IN RE THE MARRIAGE OF KELLY R. GENSLEY AND KANDI J. GENSLEY Upon the Petition of KELLY RAYMOND GENSLEY, Petitioner-Appellant/Cross-Appellee, And Concerning KANDI JEAN GENSLEY, Respondent-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-706 / 09-0072
Filed December 17, 2009
IN RE THE MARRIAGE OF KELLY R. GENSLEY
AND KANDI J. GENSLEY
Upon the Petition of
KELLY RAYMOND GENSLEY,
Petitioner-Appellant/Cross-Appellee,
And Concerning
KANDI JEAN GENSLEY,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Iowa County, David M. Remley,
Judge.
Kelly Gensley appeals and Kandi Gensley cross-appeals from the decree
dissolving their marriage. AFFIRMED AS MODIFIED.
Theodore F. Sporer and Meghan S. Hanson of Sporer & Flanagan, P.C.,
Des Moines, for appellant.
Crystal L. Usher of Nazette, Marner, Nathanson & Shea, L.L.P., Cedar
Rapids, for appellee.
Heard by Vogel, P.J., and Doyle and Mansfield, JJ.
2
VOGEL, P.J.
Kelly Gensley appeals and Kandi Gensley cross-appeals from the decree
dissolving their marriage.
Kelly challenges the child custody and visitation
provisions of the decree, as well as the provision regarding the children‟s health
and dental insurance, the award of the marital residence to Kandi, the personal
property division, and the equalization payment Kandi was ordered to pay him.
On cross-appeal, Kandi challenges the provision regarding visitation. We modify
the visitation provision and affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Kelly and Kandi were married on August 15, 1992.
Their marriage
resulted in three children: Kelsi (born 1994), Kodi (born 1996), and Kortni (born
2000).
The parties separated on May 25, 2006. Kandi remained in the marital
residence with the children and Kelly moved to his mother‟s house,
approximately thirty miles from the marital residence. On that same date, Kandi
applied for and was granted a temporary order of protection. On June 1, 2006, a
hearing was held and the district court entered an order of protection, which
expired in one year, stating that both parties consented to the order. The order
also granted Kandi temporary physical care of the children with Kelly having
visitation, and ordered Kelly to pay temporary child and spousal support. On
June 7, 2006, the district court amended the order of protection with additional
terms that were agreed upon by the parties.
On June 30, 2006, Kelly filed a petition for dissolution of marriage,
requesting joint legal custody and physical care of the children. On July 6, 2006,
3
another hearing to modify the order of protection was held and the district court
amended the order to specify that Kelly‟s visitation with the children would be
every Monday and Wednesday from 4:00 p.m. to 8:00 p.m. and alternating
weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. The following day
Kelly filed an application requesting temporary custody of the children in the
dissolution action. On July 25, 2006, Kandi answered the petition for dissolution,
in which she requested the parties be granted joint legal custody and she be
granted physical care of the children.
She also resisted Kelly‟s petition for
temporary custody because it had already been determined in the order of
protection. On September 14, 2006, a hearing was held on temporary matters.
In its subsequent order, the district court stated:
The parties have filed a large number of affidavits, apparently again
confusing the concepts of quantity and quality. Respondent has
filed 20 affidavits and the petitioner has filed 33. I have read all of
the affidavits and note that very few of them contain information
helpful to the Court, though they appear to clearly draw the battle
lines in what the parties expect and perhaps hope will be a long
and protracted fight leading to the defeat of the opposing party,
though inevitably with substantial “collateral damage” to the
children.
The district court found that the provisions of the order of protection relating to
custody, visitation, and support were incorporated by reference and ordered that
they be followed.
On November 9, 2006, Kelly was found to be in contempt for violating the
order of protection and was sentenced to twenty-four hours in jail. In November
and December 2006, Kelly and Kandi attended individual and joint counseling
sessions with a family therapist, Dr. Elisabeth M. Robbins. A letter written by Dr.
4
Robbins dated January 5, 2007, was filed with the district court. Dr. Robbins
reported that
The high defensiveness and frequent accusations [that]
characterize this couple appear to be the result of years of
accumulated anger and hurts they have received from the other
and which they have never been able to talk out and resolve. It will
take a good deal of time, and recognition from both parties of their
personal responsibility in contributing to today‟s situation, before
their relationship can be healed.
She also reported the parties‟ highly-conflicted relationship could result in long
term emotional damage to their children.
On July 26, 2007, Kelly filed an application to modify the temporary order.
A hearing was held on August 30, 2007, and the district court found there had not
been a substantial change in circumstances since the court‟s October 5, 2006
order.
On September 18, 2007, Kelly filed an application to inventory the
household contents and equipment located at the marital home. Kandi filed a
partial resistance. On November 1, 2007, a hearing was held and the district
court ordered for an inventory of the household contents and equipment to be
held on November 17, 2007. Additionally, the district court stated that it intended
to appoint an attorney to represent the parties‟ children and ordered the parties to
mutually agree on an attorney and submit the attorney‟s name to the court. On
December 27, 2007, the district court appointed Maurine Braddock to represent
the children‟s interests.1
1
Braddock was appointed as the children‟s attorney, but throughout the proceedings
Braddock was interchangeably referred to as the children‟s attorney and the children‟s
guardian ad litem.
