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In re Marriage of Ortiz

Court of Appeals of Iowa

February 7, 2018

IN RE THE MARRIAGE OF ARMANDO SCOTT ORTIZ AND ALISHA KAYLEEN ORTIZ Upon the Petition of ARMONDO SCOTT ORTIZ, Petitioner-Appellee, And Concerning ALISHA KEYLEEN ORTIZ, Respondent-Appellant.

          Appeal from the Iowa District Court for Harrison County, Jeffrey L. Larson, Judge.

         Alisha Ortiz appeals from the district court's order following a trial for dissolution of her marriage to Armando Scott Ortiz. AFFIRMED AND REMANDED FOR ENTRY OF NUNC PRO TUNC ORDER.

          Maura Sailer of Reimer, Lohman, Reitz, Sailer & Ullrich, Denison, for appellant.

          Daniel Joseph Albert McGinn of McGinn, Springer & Noethe, P.L.C., Council Bluffs, for appellee.

          Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          DANILSON, Chief Judge.

         Alisha Ortiz appeals from the district court's order following a trial for dissolution of her marriage to Armando Scott Ortiz (Scott) and the court's corresponding custody determination regarding the parties' two children, K.O. and T.O. Alisha contends the court (1) failed to dissolve the parties' marriage, (2) should have granted Alisha physical care of the children, (3) failed to correctly change Alisha's last name, and (4) abused its discretion in denying Alisha's request for attorney fees. Both parties request appellate attorney fees. We find no error or abuse of discretion in the district court's physical-care and attorney-fees determinations, and affirm. To address the court's errors regarding the failure to address the dissolution of the marriage and Alisha's name change, we remand to the district court for entry of a nunc pro tunc order amending the decree to expressly dissolve the marriage and change Alisha's last name to "Curnyn." We deny the parties' requests for appellate attorney fees.

         I. Background Facts & Proceedings.

         Scott and Alisha married on August 25, 2013, and had two children: K.O. born in 2013, and T.O born in 2014. The parties separated in early July 2016 when Alisha left the family home with the children and would not let Scott see K.O. or T.O. for approximately six weeks.

         Scott was thirty-five years old at the time of trial and lives in a home that he owns in Little Sioux. Scott has two older children in addition to K.O. and T.O. Scott has joint custody of a seventeen-year-old son and full custody of a four-year-old son, M.O. Scott rarely sees his seventeen-year-old son as his son lives out of state and does not wish to travel to Iowa. Alisha served as M.O.'s primary caregiver during the parties' marriage. Under her care, Alisha believed M.O. had severe food allergies requiring a strict diet and that he was autistic because he did not speak or interact with other children. After the parties' separation, Scott resumed full-time care of M.O. A letter from teachers in M.O.'s school district reported "educators who have worked closely with [M.O.] have recently recorded observable differences in [M.O.]'s behavior, development, and attitude as compared to the previous school year." The letter stated M.O. had begun to actively participate in school and interact with other children. Scott also had M.O. medically tested for allergies and it was determined he was only lactose intolerant, requiring a much less restrictive diet.

         Scott works for J.A. King primarily as a scale technician. He stated his hours are from 8:00 a.m. to 5:00 p.m. Monday through Friday, but he is also on call and sometimes has to travel at very short notice.

         Alisha stated Scott has a propensity for violence and testified about violent occurrences at trial. Alisha stated Scott raped her when she was pregnant with K.O., and was often physically violent. For example, Alisha stated Scott has thrown her into walls and left marks on her arm. Alisha also stated Scott killed the family dog out of anger.[1] Alisha offered photos of wounds on the children as exhibits at trial, including a photo of T.O. with a fat lip, a photo of T.O. with a bruise around his eye and a bruise by his temple, a photo of a scrape or burn on T.O.'s upper arm, and photos of bruises on K.O.'s arms and legs. Alisha stated the children were returned from being in Scott's care with the wounds. Alisha also stated both T.O. and K.O. were returned on one occasion with yeast infections, resulting from staying in a diaper too long. A family development specialist through the Family Development and Self Sufficiency (FADSS) program[2] explained that during a visit she had with Alisha she asked T.O. about his black eye and he stated his "daddy" did it. As to the bruises on T.O.'s temple and eye and to K.O.'s body, Scott explained:

I would have to look back at the report to see what the explanation was on that. I think at that time one of them was [T.O.] had f[allen], but I can't tell you exactly what it was. Busy raising- being a single dad full time, and kids get a lot of bruises, and I can't remember how they got every single one of them.

         The department of human services completed three child-abuse assessments-two based on allegations of physical abuse due to the children's reported injuries. The assessments were determined to be unfounded.

         Alisha was twenty-five years old at the time of trial and lives in Missouri Valley. At the time of trial Alisha did not have a paying job but was working as an intern and searching for full-time employment. Prior to the marriage Alisha worked for a company caring for handicapped individuals in their homes. During the parties' marriage Alisha did not work outside the home and was the primary caregiver for the children. Alisha utilized services from the Area Education Agency as well as from Learning for Life to help with the children's growth and development. Individuals working with Alisha and the children in each program testified at trial they do not have concerns with Alisha or her parenting. The individual from the Learning for Life program stated:

I think Alisha does a really good job. She's a really good observer of her children. When I ask her questions, she's able to answer them. You know, what do you think they will do, or how do you think they will react to, you know, something that we're doing? She is very focused on her children, . . . . She knows them well, their personalities, their struggles, that kind of thing.

         However, Scott expressed concerns respecting Alisha's judgment. Scott stated that after Alisha left the family home he found conversations Alisha had had with individuals through social media. Alisha appeared to be having romantic conversations with men living in other countries in early to mid-July. Alisha spoke of going to live overseas and marrying the men. In one conversation Alisha sent a picture of a gun with the message, "Scott['s] gun, I will learn to use tomorrow, [t]o protect myself and kids . . . ." Alisha also sent pictures of the children to the men, and in one conversation continued to speak with a man who said he was, "[c]oming to usa to bring [K.O.]" back to his country.

         Scott also stated Alisha had previously made suicidal threats. Scott explained he was not on time to pick the children up at an agreed-upon exchange location and Alisha "stated if she had a gun, she would have-sh[ot] herself." At the time of the trial, Alisha was pregnant with a child and stated Scott was not the father of the child.

         From September 12, 2016, to the commencement of trial on April 12, 2017, the parties participated in a shared-physical-care arrangement pursuant to an order on temporary matters. Other than Alisha's complaints that Scott was often not on time to pick up or drop off the children, the parties generally testified they were able to communicate and exchange the children without incident. Acknowledging the parties ...


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