In re the Marriage of O'Toole

IN THE COURT OF APPEALS OF IOWA

No. 18-2047
Filed October 9, 2019

IN RE THE MARRIAGE OF LAURA ELIZABETH O’TOOLE
AND SEAN DAVID O’TOOLE

Upon the Petition of
LAURA ELIZABETH O’TOOLE,
Petitioner-Appellee,

And Concerning
SEAN DAVID O’TOOLE,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.

Sean O’Toole appeals several provisions of the decree dissolving his

marriage to Laura O’Toole. AFFIRMED AS MODIFIED.

Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office,

Davenport, for appellant.

Jennifer M. Triner Olsen of Olsen Law Firm, Davenport, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

Sean and Laura O’Toole married in 2010 and divorced in 2018. They have

one child, born in 2016. The district court granted Laura physical care of the child,

subject to visitation with Sean. On appeal, Sean contends the district court acted

inequitably in failing to (1) grant the parents joint physical care of the child and (2)

provide more expansive visitation.

I. Joint Physical Care

“Any consideration of joint physical care . . . must . . . be based on Iowa’s

traditional and statutorily required child custody standard—the best interest of the

child.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007) (citing Iowa

Code § 598.41(5)(a) (2017)). A list of nonexclusive factors for determining a child’s

best interests is set forth in Iowa Code section 598.41(3). Id. at 696. Certain key

factors in deciding whether to order joint physical care are (1) “stability and

continuity of caregiving,” (2) “the ability of spouses to communicate and show

mutual respect,” (3) “the degree of conflict between parents,” and (4) “the degree

to which the parents are in general agreement about their approach to daily

matters.” Id. at 696–99. Other case-specific factors also may bear on the decision.

Id. at 699–700.

The district court applied each of the enumerated factors before opting

against a joint physical care arrangement. The court determined:

[J]oint physical custody is not appropriate in this case in light
of Laura’s role as the primary caregiver during the marriage, the lack
of open and complete communication, the parties’ different approach
to daily matters, and Laura’s greater dedication to making decisions
that benefit [the child]. . . . [T]he Court believes that both parties are
good parents who truly love [the child]. However, Laura has
consistently put [the child] at the forefront of her decision-making and
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has dedicated herself to being an excellent mother with [the child] as
her first priority. While Sean believes that he has acted in the same
manner, the evidence does not support this as being true. As noted
above, Sean placed his own interests in fun activities such as going
out after work, socializing, golfing, and hunting ahead of spending
time with [the child]. Sean could do this because he knew that Laura
would be home caring for [the child]. After Laura filed for divorce,
Sean’s amount of time tending to [the child’s] needs did increase,
which is to Sean’s credit. However, Sean continued his poor
decision-making by making multiple bad decisions concerning
finances and not considering the impact of those decisions, both
financially and morally, upon [the child]. In this case, Laura has been
the primary custodian and has shown a dedication to placing [the
child’s] interests at the forefront. The Court finds that Laura is the
proper parent to have primary physical care of [the child].

On our de novo review of the record, we find support for the district court’s

determination.

Laura testified she “was the caretaker” of the child during her nine weeks of

maternity leave. After she returned to work, she continued her role as primary

caretaker. Although Sean was “there,” she stated he was “[n]ot necessarily

actively participating” in the child’s care. After Laura filed her dissolution petition,

Sean began helping with the child’s feedings, dinner preparation, and bed and bath

time. But, in Laura’s words, his involvement was “hit and miss.” She testified, “He

drank and would come home intoxicated, you know, a couple times a week

maybe.” Although he cared for the child on his weekends, she stated he had no

compunction about staying out late on other occasions because she was at home

caring for the child.

Sean disputed Laura’s characterization of his involvement with the child.

Although he acknowledged Laura saw the child and was “more present” than him,

he testified, “[F]or the most part, [he] was active.” He described a “very flexible”

work schedule and noted that travel obligations took him no more than two to two-
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and-a-half hours away from home. He characterized Laura as “controlling” and

expressed surprise and dismay on reading her critique of him in her journal.

We recognize certain circumstances militated in favor of a joint physical

care arrangement. The parents stayed under the same roof during the divorce

proceedings, agreed to an alternate weekend visitation schedule, vacated the

home on the weekends of the other parent’s visitation, had no large fights during

the divorce proceedings, communicated respectfully by text message, and

generally accommodated each other. It is also true that Laura did not have “any

concerns” with Sean’s parenting during his weekend visitation. Finally, Sean

expressed a willingness to move close to Laura after the dissolution action was

finalized. But, at the end of the day, we are swayed by the district court’s unique

ability to see the witnesses and assess their demeanor. See In re Marriage of

Vrban, 359 N.W.2d 420, 423 (Iowa 1984). From its vantage point, the district court

made detailed credibility findings in favor of Laura. We give weight to those

findings. See Iowa R. App. P. 6.904(3)(g).

We conclude the district court acted equitably in denying Sean’s request for

joint physical care.

II. Expanded Visitation

The district court stated the following with respect to visitation:

In this case, Laura proposed every other weekend and
Wednesday night (potentially overnight). Sean believes that this
proposal provides too big of a gap between when he is able to see
[the child] as there will be a full one-week period on occasion where
he does not see [the child]. The Court finds that Sean should be
awarded visitation of every other weekend from Friday at 6:00 p.m.
until Sunday at 6:00 p.m. Sean shall also have visitation every
Tuesday and Thursday night from 5:00 p.m. to 7:30 p.m. This
provides Sean with continual contact with [the child] and shortens the
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amount of time that Sean would ever have to go without seeing [the
child]. It provides Sean with meaningful contact with [the child] on
182 days out of the year (3 days every other weekend and two days
each week).

The court also granted Sean two weeks of summer visitation.

Sean argues the visitation was insufficient. He asks for two overnights per

week and “four weeks of summer visitation if he is granted weekday overnights by

this Court, and six weeks of summer visitation if this Court declines to modify

weekday visitation.”

Generally, liberal visitation rights serve a child’s best interests. See In re

Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991); see also Iowa

Code § 598.41(1)(a) (stating insofar as is reasonable and in the best interest of the

child, the court “shall order the custody award, including liberal visitation rights

where appropriate, which will assure the child the opportunity for the maximum

continuing physical and emotional contact with both parents”). That is particularly

true where there is a “healthy parent-child relationship” with the non-custodial

parent. Toedter, 473 N.W.2d at 235.

Laura recommended “an overnight [visit] one night a week.” The district

court opted for two two-and-a-half hour visits per week. Given the geographic

proximity of the parents and Sean’s active albeit unequal involvement with the child

during the divorce proceedings, we modify the visitation portion of the decree to

extend the Tuesday evening visit to an overnight visit. The same reasons together

with the fact that Sean has extended family in Missouri militate in favor of an

expansion of summer visitation. We modify the visitation portion of the decree to
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grant Sean four weeks of summer visitation, to be exercised in no more than two

uninterrupted week increments at a time, unless otherwise agreed.

III. Appellate Attorney Fees

Laura seeks an award of $8200 in appellate attorney fees. An award rests

within our discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App.

2007). Although Laura was obligated to defend the appeal, Sean raised

meritorious claims and prevailed on one of them. In addition, Laura does not earn

significantly less income than Sean. For these reasons, we decline her request to

have Sean pay her attorney-fee obligation.

AFFIRMED AS MODIFIED.