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In re Marriage of Strong

Court of Appeals of Iowa

April 18, 2018


          Appeal from the Iowa District Court for Calhoun County, William C. Ostlund, Judge.

         The father appeals from the district court's modification of the parties' dissolution decree, changing the physical care of the children to the mother.

          Norman L. Springer Jr. and P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs, for appellant.

          Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, P.C., Carroll, for appellee.

          Heard by Vogel, P.J., and Potterfield and Mullins, JJ.

          POTTERFIELD, Judge.

         Justin 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.

         I. Background Facts and Proceedings.

         Justin 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.

         In 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.[1] 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, in part:

          I want 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 more….

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.

         After 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.

         The two 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.

         In 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.

         The court appointed a GAL.[2]

          In 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 recommendation.

         The 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.

         In a 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 Justin's motion.

         The 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 parents."

         On August 24, a hearing was held on the temporary injunction.[3] 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 continued:
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 Rose's manipulations.
. . . .
. . . [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.

         The 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.

         In 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."

         Rose 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).[4] 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 children.[5]

         Tessa 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, " explaining:

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.

         Anderson 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 dropped" P.S.

         The DHS 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 ...

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