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In re Marriage of Foegen

Court of Appeal of Iowa

November 6, 2013

IN RE THE MARRIAGE OF LINDA SUE FOEGEN AND MARK C. FOEGEN Upon the Petition of LINDA SUE FOEGEN, Petitioner-Appellee/Cross-Appellant, And Concerning MARK C. FOEGEN, Respondent-Appellant/Cross-Appellee.

Appeal from the Iowa District Court for Cass County, Jeffrey L. Larson, Judge.

Mark Foegen appeals, and Linda Foegen cross-appeals, from the district court's order denying Mark's application to modify the custody provision of the parties' dissolution decree.

Andrew J. Tullar of Tullar Law Firm, P.L.C., Des Moines, for appellant.

J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck & Lauterbach, P.C., Harlan, for appellee.

Heard by Potterfield, P.J., and Doyle and Bower, JJ.

DOYLE, J.

Mark Foegen appeals, and Linda Foegen cross-appeals, from the district court's order dismissing Mark's application to modify the custody provision of the parties' dissolution decree. We affirm on both appeals.

I. Background Facts and Proceedings

Mark and Linda Foegen married in 2000 and divorced eight years later. A temporary order was entered in 2007 following the parties' separation that provided for shared legal custody and physical care of their one-year-old child. The district court ordered Mark to have physical care of the child every week from Monday at 8:00 a.m. through Wednesday at 7:00 p.m., and Linda to have physical care of the child the remainder of the time.[1]

The parties stipulated to the terms of the dissolution decree. The decree established a physical care arrangement similar to the temporary order. Linda was ordered to have physical care of the parties' child, subject to Mark's visitation every week from Monday at 8:00 a.m. through Wednesday at 12:00 noon, as well as alternating holidays and three week-long visits per year.[2]

Nearly three years after the dissolution decree was filed, Mark applied to modify the physical care arrangement. He alleged a substantial and material change in circumstances had occurred, claiming Linda "is unable to properly care for the minor child resulting in conditions that affect the health, safety, and welfare of the child." Linda filed an answer denying a change of circumstances.

Mark also filed an application for appointment of a guardian ad litem, which the court granted, appointing Jennifer Plumb as the child's guardian ad litem.

Mark thereafter filed a motion requesting a "physical/mental examination" of Linda. Linda resisted an examination, claiming Mark's motion "appears to be the beginning of a 'fishing expedition' . . . ." Following a hearing, the court denied Mark's motion, but stated, "If the guardian ad litem determines that such an evaluation would be necessary in her representation of the child, the Court will reconsider the motion."

The guardian ad litem subsequently filed a motion requesting mental examinations of both parties, stating, "As Guardian ad Litem in this matter, I have obtained knowledge that possible mental health issues exist among the parties and have been alleged by one party against the other on multiple occasions that could potentially interfere with the best interest of the minor child, " including "extreme anxiety, paranoia, depression and bizarre [sic] sexual behaviors." Lisa resisted the guardian ad litem's motion for mental examinations.

Following a hearing, the court ordered, "The parties shall submit to a psychological/psychiatric examination." The parties' mental health evaluations, completed by a licensed psychologist, were admitted and received into evidence at trial. These reports indicated the parents were competent parents that were bonded with the child, and did not raise any safety concerns.

The guardian ad litem filed her report with the court on the date of trial. Her report described the child as "a very bright boy, " and noted:

[The child] currently attends first grade at Washington Elementary. He does well in school. Developmentally, [the child]'s social/emotional, physical, cognitive and language skills are on target. [He] is described by his teachers and daycare providers as a typical six-year-old boy who is happy and healthy. Both parents describe [him] as very advanced for a kid his age, cognitively and intellectually.
A review of [the child]'s medical records reflect that he is in overall good health and has no chronic medical conditions. . . .
[The child has been in counseling with two licensed psychologists.] It is my understanding that both have indicated [he] is a healthy, normal kid. . . .

In regard to Mark and Linda, although the guardian ad litem noted deficits in their ability to work together and communicate about the child, her report was complimentary regarding their respective parenting abilities:

Both parents have job schedules that are conducive to active parenting and supervision of [the child]. I have no safety or parenting concerns with either parent. I have not observed any signs of what I would deem mistreatment of [the child] by either parent. It is evident that [the child] likes being with both of his parents, loves both his parents and his ...

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