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.
from the Iowa District Court for Pottawattamie County,
Richard H. Davidson, Judge.
appeals from the decree dissolving his marriage to Elizabeth,
which modified custody and child support provisions in the
parties' separate maintenance decree.
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.
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
Background Facts and Proceedings
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
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.
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.
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.
Standard of Review
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).
Motion in Limine
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).
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.
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 ...