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In re Marriage of Dugan

Court of Appeals of Iowa

July 3, 2019

IN RE THE MARRIAGE OF VICTORIA DUGAN AND JAMES DUGAN Upon the Petition of VICTORIA DUGAN, Petitioner-Appellant, And Concerning JAMES DUGAN, Respondent-Appellee.

          Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.

         Victoria Dugan appeals the child custody and support provisions of the decree dissolving her marriage to James Dugan.

          Dana DeSimone of Miller, Pearson, Gloe, Burns, Beatty & Parrish P.L.C., Decorah, for appellant.

          James Dugan, Sumner, pro se appellee.

          Considered by Potterfield, P.J., and Doyle and May, JJ.

          DOYLE, JUDGE.

         Victoria Dugan appeals the child custody and support provisions of the decree dissolving her marriage to James Dugan. She seeks physical care of the children. In the alternative, she asks for modification of the visitation and child-support provisions of the decree. She also seeks an award of spousal support and her appellate attorney fees.

         Because the district court hears dissolution-of-marriage proceedings in equity, our review is de novo. See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); see also Iowa Code § 598.3 (2017); Iowa R. App. P. 6.907. Although we examine the entire record and adjudicate the issues anew, we give weight to the district court's factual findings, especially with respect to the credibility of the witnesses. See In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013); see also Iowa R. App. P. 6.904(3)(g). This is because the district court, in making its credibility assessment, has the distinct advantage of listening and observing each witness's demeanor firsthand, while we must rely on a cold transcript. See In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989); In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).

         The parties married in 2001 and have six children together, ranging in age from eight to sixteen years old. Victoria also has two younger children who are not at issue in this action. In October 2017, after James moved to Kentucky, Victoria filed a petition to dissolve the marriage.

         On February 26, 2018, the district court entered a temporary custody order based on the parties' agreement to place their four daughters in James's physical care while their two sons would be in Victoria's physical care. Two weeks later, Victoria traveled to Kentucky, removed the children from James's care, and brought the children to Iowa. She alleged she did so because James's girlfriend informed her that he was using alcohol and methamphetamine. However, a sample James provided for testing on March 13 was negative for the screened drugs. From March 2018 until the time of trial in June, Victoria only allowed James to contact the children via telephone or video chat.

         In May 2018, James moved back to Iowa. On May 8, without James's knowledge, Victoria withdrew the children from the school they had been attending in order to move to Wisconsin with Michael Stover, her boyfriend of two months. She and Stover share a three-bedroom home with Victoria's eight children and Stover's two children. At some point, Victoria also blocked James from contacting the children by phone or Internet.

         The parties appeared pro se at the June 2018 trial. In addition to testimony from Victoria and James, the court heard testimony from Victoria's mother and father and from James's mother.

         The court entered the decree dissolving the parties' marriage in August 2018. It granted James physical care of the children with Victoria receiving visitation on alternating weekends in addition to a one-week visit each month in June, July, and August. The court ordered Victoria to pay James $210 per month of child support and granted James tax credits for all six children.

         I. Physical Care ...


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