5
On January 10, 2008, Braddock filed a motion for an emergency hearing
and the appointment of an expert. Braddock reported that she met with Kandi,
Kelly, and the children. She stated that “[t]he children have clearly been affected
by the adversarial actions of the parties,” “both parties have made efforts to
involve the children in this dissolution case, which [has] been harmful to the
children,” and expressed “concern that there have been deliberate efforts to
alienate the children from the parents.” Braddock reported that she discussed
her concerns with both parties‟ attorneys, after which Kelly confronted Kelsi and
refused to allow her to speak with Kandi or participate in extracurricular activities
that night. Braddock stated that the children needed to be protected from such
future conduct and requested that an expert be appointed to evaluate the parties
and the children and make recommendations concerning custody and visitation.
On January 16, 2008, a hearing was held. The district court found that neither of
the parties resisted the appointment of an expert. Braddock was instructed to
find an expert and if neither of the parties objected to the expert, submit the
proposed expert‟s name to the district court for approval. Additionally, the district
court found the children‟s attorney “raised valid concerns about the conduct of
[Kelly] in some of his communications with the children.”
The district court
ordered the parent having physical care of or visitation with the children “shall be
responsible for making certain that the children attend all of their regular
scheduled activities during the time the children are with that parent.” Further,
the parties were ordered not to discuss the pending dissolution action with the
children and ordered not to use the children to convey messages from one party
to the other.
6
On January 18, 2008, Kelly filed a motion to modify temporary child and
spousal support and to establish a health insurance obligation. The company
that Kelly had been employed by was filing for bankruptcy protection and Kelly
had become unemployed. Following a hearing, the district court modified the
temporary child support and terminated the temporary spousal support.2 Kandi
was ordered to provide health insurance for the children.
Additionally, both
parties were enjoined from unilateral disposition of assets and were “encouraged
to cooperate and amicably resolve without further court involvement any disputes
or disposition of personal property, including [Kelly‟s] tools.”
On January 28, 2008, Braddock filed an application requesting the district
court appoint an expert because Kelly would not consent to the only expert she
could find in the area willing to “undertake this case.” On February 6, 2008,
another hearing was held and the district court found that although Kelly had
previously objected to the specific expert, “[b]oth parents now stipulate to the
appointment of Lou Blankenburg to evaluate the parties and the children and
make recommendations concerning custody and visitation.”
Numerous filings continued, including applications for rule to show cause,
a motion to compel regarding discovery, and a motion to modify temporary child
support.3 Additionally, prior to trial Kandi requested, and was later granted, leave
2
The hearing was held on February 1, 2008.
On February 15, 2008, Kelly filed a motion to compel regarding discovery, to which
Kandi responded that she had provided initial and supplementary discovery responses.
Kelly later withdrew this motion on April 10, 2008. On February 25, 2008, the children‟s
attorney filed an application for rule to show cause alleging that Kelly had violated the
district court‟s order by failing to take the children to their activities and discussing the
pending dissolution and financial matters with the children. On April 3, 2008, Kelly filed
another motion to modify temporary child support. On April 10, 2008, Kandi filed an
application for order to show cause stating that Kelly had failed to pay the fees ordered
3
7
to amend her answer to request sole legal custody and physical care of the
children.
Trial was held July 21-23, 2008. At the time of trial, both parties were
forty-four years old. Prior to the marriage, Kelly had obtained an Associate of
Science degree in tool and die making. Throughout the marriage he had been
employed by Victor‟s Plastics. The last position he held in the company was as a
senior designer and purchasing agent, at which he earned twenty-five dollars per
hour. As of January 24, 2008, Kelly was unemployed. After his employment
ended, Kelly completed a twelve to thirteen week training program. He received
unemployment benefits and earned income from odd-jobs, but testified that his
goal was to be self-employed in product and tooling design and anticipated his
income would be similar to that which he had at Victor‟s Plastics. Kelly remained
living with his mother at the time of trial.
Prior to the marriage, Kandi had earned a Bachelor of Arts degree in
accounting from the University of Northern Iowa.
At the beginning of the
marriage she was employed by Mercy Hospital in Cedar Rapids as the budget
director. After Kodi was born, she continued working for Mercy Hospital but
moved to a part-time position as a staff accountant.
Additionally, during the
marriage she was an Avon consultant and at the time of trial was a Tastefully
Simple consultant.
for payment of an expert and for child support. Kandi withdrew this application after
Kelly made the payments on May 28, 2008. On June 9, 2008, Kelly filed an application
for order for rule to show cause, alleging that Kandi was in contempt because he did not
have visitation with Kelsi during a weekend scheduled in May.
8
Both parties testified as to the high degree of difficulty they had
communicating with each other. Kandi testified that after the first year-and-onehalf to two years of marriage, Kelly began exhibiting abusive behavior. Two
specific instances in May 2006 prompted her to file for an order of protection.
