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In re Marriage of McConnelee

Court of Appeals of Iowa

August 15, 2018

IN RE THE MARRIAGE OF MALINDA K. MCCONNELEE AND BRIAN M. MCCONNELEE Upon the Petition of MALINDA K. MCCONNELEE, Petitioner-Appellee, And Concerning BRIAN M. MCCONNELEE, Respondent-Appellant.

          Appeal from the Iowa District Court for Buchanan County, Joel A. Dalrymple, Judge.

         Brian McConnelee appeals from an order modifying the visitation and tax-dependency provisions of the decree dissolving his marriage to Malinda McConnelee.

          Nina M. Forcier of Forcier Law Office, PLLC, Waterloo, for appellant.

          James T. Peters and R.J. Longmuir of Peters & Longmuir, PLC, Independence, for appellee.

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

          DANILSON, Chief Judge.

         Brian McConnelee appeals from an order modifying the visitation and tax-dependency provisions of the decree dissolving his marriage to Malinda McConnelee. We affirm.

         The parties' marriage was dissolved by stipulated decree on March 8, 2011. At the time, their son, D., was ten months old. The decree granted the parties joint legal custody; placed the child in Malinda's physical care; and set out a visitation schedule for Brian of alternating weekends, overnights on Wednesday, and three full but non-consecutive weeks during the summer.

         On September 9, 2016, Malinda filed a petition for modification, alleging a change of circumstances and asking for changes to the current visitation schedule and the alternating tax-dependency exemption set out in the decree.

         The modification trial was held on October 5, 2017. The district court took judicial notice of several criminal cases involving Brian and drug offenses.

         Malinda testified that although she knew Brian had a history with marijuana and alcohol use in the past, since the dissolution, Brian had lost his employment, had become less reliable and more forgetful, had been arrested on a number of occasions, and had recently entered guilty pleas to drug offenses. She also observed he had lost weight and looked less healthy. Malinda expressed concern about Brian's drug usage, how it was affecting their child, and the care the child received while with Brian.

         Brian testified he has been unemployed for four years and lives with his parents when he has D. in his care but lives with his girlfriend the remainder of the time in a farmhouse he gets "rent free for fixing it up." Brian noted that because he does not have a driver's license, his mother helps provide him with transportation for his parenting time. He stated that his girlfriend for "a time . . . kind of went off the deep end" but has since "received help for mental health and substance abuse."[1] Brian denied using methamphetamine in the past year but acknowledged he smoked marijuana.[2] He could not explain why he had tested positive for methamphetamine after an arrest. He acknowledged that he was facing a potential five-year prison term.

         On October 11, 2017, the district court found a substantial change of circumstances had occurred. The court laid out the circumstances and charges in Brian's four current criminal proceedings, all of which arose from arrests between June and November 2016:

[With respect to Buchanan County case FECR081081] On June 19, 2016, at approximately 2:12 a.m., deputies observed Brian within his vehicle parked in the middle of a gravel road with the engine running and lights on. Deputies made the observations as being dispatched to a nonrelated call for service in Hazelton, Iowa. Upon conclusion of the call while returning to Independence, Iowa, the car was observed in the same location. As officers approached they observed Brian to be sleeping in the driver's seat. [Brian] was disoriented. Officers observed a smoking device consistent with what is known to be used in conjunction with methamphetamine. Eventually Brian was arrested. Upon arrest the vehicle was searched. Brian admitted at trial that the car was his. Officers located and seized two separate bags containing marijuana, baggies with a crystal-like substance, open alcohol containers, one clear container containing used baggies, several unused baggies, a digital scale, and rolling papers. Brian was charged with possession with intent to deliver marijuana and possession of methamphetamine third or subsequent offense. Of the urine sample submitted Brian tested positive for the presence of THC or marijuana, amphetamines, and methamphetamines. Additionally, the ...

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