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In re Marriage of Demmer

Court of Appeals of Iowa

September 12, 2018


          Appeal from the Iowa District Court for Delaware County, Monica Wittig, Judge.

         Jacquelyn Demmer appeals from the custody, support, and property distribution provisions of the decree dissolving her marriage to Joshua Demmer.

          Dawn D. Long and Kevin C. Rigdon of Howes Law Firm, PC, Cedar Rapids, for appellant.

          Crystal L. Usher of Nazette, Marner, Nathanson & Shea, LLP, Cedar Rapids, for appellee.

          Considered by Danilson, C.J., Mullins, J. and Mahan, S.J. [*]

          DANILSON, Chief Judge.

         Jacquelyn (Jacque) Demmer appeals from the custody, support, and property distribution provisions of the decree dissolving her marriage to Joshua (Josh) Demmer. Jacque contends the trial court erred in granting sole legal custody and physical care of the parties' three children to Josh. She also asserts the court improperly placed restrictions on visitation with her parents, erred in not awarding her spousal support, failed to divide the marital property equitably, erred in awarding Josh with the tax dependency exemptions, and improperly calculated child support. Jacque also argues she was entitled to trial attorney fees and asks that we award her appellate attorney fees.

         On our de novo review, we modify the decree to provide for joint legal custody and strike the reference to Jacque's parents' care-providing abilities. We award no appellate attorney fees.

         I. Background Facts and Proceedings.

         Jacque and Josh met on line in 2006. Jacque was working full time and living in Cedar Rapids with friends. Josh was working full time as an architect and living with friends in Waterloo. The two were engaged in May 2007.

         In June 2007, Jacque was involved in a car accident and, in the aftermath of the accident, she became estranged from her parents. Jacque moved in with Josh following the car accident and began graduate school at the University of Northern Iowa (UNI) in August.

         On December 4, and 11, 2007, Jacque and Josh attended two counseling sessions together and, on December 12, Jacque was involved in a serious car accident on her way to work in Cedar Rapids. She sustained several injuries and required speech therapy after the accident. Though Jacque had previously suffered from migraines, her migraines worsened after the accident and were often debilitating.

         In February 2008, Jacque began seeing a counselor, where she focused on the emotional aspects "affect[ing] Jacque's self-esteem and how she interpreted her interactions with other people." In April 2008, Jacque was referred to a doctor for possible medication in relation to anxiety.

         Josh and Jacque bought a house in Waterloo in early 2008. To purchase the home, Josh received a gift of $20, 000 from his parents for the down payment. In addition, Josh's parents loaned him an additional $20, 000 to go toward the down payment.

         The parties married on July 26, 2008. She continued treatment and was prescribed medication for anxiety. Jacque gave birth to the parties' first child in May 2010 and experienced post-partum depression and anxiety. She was hospitalized in a psychiatric ward.

         In October, Jacque returned to UNI counseling services "to address anxiety issues." She reported being prescribed medication for anxiety and that she was prescribed Darvaset for her migraines but would rather get Hydrocodone again. Jacque graduated with a Masters in School Counseling degree in December 2010.

         After graduation, Jacque first worked as a substitute counselor at an elementary school beginning April 3, 2011. The position was supposed to run through the end of the semester but did not. On May 1, Jacque took an overdose of Alprazolam, a benzodiazepine prescribed to treat anxiety. Jacque was about four months' pregnant at the time.

         Jacque gave birth to the couple's second child in October 2011. In November, Jacque began working at GMAC Mortgage. Jacque worked there for approximately six months.

         In 2012, the parties sold their Waterloo residence and began to rent a house in Manchester where Josh's parents lived. Prior to the sale of their home, Josh and Jacque had borrowed an additional $21, 000 from his parents to pay off some of Jacque's high interest student loans. Upon the sale of the Waterloo house, they repaid Josh's parents the $21, 000 for payment of the student loan but did not repay the $20, 000 loaned to them in 2008 for the down payment.

         In early 2012, Jacque was experiencing migraines about three times per week, which left her incapable of caring for the children so Josh would take the children to his mother while he worked.

         On June 3, 2012, Jacque was again hospitalized for suicidal thoughts. While she was in the hospital, Josh and his parents cared for the two children.

         Jacque resigned from GMAC before her employment was terminated for excessive absences. She then found another position, but did not complete required training, and thus could not continue her employment

         About this time period in 2012, a clinical note indicates Jacque "lacks insight, in spite of a lot of explanation about the nature of her illness and importance of taking her medication regularly. Compliance with medication is major problem."

         Jacque totaled one of the family vehicles on February 4, 2013.

         On October 2, 2013, Jacque again attempted suicide. She took many pills and then sent a message to a friend, who contacted emergency personnel. Both children were present and awake when the police arrived and Jacque was taken to the hospital by ambulance. After her condition stabilized, Jacque was taken to the inpatient psychiatric ward for a week.

         By way of several checks written in 2014, Josh's parents loaned the couple $280, 000 to purchase a lot and build a house in Manchester. All of the checks were made payable to Josh Demmer. On December 29, 2014, after the house was constructed, Josh and Jacque signed a note and mortgage for the $280, 000 owed to Josh's parents.

         On February 6, 2014, Jacque went to take a shower and slit her wrists while Josh and the children were in the living room. Josh found Jacque bleeding, though the cuts were not deep, bandaged her arms, and got her to bed.

         In March 2014, the couple found out Jacque was pregnant again. In April 2014, Jacque began to work at Abbe Center in a Delhi facility. She worked there for four months until she found her "dream job" as a school counselor in August 2014. Jacque gave birth to the parties' third child in October 2014. Jacque's employment was terminated on January 5, 2015.[1]

         On January 6, 2015, Jacque was again admitted to a psychiatric unit. In February, Jacque was participating in follow-up psychiatric and psychological treatment. After release from the hospital and through March 2015, the children were in full-time day care even though Jacque was home. Jacque then began taking care of the children. On April 5, after an argument with Josh about Easter baskets, Jacque left the family residence with the three children.

          On April 6, 2015, Jacque filed a petition for a domestic abuse protective order. On April 10, Josh filed a dissolution petition, seeking joint legal custody and physical care of the children, as well as an equitable division of the marital property. The district court set a hearing on temporary matters on May 12.

         On April 21, a hearing was held concerning Jacque's request for no-contact order. The court made no findings as to Jacque's claims of domestic abuse. The parties consented to a no-contact order and the court entered a temporary order that the children would be with Josh from Friday ...

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