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In re Marriage of Archer

Court of Appeals of Iowa

September 12, 2018

IN RE THE MARRIAGE OF VICTORIA J. ARCHER AND BRUCE D. ARCHER Upon the Petition of VICTORIA J. ARCHER, Petitioner-Appellant, And Concerning BRUCE D. ARCHER, Respondent-Appellee.

          Appeal from the Iowa District Court for Warren County, John D. Lloyd, Judge.

         Victoria Archer appeals the order modifying child custody. AFFIRMED AS MODIFIED.

          James S. Blackburn of Finley Law Firm, PC, Des Moines, and Sandra L. Slaton of Horne Slaton, PLLC, Scottsdale, Arizona, for appellant.

          Katie M. Naset of Hope Law Firm, PLC, West Des Moines, for appellee.

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

          MULLINS, Judge.

         Victoria Archer appeals the court's modification of a dissolution decree placing her three minor children in the physical care of their father, Bruce. She challenges the: (1) denial of multiple requests for continuances due to her health; (2) admittance of the guardian ad litem's (GAL) written report into evidence and the GAL's testimony during trial; (3) preclusion of her evidence at trial which then led to the erroneous conclusion that Bruce met his burden of proof to modify custody; (4) reliance on facts which predated the prior modification decree; (5) conclusion that Bruce could provide superior care; and (6) placement of onerous conditions on her parenting time in the modified custody decree. Bruce requests an award of appellate attorney fees.

         I. Background Facts and Proceedings

         Bruce and Victoria Archer were married in 1992 and are the parents of seven children. In their May 2012 dissolution decree, the court awarded them joint legal custody of their six minor children, awarded physical care of the children to Victoria, and granted Bruce visitation. Since the dissolution decree, Bruce and Victoria have engaged in contentious post-dissolution litigation. At the time this modification action was filed, three of the children were minors. E.A. has now reached the age of majority. H.A. was born in 2004 and S.A. was born in 2007.

         Bruce first filed for modification of child custody and visitation in April 2013, with Victoria filing a motion to hold Bruce in contempt soon after. Both made allegations against the other that each acted to inhibit the other parent's visitation or custody. In its decision, the court found Victoria placed two of the children in an out-of-state learning facility for eight months two weeks after the original entry of the dissolution decree, without consulting with Bruce. At this facility, the children were subjected to appalling conditions. After returning from the learning facility, the same two children, along with another minor child, went on a visitation to Bruce's home. The three children were not returned to Victoria's custody at the conclusion of the visitation. During the five months leading to the modification hearing, these three children lived with Bruce but did not receive any type of education.

         The court ultimately modified the decree in October 2013, transferring physical care of the two minor children that were sent to the learning facility to Bruce, in large part because of the children's adamant opposition to returning to Victoria's home. Bruce was also found in contempt on three of the twelve allegations Victoria brought against him, including failing to return the three minor children at the conclusion of his visitation.[1] Since the 2013 modification, the parties have filed numerous motions and attended mediations and hearings to resolve other post-dissolution matters.

         Emails indicate Victoria and Bruce agreed to trade weekend visitations during the summer of 2016 in order to accommodate vacation plans. However, the exact arrangement is not specified. On August 16, Bruce returned the three minor children to Victoria at the end of his scheduled summer visitation. On August 17, Victoria emailed Bruce, "The children and I are moving back to Arizona. I would like to work out a visitation plan in the next couple of weeks for Christmas and summer." On August 19, Bruce emailed Victoria stating that it was his weekend and the children were not at the house. He emailed again on August 22. A school official contacted Bruce on August 24, asking why one of their three minor children was not in school. The official informed Bruce that a truancy officer drove past Victoria's home and observed her in the process of moving with the children. The next day, Bruce drove past her house and made the same observations. He emailed Victoria asking where the children were and informed her of the school official's inquiry. On August 29, Victoria responded by email stating August 16 through 21 was her vacation time and reminded Bruce of the switched weekends to accommodate this. She further emailed that due to their vacation schedules, Labor Day and swapped weekends, his next scheduled visitation was September 16. She also asked Bruce to respond to her initial email about moving with the children and proposed a visitation schedule of a week at Christmas and four weeks in the summer.

         On September 21, Bruce petitioned to modify the decree a second time, this time in regards to the custody of the three younger children, E.A., H.A., and S.A. The four older children were adults by that time. Bruce based his petition on Victoria's move with the three children to Arizona in August with virtually no notice. He alleged Victoria had no permanent residence so the children were residing in an unstable living environment and the children were not enrolled in school so Victoria was not meeting their educational needs.[2] Bruce also filed for the appointment of a GAL and applied for emergency relief to transfer physical care of the children to him. On October 25, the court appointed a GAL but denied the application for emergency transfer of physical care.

