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In re Marriage of Lewis

Court of Appeals of Iowa

April 17, 2019

IN RE THE MARRIAGE OF HOLLY JOY LEWIS AND ERIC WILLIAM LEWIS Upon the Petition of HOLLY JOY LEWIS, Petitioner-Appellant/Cross-Appellee, And Concerning ERIC WILLIAM LEWIS, Respondent-Appellee/Cross-Appellant.

          Appeal from the Iowa District Court for Dallas County, Brad McCall, Judge.

         Holly Lewis appeals, and Eric Lewis cross-appeals, the modification of a dissolution-of-marriage decree. AFFIRMED ON APPEAL, AFFIRMED AS MODIFIED ON CROSS-APPEAL, AND REMANDED WITH INSTRUCTIONS.

          Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant.

          Ashley Tollakson of Stamatelos & Tollakson, PLLC, West Des Moines, for appellee.

          Considered by Tabor, P.J., and Mullins and Bower, JJ.

          Mullins, Judge.

         Holly Lewis appeals, and Eric Lewis cross-appeals, the modification of a dissolution-of-marriage decree. Holly argues the court erred in modifying the physical-care provisions of the decree or, alternatively, she should have been afforded additional parenting time as to the children placed in the parties' shared physical care. Eric argues the court erred in placing the two younger children in the joint physical care of both parties rather than in his physical care and the court erred in its child-support calculation as to the joint-physical-care children.

         I. Background Facts and Proceedings

         Upon our de novo review of the record, we make the following factual findings. The parties married in 1999. The marriage produced three children: two daughters, L.J.L. (born May 2000) and L.L.L. (born May 2001); and a son, L.W.L. (born September 2002).

         In July 2007, Holly filed a petition for dissolution of marriage. The district court ordered the completion of a custody evaluation. A lengthy evaluation was completed in April 2008. The evaluator recommended the establishment of a physical-care arrangement in which the children would spend sixty percent of their time with Holly and forty percent with Eric. The evaluator additionally recommended that Holly participate in mental-health services. A follow up to the evaluation was completed in September. The evaluator again recommended that Holly participate in mental-health services and her status as physical caregiver should depend on continuing treatment. In October, the district court entered a dissolution-of-marriage decree stipulated to by the parties. The parties were granted joint legal custody of the children, with physical care being awarded to Holly. Eric was granted liberal visitation rights. The court ordered that Holly participate in mental-health services until she reaches maximum benefits as determined by her therapist. Both parties were ordered to continue to participate in co-parenting counseling once per month so long as their counselor determined it necessary.

         Eric maintains a laid-back and easy-going style of parenting. Eric lives with his girlfriend of more than three years, Heidi, her two children, and L.J.L. Although there were some blending issues between the children and two of Eric's previous girlfriends, and the relationships between Heidi and the children were somewhat rocky at first, these issues were influenced by Holly's negative remarks to the children about Eric's various girlfriends. The children currently have positive relationships with Heidi and her children. Eric is the president of a business owned and started by his parents. Eric earns gross annual income in the amount of $164, 632.00. He has a very flexible work schedule. Eric pays for all costs associated with the children's schooling, extracurricular activities, cell phones, and automobiles. Eric is supportive of Holly's relationships with the children.

         Holly has served as the primary caretaker for the children. Historically, she has tended to the children's medical and dental needs and organized their extracurricular activities. Holly maintains an intense and supervisory parenting style. Holly is generally unsupportive of Eric's relationships with the children. Holly views any indication of preference for Eric by the children as a sign of disloyalty. Such indications generally result in Holly becoming upset with the children. Holly variously accuses Eric of being a drug user and dealer. Her claims are wholly unsubstantiated. The parties' co-parenting counselor testified much of the co- parenting struggles are largely a result of Holly's inflexibility, as it always has "to be her way or no way." The counselor also testified to her concern, since the entry of the decree, for Holly's "constant attempts to sabotage [Eric's] relationship with the kids." Holly works part time at a paint store. The amount of time she works varies but a review of her pay stubs shows an average gross income in the amount of $1814.92 per month, which equates to $21, 779.04 per year.

         At the time of trial, L.J.L. was seventeen years old and a senior in high school. She has since reached the age of majority. She is high functioning and independent. The relationship between Holly and L.J.L. is highly strained. L.J.L. has made it clear that she will not live with Holly. L.L.L. was sixteen years old and a junior in high school at the time of trial. She is a people pleaser and is outspoken and accomplished in both academics and extracurricular activities. L.W.L. was fifteen years old and a freshman in high school at the time of trial. He is more laid back and reserved than his older sisters. He struggles somewhat in school but does well socially and in athletics.

         Since the entry of the decree, Holly has not addressed her mental-health issues or meaningfully participated in mental-health treatment as ordered. The children fear Holly, and they find Eric to be more dependable and reliable. Holly frequently engages in unpredictable behavior and directs hostility toward the children. Holly screams at the children, throws things, and breaks things during these episodes. Generally, she blames her behavior on Eric and an issue with her thyroid. Most of the hostility has been between Holly and the oldest child, L.J.L. By October 2016, L.J.L., became fed up with Holly's hostile behavior toward her and her siblings. At this time, L.J.L. went to stay with Eric for about a week. A fight erupted between Holly and L.J.L. upon her return to Holly's home, during which Holly directed L.J.L. to kill herself. L.J.L immediately moved out of Holly's home and moved in with Eric permanently. Eric has encouraged L.J.L. to work things out with Holly.

         Holly shifted her aggression to L.L.L. after L.J.L.'s departure from the home. In December 2016, Holly had an extensive and aggressive outburst toward L.L.L. in relation to the child not getting a discount on paint at the store Holly works at. This incident resulted in a founded child-abuse assessment against Holly for mental injury. The evidence supports a conclusion that eruptions such as these on the part of Holly toward the children are fairly common. The guardian ad litem testified, as a result of Holly's failure to abide by the decree and receive meaningful mental-health services, the children's safety and emotional and mental health are compromised while in Holly's care. The co-parenting counselor testified to her concern for the children's safety if they remain in Holly's physical care.

         In December 2016, Eric filed a petition for modification of the decree alleging numerous developments warranted modification of the custody and support provisions of the decree. Holly filed a counter-claim requesting an increase in Eric's child-support obligation.

         Following a two-day trial in November 2017, the court concluded Eric met his burden for modification of the original decree. The court found L.J.L.'s best interests necessitate her placement in Eric's physical care while L.L.L. and L.W.L.'s best interests would be served by being placed in the shared physical care of the parties. The court entered a written modification ruling in which it ordered physical care of L.J.L. be placed with Eric while L.L.L. and L.W.L. be in the shared physical care of the parties subject to a specific parenting-time schedule. As to L.L.L. and L.W.L., the court ordered Holly's entitlement to parenting time every other Thursday evening to Sunday evening and every other Wednesday evening to Thursday morning on an alternating basis. The court also ordered Holly to enroll in mental-health therapy and treatment. In a subsequent order, the ...

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