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In re Marriage of Slife

Court of Appeals of Iowa

December 20, 2017

IN RE THE MARRIAGE OF MEGAN A. SLIFE AND BRIAN A. SLIFE Upon the Petition of MEGAN A. SLIFE, Petitioner-Appellant, And Concerning BRIAN A. SLIFE, Respondent-Appellee.

         Appeal from the Iowa District Court for Buchanan County, John J. Bauercamper, Judge.

         Megan Slife appeals the district court's modification of visitation provisions of the decree dissolving her marriage to Brian Slife. AFFIRMED.

          Daniel H. Swift of Swift Law Firm, Manchester, for appellant.

          Gary McClintock of McClintock Law Office, Independence, for appellee.

          Sarah Dooley Rothman of Rothman Law Office, Independence, for minor child.

          Danilson, C.J., and Doyle and Mullins, JJ.

          DOYLE, Judge.

         Megan Slife appeals the district court's order modifying the visitation provisions of the decree entered dissolving her marriage to Brian Slife. She contends Brian did not prove there had been a change in circumstances to support modification, the expanded visitation order was not in the child's best interests, and her affirmative defenses relating to equitable defenses as pled should have been sustained to bar Brian's petition for modification of the decree. We affirm.

         I. Standard of Review.

         Our review is de novo. See In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). "We give weight to the findings of the district court, particularly concerning the credibility of witnesses; however, those findings are not binding upon us." In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). The controlling consideration in child custody cases is always the child's best interests. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).

         II. Background Facts and Proceedings.

         In May 2013, Megan filed a petition seeking dissolution of her eleven-year marriage to Brian. She sought sole custody and care of the parties' child, born in 2004. Her petition stated: "Each party should be granted liberal and reasonable visitation rights with the child." Thereafter, "based upon the agreement of the parties, " the district court entered a temporary order placing the child in their joint legal custody, with "primary placement" of the child with Megan, and Brian having "custody of the child on alternating weeks beginning the week of June 30, 2013. This alternating week visitation will take place from 8 a.m. on Tuesday morning until 5 p.m. on Wednesday evening."

          Despite the parties' agreement and the court's order, visitation was denied because of allegations the child was afraid of Brian. In July 2013, Brian filed an application for appointment of a guardian ad litem (GAL) to represent the child's interests. He also requested the child be evaluated by a child psychologist. A GAL was appointed in September 2013, and the child began counseling in December 2013.

         In July 2014, the GAL filed her report to the court. She reported

the child suffers from severe PTSD/Developmental Trauma Disorder to the extent that visits between the child and [Brian] have not been possible. All professionals involved have agreed that a positive prognosis exists but will require no personal contact between the child and [Brian] for some time yet. Progress has been occurring this summer as the child has been feeling more stable at home, came to accept that he did not need to constantly be on alert for his father's presence in their neighborhood, and began to voluntarily process his emotions.

         The GAL stated Megan had "consistently demonstrated a willingness to have the child re-establish and maintain a positive relationship with [Brian], " and the GAL recommended that visitation between Brian and his son "begin once the child's therapist indicates it is appropriate" and "to proceed at a pace and in a manner consistent with" the therapist's recommendations. The GAL noted it was her understanding that Megan and Brian agreed with the recommendation.

         In July 2014, the parties reached an agreement resolving all of the underlying issues in the dissolution. The district court approved the agreed upon decree and filed it on October 7, 2014. The court concluded the parties' agreements relating to the minor child were in the child's best interests. Based upon the parties' agreements, the parties were awarded joint legal custody of their child, with Megan having physical care of the child and Brian having visitation.

         Brian's visitation was to occur "as recommended by" the child's therapist and the GAL. Additionally, the parties expressly agreed, and the decree provided, that if Brian was "not satisfied with the level or extent of visitation" he received, he could "request an additional hearing in six months to address the issue of visitation . . . without a showing of a material and substantial change in circumstance." Since entry of the decree, the parties have engaged in nearly continuous litigation over various matters.

         In August 2015, Brian filed an application for visitation, alleging he had not had any visitation with his son even though he requested visitation on many occasions. Megan moved to dismiss the application. Brian did not file a resistance, and the application was dismissed by the district court.

         Though the child continued to participate in therapy, the child's anxiety and stress concerning Brian persisted. In October 2015, the GAL filed a report advising the court that "the issues that caused this unusual situation of no visitation have not resolved yet, " nor was the conflict between the parties resolved. The GAL noted Brian and the child were exchanging letters through the child's therapist, but the child had increased anxiety related to the interaction. The GAL stated she would not recommend progressing to telephone contact between Brian and the child until the child was "no longer traumatized by exchanging letters with his father and is ready to move to the next step."

         In July 2016, Brian filed a petition to modify the decree seeking visits with the child. As of that date, Brian had still not had any visitation with his son. Megan filed an answer in response, challenging, among other things, Brian's assertion he "was given the right to request a hearing without an additional showing of a material [and] substantial change [in] circumstances if there were issues with his visitation." She also asserted several affirmative defenses, including the petition for modification was a collateral attack on the 2014 decree and was barred by laches, equitable estoppel, ratification, and the doctrine of unclean hands.

         The matter proceeded to trial in January 2017. The district court summed up the ...

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