IN RE THE MARRIAGE OF JUSTIN MICHAEL STRONG AND ROSE ELIZABETH STRONG Upon the Petition of JUSTIN MICHAEL STRONG, Petitioner-Appellant, And Concerning ROSE ELIZABETH STRONG, Respondent-Appellee.
from the Iowa District Court for Calhoun County, William C.
father appeals from the district court's modification of
the parties' dissolution decree, changing the physical
care of the children to the mother.
L. Springer Jr. and P. Shawn McCann of McGinn, Springer &
Noethe, P.L.C., Council Bluffs, for appellant.
C. Badding of Neu, Minnich, Comito, Halbur, Neu &
Badding, P.C., Carroll, for appellee.
by Vogel, P.J., and Potterfield and Mullins, JJ.
Strong appeals from the district court's modification of
his and Rose Strong's dissolution decree, changing
physical care of the parties' two minor children from
Justin to Rose. On appeal, Justin argues the district court
considered improper evidence in reaching its determination.
He also maintains there was not a material and substantial
change warranting modification and that Rose did not
establish she could provide the children superior care. Rose
asks that we affirm the district court's modification and
award her $5000 in appellate attorney fees.
Background Facts and Proceedings.
and Rose were married in 2006. They are parents to two
children, J.S., born in 2004 and P.S., born in 2008. When the
parties separated in 2010, Rose and the children moved from
Texas to Iowa, near both Rose's and Justin's
families. Justin remained in Texas.
November 2010, the children spent the night at the home of
Justin's parents in Iowa for Thanksgiving. Justin's
parents notified him of the fact, and he immediately flew to
Iowa, picked up the children from his parents' home, and
returned to Texas, without notifying Rose he had done so.
After he left with the children, Rose received a video
recording from Justin, which he had filmed four days before
Thanksgiving. The video was several minutes in length
and consisted of Justin sitting on the coach speaking to the
camera; he addressed his comments directly to Rose, stating,
to just tell on this camera that I'm sorry, because if
you get this video, that means that what I have planned has
gone through. And it'll eventually, you'll
understand, and if you listen to me, you'll understand
And on that note, I want to say, that for the reason I'm
telling you I'm sorry is because the kids don't
belong with you, not right not now, not at this point, and
I'm sorry I had to take them. I'm sorry for the
bullshit, but I'm going to raise them. . . .
I mean, I got everything lined up already, and I have had. I
just have to be there and seize the moment. And when I see
it, I'm going to take it. And that's why I'm
sorry. But I want you to watch this video and understand that
it's going to suck and it's going to hurt not having
the kids with you. . . .
I'd like for you to call and talk to them and have that
sense of pain that I've had. A lot's going to change
if you're watching this. A lot is going to change.
returning to Texas, Justin filed for dissolution. In June
2011, he obtained a default dissolution decree, which placed
the children in the parties' joint legal custody and in
Justin's physical care.
boys and Justin moved five times (with five different school
districts) residing in three different states-Texas,
Wisconsin, and Iowa-between the entry of the default decree
and Justin's filing of the petition to modify the decree
in February 2016. When he filed the petition asking the court
to increase Rose's child support, Justin and the children
had settled in Iowa, approximately ninety miles from Rose.
June, Rose filed an answer and counterclaim, asking the court
to place the children in her physical care. Rose also filed a
motion asking the court to appoint a guardian ad litem (GAL)
to represent the minor children.
court appointed a GAL.
July, Rose filed an application and affidavit for a temporary
injunction. She noted that she was in the middle of thirty
days of summer visitation with the children, as provided by
the decree. During the summer visitation, the oldest child,
J.S., had reported to a counselor that Justin had fired a
shotgun at a candle in their home, while the youngest child,
P.S., was so close he was hit by the spent shell. J.S. also
reported that Justin left the children home alone all day in
the summer and that they were often home alone at night
during the school year, going to bed before Justin returned
home. J.S., who was twelve, stated he was responsible for his
brother, who was eight-cooking his dinner, helping him with
his homework, and getting him up in the morning to get to
school on time. J.S. also reported there were times there was
no food in the home and claimed he and his brother went to
bed without supper one or two times each week. As a mandatory
reporter, the counselor, Tessa Anderson, filed a report of
child abuse with the Iowa Department of Human Services (DHS).
Angela Johnston, a child protective worker with DHS, met with
Rose and the children. She informed Rose she did not believe
it would be safe for the children to return to Justin's
home on July 18-the date their summer visitation with Rose
was to end. The children's GAL made a similar
court granted Rose's motion for temporary injunction,
leaving J.S. and P.S. in Rose's care temporarily and
preventing Justin from having unsupervised visits with the
children. The order noted that Justin was to file a motion to
set a hearing on the temporary injunction.
response, Justin denied the allegations and asked the court
to order the children to be seen by a specific psychologist,
Dr. Robert Joneson. Rose resisted Justin's request,
noting the children were already seeing a different
counselor. She stated J.S. had seen Dr. Joneson previously,
had the perception Dr. Joneson "is aligned with their
father, " and had "reported to his current
counselor that he did not disclose any of the details
regarding his home life with Justin in his sessions with Dr.
