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In re Marriage of Liening

Court of Appeals of Iowa

August 7, 2019

IN RE THE MARRIAGE OF ELAINE MARIE LIENING AND STEVEN RAY LIENING Upon the Petition of ELAINE MARIE LIENING, Petitioner-Appellee, And Concerning STEVEN RAY LIENING, Respondent-Appellant.

          Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         Steven Liening appeals the district court order denying his petition to modify the physical-care provisions of a dissolution-of-marriage decree.

          Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des Moines, for appellant.

          Anjela A. Shutts and Tyler L. Coe of Whitfield & Eddy, P.L.C., Des Moines, for appellee.

          Cole Mayer of Kids First Law Center, Des Moines, attorney for minor children.

          Considered by Mullins, P.J., Bower, J., and Vogel, S.J. [*]

          MULLINS, PRESIDING JUDGE.

         Steven Liening appeals the district court order denying his petition to modify the physical-care provisions of a dissolution-of-marriage decree. Steven argues the district court erred in failing to find a substantial and material change in circumstance to justify the modification of the physical-care provisions of the dissolution decree. He contends Elaine Liening's hostility toward him, efforts to inhibit his parenting time, failure to support his relationship with the children, and unresolved mental-health issues provide sufficient evidence of a substantial and material change in circumstance and that he is the parent with the superior ability to care for the children. Both parties request appellate attorney fees.

         I. Background Facts and Proceedings

         Elaine and Steven were married in 2005. They are the parents of I.K.L., born in 2006, and G.J.L., born in 2008. Elaine is also the mother of a child, born in 2017, from another relationship. Elaine and Steven's marriage was dissolved in 2010 in Tennessee. The dissolution decree incorporated a stipulated parenting plan which granted the parties joint legal custody and granted Elaine physical care of the children because of Steven's active military service. The parenting plan allowed Steven visitation when on leave. Before the court filed the dissolution decree, Elaine and the children moved to Iowa. After Steven's discharge from the military, Steven remained in Tennessee, where he continued to reside at the time of trial.

         In June 2013, Elaine registered the dissolution decree and parenting plan in Iowa. In December, Tennessee transferred jurisdiction of the case to Iowa. In December 2014, the court modified the visitation and transportation provisions of the dissolution decree given the parties' geographical distance. In December 2016, Elaine was the victim of a domestic assault by her then paramour. One or both children witnessed the incident. Steven was not notified about the incident until February 2017, when law enforcement interviewed one of the children.

         In May, Steven filed an application for rule to show cause alleging multiple counts of contempt against Elaine related to Elaine's interference with his visitation and refusal to consult about joint-legal-custody issues. After a contested hearing, the court found Elaine guilty of one count of contempt and in default on other allegations.[1] The court modified Steven's visitation to compensate him for lost time and ordered Elaine pay $1000 of Steven's attorney fees.

         In March 2018, Steven petitioned to modify the dissolution decree's physical-care provisions, alleging Elaine's continued interference with his visitation and his relationship with the children amounted to substantial changes in circumstances which justify modification of the children's physical care. Steven requested physical care or, in the alternative, additional visitation. In April, Steven moved for an emergency transfer of physical care of the children because of Elaine's alleged suicidal thoughts, including thoughts of harming the children, which she shared with her therapist and an Iowa Department of Human Services (DHS) worker. Steven requested Elaine undergo a complete psychological evaluation. He claimed Elaine had a history of mental illness, suicide attempts, and involuntary committals. Elaine consented to the psychological evaluation, asserting she had nothing to hide. In May, the court found an evaluation Elaine underwent before the hearing lacked credibility and ordered her to undergo a full and independent psychological evaluation before the modification trial. The court granted Steven's request for emergency transfer of custody and ordered the transfer of the children's care to Elaine's parents to allow the children to finish the remainder of the school year. At the end of the school year, Steven took over the children's care.

         In July, during a pretrial conference, the court found the testimony of Elaine and the DHS worker who conducted the initial investigation, along with a letter from the physician who conducted Elaine's psychological evaluation, alleviated its concerns about Elaine's mental health and any potential danger to herself and the children. Based upon these findings, the court dissolved ...


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