The parties attempted to reconcile from May to August 2007, and after the
attempt failed, Kandi testified that Kelly continued to harass and intimidate her.
There were several incidents where Kelly reported Kandi to the Sheriff‟s Office
for animal neglect and to the Iowa Department of Human Services and Sheriff‟s
Office for child abuse, all of which were unfounded. Kelly testified that there had
been communication problems in their marriage that lasted through the date of
the trial. When questioned about why he and Kandi filed separate income tax
returns since 1999 or 2001, Kelly responded that it was as a result of
communication problems.4 When asked whether he and Kandi had been “civil
toward each other in memorable history,” he responded that they had been “in
our early years of marriage.” Finally, Kelly stated there was an “intense hostility”
between him and Kandi.
Kelly requested joint legal custody and that Kandi have physical care of
Kelsi, he have physical care of Kodi, and they share physical care of Kortni. As
for scheduling, he proposed that Kodi remain with him except for spending
Tuesday and Wednesday nights with Kandi. Since the children began school,
they had attended a private school, Lutheran Interparish School, which offered
classes for kindergarten through eighth grade. Kelsi was entering ninth grade
4
The record included Kandi‟s income tax returns from 2001 to 2007 and Kelly‟s income
tax returns from 2001 to 2006. The parties filed separate federal income tax returns in
all years except 2006.
9
the month following trial at Williamsburg Public Schools. Kelly requested Kodi
and Kortni switch to public schools. Kandi requested sole legal custody and
physical care of the children. She wanted the children to continue attending their
current church and Kodi and Kortni to continue attending their private school.
Braddock, the children‟s attorney, recommended that Kandi be granted
sole legal custody and physical care and Kelly be granted visitation.
Blankenburg, the child custody evaluator, made the same recommendation.
Blankenburg described “the level of animosity between [Kelly and Kandi as]
unusual.”
When asked to describe the family, she stated that there was “a
considerable amount of anger between the parents that affect the children” and
the “protracted animosity [ ] has done a lot of damage to the children.” She
further testified:
Q. [P]lease tell the Court your observations about whether
each parent would be a suitable custodian for the children? A. In
my observation, Kandi is able to consider the children‟s needs and
to provide resources to have their needs met and to manage her
emotions well enough to implement those things for the children. In
my observations, I think Kelly cares for the children, but is so angry
about the situation that he finds himself in that anger, [which]
interferes with his ability to take care of the children at some level.
. . . A. I think that Kandi is affected by the divorce that she‟s
going through, but that she has a sense of needing to—to do—
provide care to her children and do her motherly duties that they
can rely on, so that she‟s able to be consistent in terms of providing
for the children‟s needs even though she‟s very upset. I think Kelly
is—I‟ve seen him repeatedly return to focusing more on his anger
with Kandi than on thinking through the children‟s needs, and so
that concerns me. . . . [H]e is, for whatever reason, at this time
more focused on himself and his needs than the children‟s,
although I think he cares for the children.
...
Q. What have you observed about the ability of each parent
to communicate with the other parent regarding the children‟s
needs? A. I‟d say that—that communication between the two
parents is poor, and that each parent has difficulties. Kandi,
10
however, is able to continue trying to get business done, even
though she gets upset with Kelly, and Kelly especially resorts to
accusing Kandi of making problems and wanting to keep the
children from him.
...
Q. What have you observed to the degree to which each
parent can support the other parent‟s relationship with the children?
A. I‟ve noticed that Kandi, in spite of her feelings about Kelly,
seems to understand that the children‟s relationship with him is
important, and that she encourages that. And that Kelly is so angry
at Kandi that he seems to discourage the children thinking well of
their mother.
...
Q. What is your understanding of each of the parents‟ views
on custody? A. My impression is that Kandi wants to have sole
custody so that there is less interaction between her and Kelly
around making decisions for the children, but that she wants the
children to have adequate visitation with Kelly so that they can have
a good relationship with their father. And that Kelly seems to resent
any relationship that Kandi has with the children.
...
Q. So do you think that it would be better to divide these
children up or keep them together predominantly in one home? A.
. . . I think it would be better to keep them together in many ways
...
Q. Okay. What are the potential harmful effects of splitting
children up? A. They have a deep sense of loss. They feel that
they—in the long run, they‟re likely to either feel that they were
inadequate in some way, and so they—this destructive thing
happened to their family, so they‟re likely to feel angry and act out a
lot of anger or both. And they‟re likely to have more difficulty
forming relationships with other people in adult life, and even have
more difficulty in work and maintaining their health.
. . . A. . . . [I]t would be preferable for them actually to not
have to interact more than the bare minimum that it takes to
exchange the children. And that I think the children will feel closer
to both of them if the parents argue less and have less to argue
about.
. . . there will be less discord between them than if there
would be if they had joint legal custody.
Finally, along with several other witnesses, Kelsi and Kodi also testified.
Kelsi reported that she was upset with her father and had refused to see him for
11
his scheduled visitation since mid-May. Kodi reported that he preferred to live
with Kelly.
