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In re Marriage of Tech

Court of Appeal of Iowa

December 18, 2013

IN RE THE MARRIAGE OF NIKKI LEE TECH AND TROY DENNIS TECH Upon the Petition of NIKKI LEE TECH, n/k/a NIKKI LEE DAWES, Petitioner-Appellee, And Concerning TROY DENNIS TECH, Respondent-Appellant.

Appeal from the Iowa District Court for Pottawattamie County, Greg Steensland, Judge.

A husband appeals the district court decision modifying the visitation provisions of the parties' dissolution decree, and refusing his request to modify physical care.

Troy D. Tech, Council Bluffs, pro se.

Scott D. Strait, Council Bluffs, for appellee.

Considered by Tabor, P.J., Bower, J., and Eisenhauer, S.J. [*]

EISENHAUER, S.J.

Troy Tech appeals from an order modifying the parties' dissolution of marriage decree. He contends the trial court erred: (1) making in several findings of fact, (2) in making evidentiary rulings, (3) in failing to award joint physical care or in the alternative physical care, (4) in modifying visitation, including a first right of refusal and holiday visitation, (5) in improperly considering the guardian ad litem's report, and (6) in assessing costs and attorney fees.

I. Background Facts & Proceedings.

Troy Tech and Nikki Tech, now Nikki Dawes, were formerly married. They have two minor children, born in 2003 and 2004. A dissolution decree, based on the parties' stipulation, was filed in November 2008. The decree granted the parties joint legal custody of the children with Nikki having physical care. Troy was granted extended visitation. Additionally, the decree provided if either party was unable to care for the children for a period of four hours or longer, the other party would have the right of first refusal to care for the children. The parties stipulated the children would attend a particular school district for at least five years. Troy was ordered to pay child support of $863 per month.

Nikki remarried and moved from Council Bluffs, Iowa, to Gretna, Nebraska. She wished to enroll the children in school near her home. Troy filed a petition for modification on June 15, 2011, seeking physical care of the children, or in the alternative, joint physical care. Troy asserted he had been caring for the children for a greater amount of time than set forth in the dissolution decree. He additionally raised an issue concerning Nikki's mental health. Nikki filed a petition for modification asking to have Troy's child support obligation increased. She later amended her petition to request Troy's visitation with the children be reduced.

While the modification was pending, the children started counseling with Rodney Burger. Troy became aware that Burger had sent some letters to Nikki's attorney relating negative statements the children had made about Troy. Troy deposed Burger and subpoenaed his records. Troy confronted the children with statements they had made to Burger and videotaped this conversation. The children felt betrayed because they believed their statements to Burger had been confidential.

Troy filed a motion for appointment of an expert and asked to begin family counseling with the children. The court granted the motion. Troy took the children to Dr. Cynthia Topf, a psychologist who conducted a parenting assessment and recommended the children be placed with Troy.

After a modification hearing, the district court entered an order finding Troy had failed to show there had been a substantial change in circumstances and had failed to show he was in a superior position to parent the children. The court concluded the children should remain in Nikki's physical care. The court determined, however, Nikki had met the lesser standard to warrant a modification of visitation. The court determined Troy should have visitation on Wednesday evenings, alternating weekends, alternating holidays, and four weeks in the summer. The court rescinded the right of first refusal for child care. The court also determined Nikki would determine where the children would be enrolled in school. Troy was ordered to pay child support of $934 per month. He was also ordered to pay the fees for a guardian ad litem (GAL) and $15, 000 for Nikki's attorney fees.

Both parties filed motions pursuant to Iowa Rule of Civil Procedure 1.904(2). The court denied these motions. Troy has appealed.

II. Standard of Review.

As an equitable action, we review dissolution proceedings 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 Reinhart, 704 N.W.2d 677, 680 (Iowa 2005). We accordingly need not separately consider assignments of error in the trial court's findings of fact and conclusions of law but make such findings and conclusions from our de novo review as we deem appropriate. Lessenger v. Lessenger, 156 N.W.2d 845, 846 (1968). We, however, give weight to the ...


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