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.
from the Iowa District Court for Clinton County, Mark D.
mother appeals and a father cross-appeals the child-custody
and visitation provisions of the district court's
M. Pillers of Pillers & Richmond, DeWitt, for
D. Long of Howes Law Firm, P.C., Cedar Rapids, for
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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.
Background Facts and Proceedings
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.
2, 2014, Wayne was arrested and charged with multiple sex
crimes involving a minor. 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.
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.
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.
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 ...