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Thompson v. Fowler

Court of Appeals of Iowa

December 20, 2017

JUSTIN EUGENE THOMPSON, Petitioner-Appellant,
v.
ALLYSON ROSE FOWLER, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         A father appeals a district court order determining visitation and the surname of his minor child. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

          Richard N. Tompkins, Jr., of Tompkins Law Office, Mason City, for appellant.

          Jaclyn M. Zimmerman of Grefe & Sidney, P.L.C., Des Moines, for appellee.

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

          MULLINS, Judge.

         Justin Thompson appeals a district court order determining visitation and the surname of his minor child in favor of the child's mother, Allyson Fowler. Justin argues (1) the district court's ruling placing visitation in Allyson's discretion is an impermissible delegation of judicial authority and (2) the district court had no authority to rule on the child's surname. Both parties request an award of appellate attorney fees.

         I. Background Facts and Proceedings

         The parties met online through a mutual friend when Allyson was sixteen years old and Justin eighteen. Their first in-person meeting was approximately two years later. They started dating in late 2006 or early 2007 and moved in together in Nebraska in 2008. In March 2010, United States Marshalls raided the parties' residence and seized a number of Justin's electronic devices. Justin was subsequently federally charged with receipt and distribution of child pornography, see 18 U.S.C. § 2252A(a)(2) (2010), and was arrested in July. He pled guilty to the charge in September. Justin, awaiting sentencing, moved back to Des Moines in November to be closer to his family. Allyson remained in Nebraska. After Justin's move to Des Moines, Allyson discovered she was pregnant. Shortly thereafter, Allyson moved to Florida to live with her father. In December, Justin was sentenced to five years in prison. He began serving his sentence in a federal prison in Minnesota in February 2011.

         The parties' child was born in July 2011. Shortly after the child's birth, Allyson and the child moved to Des Moines to live with Justin's parents. While Allyson and the child were living with Justin's parents, they normally visited Justin in prison every other month. In October 2012, Allyson officially ended her relationship with Justin. She moved out of his parents' home a few months later. Allyson discontinued visiting Justin in prison, but the child continued to attend visits at the prison with Justin's parents. Justin was released from prison in December 2014, after which he was required to report to the Fort Des Moines halfway house for six months, register as a sex offender for ten years, and be on probation for five years.

         While incarcerated, Justin did not complete any sex-offender treatment or related services. Justin testified that none of those services were offered at his facility and that he would have had to transfer to a prison in North Carolina to receive treatment while incarcerated. The record shows that Justin discussed that possibility with Allyson early in the period of his incarceration, but he ultimately decided to stay at the prison in Minnesota.

         Justin was released from the halfway house in June 2015, after which he moved in with his parents and began his court-ordered sex-offender treatment. Because Justin is a registered sex offender per Iowa Code chapter 692A (2015), there are restrictions on where he may go and with whom he may have contact. Justin's probation officer and treatment providers have limited contact with his child, requiring the presence of an approved chaperone to supervise visits. Justin's first out-of-custody, chaperoned visit with the child occurred in August 2015, but in September, Allyson discontinued allowing Justin to have visitation with the child. In December, Justin filed a petition to establish paternity, custody, visitation, and support in which he requested, among other things, supervised visitation and establishment of the child's last name as "Fowler-Thompson." Allyson requested the court restrict Justin's visitation and establish the child's last name as "Fowler."[1]

         Trial commenced in September 2016. Allyson generally testified her desire to restrict visitation was based on Justin's lack of progress in probation and sex-offender therapy. She also testified that if Justin was able to make progress in the future, she would be willing to allow visitation. At trial, Justin testified he agreed his sexual attraction to children puts his daughter at risk, he recently violated his probation by viewing pornography, and his return to prison in the near future "is a possibility."

         In its ruling, the district court granted Allyson sole legal custody and physical care of the child and, in relevant part, ordered (1) any visitation between Justin and the child shall be at Allyson's discretion and (2) the child's last name to be changed to Fowler. Justin filed a motion to enlarge or amend pursuant to Iowa Rule of Civil Procedure 1.904(2). The district ...


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