Following trial and pending the district court‟s decree, the discord and
litigation between the parties continued.5 On August 6, 2008, Braddock filed an
application for order for rule to show cause stating that Kelly was not taking the
children to their activities and failed to return Kodi and Kortni to Kandi‟s care
following visitation on August 4. On August 9, 2008, Braddock amended her
application stating that after visitation on August 4, Kelly did not return Kodi and
Kortni to Kandi‟s care and although Kelly returned Kortni on August 6, he had not
yet returned Kodi.
On August 27, 2008, Braddock again amended her
application stating that Kelly still had not returned Kodi to Kandi‟s care, had not
been taking Kodi to his counseling appointments and many of his activities, and
had removed Kodi from the private school he attended and enrolled him in the
public school without the knowledge or consent of Kandi. A hearing was held,
during which Kodi testified outside of the presence of both his parents.
On
September 15, 2008, the district court found that the temporary order had been in
effect for two years and was clear and unambiguous as to Kelly‟s obligation to
return the children to Kandi‟s care on August 4 at 8:00 p.m. The district court
discussed Kelly‟s failure to return Kodi to Kandi‟s care, stating in part,
The Court finds that Kelly has not EVER . . . encouraged Kodi to
return to his mother‟s care. . . . Kelly stated he has done all that he
could to abide by the Court Orders. To be kind, Kelly‟s testimony
can only be countenanced in a “nod, nod, wink, wink” category.
Kelly has intentionally placed his twelve-year-old son in the
completely untenable position of having to publicly choose between
5
We discuss some of the filings that occurred after the trial, but note there were
numerous others.
12
his parents, has deprived Kodi of his mother‟s love and attention
(and vice versa) thereby potentially causing significant emotional
harm to Kodi, has obviously orchestrated at least a portion of Kodi‟s
resentment toward his mother, and has enthusiastically allowed the
“tail to wag the dog.” Having done all the above, he chooses to lay
the blame for the violation of the Court Orders on this twelve-yearold son‟s shoulders. He has inappropriately conveyed to Kodi that
he need not return to his mother‟s care until he wants to; that the
choice is somehow his. . . . The Court finds that it has been
established beyond any reasonable doubt that Kelly has
intentionally and repeatedly violated known Court Orders regarding
the custody, schooling, and visitation with respect to Kodi, and that
Kelly has established no legal excuse for his failure to comply with
Court Orders.
The district court found Kelly was in contempt of court for his failure to timely
return Kortni to Kandi‟s care and his failure to return Kodi at all and sentenced
him to serve twenty days in jail, with sixteen days suspended upon the return of
Kodi to Kandi‟s care. On September 17, 2008, an Iowa Department of Human
Services assessment found that Kelly had caused Kodi to be so distressed so as
to result in mental injury.
On September 4, 2008, Kelly filed an application for order for rule to show
cause alleging that he had been denied visitation with Kelsi since May 23, 2008.
On September 19, 2008, Braddock, at Kelsi‟s request, filed an application
for an order for Kelly to return Kelsi‟s personal property. On October 3, 2008, the
district court ordered Kelly to return Kelsi‟s personal property, including her iPod
and a new laptop computer.
Additionally, the court ordered that Iowa Child
Advocate Services “provide remedial in home family services, . . . including a
plan for immediately commencing visitation” between Kelly and Kelsi and “the
Abbe Center for Community Mental Health shall provide counseling services to
13
the parties and the children until they conclude that the family has achieved
maximum benefits or further court order.”
On October 30, 2008, the district court entered the dissolution decree. 6
The district court granted Kandi sole legal custody and physical care of the three
children. Kelly was granted visitation and ordered to pay child support. Kandi
was ordered to provide medical and dental insurance for the children and Kelly
was ordered to reimburse Kandi for one-half of her out-of-pocket expense for the
insurance. The district court divided the marital assets and debts. Kandi was
awarded the marital home. Although the parties were awarded certain personal
property items, the parties had numerous exhibits listing over 600 additional
items of personal property and did not agree as to the value or distribution of
these items. The district court found “it is impossible to value these items of
personal property without speculating as the value of hundreds of items . . . the
only practical way to value these items and to provide for the disposition of these
items is to order a private auction between the parties to be conducted by the
attorneys.” Finally, Kandi was ordered to pay $139,000 to Kelly to equalize the
distribution of assets.
Both parties appeal.
II. SCOPE OF REVIEW.
We review the provisions of a dissolution decree de novo. Iowa R. App.
P. 6.907 (2009); In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007); In
6
Both parties filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). On
December 9, 2008, the district court ruled on the motions. The district court made minor
modifications to the property division and visitation schedule, which is reflected in this
recitation of facts.
14
re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006).
However, we
recognize that the district court was able to listen to and observe the parties and
witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986); In re
Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (“[The district court] is
greatly helped in making a wise decision about the parties by listening to them
and watching them in person. In contrast, appellate courts must rely on the
printed record in evaluating the evidence. We are denied the impression created
by the demeanor of each and every witness as the testimony is presented.”).
Consequently, 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. 6.904(3)(g); Sullins, 715 N.W.2d at 247 (quoting In re
Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003)).
