IN RE THE MARRIAGE OF JANET LEE CARLON AND DAVID CHARLES CARLON Upon the Petition of JANET LEE CARLON, Petitioner-Appellee, And Concerning DAVID CHARLES CARLON, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-600 / 09-0042
Filed August 19, 2009
IN RE THE MARRIAGE OF JANET LEE CARLON
AND DAVID CHARLES CARLON
Upon the Petition of
JANET LEE CARLON,
Petitioner-Appellee,
And Concerning
DAVID CHARLES CARLON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee, Judge.
David Carlon appeals from the court’s order of supervised visitation in this
dissolution action. AFFIRMED.
Dani L. Eisentrager, Eagle Grove, for appellant.
Kathy Mace Skinner, Nevada, for appellee.
Considered by Vogel, P.J., Potterfield, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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POTTERFIELD, J.
David Carlon appeals from the visitation provisions of the parties’
dissolution decree. The district court ordered supervised visitation and David
contends this was unnecessary. We affirm.
I. Background Facts and Proceedings.
David and Janet Carlon were married for twenty-one years and had three
daughters. Janet filed a petition for dissolution of marriage. The parents agreed
on temporary orders that limited David’s time with the children, but did not require
supervision. Prior to trial, David and Janet reached agreement as to property
distribution and child custody. Thus, the only issue before the district court was
what visitation was appropriate between David and the parties’ two minor
daughters.
At trial, Janet testified that David had a history of mental health issues and
that he had been hospitalized for severe depression in 2006 and undergone
electroshock therapy.
She testified he was on medications after the
hospitalization and the depression had improved, but his inability to control his
anger had not. She was fearful for the girls if visits were unsupervised. She
testified that David inappropriately relied upon their youngest daughter for
emotional support and often placed her in the middle of inappropriate situations.
The eldest of the couple’s daughters is in college and not subject to any
visitation. She testified at the trial, however, that she was fearful of David and
was worried for her siblings. She testified David gets angry quickly and that she
was afraid of him because he yells and swears at her and her sisters. She
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testified he had lunged at her and grabbed her. She thought he was mentally
unhealthy and at times “simply not rational.”
The next oldest daughter, age fifteen, also testified she did not wish to
have any visits with her father because of his inability to control his anger. She
testified that if visits were to be required, she preferred that they be “supervised
and the absolute minimal amount.” She testified his anger is irrational and that
she was worried for her younger sibling “once she gets to her later teenage years
. . . she’ll start to have ideas that differ from daddy’s and he will get upset . . . and
I’m afraid of what will happen.”
David and Janet’s pastor also testified at trial that he was concerned about
David’s anger and the emotional content of interactions between David and his
children.
David testified and acknowledged he had a problem controlling his anger.
He acknowledged he had been physical with the girls, but denied that those
instances were abusive. He testified he had “tapped” the youngest on the head
when he was having an argument with his other daughter. With respect to one
incident with his oldest daughter he testified:
I grabbed her by the arm one time and there’s been other
times where we’ve you know, she’s come up to me like this and we
more or less like she says a standoff, which you don’t think it’s
something that a girl should be doing with her father, she should be
saying, okay, dad, I’ll do what you want me to do or whatever, but
she has never been that way with me.
However, he tended to blame Janet’s controlling nature for the situation,
testifying that since his hospitalization Janet had not allowed him to discipline the
girls.
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After hearing the testimony, the district court filed an order on December
22, 2008. The court wrote:
David has mental health issues that have manifested
themselves in the form of depression, anger and no self control. In
August 2006, he was hospitalized as suicidal. He continues to be
seen by a psychiatrist and takes medications. His depression is
under control. Notwithstanding David’s belief that he is making
strides with respect to managing his anger and behaviors, Janet
and the two older daughters disagree and this Court finds their
testimony more accurately reflects the current situation. David flip
flops between flying off the handle and being apologetic and
remorseful, but the out of control behaviors always continue. The
issues between David and his children are not due to the children
not following his rules and Janet never supporting his discipline
. . . . David is physically and verbally abusive to the children. He
yells, bullies, and calls them names . . . . He is a physically
imposing man. He typically lunges and grabs a child so that they
are chest to chest and yells at them, often unintentionally spitting
on them. The children indicate that his conduct scares them.
The court noted it was “always reluctant to limit visitation and even more hesitant
to impose supervision” but concluded that in this case it “sees little alternative.” 1
The court thereafter set visitation for the two minor children for two hours per
week in a public place, with supervision to be provided by Children and Families
of Iowa.
David appeals.
II. Scope and Standard of Review.
Our review of this equity proceeding is de novo. Iowa R. App. P. 6.4.
Because the trial court had the opportunity to observe the demeanor of the
witnesses, we give weight to its findings, particularly with respect to credibility,
1
The court initially asked the parties to provide additional information on proposed
supervisors. The parties later entered a protective order by consent agreement in favor
of Janet. After receiving the additional information, the court entered an order setting the
specific time and place for the supervised visits and assessing the costs of supervision
equally between the parents.
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but we are not bound by them. In re Marriage of Murphy, 592 N.W.2d 681, 683
(Iowa 1999).
III. Merits.
Iowa Code section 598.41(1)(a) (2009) provides:
The court may provide for joint custody of the child by the
parties. The court, insofar as is reasonable and in the best interest
of the child, shall order the custody award, including liberal
visitation rights where appropriate, which will assure the child the
opportunity for the maximum continuing physical and emotional
contact with both parents after the parents have separated or
dissolved the marriage, and which will encourage parents to share
the rights and responsibilities of raising the child unless direct
physical harm or significant emotional harm to the child, other
children, or a parent is likely to result from such contact with one
parent.
(Emphasis added.)
Here, the district court concluded limited, supervised visitation was
appropriate because of the risk of harm to the minor children. Upon our de novo
review, we agree. We affirm the visitation ordered by the district court.
Both David and Janet seek attorney fees for this appeal. An award of
attorney fees is not a matter of right, but rests within the court’s discretion and
the parties’ financial positions. In re Marriage of Rykhoek, 525 N.W.2d 1, 5 (Iowa
Ct. App. 1994). We determine each party should pay his or her own attorney
fees for this appeal. Costs of this appeal are assessed to David.
AFFIRMED.
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