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In re Marriage of Appenzeller

Court of Appeals of Iowa

November 8, 2017

IN RE THE MARRIAGE OF LISA APPENZELLER AND DANIEL APPENZELLER Upon the Petition of LISA APPENZELLER, Petitioner-Appellee, And Concerning DANIEL APPENZELLER, Respondent-Appellant.

         Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.

         The husband appeals from a dissolution decree, challenging the award of physical care and the economic provisions of the decree. AFFIRMED.

          Eric D. Puryear and Eric S. Mail of Puryear Law, P.C., Davenport, for appellant.

          Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office, Davenport, for appellee.

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

          MCDONALD, Judge.

         This is an appeal from a decree dissolving the marriage of Lisa and Daniel Appenzeller. The district court awarded the parents joint legal custody of their twin children, with Lisa to have physical care of the children and Daniel to have liberal visitation. On appeal, Daniel challenges the award of physical care, including two evidentiary issues related to the physical care determination. He contends the district court abused its discretion in allowing Lisa to use Daniel's substance-abuse-treatment records for impeachment purposes and erred in allowing the children's therapist to testify regarding the children's therapy sessions. Daniel also challenges the economic provisions of the decree.

         I.

         The parties met in 2011 and were married in 2012. They have two children together, twins A.M.A. and A.D.A., born in November 2012. Lisa also has an older child, S.R., from a previous relationship. Lisa testified she and Daniel did not know each other very well when they wed since they married only a year after meeting. Once married, she learned Daniel had issues with alcohol, substance abuse, and anger management. She also learned Daniel was addicted to OxyContin.

         After the parties separated, they agreed Lisa would have physical care of the children and Daniel would exercise visitation two weeknights per week and every other weekend. The physical care arrangement was changed after a hearing on temporary matters. The parties transitioned to a shared-care arrangement on a 2/2/3 schedule, meaning the children alternated overnights between the parents for periods of two days, two days, and three days. In the hearing on temporary matters, Daniel volunteered he was undergoing substance-abuse treatment. He also voluntarily produced medical records regarding his substance-abuse treatment to establish he was doing well and could provide care for the children.

         Following trial, the district court awarded Lisa physical care of the children with Daniel to have liberal visitation. The district court found that Lisa was the primary caretaker of the children during the marriage, although Daniel did provide assistance. Daniel's drug use was also an issue at trial as it pertained to custody. Daniel denied heroin use at trial until he was confronted on cross-examination with his complete substance-abuse records, at which time he admitted to using heroin in the prior five years and parenting the children during the same period of time he was using heroin. He admitted he told Lisa about his OxyContin use but never told her about his use of heroin. Daniel's heroin use was a factor in awarding Lisa physical care-the district court stated it "[was] very concerned by the fact Daniel was abusing very serious substances while caring for his children. Daniel minimizes his addiction and was not forthright or truthful with his wife or the Court." In rejecting Daniel's request for shared care, the district court found "it is clear the [temporary] shared care arrangement has not been beneficial for the children, " it had been "difficult" for them, and "there has been more acting-out by the children." The district court found there was not mutual respect between the parties:

Daniel testified he was the more superior parent and Lisa was an average parent. He testified she does her "best." Daniel further placed blame on Lisa for the children being injured while being cared [for] by others while they were in the care of Lisa. This evidence further indicates Daniel's inability to support Lisa effectively in placing the blame on her for such incidents.

         The court gave Lisa physical care of the children and gave Daniel visitation every Wednesday evening and every other weekend.

         The district court ordered child support in the amount of $605.84 per month for the care of the twins. At the time of trial, Lisa was employed as an operations administrative assistant with Eastern Iowa Community College. In 2015, her compensation from that position was $31, 215. Daniel was self-employed as the owner of his business, Two Coats Painting. At trial, he contended his net income from the business was $21, 000. Lisa contended his net income was $30, 000. Her testimony was based on her knowledge of how Daniel operated his business, including trading for services. The testimony suggested Daniel had annual receipts of approximately $47, 000-$50, 000. Bank records showed ...


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