III. ANALYSIS.
A. Child Custody.
Upon dissolving a marriage involving minor children, the district court must
determine whether one or both parents shall have legal custody of the children.
In re Marriage of Hynick, 727 N.W.2d 575, 578 (Iowa 2007). “Legal custody”
carries with it certain rights and responsibilities, including but not limited to
“decision making affecting the child‟s legal status, medical care, education,
extracurricular activities, and religious instruction.” Iowa Code § 598.1(3), (5)
(2005). When the parents are awarded joint legal custody, both parents have
“legal custodial rights and responsibilities toward the child” and “neither parent
has legal custodial rights superior to those of the other parent.” Id. § 598.1(3).
15
The children‟s best interests are the primary concern in determining a
legal custody award. Iowa R. App. P. 6.904(3)(o); Iowa Code § 598.41. The
district court shall make an award that, so long as reasonable and in the best
interests of the children, assures the children the “opportunity for the maximum
continuing physical and emotional contact with both parents.”
§ 598.41(1)(a).
Iowa Code
Similarly, the district court “shall consider the denial by one
parent of the [children‟s] opportunity for maximum continuing contact with the
other parent, without just cause, a significant factor in determining the proper
custody arrangement.”
Id. § 598.41(1)(c); see In re Marriage of Bolin, 336
N.W.2d 441, 446 (Iowa 1983) (“When one parent‟s obduracy makes joint custody
unworkable, the trial court in a modification proceeding may find the child‟s best
interests require sole custody in the other parent.”). In determining whether joint
legal custody is in the best interests of the minor children, the court must
consider several factors:
a. Whether each parent would be a suitable custodian for the
child.
b. Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with
and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child‟s needs.
d. Whether both parents have actively cared for the child
before and since the separation.
e. Whether each parent can support the other parent‟s
relationship with the child.
f. Whether the custody arrangement is in accord with the
child‟s wishes or whether the child has strong opposition, taking
into consideration the child‟s age and maturity.
g. Whether one or both the parents agree or are opposed to
joint custody.
h. The geographic proximity of the parents.
16
i. Whether the safety of the child, other children, or the other
parent will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation.
j. Whether a history of domestic abuse, as defined in section
236.2, exists. . . .
Iowa Code § 598.41(3). If the district court does not grant joint legal custody, the
court must cite clear and convincing evidence, according to the enumerated
factors listed above, that joint legal custody is unreasonable and not in the
children‟s best interests “to the extent that the legal custodial relationship
between the child and a parent should be severed.” Id. § 598.41(2)(b).
Kelly argues the district court failed to cite clear and convincing evidence
joint legal custody was not in the best interests of the children. In making the
decision to grant Kandi sole legal custody, the district court discussed the factors
enumerated in Iowa Code section 598.41(3):
Both parents love the children and have bonded with the
children. Both parents would be a suitable custodian for the
children, although Kelly would have to make some changes in the
way he deals with Kelsi. The psychological and emotional needs
and development of Kelsi and Kortni will not suffer if there is a lack
of active contact with and attention from Kelly. The psychological
and emotional needs and development of Kodi will suffer if there is
a lack of active contact with and attention from both parents. The
parents are unable to communicate with each other regarding the
children‟s needs. The breakdown of communication between Kelly
and Kandi is very serious and protracted. Both parents have
actively cared for all three children before the separation. Since the
separation, both parents have actively cared for the children, but
Kandi‟s care for Kelsi and Kortni has been substantially greater
than Kelly‟s. Kandi can support Kelly‟s relationship with all three
children. Kelly has been unable to support Kandi‟s relationship with
Kodi and Kelsi and has attempted to undermine Kandi‟s
relationship with both of these children, particularly Kodi. Kodi
prefers to be in his father‟s primary physical care and, therefore, a
placement of Kodi in Kandi‟s care would be against Kodi‟s wishes.
Although Kodi appears to be adamant in his views, it is highly likely
that once the decision is made by the Court and the pressure is
17
taken off Kodi, he will be able to successfully adapt. However,
Kodi‟s ability to adapt would be dependent upon Kelly‟s support.
Kandi is strongly opposed to joint legal custody for the
reason that the parties have been unable to successfully
communicate with each other. . . . Although there is one
documented incident of domestic abuse that occurred in 2006, I
conclude that there is not a history of domestic abuse for the
reason that the prior incidents alleged by Kandi are very remote.
However, there is a long history of verbal abuse, as distinguished
from domestic abuse, which has been inflicted by Kelly upon Kandi.
After considering all of these factors, I find that Kandi has proven by
clear and convincing evidence that joint custody is unreasonable
and not in the best interest of the children to the extent that the
legal custodial relationship between all three children and Kelly
should be severed.
The district court then granted Kandi‟s request to have sole legal custody.
We agree with the district court that consideration of the statutory factors
weighs against joint legal custody. The overriding factor weighing against joint
legal custody is the parties‟ utter inability to communicate with each other, which
is a result of their toxic relationship. “Although cooperation and communication
are essential in joint custody, tension between the parents is not alone sufficient
to demonstrate it will not work.” Bolin, 336 N.W.2d at 446; see In re Marriage of
Stafford, 386 N.W.2d 118, 121 (Iowa Ct. App. 1986); In re Marriage of Ertmann,
376 N.W.2d 918, 920 (Iowa Ct. App. 1985). The parties‟ inability to communicate
and cooperate must rise above the “usual acrimony that accompanies a divorce.”