Joneson because Justin insisted on being present in the room
during both sessions." The GAL also resisted
court ordered the children to meet with Dr. Joneson "at
least on one occasion" and confirmed "said
evaluation . . . should be done without the presence of both
August 24, a hearing was held on the temporary
injunction. During the hearing, the court admitted
into evidence the child abuse assessment completed by DHS,
which determined the allegations of abuse were founded for
denial of critical care and failure to provide proper
supervision. The same day, the GAL filed a report to the
court. In it, she noted that she had met with J.S. and P.S.
without Rose present. During their meeting, J.S. made similar
reports as he had made to his counselor-that he was in charge
of his brother after school, there is often nothing to eat in
their home that they are capable of making themselves except
frozen burritos, and his father rarely got home before the
two boys went to bed. Additionally, both children reported
they were afraid of their father and his collection of
weapons; they also reported a fear of being
"smacked" by their father and stated that Justin
"smacks" P.S. often. The GAL recommended that the
children continue to reside with Rose and begin having
supervised visits with Justin.
In its written ruling, the court noted the consistent
allegations made by J.S. and P.S. to their counselor, the DHS
worker, and the GAL but stated it was "somewhat reticent
to reach the same level of urgency." The court
In spite of what appears to be an easy decision, there is
evidence to suggest that the answer may be more clouded.
Specifically, Dr. Joneson, a license psychologist since 1982,
testified on behalf of [Justin]. He had met with the parties
on a number of occasions and it was his conclusion that the
boys were in no danger and there was no risk of them being
with their father. In fact, he was surprised that a founded
report was entered. He found the boys to be resourceful and
had concern that these allegations may be a product of
. . . .
. . . [T]he court cannot overlook the fact that [Justin] has
been the primary caregiver for these children for
approximately the last five years. The best evidence of their
care is the boys themselves and there appears to be a
definite disagreement as to their wellbeing. Further,
[Justin] has denied all allegations and there is no physical
evidence to buttress the charges. . . . The court lacks
sufficient evidence at this time to make a complete, informed
decision as to the credibility of the allegations. Certainly,
it merits further investigation.
court left the children in Rose's custody temporarily
pending the October trial on the merits of the modification
petition and ordered that Justin was to have unsupervised
visits with the boys on the weekends.
October, the modification came on for hearing. First, J.S.
spoke with the court outside the presence of his parents. He
testified that he wanted to live with his mom, stating that
his dad usually was not home until 8:00 p.m. or later and
that he and his brother had to be in bed by 8:30. He
testified that on a typical day at his dad's house, he
was in charge of getting P.S. up for school, and then after
school, before their father was home, they would do their
homework, fix dinner, and bathe. When asked if he felt like a
parent to P.S. at Justin's house, he said,
"Yes." J.S. contrasted his time at Justin's
with his time at his Rose's house, stating his mother
cooks for the family, so he is free to participate in
activities or spend time with friends. He reiterated his
allegations about his father firing a gun in their living
room. In response to questions, J.S. told the court that
neither parent speaks badly about the other in front of him,
but his mother allows him to speak to his father whenever he
wants while his father only allows him to call Rose during
"this time where we can call . . . for about fifteen
minutes." J.S. also testified that while he was in his
mother's care over the summer, he "only heard from
[his father] once."
testified Justin was physically and verbally abusive during
their marriage, noting Justin had 2005 Iowa convictions for
domestic abuse assault (with Rose as the victim) and assault
while displaying a dangerous weapon, as well as 2006
Wisconsin convictions for disorderly conduct and domestic
abuse (with Rose as the victim). Rose testified that since
she had moved to Iowa approximately five years before, she
had lived in the same town the entire time. Although she had
tried to enforce her visitation with the boys once they moved
to Iowa, Justin denied her requests for time with the boys
"quite frequent[ly] . . . off and on until [they] went
to mediation in April of 2015." Additionally, Rose
testified that in 2013, Justin had repeatedly asked her for
sexual favors in exchange for having time with the
Anderson, J.S.'s counselor, testified at trial. She
discussed the allegations J.S. had made against his father to
her and the report she filed with DHS. She also testified
that J.S. told her was scared to go to school "because
he was afraid of going back home and having to move quickly
as they've had to do multiple times." When asked if
she ever got the sense that J.S. was prompted or coached to
the make the allegations, Anderson answered, "No, "
The things he continued to report in the second session of
therapy and sessions after were consistent. The symptoms that
he talked about that we worked on were consistent with things
that he reported in the sessions.
. . . .
The case with manipulation always ends up falling apart. They
don't have much detail to it because it's not their
quote unquote story to tell. They don't have emotions
that match the words they say. They usually don't stick
with therapy long term because the parent's afraid of it
becoming found out that it's not the child's story.
also testified that J.S. had reported to her that he
remembers witnessing an instance of domestic violence between
his parents when they were still married, where Rose was
holding P.S. and Justin shoved Rose "so hard she almost
worker who conducted the investigation of Justin's home
after the abuse allegation, Kathleen Garey, testified that
she met with Justin in his home "a couple weeks"
after the initial report was made. Garey testified she did
not observe any bullet holes in the wall and stated Justin
denied having repaired any drywall before her visit. She did
note that P.S. had reported Justin had pushed J.S. into the
wall when he was mad at him, ultimately leaving a dent in the
wall. While in the home, Garey noticed an area in the living
room "where it was evident there had been a hole about
three feet up the wall and ...