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In re Marriage of Rockwell

Court of Appeals of Iowa

January 9, 2019


          Appeal from the Iowa District Court for Cerro Gordo County, Christopher C. Foy, Judge.

         Nathan Rockwell appeals a decree dissolving his marriage to Heather Rockwell.

          Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, LLP, Charles City, for appellant.

          Kristy B. Arzberger of Arzberger Law Office, Mason City, for appellee.

          Considered by Doyle, P.J., and Mullins and McDonald, JJ.

          MULLINS, JUDGE

         Nathan Rockwell appeals a decree dissolving his marriage to Heather Rockwell. He argues the district court erred in: (1) including part of a business in the marital estate, (2) declining to include alleged liabilities in the marital estate, (3) deciding the physical care issue before hearing all of the evidence, (4) misjudging the credibility of the parties and failing to consider Heather's alienating conduct in reaching its physical care determination, (5) crafting the visitation schedule, and (6) declining to reopen the record after trial. Heather requests an award of appellate attorney fees.

         I. Background Facts and Proceedings

         Affording great deference to the district court's factual findings and thorough credibility determinations[1] in our de novo review of this equitable proceeding, we make the following factual findings.

         The parties married in 2008. The marriage produced two children, born in 2009 and 2011. At the time of trial, Heather was thirty-nine years of age and Nathan was forty-one. Prior to and early in the marriage, Heather worked for a cell phone company. Nathan did not like Heather working nights and weekends, so he recommended that she become a stay-at-home mom. Heather did so in 2010. She continued to be a stay-at-home mom until September 2016, after the parties' separation, when she obtained a position as a merchandiser for a beverage distributor earning twelve dollars per hour and working between twenty-five and thirty hours per week. She continued to hold this position at the time of trial. She has a flexible work schedule and is allowed to set her own hours, thus providing her the ability to work around the children's schedules. Nathan conceded in his testimony Heather is a good mother and loves the children. It is undisputed that Heather has been the historical caregiver for the children, while Nathan assumed a more traditional role of providing for the family financially.

         One of the major issues in this appeal is whether Nathan owns Sure Service, the heating, air conditioning, and refrigeration business he works for. He holds himself out as the owner of the business; he maintains business cards that designate him as the owner; he claims the income of the business on his tax returns and listed himself as the proprietor of the business on his returns for tax years 2005 through 2015; and his name is on the company's billings. He also writes off a number of his personal expenses as expenses for the business. Nathan's work schedule is more demanding than Heather's. He leaves for work at 7:00 a.m. and sometimes does not get home until 10:00 p.m. He is always on call to respond to emergency service requests.

         The parties separated in April 2016. The parties differed substantially in characterizing the circumstances surrounding the parties' separation. Heather alleged numerous instances of threatening, aggressive, and controlling behavior toward Heather and the children by Nathan; and Nathan implied infidelity and alcohol and drug problems on the part of Heather. Both parties' testimony supports a conclusion the tension in the marital home was on the rise before the parties separated.

         According to Heather's testimony, the separation was a result of her older daughter's report to Heather that she was scared of Nathan because Nathan made a threatening statement to her. Upon this report, Heather left the marital home with the children and drove to the sheriff's department. Nathan's position is that there was no threatening statement on the day in question, and Heather essentially just left with the children. Heather filed a petition for relief from domestic abuse upon the recommendation of law enforcement, alleging past abuse and threatening behavior on the part of Nathan and noting the children were afraid of him. The petition was ultimately denied.

         Heather filed her petition for dissolution of marriage in May. A temporary matters order was entered in June, placing the children in the shared physical care of the parties, with each parent to have the children in their care every other week. The order also required that "[i]f a party is unable to supervise the children for a period exceeding four hours, the other parent shall be given first priority of providing child care." On many occasions, Heather communicated her desire to care for the children while Nathan is at work. Instead of granting these requests, Nathan would have others care for the children while he worked. Nathan's mother, Mary, would often care for the children during Nathan's parenting time. The children regularly spent the night with Mary when they were supposed to be with Nathan. Nathan largely neglected to take the children to their activities or medical and counseling appointments during his visitation time throughout the pendency of the proceedings.

         There is evidence in the record, whether credible or not, that since the inception of these proceedings, both parties have made efforts to alienate the other from the children-Heather potentially coaching the children to make statements reflecting their preference of Heather as a custodial parent; and Nathan continuing to engage in aggressive behavior toward Heather and the children, limiting Heather's contact with the children while they are in his care, continuously fueling his apparent rage for Heather, and refusing to meaningfully communicate with her about the children's welfare. In response to a question by his attorney on direct examination, apparently in support of his request for shared physical care, Nathan confirmed "all the hard feelings and resentment [were] gone," and the parties were able to effectively communicate with one another about the children. We reject this factual assertion. The record is clear that Nathan harbors nothing but hatred and disdain for Heather, is unwilling to communicate with her about the children, and is ill-equipped to support Heather's relationship with the children. Although there is some evidence-again, whether credible or not-that Heather may have coached the children into saying negative things about Nathan to better her position on the question of physical care, what is clear is that Heather has been more than willing to initiate communication with Nathan relative to co-parenting the children, she wants Nathan to be involved in the children's lives, and she has gone out of her way to make sure Nathan has every opportunity to do so. Heather tries to limit her communications with Nathan about the children to text messages, as Nathan is verbally abusive and calls Heather horrendous things when contact is made over the phone. A small sample of the parties' communications over the phone was admitted as evidence at trial. An audio recording of an October 2016 telephone call between the parties is quite telling of Nathan's motivations during these proceedings-Nathan stated he likes arguing with Heather and hates her, noted he does not care about his time with the children, indicated he does not care about having visitation time with the children, and advised Heather she could have the kids if she just "signed the papers." This indicates to us that Nathan cared more about settling the financial matters involved in these proceedings than he did about securing time with his children. In this phone call, Heather responded, "It would be nice if you could be actively involved in their lives."

         The children are involved in various activities. Heather signs them up, pays for, and attends the activities. Heather also schedules and attends the children's medical and dental appointments. Nathan has attended one such appointment at most since the children were ...

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