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In Re the Marriage of Alan

February 27, 2013

IN RE THE MARRIAGE OF ALAN MULLIGAN AND AMY MULLIGAN UPON THE PETITION OF ALAN MULLIGAN, PETITIONER-APPELLEE, AND CONCERNING AMY MULLIGAN, RESPONDENT-APPELLANT.


Appeal from the Iowa District Court for Plymouth County, John D. Ackerman, Judge.

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

A mother appeals the district court order placing the parties' minor child in the physical care of the father, and awarding him trial attorney fees. AFFIRMED AS MODIFIED.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

Amy Mulligan, now known as Amy Mulligan-Webb, appeals the district court decision placing physical care of the parties' minor child with Alan Mulligan. She also claims the district court abused its discretion by ordering her to pay $8500 for Alan's trial attorney fees. We affirm the district court's decision placing the child in the physical care of Alan. We modify to eliminate the award of trial attorney fees. Therefore, we affirm as modified.

I. Background Facts & Proceedings

Alan and Amy were married on September 6, 1997. They have one child, who was born in 2004. Amy has a history of mental health problems and she was hospitalized in April 2007. The parties separated later in 2007, and Alan filed a petition for dissolution of marriage on February 27, 2008. The parties entered into a consent protective order under Iowa Code chapter 236 (2007).

The parties entered into a stipulation on temporary matters that provided for joint legal custody of the child, with Amy having physical care. The parties agreed to a specific visitation schedule, and Alan was ordered to pay child support. In May 2008, Amy was involuntarily committed in a proceeding initiated by her parents. Alan moved to Michigan in June 2008. The visitation provisions of the temporary order were then modified in May 2009.

Prior to the dissolution hearing, Alan sought Amy's private medical and mental health records. The district court required Amy to produce these records, and they were discussed during the dissolution hearing. The court entered a dissolution decree on August 11, 2010, placing the child in the physical care of Alan. Amy was granted visitation with the child and ordered to pay child support. The court ordered each party to pay his or her own attorney fees. The child has been living in Michigan with Alan since August 2010.

Amy appealed the decision granting Alan access to her confidential medical and mental health records, and its decision placing the child in the physical care of Alan. We determined "the district court abused its discretion in ordering Amy to produce her statutorily and constitutionally protected medical and mental health records and they should not have been admitted." In re Marriage of Mulligan, No. 10-1752, 2011 WL 2420005 (Iowa Ct. App. June 15, 2011). We determined the case should be remanded for a rehearing before a different judge on the issues of physical care, visitation, and child support. Id. All other aspects of the dissolution decree were affirmed. Id.

The district court heard testimony over four days in March 2012. At the time of the hearing Alan was thirty-seven years old. He lives in Warren, Michigan, with his fiance, Rose. Alan has a two-year college degree. He is employed by Quicken Loans as an insurance analyst, and earns about $27,000 per year. As noted above, the child has been living in Michigan with Alan since August 2010. Alan is very involved in the child's education. He has encouraged the child's participation in Boy Scouts and church activities.

At the time of the hearing Amy was thirty-five years old. She has a college degree is psychology and business. Amy was unemployed and was looking for a job. Amy married Morgan Webb on February 29, 2012. She and Morgan have one child together, and another was on the way. Multiple witnesses testified to Amy's mental health problems. Amy's problems have led her to self-destructive behavior, such as cutting, purging by vomiting, and intoxication. Amy told her high school friend she had been diagnosed with bipolar disorder and told other witnesses that she was diagnosed with a borderline personality disorder. However, she denied these diagnoses at trial, and was not receiving treatment for any mental health condition.

The district court issued its findings of fact, conclusions of law and decree on March 27, 2012. The court determined the parties should have joint legal custody of the child, with Alan having physical care. The court determined Amy was not a credible witness. The court noted that serious concerns about Amy's continuing mental health issues had not been resolved. The court also stated it had "serious concerns about Amy's ability to promote A.M.'s relationship with Alan," based on her conduct before the child moved to Michigan. The court concluded Alan could minister more effectively to the long-term best interests of the child.

The court determined Amy was entitled to visitation one weekend each month, alternating holidays, and two two-week periods in the summer, as well as telephone contact with the child. The court based Amy's child support obligation on her earning capacity, and found she had the ability to earn $17,680 per year. Amy was ordered to pay child support of $145 per month, and $29.50 per month in cash medical support.

The district court determined Amy should be required to pay $8500 for Alan's attorney fees. This amount was reduced by a previous sanction against Alan for $1000, leaving a balance of $7500. The court noted this award was based solely on ...


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