In re the Marriage of Rickard

IN THE COURT OF APPEALS OF IOWA

No. 20-1606
Filed June 30, 2021

IN RE THE MARRIAGE OF ANTHONY MICHAEL RICKARD
AND KELSEY LYNN RICKARD

Upon the Petition of
ANTHONY MICHAEL RICKARD,
Petitioner-Appellant,

And Concerning
KELSEY LYNN RICKARD,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Jones County, Chad Kepros, Judge.

Anthony Rickard appeals the physical care and visitation provisions of the

decree dissolving his marriage to Kelsey Rickard. AFFIRMED.

Mark D. Fisher and Alexander S. Momany of Howes Law Firm, P.C., Cedar

Rapids, for appellant.

Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,

for appellee.

Considered by Doyle, P.J. and Mullins and May, JJ.
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MULLINS, Judge.

Anthony Rickard appeals the physical care and visitation provisions of the

decree dissolving his marriage to Kelsey Rickard. Anthony argues the district court

erred in failing to award him physical care of the parties’ children or, in the

alternative, that joint physical care should have been awarded. Anthony also

argues the district court erred in not awarding him more visitation time.

I. Background Facts and Proceedings

Anthony and Kelsey met and began a relationship in 2013. They married

in July 2015. The parties share two minor children, and Kelsey has one child from

a prior relationship. For most of the marriage, Kelsey was a stay-at-home parent

providing care for the children. During periods where Kelsey was employed, she

worked no more than part time. Anthony earned a certificate in welding early in

the marriage and has maintained consistent employment since that time. Prior to

the parties’ separation, Anthony’s work hours were from 3:00 p.m. to 1:30 a.m.

After separation, Anthony was able to modify his work hours from 5:00 a.m. to 1:30

p.m., or 3:00 p.m. if overtime was required.

Since the birth of the parties’ oldest child, Kelsey has voluntarily worked

with providers from Lutheran Services of Iowa. Kelsey’s provider testified she

worked to build skills in “communication, balancing multiple children, developing

and coping with sleep patterns and illnesses, and healthy eating.” Anthony’s work

schedule prevented him from being fully involved in services with Kelsey, but the

worker testified that he was periodically involved if he was not at work or sleeping.

The parties separated and began dissolution proceedings following a

physical altercation in May 2019. The parties provided conflicting testimony about
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the altercation, but the district court ultimately found Kelsey’s version of the event

“more credible.” Kelsey testified that “the parties were arguing and Anthony put

his hands around her neck. [Kelsey] ran to [her oldest child’s] room and that

Anthony followed and said he was tired and did not mean to choke her.” Kelsey

filed a petition for relief from domestic abuse. Following a hearing, the parties

consented to entry of a protective order but there was no finding of domestic abuse.

The protective order was not in effect at the time of the dissolution trial.

Prior to trial, the parties filed a partial stipulation1 that was approved by the

court and incorporated into the decree. The parties stipulated to joint legal custody

but were unable to agree on physical care.2 The parties also stipulated to some

holiday time, but were unable to agree on Easter, Memorial Day, Fourth of July,

and Thanksgiving holiday time. They were also unable to agree on a visitation

schedule.

The dissolution trial was held in December 2020. The district court awarded

physical care of the parties’ two children to Kelsey. The district court awarded

Anthony visitation with the children every other weekend, and Wednesday

evenings from 5:00 to 8:00 p.m. Each party was awarded four weeks of summer

visitation, to be taken in nonconsecutive, one-week increments. Anthony appeals.

1 The partial stipulation resolved spousal support, tax exemptions, health
insurance, division of assets and liabilities (except a disputed equalization
request), and attorney fees. Allocation of court costs was disputed.
2 Consequently, child support and uncovered medical expenses for the children

remained disputed, pending the physical care decision.
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II. Standard of Review

Dissolution proceedings are equitable and are reviewed de novo. In re

Marriage of Mann, 943 N.W.2d 15, 18 (Iowa 2020). “We give weight to the factual

determinations made by the district court; however, their findings are not binding

upon [us].” Id. (quoting In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015)).

We also give weight to the district court’s findings on witness credibility. In re

Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007).

III. Discussion

A. Physical Care Determination

Anthony appeals the physical care determination in two ways. First, he

argues that the district court should have granted him physical care of the children.

In the alternative, he argues the district court should have awarded the parties joint

physical care.3 “‘Physical care’ means the right and responsibility to maintain a

home for the minor child and provide for the routine care of the child.” Iowa Code

§ 598.1(7). “The parent awarded physical care maintains the primary residence

and has the right to determine the myriad of details associated with routine living,

including such things as what clothes the children wear, when they go to bed, with

whom they associate or date, etc.” Hansen, 733 N.W.2d at 694. While considering

the best interests of children, “the objective of a physical care determination is to

3 In his brief, Anthony stated that Iowa has a presumption in favor of joint physical
care, and cited Iowa Code section 598.41 (2019). Section 598.41 contains no
language indicating such a presumption. In fact, our supreme court specifically
found no presumption in favor of joint physical care exists. In re Marriage of
Hansen, 733 N.W.2d 683, 692 (Iowa 2007).
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place the children in the environment most likely to bring them to health, both

physically and mentally, and to social maturity.” Id. at 695.

Courts examine the factors listed in section 598.41(3) and In re Marriage of

Winter, 223 N.W.2d 165, 166–67 (Iowa 1974), when making physical care

determinations. Id. at 696. Courts must also consider stability and continuity of

caregiving. Id. A history of “successful caregiving by one spouse in the past is a

strong predictor that future care of the children will be of the same quality.

