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In re Marriage of Jensen

Court of Appeals of Iowa

September 12, 2018

IN RE THE MARRIAGE OF ELIZABETH HOPE JENSEN AND NOAH MATTHEW JENSEN Upon the Petition of ELIZABETH HOPE JENSEN, n/k/a ELIZABETH HOPE STULGIES, Petitioner-Appellee, And Concerning NOAH MATTHEW JENSEN, Respondent-Appellant.

          Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.

         Noah appeals from the decree dissolving his marriage to Elizabeth, which modified custody and child support provisions in the parties' separate maintenance decree.

          Meghan E. Wolf of Cordell Law, LLP, Omaha, Nebraska, for appellant.

          Michael J. Winter of Law Offices of Michael J. Winter, Council Bluffs, for appellee.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          VOGEL, JUDGE.

         Noah Jensen appeals from the decree dissolving his marriage to Elizabeth (Beth) Stulgies, which modified certain provisions contained in the parties' separate maintenance decree. Noah argues the district court acted improperly by treating the petition as a modification, finding a substantial change in circumstances, modifying the custody and care provisions to award joint legal custody and physical care to Beth, and ordering him to pay child support. He also contends the district court should not have found Beth and her witnesses credible, failed to give proper weight to his expert witness, and decided the issues based on religious grounds. We agree with the court's treatment of the petition as a modification and its determinations of witness credibility, and we find the court did not improperly consider religion. We also agree Beth showed a substantial change in circumstances warranting modification, and we agree with the court's awards of joint legal custody, physical care, and child support. Finally, we award appellate attorney fees to Beth.

         I. Background Facts and Proceedings

         Beth and Noah were married in 2005. They have two children together, a son, born in 2007, and a daughter, born in 2010. At the time of their marriage, they were both members of Word Center Ministries (Word Center), a bible study group primarily run by Noah's parents, Sharon and Rod Jensen.[1]

         The children's primary caretaker during the marriage was Beth, who also homeschooled the children. In December 2015, Beth was hospitalized for two days after being found unresponsive. She testified she was taking multiple medications for rheumatoid arthritis and sleep problems and she believed her condition was due to a bad reaction to her medications. Following her release, Beth handwrote and signed a document stating she had mentally and physically abused her children and they "need to be in the care of someone" safe, specifically Sharon. At trial, she denied abusing her children and testified she wrote the note "confessing my sins" under orders from Noah and Sharon because she feared she would never see her children again if she refused.

         Noah filed a petition for separate maintenance. According to him, he filed for a legal separation because he wanted the chance to work things out with Beth in the future. She testified "he could not divorce me because Biblically . . . I did nothing to him" and "I'm not the one that cheated on him." She signed a stipulation and agreement that granted him sole legal custody and physical care of the children, restricted her to supervised visitation, and required her to pay child support. On February 29, the district court entered an order approving the stipulation in the form of a decree.

         On May 18, 2016, Beth filed a document captioned "Petition for Dissolution of Marriage," which sought a divorce and determinations of custody and care of the children. Her petition asserted she was not represented by counsel at the time she agreed to the terms of the separate maintenance agreement and she believed Noah intended to move the children to Tennessee to keep them away from her. At trial, she testified she signed the stipulation because she feared she would never see her children again if she did not do what Noah and his family wanted. In response to the petition, Noah filed a motion in limine on May 26, which sought to exclude all of the issues previously decided in the separate maintenance decree. On June 24, the district court entered an order for temporary custody altering the terms of the stipulation and agreement as it related to Beth's visitation and appointed a guardian ad litem for the children. A trial was held on Beth's petition on June 2, 2017. On October 10, the district court filed a decree of dissolution that dissolved the marriage and modified the separate maintenance decree to order joint legal custody of the children with physical care to Beth, liberal visitation to Noah, and $693.00 per month in child support payments from Noah to Beth. Noah appeals.

