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In re Marriage of Makela

Court of Appeals of Iowa

May 17, 2017

IN RE THE MARRIAGE OF STEPHANIE KAY MAKELA AND WAYNE L. MAKELA Upon the Petition of STEPHANIE KAY MAKELA, Petitioner-Appellant/Cross-Appellee, And Concerning WAYNE L. MAKELA, Respondent-Appellee/Cross-Appellant.

         Appeal from the Iowa District Court for Clinton County, Mark D. Cleve, Judge.

         A mother appeals and a father cross-appeals the child-custody and visitation provisions of the district court's dissolution decree.

          David M. Pillers of Pillers & Richmond, DeWitt, for appellant/cross-appellee.

          Dawn D. Long of Howes Law Firm, P.C., Cedar Rapids, for appellee/cross-appellant.

          Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.

          VOGEL, Judge.

         Stephanie Makela appeals the visitation provisions of the decree that dissolved her marriage to Wayne Makela. Stephanie claims the district court incorrectly granted Wayne the right to contact the children while he is incarcerated. Wayne claims the district court should not have granted Stephanie sole legal custody of the children and wrongly determined Iowa Code section 598.41A(2) (2015) requires he have no in-person visits with the children while he remains incarcerated.

         I. Background Facts and Proceedings

         Stephanie and Wayne were married in 2011 and made their family home in Wisconsin. Stephanie worked as a patient care coordinator for a healthcare company, and Wayne worked as a youth director, teacher, and coach at a private religious school. Stephanie and Wayne are the parents of two children, who were three and one-half years old and sixteen months old at the time of trial. The younger child was born after Wayne was arrested and has never lived with Wayne.

         On July 2, 2014, Wayne was arrested and charged with multiple sex crimes involving a minor.[1] On November 7, 2014, Wayne entered a no-contest plea to one count of sexual assault of a child in the second degree, in violation of Wisconsin Statutes section 948.02(2) (2013-14), and one count of exposing a child to harmful material, in violation of Wisconsin Statutes section 948.11(2)(a). On January 16, 2015, Wayne was sentenced to six years in prison and six years of extended supervision.

         Due to Wayne's arrest and conviction, Stephanie sold the marital home and moved in with her parents in Iowa. Initially following Wayne's arrest, the parties agreed to stay married and keep the family intact. While Wayne was in jail awaiting sentencing, the parties communicated regularly, mainly through letters and cards, although Stephanie brought the children to visit him on one occasion. Stephanie remained supportive of Wayne and wanted him to maintain a relationship with the children. In a letter she wrote to the Wisconsin sentencing court prior to sentencing, Stephanie stated:

I want nothing more than for Wayne to have the opportunity to hug and kiss them every day, spend time teaching them how to throw a baseball, how to go fishing, and to teach them how to ride a bicycle, among countless other activities for fathers and sons. . . . I want our boys to grow up with their daddy and see that he was a big part of their childhood.

         Despite her initial support for Wayne, Stephanie became increasingly concerned about Wayne's situation and petitioned for dissolution of the marriage, seeking sole legal custody of the children. In determining the issue of legal custody, the district court raised concerns about Wayne's ability to participate in the children's lives, his judgment based on his past conduct, and his ability to timely and accurately assess the facts needed to make legal decisions for the children while in prison. Ultimately, the court determined clear and convincing evidence supported granting Stephanie sole legal custody.

         In addressing the issue of visitation, the court concluded Wayne's conviction for second-degree sexual assault on a minor in Wisconsin constituted a sex crime for purposes of Iowa Code section 598.41A(2), which provides: "Notwithstanding section 598.41, an individual who is a parent of a minor child and who has been convicted of a sex offense against a minor as defined in section 692A.101, is not entitled to visitation rights while incarcerated." (Emphasis added.) In construing this provision, the district court stated:

The Court further determines that Iowa Code section 598.41A requires that [Wayne] shall not have any in person, telephonic, or other interactive visitation with the minor children of the parties until he is released from prison and has otherwise ...

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