Conversely, however, long-term, successful, joint care is a significant factor in

considering the viability of joint physical care after divorce.” Id. at 697 (citations

omitted). In splitting care among parties, courts utilize the approximation principle,

which suggests “the caregiving of parents in the post-divorce world should be in

rough proportion to that which predated the dissolution,” as they consider the

particular facts and circumstances of each case. Id. Courts also consider the level

of conflict between the parties and their ability to agree on day-to-day issues that

arise in children’s lives. Id. at 698–99.

In finding that shared physical care was not in the best interests of the

children, the district court noted that Kelsey had historically been the primary

caregiver. It also stated that Anthony “has had significant involvement with the

children,” who “should have substantial time with him.” It also said that although

there was no finding of domestic abuse that resulted from Kelsey’s petition for a

protective order, her version of the event was more credible than Anthony’s, but

that no other claim of abuse had been made. The court also noted that the parties

did not appear to have a high level of conflict, but described the communication

hurdles the parties face. “[E]ach of them struggle sometimes in processing
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information and responding to it. Each party struggled at times to understand and

respond to basic questions during trial. Each was quick to blame the other when

communication between them has been less than perfect.” The court found the

communication issues weighed against an award joint physical care. The court

also discussed the disagreement between the parties regarding basic child-rearing

practices and Anthony’s insistence on the use of corporal punishment. The parties

also disagree about the level of supervision required for the children. The court

again found the factors weighed against shared physical care.

On our review of the record, it is clear that both parents love the children

and want to provide daily care. Kelsey has been the primary caregiver for the

children, but after the parties separated, Anthony made changes to his work

schedule to allow him to spend more time with the children. And, trial testimony

revealed that when he is parenting, Anthony is an attentive parent. We defer to

the district court’s credibility determination on the parties’ competing versions of

the event that led to the protective order, but note that no finding of domestic abuse

was made and the protective order was entered into voluntarily. See Hansen, 733

N.W.2d at 690. It is also clear that the parties struggle to maintain positive,

productive communication. Text messages between the parties confirm the issues

described by the district court. The parties’ different practices with disciplinary

techniques are problematic. The children may expect discipline in Kelsey’s home

to involve timeouts and discussion, and corporal punishment in Anthony’s home.

We need not decide what disciplinary method is the best for each child, but the

conflict between the two in this case and the lack of support about discipline

between the parties will be confusing, disruptive, and possibly harmful to the
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children. Based on our de novo review, giving deference to the district court’s

thorough credibility findings, we agree with the district court that joint physical care

is not in the best interests of the children. Id. at 700.

We must now determine which parent will provide the children “the

environment most likely to bring them to health, both physically and mentally, and

to social maturity.” Id. at 695. While both parents love the children, the record

reveals that Kelsey has provided most of the daily care for the children. The

children are approaching school age, and Anthony’s work schedule will not allow

him to be home when the children wake up, or provide care throughout the day

until the children are in school full-time. Anthony has relatives and friends who are

able to care for the children when he works, but Kelsey does not work outside the

home and is available to provide the same level of care she has been providing

throughout the children’s lives. Kelsey has also taken an active role to improve

her parenting skills by engaging with Lutheran Services of Iowa. Anthony has had

opportunities to interact with service providers in the past, but has failed to

meaningfully do so. Finally, although the record reveals that the level of conflict

between the parties is not overwhelming, Kelsey is more supportive of Anthony’s

relationship with the children than he is of hers. We agree with the district court

that the parties are quick to blame each other when issues arise, but Kelsey

acknowledges the positive role Anthony plays in the children’s lives. On our de

novo review of the record, we agree with the district court’s finding it is in the

children’s best interests to grant Kelsey physical care.
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B. Visitation

Anthony argues the district court should have granted him more visitation

with the children. In determining the amount of visitation that “is reasonable and

in the best interest of the child[ren],” courts shall “includ[e] liberal visitation rights

where appropriate, which will assure the child[ren] the opportunity for the maximum

continuing physical and emotional contact with both parents . . . , and which will

encourage parents to share the rights and responsibilities of raising the child[ren].”

Iowa Code § 598.41(1)(a). “Quality interaction with children can . . . occur within

the framework of traditional visitation and does not occur solely in situations

involving joint physical care.” Hansen, 733 N.W.2d at 695.

Anthony was awarded visitation every other weekend, beginning Friday at

5:00 p.m. until Monday when school begins or 9:00 a.m. if school is not in session.

Anthony was awarded midweek visitation every Wednesday from 5:00 p.m. to 8:00

p.m. He was awarded four weeks of summer visitation to be taken in

nonconsecutive, one-week increments. The district court reasoned the schedule

it provided would give each parent meaningful, regular contact with the children

and allow them to maintain a stable routine.

Our review of the record reveals that the district court’s schedule provides

Anthony less parenting time with the children than he had prior to entry of the

decree. However, the district court’s schedule is a reasoned approach to visitation

and provides for the special circumstances of Anthony’s work schedule. The

district court’s visitation schedule provides Anthony with liberal visitation time, and

ensures a routine schedule of regular contact with the children. We understand

the schedule is not ideal to Anthony, but it is in the best interest of the children.
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IV. Conclusion

Our de novo review of the record reveals that joint physical care is not in

the best interests of the parties’ children. We agree that the physical care award

to Kelsey will place the children in the best position for long-term growth and

development. We also agree that the district court’s visitation award provides

Anthony liberal time with the children and is in the best interests of the children.

We affirm the decree dissolving the parties’ marriage.

AFFIRMED.