IN RE THE MARRIAGE OF PATRICK MAHONEY AND ROSE MAHONEY, Upon the Petition of PATRICK MAHONEY, Petitioner-Appellee, And Concerning ROSE MAHONEY, n/k/a ROSE KUEHL, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-542 / 06-1237
Filed October 12, 2007
IN RE THE MARRIAGE OF PATRICK MAHONEY
AND ROSE MAHONEY,
Upon the Petition of
PATRICK MAHONEY,
Petitioner-Appellee,
And Concerning
ROSE MAHONEY, n/k/a ROSE KUEHL,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, John
Bauercamper, Judge.
Rose Mahoney appeals the district court’s denial of her request to modify
the parties’ joint physical care arrangement. REVERSED AND REMANDED.
Cheryl Weber of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for
appellant.
Jeffrey Clements, West Union, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
2
VAITHESWARAN, J.
We must decide whether the district court acted equitably in denying Rose
Mahoney’s request for modification of a joint physical care arrangement.
I.
Background Facts and Proceedings
Patrick Mahoney and Rose Mahoney, n/k/a Rose Kuehl, married and had
two children: Kirsten, born in 1996, and Ian, born in 1999. They divorced in
2003.
The decree approved a stipulated settlement that provided for joint
physical care of the children.
Shortly after the decree was entered, Patrick moved to have it set aside
on the ground that he was coerced into settling. The district court denied the
motion, stating, “It is apparent to the court that petitioner simply changed his
mind and no longer wants to be bound by the terms he negotiated . . . .”
The same month, Rose sought to have Patrick held in contempt for
withholding visitation.
The district court found Patrick violated the decree by
denying Rose visitation on certain specified dates. The court stated: “It is clear
that Patrick is in contempt of court for his willful and intentional violation of the
court order regarding visitation, and his attempts to manipulate visitation during
the last several months.”
The very same month, the Department of Human Services began
receiving complaints that Rose and her new husband were engaging in child
abuse. Those complaints continued for more than two years.
Approximately two years after the dissolution decree was entered, Patrick
sought a modification of the decree’s joint physical care provision to afford him
physical care of the children. Rose cross-petitioned for physical care.
3
Following trial, the district court found “communication problems . . . lack
of civility between the parents, and related problems,” but concluded they did not
“reach a level which requires the court to discard the child care plan the parents
both agreed to accept three years ago.” Rose appealed. 1
Rose does not take issue with the district court’s fact findings. Instead,
she asserts those findings warranted a modification of the decree to afford her
physical care of the children. Our review of this issue is de novo. Iowa R. App.
P. 6.4.
II.
Physical Care Analysis
A. Substantial Change of Circumstances
Rose first had to establish a substantial change of circumstances since
the time of the decree. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa
1983). Parental discord having a disruptive effect on children’s lives may amount
to a substantial change of circumstances. In re Marriage of Walton, 577 N.W.2d
869, 870 (Iowa Ct. App. 1998).
Rose established the existence of parental discord.
Soon after the
stipulated decree was entered, Patrick attempted to disavow the joint physical
care provision.
He also denied Rose visitation, forcing her to seek court
intervention. And, he reported or instigated several child abuse complaints, all of
which were deemed unconfirmed. The nature, timing, and disposition of these
complaints are telling.
1. June, 2003: Indecent exposure. Three days after the court
entered the dissolution decree, it was reported that six-year-old Kirsten saw
1
Patrick did not file a responsive brief.
4
Rose’s soon-to-be husband without clothes.
Following an investigation, the
Department determined the report was unconfirmed. An administrative law judge
later found:
Appellants Patrick and Rose were engaged in a judicial
custody dispute with one another in which one or both of them may
have been motivated to persuade K.M. to say that something did or
did not happen in order to gain some legal advantage.
2.
July, 2003: Bruised arms.
Patrick complained to the
Department that Kirsten had a handprint-like bruise on her arm. This report was
initially confirmed and Rose was found responsible for the abuse. On appeal, an
administrative law judge reversed the Department, noting that Kirsten had
recanted her story on two occasions following her initial interview with a child
protection worker.
