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.
from the Iowa District Court for Harrison County, Jeffrey L.
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.
Sailer of Reimer, Lohman, Reitz, Sailer & Ullrich,
Denison, for appellant.
Joseph Albert McGinn of McGinn, Springer & Noethe,
P.L.C., Council Bluffs, for appellee.
by Danilson, C.J., and Vaitheswaran and Bower, JJ.
DANILSON, Chief Judge.
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.
Background Facts & Proceedings.
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.
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.
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.
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. 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 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.
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.
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.
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
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.
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