         On November 8, Bruce filed an application to initiate contempt proceedings against Victoria, alleging six counts stemming from her move to Arizona.[3] On January 4, 2017, Bruce and Victoria attended mandatory mediation during which the parties agreed E.A. would return to Bruce's care in Iowa, enroll into an Iowa school, and continue to see a therapist. Further, Bruce agreed to dismiss his application for rule to show cause with prejudice, and visitation was arranged for Bruce to visit with H.A. and S.A. and for Victoria to visit with E.A. Bruce would be responsible for the costs of flying to and from Arizona. The parties also agreed to complete their final mediation meeting by the end of March 2017.

         Victoria retained counsel from October 24, 2016 until February 14, 2017, when her attorney requested permission to withdraw due to a breakdown in the attorney-client relationship. Victoria represented herself throughout the remaining proceedings until she filed this appeal.

         On March 20, Victoria filed an application for an ex-parte writ of injunction to prevent educational assessments for the children which Bruce scheduled, arguing she was not consulted or informed about the needs for the assessments, the assessments could put the children at risk for regression in their therapy, and the assessments were not required since the children were homeschooled. Victoria also filed a motion to dismiss the GAL, claiming, among other allegations, the GAL did not interview her suggested witnesses or investigate her safety concerns and left Victoria out of custody decisions made between the GAL and Bruce. The court overruled her motion for the injunction on March 24 and set her motion to dismiss the GAL for hearing on April 11.

         On March 24, the GAL moved to expedite the trial based on the belief that the acrimonious fighting between the parties would worsen the longer the case was pending and the concern over the children being several grade levels behind in multiple educational areas. The GAL filed her preliminary report the same day. The court scheduled the hearing on the request for the same day as the motion to dismiss the GAL. On April 4, Victoria filed for a continuance based on witness availability.

         On April 11, Victoria filed an application for rule to show cause making numerous allegations against Bruce, including preventing her from participating in the children's education while in Bruce's care, denying her visitation with the children on several occasions, and acting to interfere and estrange her relationship with the children. As a result of this application, the court ordered the parties to mediate and required the parties to make arrangements for a mediation session within a week and completion of the same two days prior to the hearing.

         On April 11, the court held a hearing to address the pending matters but granted Victoria's request for a continuance, rescheduling Victoria's motion to remove the GAL and a status hearing for April 28. The court ordered Victoria's contempt matter to be heard at the time of trial in the interest of judicial economy given the mandatory mediation.

         On April 14, Victoria requested another continuance as her witnesses were not available for the April 28 hearing. Both Bruce and the GAL resisted this request. On April 25, at a hearing on the request for a continuance, the court: (1) denied Victoria's request to remove the GAL; (2) ordered academic testing of the children to be completed a month prior to trial, requiring Bruce and Victoria to cooperate with the GAL and the testing process; (3) ordered the parties to select a mediator and date for mediation by May 11 with mediation to be completed by June 2; and (4) ordered the trial to commence no later than June 30 with an estimated trial time of four days.

         On May 3, the court held a telephonic trial scheduling conference, after which the court filed a uniform trial scheduling order setting the trial date for June 13, which included deadlines for witness and exhibit list filings and exchanges. The order provided: "Court date is firm and no further continuances," and in bold print, "Violation of this order may result in sanctions, including dismissal or grant of the relief requested by the opposing party."

         On May 17, Bruce filed a motion to compel mediation, claiming Victoria refused to schedule mediation before the court's June 2 deadline. He provided emails in which Victoria indicated she was unable to mediate in May due to commitments she could not change, but did not identify the commitments. On May 22, the court ordered the parties to engage in mediation on May 24 and advised that if Victoria failed to appear and participate, a show cause hearing would be scheduled for May 31, at which she would be ordered to appear.

         On the morning of May 24, the day of the scheduled mediation, Victoria filed for a continuance of both the mediation and trial citing a "recent medical situation that requires doctor's care with surgery imminent; she can not travel at this time. Physician letter forthcoming." The court denied Victoria's motion stating that it had insufficient information to warrant a continuance ex parte and there was no opportunity to hold a hearing prior to the mediation set for later that day. Victoria failed to appear at mediation.