Ertmann, 376 N.W.2d at 920. In this case, the district court concluded, and we
agree, Kelly and Kandi‟s communication problems are so protracted that they
exceed “the usual acrimony that accompanies a divorce.” See id.
Both the parties agreed their relationship was “hostile.”
In fact, when
asked whether Kelly could remember a time they had been civil to one another,
he responded that it was at the beginning of their marriage. See Bolin, 336
18
N.W.2d at 446 (“Even though the parents are not required to be friends, they owe
it to the child to maintain an attitude of civility, act decently toward one another,
and communicate openly with each other. One might well question the suitability
as custodian of any parent unable to meet these minimum requirements.”).
Witnesses for both parties testified to abusive or inappropriate incidents they had
witnessed throughout the marriage. This was confirmed by Dr. Robbins who
reported that Kelly and Kandi‟s communication problems are longstanding.
Throughout the proceedings, the parties have had intense disagreements
over the church and school the children would attend and the extracurricular
activities the children would participate in. Even though the parties disagree on
such matters, these problems should be able to be resolved to the benefit of the
children.
See Ertmann, 376 N.W.2d at 920-21 (discussing that although the
parties had some difficulty communicating, they gave priority to their child‟s
welfare and would be able to communicate adequately regarding her needs).
However, in this case, the parents‟ inability to work toward solutions has thrust
confusion and emotional upheaval on the children, often bringing their daily lives
to a standstill amidst the warring climate of their parents‟ discord. The protracted
court filings provide additional proof of the inability of these parents to share legal
custody of the children. With an award of sole legal custody, one parent will
make the decisions, which will ensure the decisions are made and result in a
more stable atmosphere for the children to carry on with their daily lives.
Both the children‟s attorney and the family counselor, Blankenburg,
recommended sole legal custody due to the severe communication problems.
Blankenburg testified “the level of animosity between [Kelly and Kandi] was
19
unusual” and the “protracted animosity has done . . . a lot of damage to the
children.” Due to the “notably difficult” situation between Kelly and Kandi, she
recommended they interact no more than necessary to exchange the children.
We agree with the district court that Kelly and Kandi have “extreme difficulty
communicating” and there is “intense hostility” between the parties, and most
importantly “[t]he relationship between Kelly and Kandi is dysfunctional to the
extreme level that it is negatively impacting the children.”
Another important factor the district court considered is Kelly‟s inability to
support the children‟s relationship with Kandi. Evidence demonstrated that while
with Kelly in a public setting, Kelsi and Kodi were reluctant to acknowledge Kandi
or any member of her family, to the point of avoiding eye contact or personal
contact. Blankenburg testified that Kelly “discourage[s] the children thinking well
of their mother” and “seems to resent any relationship that Kandi has with the
children.” She reported that Kelly‟s extreme anger prevents him from focusing on
the children‟s needs, whereas Kandi understood the importance of and
encouraged the children‟s relationship with Kelly.
Further, the district court
found,
[Kelly and Kandi] have had a stormy marriage, and Kelly, in
particular, has been unable to put aside his past strong differences
with Kandi. Kelly has failed to show respect for Kandi and is not
supportive of Kandi‟s relationship with the children. Kandi has
demonstrated support for Kelly‟s relationship with the children.
See In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992) (stating the denial
by one parent of the child‟s opportunity to have meaningful contact with the other
parent is a significant factor in determining custody or physical care).
20
We defer to the district court‟s credibility assessments of the parties,
including sensing the level of hostility that appeared to hinder decision making in
regard to the children and conclude the district court‟s factual findings were fully
supported by the record. The district court considered all the appropriate factors
in making an award of sole legal custody. We agree with the district court that
this is one of the rare cases where sole legal custody is appropriate and in the
best interests of the children.7
B. Visitation.
Upon awarding one parent physical care, the district court shall award the
other parent visitation that assures the children “the opportunity for maximum
continuing physical and emotional contact with both parents.”
§ 598.41(1)(a).
Iowa Code
The district court granted Kelly visitation every Tuesday and
Thursday evening from after school until 8:00 p.m.; every other weekend from
Friday after school or at 4:30 p.m. until Sunday at 7:00 p.m.; alternating holidays;
alternating no school, conference, and snow days from 7:00 a.m. to 5:00 p.m.;
and three weeks in the summer, in uninterrupted one and two week periods.
