Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Marriage of O'Brien

Court of Appeals of Iowa

February 7, 2018

IN RE THE MARRIAGE OF TODD DAVID O'BRIEN AND ANNE LOUISE O'BRIEN Upon the Petition of TODD DAVID O'BRIEN, Petitioner-Appellant, And Concerning ANNE LOUISE O'BRIEN, Respondent-Appellee.

         Appeal from the Iowa District Court for Woodbury County, Edward A. Jacobson, Judge.

         Todd O'Brien appeals from the district court's order denying his petition for modification of the decree dissolving his marriage to Anne O'Brien.

          Amanda Van Wyhe of Van Wyhe Law Firm & Mediation Center, P.L.C., Sioux City, for appellant.

          Anne Louise O'Brien, Sioux City, for self-represented appellee.

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

          DANILSON, CHIEF JUDGE.

         Todd O'Brien appeals from the district court's order denying his petition for modification of the decree dissolving his marriage to Anne O'Brien. Todd maintains there has been a substantial change in circumstances from the time the decree was entered justifying modification of the decree to place physical care of the parties' child, O.O., with Todd.[1] Because we conclude Todd has established a substantial change in circumstances due to Anne's escalated alcohol abuse, we reverse the district court's denial of the petition for modification and remand for entry of a modified decree of dissolution.

         I. Background Facts and Proceedings.

         The decree dissolving the parties' marriage was entered on November 6, 2014. The decree approved and adopted the parties' stipulation and agreement that resolved all matters regarding the dissolution. The stipulation and agreement provided the parties would have joint legal custody and shared physical care of their three children: S.O. born in 1996, M.O. born in 1998, and O.O. born in 2002. The stipulation and agreement also stated, "Neither parent will consume alcohol when the children are in his or her care."

         On November 3, 2015, Todd filed the petition for modification alleging a substantial change in circumstances due to Anne's alleged alcohol abuse and her involvement with the department of human services (DHS) following an incident wherein Anne drove M.O. and O.O. to the mall while she was intoxicated in November 2014, three days after the decree of dissolution was entered. M.O. and O.O. did not realize Anne was intoxicated when they got into the car, but soon noticed she was swerving while driving. The incident resulted in a confirmed child-abuse assessment by DHS for failure to provide proper supervision.

         In the following approximate two-year period between the dissolution and the modification hearing, Anne's alcohol abuse continued, negatively impacting the children. On more than one occasion-and sometimes during Anne's custodial time-the children went to Anne's home only to find her intoxicated. In March 2016, Anne was asked by another parent to leave O.O.'s sporting event because she appeared to be intoxicated. And, in August 2016, Anne was unable to drive S.O. to college as planned because she had been drinking. Anne's alcohol abuse escalated to the point where it was necessary for her to seek treatment.

         Anne began but unsuccessfully left two treatment programs before successfully graduating from a third program the month prior to the modification hearing. Despite DHS involvement in 2014, and multiple attempts at treatment, in a June 2016 deposition when asked if she was going to stop drinking Anne stated, "You know, I don't think that that's anything I'm going-I have in the works." At the modification hearing held on January 18, 2017, Anne admitted she had not stopped drinking even though she had promised her children she would.

         After the modification hearing, the district court concluded Todd had not met his burden of establishing a substantial change in circumstances warranting modification of the custody provisions of the decree. In its March 27 order, the court stated:

The court concludes that there has been no material and substantial change in the circumstances of the parties since the decree was signed by Judge Sokolovske on November 6, 2014. In 2014 Todd changed his mind about joint physical care and attempted to get primary care away from Anne because he was concerned about Anne's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.