         Victoria filed another motion to continue on May 30, again citing imminent surgery and referenced her previous motion to continue. She attached a letter from Dr. Jennifer Reitz of Advanced Surgical Associates Gilbert which read "Victoria Archer has been under my care and is scheduled for surgery on 6/16/17. She is unable to travel until 2 weeks after surgery." The court set a telephonic hearing for June 6 to hear the motion.

         Due to Victoria's failure to appear for mediation on May 24, the show cause hearing was set for May 31. Victoria failed to appear at this hearing as well. In the order filed after the May 31 hearing, the court stated Victoria's motion to continue was filed too late to provide Bruce a chance to respond before the show cause hearing. The court ordered Victoria to appear during the June 6 telephonic hearing regarding her motion to continue trial and to explain why she repeatedly filed late continuance motions that prevented the court from providing appropriate notice and scheduling hearings. The order included this message to Victoria:

It is not clear from the physician's note as to whether the Petitioner is currently restricted from travel, or whether the travel restrictions will only be applicable after the anticipated surgery. The Petitioner must have her physician provide more details as to the nature of the anticipated surgery. A more detailed physician's note must be filed BEFORE the June 6 hearing.

(Bold in original). The court reserved ruling on any sanction for Victoria's failure to attend mediation and the show cause hearing.

         On June 5, Bruce filed his witness and exhibit list. Also on June 5, Victoria filed two notes from doctors. One was from Dr. Reitz which again stated that Victoria was under her care and surgery was scheduled for June 16.[4] The other was a handwritten note on a prescription pad from Tushar Gohel, M.D.[5] On June 6 at 3:22 a.m., Victoria filed a patient discharge instruction sheet from a medical center which listed a confirmed June 16 appointment for general surgery.

         The court conducted the scheduled telephonic hearing on June 6. In the order following the hearing, the court denied Victoria's motion to continue. The court found, "The information submitted to the Court in support of [her] motion is nonspecific and fails to provide the court with sufficient information to allow the Court to determine if [Victoria]'s motion has merit."

         Victoria filed her witness list on June 8, with twenty-three potential witnesses. Later that same day, Bruce filed a motion for sanctions, asking the court to prevent Victoria from calling any witness or presenting any exhibits at trial based upon her failure to comply with the court's April 28 and May 22 orders regarding mediation. He asked for attorney fees relating to the mediation, motion to compel, and show cause hearings at which Victoria failed to appear. Bruce additionally filed a separate objection to Victoria's witness list based upon her failure to file and exchange witness lists by the trial scheduling order deadline. No exhibit list was filed by Victoria, but she did file a number of exhibits on June 9 and 12. The court ordered all pending motions to be heard on June 13, prior to the commencement of trial.

         On June 9 and 12, Victoria filed objections "to the denial of her requested continuance" and again asked for the mediation and trial to be continued due to a medical condition.[6] In her motion, she placed her inability to obtain an attorney on Bruce because of undisclosed debts and other withholdings. She also objected to the motion for sanctions, claiming Bruce refused to take the two youngest children on June 1 for his June visitation in order to tamper with her preparation for trial and caused her to defy the court order to keep legal matters away from the children. The court denied this request on June 12 at 4:19 p.m., confirming trial was scheduled for the next day.

         On June 12 at 4:26 p.m., Victoria filed another motion to continue, stating surgery was scheduled for that Friday, June 16, and her condition prevented her from travel. She also stated she did not have an attorney for trial that week but would if the court granted a continuance. On June 13, the court denied this motion and advised Victoria she was free to renew her motion for consideration by the trial judge since the trial was scheduled for later that same day.

         On June 13, before the commencement of trial, the GAL filed her final report and Bruce filed the results of the educational assessments. The assessments found H.A. was average in five educational subsections and below average in two, while S.A. was average in three subsections and below average in four.

         The trial was held June 13 through 16. Before beginning the trial, the court heard the pending motions. The court granted Bruce's request to prevent Victoria from calling witnesses and exhibits because she filed her lists past the trial scheduling deadline. However, the court allowed her to call witnesses relating to the educational assessments if it became necessary and relevant. The court reserved its decision on any other possible sanctions until it made its final ruling and overruled Bruce's motion to dismiss Victoria's application for rule to show cause.

         During the trial, Bruce, Victoria, and the GAL testified as well as a piano teacher called by Victoria. On June 29, the court filed its written ruling, granting Bruce's application for modification. The court transferred physical care of the three youngest children to Bruce and granted Victoria visitation. Victoria appeals.

         II. ...

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