In re Marriage of Thoene

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.
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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
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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.
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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
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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.
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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.
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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.