IN RE THE MARRIAGE OF PATRICK MAHONEY AND ROSE MAHONEY Upon the Petitioner of PATRICK MAHONEY, Petitioner-Appellee, And Concerning ROSE MAHONEY, n/k/a ROSE KUEHL, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-414 / 08-0469
Filed July 2, 2009
IN RE THE MARRIAGE OF PATRICK MAHONEY
AND ROSE MAHONEY
Upon the Petitioner of
PATRICK MAHONEY,
Petitioner-Appellee,
And Concerning
ROSE MAHONEY, n/k/a ROSE KUEHL,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, John
Bauercamper, Judge.
The petitioner appeals from the district court’s order modifying physical
care of the parties’ children. AFFIRMED.
Jeffrey Clements, West Union, for appellant.
Cheryl Weber, Waterloo, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
2
MANSFIELD, J.
Patrick Mahoney appeals from the district court’s order modifying the
parties’ physical care arrangement.
He asserts that he should have been
granted more visitation time with the children. We affirm.
I. Facts
Patrick Mahoney and Rose Kuehl married and had two children, a
daughter born in 1996 and a son born in 1999. They filed a stipulated decree for
dissolution of marriage in 2003, which contained a provision for joint physical
care of the children.
The children would be in the care of Patrick every
Wednesday evening through Sunday evening and with Rose from Sunday
evening until Wednesday evening and every fifth weekend. This arrangement
coincided with Rose’s work schedule.
In 2005, Patrick petitioned for modification of the joint physical care
arrangement, alleging that he should be awarded physical care. Rose crosspetitioned, requesting that she be granted physical care of the children. The
district court conducted a trial and ultimately declined to modify the physical care
provisions of the decree. On appeal, we reversed and remanded. In re Marriage
of Mahoney, No. 06-1237 (Iowa Ct. App. October 12, 2007). In our opinion, the
details of which we do not repeat here, we pointed out that Patrick had reported
or instigated approximately twelve unconfirmed child abuse complaints against
Rose between 2003 and 2005, and had wrongfully withheld visitation (forcing
Rose to seek court intervention). We also noted that Patrick’s improper efforts to
influence the children in support of his campaign against Rose had resulted in an
3
adverse effect on the children. Accordingly, we determined that Rose should be
granted physical care and remanded for further proceedings.
On remand, the district court did not receive any additional evidence, but
instead adopted our findings and rulings and awarded Rose physical care of the
children.
The decree also granted Patrick visitation from Friday evening to
Sunday evening on alternate weekends, one evening of the week during the
school year (if the parties live in the same school district), an extended summer
visit of two separate three-week periods, and alternate holidays. Patrick’s motion
for new trial and motion for amended and enlarged decree were denied. Patrick
then filed this appeal. Patrick argues that he should have received extraordinary
visitation on remand, rather than the liberal but fairly typical visitation that he did
receive.1
II. Standard of Review
This action for modification of a dissolution of marriage decree is an equity
case. See Iowa Code § 598.3 (2007). We review modification proceedings de
novo. Iowa R. App. P. 6.4; In re Marriage of Zebecki, 389 N.W.2d 396, 398
(Iowa 1986).
We give weight to the factual findings of the district court,
especially when considering the credibility of witnesses, but are not bound by
them.
Iowa R. App. P. 6.14(6)(g).
Our overriding consideration is the best
interests of the children. Iowa R. App. P. 6.14(6)(o).
1
Patrick does not tell us exactly what additional visitation time he feels he should have
received. In the district court, he argued, among other things, that the weekend
visitations should commence on Thursday rather than Friday.
4
III. Analysis
Patrick argues that the district court, when it considered this matter on
remand, should have given him more visitation with the children than he
received. He points to the provision in the original dissolution of marriage decree
that allowed him approximately six months a year with the children.
The
supplemental decree would reduce that time to approximately three months a
year.
To a large extent, this reduction in time with the children (from
approximately one-half to one-quarter) stems from our earlier decision on appeal
that Rose should be awarded physical care. Many of Patrick’s arguments now
are a reprise of his arguments in the prior appeal. We believe that our prior
opinion addresses those arguments. There we concluded that the joint physical
care arrangement needed to be changed, that the parental discord was having a
disruptive effect on the children, and that Rose was the superior caretaker
because of the detrimental effect Patrick’s actions had on the children.
We believe the district court’s decision to provide Patrick with liberal but
not extraordinary visitation was an appropriate action on remand. The facts in
this record, including the substantial difficulties between the parties2 and the
adverse effects of Patrick’s unwarranted actions, demonstrate that the district
court’s visitation schedule is reasonable. Callender v. Skiles, 623 N.W.2d 852,
855-56 (Iowa 2001) (holding that in fashioning the visitation schedule, the court
should consider the best interests of the child including potential disruptions that
could result from additional time with the noncustodial parent).
2
For example, they were transferring the children to each other at the police department.
5
Patrick argues that Rose “did not have any objection to Patrick being
awarded extraordinary visitation if she were awarded primary physical
placement.” We think this argument reads too much into a single answer that
Rose gave to a single question at the modification hearing. She was asked, “If
the court were to deem it appropriate for Mr. Mahoney to have extraordinary
visitation, would you object to that?” She answered, “No. I would not object to
that.” This answer was a statement concerning the position Rose would take if
the court deemed extraordinary visitation appropriate, which it did not. It is not a
binding stipulation. In any event, the district court was authorized to determine
the appropriate level of visitation itself, based upon the factors in Iowa Code
section 598.41 and Iowa case law. See id. at 855-56.
Finally, Rose requests appellate attorney fees in the amount of $1500. An
award of appellate attorney fees is not a matter of right, but lies within the court’s
discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997).
We consider the needs of the party making the request, the ability of the other
party to pay, and whether the party making the request was obligated to defend
the district court’s decision on appeal. Id. When this case was previously before
us, we denied Rose’s request based on the parties’ financial circumstances.
However, we believe the situation is different now, because Rose has been
forced to undergo a second round of appellate proceedings defending the district
court’s decision against arguments that, to a large extent, are restatements of
prior positions.
In our exercise of discretion, we grant Rose’s request for
attorneys fees on appeal in the amount of $1500.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.