7
After determining legal custody, the district court made additional findings to support
the physical care placement with Kandi. See Iowa Code § 598.41(3); In re Marriage of
Winter, 223 N.W.2d 165, 166-67 (Iowa 1974) (providing nonexclusive factors for the
district court to consider in a physical care determination). On appeal Kelly contends he
should have been granted physical care of Kodi and he and Kandi should have shared
physical care of Kortni. We note that Blankenburg testified splitting up the children
would be detrimental to them. See In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa
1994) (“Siblings should not be separated from one another without good and compelling
reasons.”); Will, 498 N.W.2d at 398 (there is a presumption that siblings should not be
separated in the absence of good and compelling reasons). Because we affirm the
district court‟s award of sole legal custody to Kandi, we do not need to address this
issue. See Iowa Code § 598.41(5)(a) (stating that upon an award of joint legal custody,
the district court may consider joint physical care).
21
On appeal, both parties argue the visitation should be modified. Kelly
requests that (1) he be awarded visitation overnight on Tuesdays; (2) weekend
visitation be extended from the end of the school day on Friday until the
commencement of the school day on Monday; (3) all weekend holiday visits,
except Christmas, begin on the Friday prior to the holiday and terminate on the
Monday following the holiday; (4) all “no school” and “early release” visitation,
regardless of the reason school is not in session, be from 8:00 a.m. until the
resumption of school; and (5) he be awarded six weeks of visitation during the
summer, divided into two three-week periods.
Kandi asserts that visitation
should be modified to (1) eliminate one weeknight visit; (2) eliminate the “no
school day” provision; and (3) change Sunday visits to end at 4:30 p.m. 8 The
district court considered arguments regarding the visitation schedule pursuant to
the parties‟ post-trial Iowa Rule of Civil Procedure 1.904(2) motions and made
some modifications to the visitation schedule.
Overall, we find the visitation schedule serves the best interests of the
children, allowing them to have time with each parent, but modify in one respect.
Kandi argues that one weeknight visitation should be eliminated due to the
difficulty of implementing it during the school year. It appears that on school
nights, the children have difficulty completing their homework and going to bed at
their normal time when also shuffling back and forth between the two homes.
We agree that in this case, where there is great acrimony between the parents
8
Additionally, Kandi requests that the visitation schedule be modified to eliminate one
week of Kelly‟s summer visitation, but also requests the visitation schedule be modified
to “equalize the summer vacation time with each party.” It is unclear what exactly Kandi
is requesting, but regardless we decline to change the summer visitation schedule.
22
and there has been difficulty implementing visits on school nights without the
children‟s homework or sleep being compromised, one weeknight visit should be
eliminated. We modify the visitation schedule to eliminate the Thursday evening
visit during the school year.
Otherwise, we find the visitation schedule is
reasonable and decline to make further changes.
C. Counseling Issue.
After trial but before the district court entered the dissolution decree, both
parties alleged the other was in contempt of the temporary orders. On October
3, 2006, following a hearing (before another district court judge) on Kelly‟s
petition asserting that Kandi was in contempt because he had not had visitation
with Kelsi since May, the district court ordered, in part, that:
Independent Child Advocate Services (ICAS) provide remedial in
home family services deemed appropriate by ICAS for the family,
including a plan for immediately commencing visitation between
Kelsi and Kelly. Each party shall pay one-half of any costs related
for such family services and shall comply with the
recommendations of ICAS with respect to visitation. As long as the
parties are in compliance with the recommendations of ICAS,
neither shall be considered in contempt. . . . The Abbe Center for
Community Mental Health shall provide counseling services to the
parties and the children until they conclude that the family has
achieved maximum benefits or until further Court order. . . . By
agreement of the parties this Agreement and Order shall be
deemed to survive the entry of the pending Decree of Dissolution of
Marriage.
On October 30, 2008, the dissolution decree provided, in part:
Counseling:
The parties and the children shall continue in
counseling with Lou Blankenburg and/or other professionals who
she designates until such time as those professionals send a letter
to the Clerk of Court indicating that all parties have achieved the
maximum benefits of counseling. The counselors shall have the
discretion to authorize visitation in addition to the minimum
specified above.
23
On appeal, the parties disagree as to which provision prevails.
Kelly
asserts the contempt order should prevail and Kandi asserts the dissolution
decree should control. However, because neither party raised this issue in either
post-trial motion pursuant to Iowa Rule of Civil Procedure 1.904(2), error was not
preserved on this issue. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2006) (“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal. When a district court fails to rule on an issue properly raised by a party,
the party who raised the issue must file a motion requesting a ruling in order to
preserve error for appeal.”); State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350
N.W.2d 202, 206 (Iowa 1984) (“It is well settled that an [Iowa Rule of Civil
Procedure 1.904(2)] motion is essential to preservation of error when a trial court
fails to resolve an issue, claim, defense, or legal theory properly submitted to it
for adjudication.”). Additionally, had it been preserved, both parties waived the
issue on appeal because they did not cite to any legal authority supporting their
positions. Iowa R. App. P. 6.14(1)(c). Nevertheless, the district court had the
entire file before it in entering its ruling. We find the contempt order was an
interim order, which was superseded by the entry of the final decree and
therefore, the final decree controls.
D. Health Insurance.
The district court ordered for Kandi to provide health and dental insurance
for the children and for Kelly to reimburse Kandi for one-half of her out-of-pocket
cost for the premium. Both parties have approximately equal earning capacities,
with Kelly at $52,000 and Kandi at $49,999.