         II. Standard of Review

         We review actions for dissolution of marriage or modification of child care or custody de novo as they are heard in equity. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (modification); In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013) (dissolution). "Although we make our own findings of fact, 'when considering the credibility of witnesses the court gives weight to the findings of the trial court' even though we are not bound by them." Hoffman, 867 N.W.2d at 32 (quoting In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989)). When considering a modification of child care or custody, our controlling consideration is the best interests of the children. Id. A party who seeks a modification of child care of custody must establish by a preponderance of the evidence that there has been a material and substantial change in circumstances since the entry of the decree. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

         III. Motion in Limine

         Noah's motion in limine sought to prohibit Beth from litigating the issues and facts agreed to, and ruled upon, in the separate maintenance decree. Regarding the issues, Iowa law allows spouses to "legally separate by filing a petition for separate maintenance as provided in Iowa Code section 598.28 without dissolving their marriage." In re Estate of Whalen, 827 N.W.2d 184, 185 n.1 (Iowa 2013) (citing 2 Marlin M. Volz, Jr., Iowa Practice Series, Methods of Practice § 31:31, at 869 (2012)); see Iowa Code § 598.21(1) (2015) (prefacing provision on disposition of property with, "Upon every judgment of annulment, dissolution, or separate maintenance, the court shall divide the property of the parties . . . ."). Section 598.41, which deals with child custody, applies when "the parents have separated or dissolved the marriage." Iowa Code § 598.41(1)(a); see also id. § 598.21B(2)(a) (outlining the court's authority to order child support, "upon every judgment of annulment, dissolution, or separate maintenance"). Accordingly, the provisions contained in the decree that determined child custody, physical care, and child support were final orders aptly positioned for appeal or modification. See, e.g., In re Marriage of Thielges, 623 N.W.2d 232, 235-39 (Iowa Ct. App. 2000) (considering a modification of physical care and visitation); see also Iowa Code § 598.21C (allowing modification of child support).

         The district court was tasked with dissolving the parties' marriage and issuing a dissolution decree. Had Beth not raised the issues surrounding child custody, the court could have simply incorporated the provisions contained in the separate maintenance decree. But because Beth's petition for dissolution raised the issues of child custody, physical care, visitation, and child support, the district court considered it to be a petition for modification. See Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) ("[W]e treat a motion by its contents, not its caption."); Jones v. Iowa State Highway Comm'n, 207 N.W.2d 1, 2 (Iowa 1973) ("We therefore disregard the misleading manner in which plaintiffs entitled their suit . . . ."). Moreover, Noah answered Beth's petition by counterclaiming for "sole temporary and permanent care, custody and control of the minor children" and "supervised visitation" for Beth. Therefore, his complaint that Beth did not correctly petition the court to modify the prior custody, visitation, and support arrangement is unsustainable. See In re Marriage of Blessing, 220 N.W.2d 599, 605 (Iowa 1974) (holding wife's cross-petition, which raised the same issues as the husband's motion, rendered her complaint about the pleadings untenable). Accordingly, the district court properly treated Beth's petition as a modification of the separate maintenance decree along with the requested dissolution of the marriage.

         Regarding the facts, Noah argues the court should have excluded evidence arising prior to entry of the separate maintenance decree. The district court has broad discretion in deciding whether evidence has sufficient probative value for admission. See Iowa R. Evid. 5.403; Thielges, 623 N.W.2d at 239-40 (citing the predecessor to rule 5.403). Having determined Beth's dissolution of marriage petition included a modification of the separate maintenance decree, she needed to show a substantial change in circumstances occurred. See Frederici, 338 N.W.2d at 158. Showing such change logically requires establishing the facts as they existed to warrant entry of the original separate maintenance decree. The record made prior to the entry of the separate maintenance decree contains little evidence of the facts or "circumstances" the court relied upon when entering that decree. Accordingly, the dissolution/modification court refused to exclude evidence merely because it arose prior to, and therefore in support of, the entry of the separate maintenance decree. By ...


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