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In Re the Marriage of

February 13, 2013


Appeal from the Iowa District Court for Winneshiek County, Margaret L. Lingreen, Judge.

The opinion of the court was delivered by: Tabor, J.

Rene Kriener appeals a district court's dissolution order placing the parties' daughters in their father's physical care. AFFIRMED.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

In this dissolution of marriage appeal, Rene Kriener challenges the district court's decision to place their two school-aged daughters in the physical care of their father Arnie Kriener. She also asks us to modify the property division and the spousal support ordered in the decree.

After examining the entire record and giving due deference to the district court's first-hand observation of the parties, we find support for the district court's conclusion that Rene has interfered with the children's relationship with their father and their interest in having a strong connection to both parents is best served by entrusting their physical care to Arnie. We also find the division of property and spousal support to be equitable. Accordingly, we affirm.

I. Background Facts and Proceedings

Rene was nineteen years old and Arnie was twenty-one when they married in October 1990. The couple separated in September 2010. They have four daughters-who at the time of the dissolution were ages twenty-one, eighteen, eleven, and nine. The physical care issue involves only the two youngest girls, M.K. and A.K.

Both spouses have had successful employment histories. Arnie left college after two and one-half years to support his family, at first farming and then working for a construction company. Arnie started selling insurance for Farm Bureau in 2002. In 2006, Arnie set up a subchapter S corporation, KJAM, Inc., which employs him to sell Farm Bureau insurance products. The district court determined his annual income averages $185,453.

Rene is a nurse practitioner employed by Gunderson Lutheran Clinic in Ossian, Iowa. She completed six degree programs during the marriage and in her testimony alluded to possibly pursuing additional educational opportunities. She maintains an excellent reputation for professionalism among her colleagues. Her gross annual salary for 2011 was $69,700.

Both parties enjoy overall good health. The record shows Rene sometimes suffers from migraine headaches and Arnie has occasional back pain, but neither malady affects their ability to work or care for the children.

Rene filed a petition for dissolution of marriage on August 30, 2010. During this same time period, Rene filed a petition for relief from domestic abuse under Iowa Code chapter 236 (2009). In her petition and supplemental statement, Rene stated she feared for her personal safety and the children's safety based on Arnie's past and recent verbal abuse and physical aggressiveness. She alleged that on August 29, 2010, Arnie "jammed" the side of her head with his finger causing her pain.

On October 21, 2010, Judge John Bauercamper found Arnie committed a domestic abuse assault against Rene and issued a protective order. The court noted: "Their marriage has been marred by long standing marital strife and a history of verbal abuse which has recently escalated." The court found Rene had been the children's primary caregiver, but that Arnie had been involved in their upbringing. The order granted Rene temporary physical care of the couple's three youngest daughters with visitation for Arnie.

In April 2011, the district court vacated Judge Bauercamper's order of protection and accepted a stipulation by the parties to an amended order directing Arnie to "stay away" from Rene for one year.

During the pendency of the dissolution petition, the parties retained Dr. Seth Brown, a licensed psychologist, to perform a custody evaluation. He interviewed Rene and Arnie, their four daughters, and several members of the extended family and friends of the parties. All four of the daughters called their father "Arnie." The two youngest girls expressed a strong preference for living with their mother. The third oldest daughter, J.K., a junior in high school at the time, had voluntarily moved from her mother's house to her father's residence. J.K. told the evaluator that her parents' relationship was "rough." She believed her younger sisters had "adopted a role of helping to protect their mother and discrediting their father and herself." The oldest daughter K.K., who was away at college, explained that her sister J.K. moved in with their father because he provided less supervision of J.K.'s relationship with an older boyfriend. K.K. told the evaluator she had a good relationship with both her mother and father until their separation. But K.K. felt betrayed by her father when he obtained a transcript of her text messages with her mother and forwarded it to his divorce attorney.

Dr. Brown provided his report to the court on April 18, 2011. He wrote that each parent "offered an array of advantages and disadvantages for assuming [the primary caretaking role]." The psychologist ultimately expressed his opinion that it was in the best interests of the children to reside primarily with their father because he appeared more capable of placing them in a more "structured and calm environment with minimal involvement in the divorce process." Dr. Brown also recommended regular visitations with their mother, given their strong attachment to their mother and her positive attributes.

On May 13, 2011, Arnie filed an application to modify temporary custody. The court held a hearing on July 26, 2011, and issued its order on August 16, 2011. The order repeated findings from the psychologist's report-specifically that Rene was involving the children in the emotional process of the divorce. The court determined the findings were supported by the record and transferred the temporary physical care of the children to Arnie, with visitation for Rene.

The district court heard six days of testimony in the dissolution case during January and February 2012. On April 18, 2012, the court issued the decree- ordering joint legal custody, placing physical care of the children with Arnie, and granting liberal visitation for Rene. After dividing the marital estate, the court ordered Arnie to make an equalization payment to Rene in the amount of $68,000. The decree also ordered Arnie to pay spousal support to Rene in the amount of $2000 per month for three years.

Rene filed a motion to amend and enlarge under Iowa Rule of Civil Procedure 1.904, asking-among other things-for the physical care order to be reconsidered, the property division amended, and the spousal support duration be increased to ten years. The court issued an order ...

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