Kandi has health and dental
24
insurance available through her employment. On appeal, Kelly argues that Kandi
may have been given a “double recovery by deducting the cost of Kandi‟s health
insurance from her gross income without crediting Kelly‟s reimbursement for half
that amount.”
Kelly did not raise his concerns before the district court and hence, there
is nothing in the district court ruling to shed any light on this issue. Moreover,
Kelly did not raise this issue in his post-trial motion pursuant to Iowa Rule of Civil
Procedure 1.904(2). The difficulty presented on appeal is that the child support
worksheets are not included in the record and therefore, there is no support in
the record for Kelly‟s argument, nor information provided for our review.
Therefore, we decline to address the issue.
E. Marital Residence.
Iowa law requires that marital property be divided equitably between the
parties. Iowa Code § 598.21(5). Iowa courts do not require an equal division or
percentage distribution. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa
Ct. App. 2001). The determining factor is what is fair and equitable in each
particular circumstance. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.
App. 1996). Iowa Code section 598.21(5) sets forth the factors to consider in an
equitable distribution. One of these factors is:
The desirability of awarding the family home or the right to live in
the family home for a reasonable period to the party having custody
of the children, or if the parties have joint legal custody, to the party
having physical care of the children.
Iowa Code § 598.21(5)(g); see In re Marriage of Ales, 592 N.W.2d 698, 704
(Iowa Ct. App. 1999) (“We believe that provisions which allow the primary
25
physical care parent to remain in the family home are primarily made to provide
stability for the children; the economic benefit to the parent is ancillary.”).
In 1998-1999, Kelly and Kandi built a home on twenty-seven acres and
moved into it in May 1999. Kelly asserts he should have been awarded the
marital residence because although they built the home together, he did most of
the work and can make better use of the property. Kandi replies that they both
worked on the home and she also enjoys the home and uses the acreage. We
agree with the district court‟s decision to award the marital home to Kandi. The
home is a marital asset and both parties are deemed to have contributed equally
to the accumulation of marital assets, although not necessarily in the same
fashion. Miller, 552 N.W.2d at 465 (discussing that we do not focus on a party‟s
direct contribution to an increase in an asset, but “we broadly consider the
contributions of each party to the overall marriage”); In re Marriage of Russell,
473 N.W.2d 244, 246 (Iowa Ct. App. 1991) (“The partners in a marriage are
„entitled to a just and equitable share of the property accumulated through their
joint efforts.‟”). Additionally, Kandi was granted physical care of the children, who
stated they wish to remain in the only home they have essentially ever known.
See Iowa Code § 598.21(5)(g). We affirm the district court‟s award of the marital
residence to Kandi.
F. Personal Property.
Although the district court divided some items of personal property, the
parties had numerous exhibits listing over 600 additional personal property items
and did not agree as to the value or distribution of these items. The district court
found
26
[I]t is impossible to value these items of personal property without
speculating as to the value of hundreds of items . . . the only
practical way to value these items and to provide for the disposition
of these items is to order a private auction between the parties to
be conducted by the attorneys.
Therefore, the district court ordered a private auction between the parties with
their respective attorneys presiding. Any inequity in the total amount of items bid
on and received by the parties shall be resolved by having the one whose bid
totals are greater pay the other party one-half of the difference in their bid totals.
On appeal, both parties assert that the district court should have divided
the personal property according to their separate inventories and object to the
auction as “unworkable.” Other than the parties‟ differing assertions of the value
of these items, the district court did not have reliable evidence upon which to
value the items. The testimony demonstrated that several items listed on the
parties‟ inventories had been disposed of by the parties years ago. We affirm the
district court‟s remedy as being both practical and equitable under the evidence
presented. Additionally, the parties should not expect the court to appreciate the
personal nor sentimental value of certain items to the parties. They would likely
not be content with any resolution made by the court. It is not a wise use of
judicial resources to list every piece of property once owned by the parties and
expect the district court to wade through the lists to determine the value of each
item.
G. Equalization Payment from Kandi to Kelly.
Finally, Kelly argues the district court did not value many assets and
liabilities correctly, including the value of the “sweat equity” he put into the marital
residence, and as a result the equalization payment from Kandi to Kelly should
27
be increased. The parties‟ valuations differed greatly and the district court made
certain credibility determinations as to the value of some items. There is support
for the district court‟s valuations and the values assigned to the property were
within the permissible range of evidence. See Hansen, 733 N.W.2d at 703 (“A
trial court‟s valuation of an asset will not be disturbed when it is within the
permissible range of evidence.”).
The district court demonstrated fairness in
determining the value of the marital property and divided it as equitably as
possible under the record established at trial. Therefore we affirm the valuation
and division of property, with the resulting equalization amount for Kandi to pay
to Kelly.
IV. CONCLUSION.
We affirm the district court‟s decree of dissolution of marriage, but modify
the visitation provision by eliminating one weeknight visitation during the school
year. Costs on appeal are assessed one-half to each party.9
AFFIRMED AS MODIFIED.
9
Kandi requested appellate attorney fees for the first time at oral argument. We decline
any award of appellate attorney fees.
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