3. August, 2003: Lack of supervision. Patrick reported to the
Department that Rose left Ian alone when she went to the store. This complaint
was deemed unconfirmed. Rose advised the Department that she went to the
store to pick up some milk, other children were with her son, and at least one of
them was responsible enough to call 911 in case of an emergency.
4. November, 2003: Sexual abuse and physical abuse. The
Department received a complaint that there was sexual and physical abuse in
Rose’s home. Patrick’s sister testified she made a complaint along these lines
“in ‘03 or ‘4.” A child protection worker investigated the report. The complaint
was deemed unconfirmed.
5. January, 2004: Bruises on Ian’s cheek. A report was made
that Ian had bruises on his face. Ian told an investigator that his mother hit him
5
with a hammer. When Kirsten was questioned about the bruises, she said their
dad slapped Ian because he was “being goofy” and told the children to say their
mom caused the injuries. The report was deemed unconfirmed.
6. January, 2004. Summary records reveal that a second abuse
investigation was initiated in the month of January. Although the disposition of
this investigation is not in the record, professionals testified that none of the
reports relating to Kirsten and Ian were confirmed.
7. April, 2004: Sexual abuse. During an individual session with a
therapist, Kirsten disclosed that she was being abused. The therapist reported
this disclosure to the Department, which, in turn, conducted an investigation.
According to a summary document in the record, this report was not confirmed.
8.
May, 2004:
Physical abuse by Rose’s husband.
Patrick
complained to the Department that Kirsten had a swollen ear and a bruise on her
chin. When Kirsten was interviewed, she said Rose’s husband inflicted these
injuries. After a lengthy and thorough investigation by the Department, a police
officer, and child protection center employees, several inconsistencies were
noted in Kirsten’s statements. The report was deemed unconfirmed.
9. May, 2004. Another complaint was filed in this month. The
nature of this complaint is unknown but, based on the testimony in the record we
conclude this complaint was also unconfirmed.
10. (July) August, 2004: Sexual abuse. At trial, an in-home
service provider who furnished skilled counseling and supervisory services
testified that she reported the two bruises on Ian in January. She stated that, in
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August 2004, 2 she also made a report of possible sexual abuse based on
statements Kirsten made to her. She questioned what the children told her about
abuse because of “how they said it.” She said she told Patrick that the children’s
reports to her were “verbatim what” Patrick told her in phone calls. She told him,
“it appears that they have been coached, and if they have not been coached,
they may have listened to his phone calls with me and repeated what he has
been saying.” Finally, she opined that Kirsten’s statements about the abuse
were “nothing like any abuse reports I had ever received in my life. [Kirsten] was
celebrating that she was happy; she had never indicated any time previous she
was afraid.
It was not consistent to any report.”
The provider stated she
nevertheless felt obligated to report Kirsten’s statements to the Department
because she was a mandatory reporter.
The record does not contain the Department’s disposition of this
complaint, but the service provider testified it was her understanding that all
complaints involving Kirsten and Ian were deemed unconfirmed.
11.
November, 2004:
Medical neglect.
concerning Rose’s failure to give Ian medication.
A complaint was filed
The report was deemed
unconfirmed.
12.
December, 2005:
Sexual abuse.
Kirsten complained to her
therapist that Rose’s husband liked to touch her private parts.
Because of
concerns that the children’s statements were being influenced, the child
protection worker informed Patrick that she would transport the children to the
child protection center. On the day of the trip, Patrick called the worker to tell her
2
The record suggests that this complaint may have been filed in July.
7
that Kirsten tends to get “kind of confused” when she is anxious and that if some
of her stories got mixed up during the interview it was because she was nervous.
At the child protection center Kirsten’s statements of abuse contained
inconsistencies. Subsequent medical examinations of both children were within
normal limits. Meanwhile, Rose’s husband was interviewed by police. He stated
he distances himself from the children because he does not want to be falsely
accused of abuse. This report of abuse was deemed unconfirmed.
