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McAllister v. Pollard

Court of Appeals of Iowa

October 11, 2017

JEFFREY J. MCALLISTER, Plaintiff-Appellee,
v.
NICOLE R. POLLARD, Defendant-Appellant.

         Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.

         Nicole Pollard appeals the district court's modification of a decree establishing custody and visitation for her eight-year-old daughterand dismissal of her application for contempt.

          Nicole R. Pollard, Dubuque, self-represented appellant.

          Bradley T. Boffeli of Boffeli & Spannagel, P.C., Dubuque, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          TABOR, JUDGE.

         Nicole Pollard and Jeff McAllister are the parents of C.E.M., who is now eight years old. After Nicole's arrest on drug-related charges, Jeff sought to modify a custody decree to obtain sole legal custody of C.E.M. Nicole filed an application for contempt, alleging Jeff denied her visitation on several occasions. The district court dismissed Nicole's application and granted Jeff's modification request. Nicole appeals the district court's rulings. We are without jurisdiction to consider the district court's dismissal of her contempt application because the notice of appeal is not timely as to that ruling. And because Jeff met his substantial burden regarding modification, we affirm the district court's order modifying the custody decree.

         I. Facts and Prior Proceedings

         Nicole and Jeff entered into a relationship in 2007. They had one child together, C.E.M., who was born in September 2009. The parties separated in November 2011. In the year leading up to the separation, Nicole struggled with abusing substances-both methamphetamine and alcohol. The Iowa Department of Human Services (DHS) intervened and required Nicole to leave the family home for three months. While Nicole was away, Jeff acted as the primary caretaker for C.E.M. and Nicole's son from a prior relationship.

         Jeff filed a petition to establish custody in December 2011. At the time of trial on October 3, 2012, Nicole had criminal charges pending for operating while intoxicated, third offense, [1] and she had missed several visits with C.E.M. At trial, Jeff asked the district court to award him sole legal custody. In its October 17, 2012 decree, the district court denied Jeff's request because he had not asked for sole legal custody in his petition. But the court also reasoned the facts did not warrant such an award:

Nicole is receiving counseling for her substance abuse issues and appears to be trying to get her life back on track . . . . The [c]ourt believes fundamentally that Nicole can be a suitable caregiver for [C.E.M.] and that her desire to provide that care and be a part of [C.E.M.'s] life is genuine.

         Citing Jeff's greater stability, as well as the poor communication between Jeff and Nicole, the court awarded physical care of C.E.M. to Jeff.

         On February 19, 2016, Nicole was arrested for driving while barred, operating while intoxicated, possession of methamphetamine, and possession of marijuana. C.E.M. was in Nicole's care that day but was not with her mother at the time of arrest. Nicole testified she was stopped by the police while driving to the home of a friend who had agreed to drive C.E.M. home from the roller skating rink. Jeff found out about the arrest two days later when he picked C.E.M. up from her visit. The DHS investigated the matter and, although case workers suspected Nicole was abusing methamphetamine, they concluded C.E.M. had not been directly harmed or placed at risk of harm by Nicole's actions. A hair test indicated C.E.M. had not been exposed to illegal substances.

         Nicole's arrest prompted Jeff to file an application for custody modification and an application to suspend visitation in early March 2016. The district court held a hearing on Jeff's application to suspend visitation on April 1. In its ruling denying Jeff's request, the court considered the DHS investigation and observed Nicole "has obtained an evaluation and is participating in counseling. She is being screened by [the Department of Correctional Services] for alcohol and drug use and her tests have thus far come back negative." The court concluded: "This ruling is not intended to have precedential effect at trial, when [Jeff] will have an opportunity to present his full case on the merits."

         On July 11, 2016, Nicole filed a motion asking the court to find Jeff in contempt of the October 2012 decree, alleging Jeff withheld visitation on multiple dates between January 2016 and July 2016.[2] Jeff denied interfering with Nicole's visitation. Instead, he contended Nicole had failed to exercise visitation and failed to follow the decree and he "had a reasonable belief that [Nicole] was under the ...


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