russell testified that although he worked more during the

proceedings for financial reasons, he was still able to watch cartoons with the

children and help put them to bed. Russell also claimed that part of the reason

he spent less time with the children during the proceedings was because Malissa

took the children to her parents’ house when he was home.

Malissa made multiple accusations of domestic abuse, one supported by

the school counselor, following the filing of the petition. Russell denied these

allegations and DHS found no abuse during the course of its investigations.

Certainly, the dissolution proceedings combined with the parties’ living situation

magnified the conflict and poor communication between the parties, as illustrated

by the timing of the events. However, the parties demonstrated the ability to

communicate before the dissolution proceedings by jointly attending school

conferences and medical appointments. Furthermore, we believe the above

facts are in accord with the district court’s findings that “[Russell] will resume his
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previous quality relationships with the children once the angst caused by these

proceedings has subsided.”

The final factor is the degree to which the parents are in general

agreement about their parenting approach. Id. at 699. In order to ensure

success in a joint physical care arrangement, “the parents must generally be

operating from the same page on a wide variety of routine matters.” Id.

However, “[i]t would be unrealistic . . . to suggest that parents must agree on all

issues all of the time . . . .” Id. According to the testimony, both parents will

remain in Webster City, and they value the importance of the minor children’s

relationship with the other parent. Both parents also encourage counseling for

their children and stress the importance of education. Certainly, Malissa and

Russell have at times disagreed on some parenting strategies, but it is apparent

from the record that both encourage their children’s growth and development

through counseling, education, recreational activities, and religious services.

IV. Conclusion

We hold that joint physical care is in the best interest of the children under

the present facts. Indeed, the parties suffered from conflict and communication

breakdowns. However, those setbacks appeared to peak during the divorce

proceedings. We see no reason why the parties cannot communicate effectively

and avoid conflict following the dissolution proceedings. Furthermore, the parties

have illustrated shared values in encouraging the development, well-being, and

growth of their minor children. We agree with the district court: “Both parties

seem to be genuinely interested in doing what is in the long-term best interests of

the children. Both love the children.” Accordingly, we affirm the district court’s
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decision to place the children in joint physical care of the parties. In reaching this

conclusion, we recognize that the district court had the opportunity to hear the

evidence and view the witnesses firsthand. See id. at 690.

AFFIRMED.