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In Re the Marriage of Kellie R. Risbeck and Matthew W. Riley

April 24, 2013


Appeal from the Iowa District Court for Warren County, Gary G. Kimes, Judge.

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

A wife appeals the modification order of her dissolution of marriage decree. AFFIRMED.

Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.

Kellie Risbeck appeals the district court's order finding her in contempt of court and modifying the decree dissolving her marriage to Matthew Riley.*fn1 She argues the transfer of custody of their son to Matthew was not in the child's best interest, and the child's guardian ad litem (GAL) was ineffective. She also asserts her attorney provided her ineffective assistance of counsel regarding the jointly tried contempt matter. Because we agree with the district court that Matthew met his heavy burden of proof regarding modification and Kellie's claims of ineffective assistance are without merit, we affirm.*fn2

I. Background Facts and Proceedings

A son was born to Kellie and Matthew in 1999. In 2002, their common-law marriage was dissolved by a stipulated decree of dissolution, in which physical care of the child was granted to Kellie, with liberal rights of visitation to Matthew. Since the dissolution, Matthew has filed multiple applications for contempt detailing Kellie's repeated failure to allow him visitation with their son.*fn3

Kellie filed this petition to modify the visitation schedule of the dissolution decree, citing Matthew's move and remarriage, the strained relationship between Matthew's spouse and the child, as well as the child aging, having extra homework, and new activities as the substantial changes warranting modification. Along with his answer, Matthew filed a counterclaim seeking physical care of the child. Shortly thereafter, he filed an application for rule to show cause, alleging eight counts-with multiple dates per count-of contempt for Kellie's willful disobedience to the court's order regarding visitation. On April 12, 2012, the parties attempted to mediate the issues, but could only agree to have a GAL appointed for the child and for the child to go to counseling. The court appointed a GAL, who met with Kellie one time at her home, speaking with both Kellie and the child during the visit. The GAL also spoke with Matthew and his wife, reviewed the court file, and some therapist reports before filing a report to the court. No counseling occurred prior to trial.

On July 19, a joint trial was held on Kellie's petition for modification, Matthew's counterclaim for physical care, and Matthew's application to show cause. At the time of the hearing, Kellie had not allowed Matthew to see his son for approximately one year. The court heard testimony from Kellie and Matthew and admitted several exhibits into evidence, including the GAL's report, before granting Matthew physical care of the child and giving Kellie the same liberal visitation schedule Matthew should have enjoyed from the original decree. The court also found Kellie to be in contempt of court for willful violation of the visitation provisions and sentenced her to five days in jail for each of the eight counts, to be run consecutive for a total of forty days. After various post-trial motions, this appeal follows. *fn4

II. Standard of Review

Kellie's claim regarding the modification of the physical care arrangement is reviewed de novo. Iowa R. App. P. 6.907. We examine the entire record and decide anew the legal and factual issues properly presented and preserved for our review. In re Marriage of Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We give weight to the trial court's findings of fact, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.904(3)(g). To the extent Kellie's claims are for ineffective assistance of counsel on the contempt matter, our review is de novo. State v. Dudley, 766 N.W.2d 606, 611 (Iowa 2009).

III. Modification

Child custody provisions of a dissolution decree may be modified "only when there has been a substantial change in circumstances since the time of the decree not contemplated by the court when the decree was entered, which is more or less permanent and relates to the welfare of the child." In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). If the parent seeking to take custody from the other has shown a substantial change in material circumstances, then the court next considers whether the party has shown "an ability to minister more effectively to the children's well being." In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). As always, "our first and foremost consideration in determining custody is the best interest of the child involved." In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). It is also appropriate for us to consider the relationship of the parents. Id. "In determining custody we can give great weight to a parent's attempt to alienate a child from her other parent if evidence establishes the actions will adversely affect a minor child." Id. Tension between the parents is a factor in determining if a custody modification is appropriate. Id.

Although Kellie maintained she withheld visitation to protect the child, the record supports the district court's observation that Kellie "has completely and totally alienated her child from [Matthew]." The district court continued:

I find that it is in this child's best interest to have a relationship with his father. It is clear to this Court that he can provide a place to have his son live with him . . . This child needs both parents. Without a doubt, he needs counseling. I am going to order that counseling be made available to this child . . . That counseling will continue until maximum benefits are reached and that will include, but not limited to, the involvement of the parents when that counselor thinks it is appropriate . . . I want this order to reflect that to the extent that there is bad-mouthing by either parent to this child, it is going to stop. For example, in the guardian ad litem's report it indicates that this child brought up violence between his mother and father when he was 15 months. Now somebody talked to this kid about that. That stuff has got to stop. The guardian ad litem's report is ...

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