In sum, Rose was repeatedly investigated for child abuse between 2003
and 2005, usually at the behest of Patrick.
Commenting on the many
investigations, one Department employee stated:
This worker is concerned regarding the state of mind of
Patrick Mahoney. He appears desperate in his attempt to convince
the department that Kirsten and Ian have been abused despite the
fact that every professional that has had contact with these children
has told him differently . . . . His influence on his children is
suspect. His constant allegations of abuse are detrimental to
Kirsten and Ian.
In a similar vein, a Department supervisor testified that Patrick told her he wished
to use a confirmed finding of abuse against Rose in a custody proceeding.
We conclude the discord between the parents amounted to more than the
expected tensions between divorcing parents. Cf. In re Marriage of Bolin, 336
N.W.2d 441, 447 (Iowa 1983) (“Although cooperation and communication are
essential in joint custody, tension between the parents is not alone sufficient to
demonstrate it will not work.”); In re Marriage of Ellis, 705 N.W.2d 96, 103 (Iowa
Ct. App. 2005) (stating while appropriate cooperation and communication is
required
for
joint
physical
care,
“certain
failures
of
cooperation
and
communication” are to be expected). Patrick’s grave allegations of abuse directly
8
threatened Rose’s relationship with Kirsten and Ian. Even without Patrick’s move
to disavow the joint physical care arrangement or his denial of visitation, these
unconfirmed reports amounted to a substantial change of circumstances.
B. Rose’s ability to offer superior care.
Rose also had to prove she could minister more effectively to the children
than Patrick. See Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct. App. 2002).
Several professionals noted the detrimental effects of Patrick’s vigorous
and sustained charges against Rose.
For example, a professional who
evaluated Kirsten concluded:
Kirsten repeatedly denied physical or sexual abuse by [Rose’s
husband] . . . . Further, Kirsten alleges that her father told [her] to
“lie” in Cedar Rapids and tell the investigators that [she] was
“touched” by [Rose’s husband]. Kirsten went on to state that her
father “told me [Rose’s husband] is bad, but no he is not!” . . . .
When asked about how she felt about going to Cedar Rapids on
three occasions for purposes of an evaluation, Kirsten responded,
“Scared, scared, scared . . . they keep talking to me about [Rose’s
husband] and he is nice.”
....
Kirsten is becoming quite frightened by the recurring sexual
abuse investigations conducted through St. Luke’s Hospital in
Cedar Rapids. To be repeatedly put through the procedure is
potentially damaging to the child as the result of the accumulated
fears associated with repeated examinations. Should the parents
continue to have conflicts of the nature evaluated by the writer, the
potential effect on the children could indeed become “mental
abuse.”
We conclude these detrimental effects rendered Rose the superior caretaker.
Notably, Rose expressed a willingness to foster the children’s relationship with
their father, despite the repeated accusations he made against her.
She
testified, Patrick’s “heart is in the right place.” When asked about a confirmed
child abuse report against Patrick based on physical abuse of his son from
9
another relationship, she declined to use it to counter his charges. Instead, she
stated “he wouldn’t intentionally try to physically abuse [Kirsten and Ian].”
In concluding Rose should have physical care of Kirsten and Ian, we
recognize and are troubled by the fact that Rose’s husband has two founded
abuse reports against him for physical abuse of his biological children. However,
the Department and police investigated him and were not persuaded that he
abused Rose’s children. Based on that record, his background does not warrant
a continuation of the status quo.
We conclude the joint physical care arrangement was not in the children’s
best interests. Melchiori, 644 N.W.2d at 369. We reverse the district court’s
denial of Rose’s cross-petition for modification of the joint physical care
arrangement.
The dissolution decree is modified to provide that Rose will
assume physical care of Kirsten and Ian. We remand for further proceedings
consistent with this opinion.
III.
Appellate attorney’s fees
Rose requests $3000 in appellate attorney fees. An award of appellate
attorney fees is not a matter of right, but rather rests within the appellate court’s
discretion. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct. App.
1996). Based on the parties’ financial circumstances, we decline this request.
REVERSED AND REMANDED.
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