In re The Marriage of Jenkins ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0656
Filed January 25, 2023
IN RE THE MARRIAGE OF JESSICA RAY JENKINS
AND TYREL JAMES JENKINS
Upon the Petition of
JESSICA RAY JENKINS,
Petitioner-Appellee,
And Concerning
TYREL JAMES JENKINS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Bremer County, James Drew, Judge.
A former spouse appeals a decree of dissolution of marriage. AFFIRMED
AS MODIFIED AND REMANDED.
Terry D. Parsons of Olsen & Parsons Law Firm, Cedar Falls, for appellant.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, and Karen Thalacker of Correll, Sheerer, & Benson, Waverly, for
appellee.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.
Tyrel Jenkins appeals the district court’s dissolution decree following his
failure to appear at trial. He contends the court’s decree exceeds the permissible
scope of relief, is not in the children’s best interest, and places too much authority
over visitation in the hands of his ex-wife, Jessica, and the parties’ children. He
also claims the court failed to follow the procedures set out in Iowa Code
chapter 598 (2021). We find Tyrel did not preserve error on his challenges
involving chapter 598. We also find the court did not exceed the permissible scope
of relief by granting Jessica sole legal custody. We determine the court should
have set a defined visitation schedule that does not delegate decision making
authority on Tyrel’s visitation to Jessica or the children. Finally, we determine the
conditions on Tyrel’s visits concerning substance use and testing should be
eliminated. Accordingly, we affirm as modified and remand.
I. Background Facts & Proceedings
Jessica and Tyrel married in 2005. They share four children, ages sixteen,
fourteen, eleven, and ten at the time of trial. Tyler has been previously convicted
of domestic abuse assault. The children lived with Jessica since the entry of a no-
contact order (NCO) in January 2021 that prohibited Tyrel from contacting her.1
The incident underpinning the NCO resulted in Tyrel again being criminally
charged with domestic abuse assault, although the outcome of that charge was
pending at the time of the dissolution trial. There were repeated violations of the
1The terms of the NCO were modified shortly after it was put in place to allow the
defendant access to some parts of the familial property. But the NCO was modified
again in June 2021 based on an incident where Tyrel entered the familial home
and obtained a handgun. The incident resulted in a contempt filing.
3
NCO. At trial, Jessica agreed that Tyrel had violated the NCO almost more times
than she could count. On one of Jessica’s audio exhibits, Tyrel states to Jessica,
“Fuck you and your restraining order. How good would it do if I fucking killed you
right now?” Additional audio recordings admitted at trial demonstrate a pattern of
abuse perpetrated by Tyrel, including one incident in 2018 where one of the
children called the authorities because Tyrel was physically harming Jessica. An
additional criminal charge was filed as a result of the violations.
Jessica petitioned to dissolve the marriage on April 16, 2021. Her original
petition sought joint legal custody and physical care. Tyrel’s acceptance of service
was filed May 20; he filed an answer as a self-represented litigant on June 6. His
answer did not specify what relief he was requesting. This is the only document
Tyrel filed before trial.2
Trial was held March 17, 2022. Tyrel failed to appear, resulting in the court
finding him in default.3 Jessica testified and submitted exhibits. Her testimony
mainly focused on Tyrel’s alcohol abuse and his perpetration of domestic violence
against her. Based on her testimony, the court allowed Jessica to amend her
petition to request sole legal custody.
The court entered the dissolution decree on the same day as trial. 4 It
granted Jessica sole legal custody and physical care. The court ordered that Tyrel
2 Contrary to the pretrial order, Tyrel did not file a financial affidavit, witness list, or
proposed exhibits.
3 In another example of a violation of the NCO, Tyrel contacted Jessica the day
before the trial and told her to advise her attorney to stop sending him emails, that
the trial was a joke, and that he could get the trial continued without any problems.
4 The district court ordered Jessica’s counsel to submit a proposed decree
following trial.
4
could visit the children once a week.5 But the decree provided that the children
were not required to participate in the visits. Tyrel was forbidden from consuming
any alcohol or illegal substances prior to or during the visits. Jessica was permitted
to request testing to prove sobriety. If he consumed those substances, the
visitation would immediately cease and the children would be returned to Jessica.
On April 14, Tyrel moved to set aside the default dissolution decree
pursuant to Iowa Rule of Civil Procedure 1.977. He filed a notice of appeal the
next day. The district court found that it lacked jurisdiction to rule on his motion
due to the notice of appeal.6
II. Discussion
Tyrel raises several claims on appeal. First, he contends the visitation
framework limits his visits and unduly puts the children in the middle of the parents’
disagreements. He also claims the court exceeded the permissible relief by
allowing Jessica to amend her petition at trial. Tyrel further claims the decree did
not meet the requirements of Iowa Code chapter 598, resulting in a record
insufficient for review.
A. Error Preservation
Jessica contends Tyrel has failed to preserve his claims because he did not
object at trial. “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
5 While the decree also set out a holiday schedule, the decree also provided that
the children were not required to see their father on those holidays.
6 Jessica asks us to find Tyrel cannot renew his motion to set aside the decree
following this appeal. We decline to do so, as Tyrel’s decision to renew the motion
is hypothetical.
5
them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). She
argues because Tyrel failed to appear at trial, he could not preserve error on any
specific issues. However, “a defaulting party to a dissolution proceeding may seek
appellate review on the merits. But, our de novo review will generally be limited to
(1) scope of relief granted, and (2) equities of the decree as determined by an
examination of the entire record made at trial.” In re Marriage of Huston, 263
N.W.2d 697, 700 (Iowa 1978). Tyrel contests the visitation and custody provisions
of the decree, asserting it wrongly restricts his time with the children. He also
claims the relief exceeded the scope sought in the original petition. Thus, those
claims fall in the exception to our standard error preservation rules. However,
Tyrel’s claims alleging the court failed to comply with chapter 598 are procedural.
As a result, those procedural claims are not preserved, and we do not consider
them.
B. Did Relief Granted in the Decree Exceed the Permissible Scope?
Tyrel claims the decree exceeds the proper scope of relief because it
provided Jessica with sole legal custody despite her request for joint legal custody
in her original petition. We disagree. Iowa Rule of Civil Procedure 1.976 describes
the permissible relief upon a party defaulting: “The judgment may award any relief
consistent with the petition and embraced in its issues; but unless the defaulting
party has appeared, it cannot exceed what is demanded.” The second sentence
necessarily implies a corollary: If the defaulting party has appeared, the relief can
exceed what is demanded. Tyrel appeared and answered Jessica’s petition. The
court was thus free to award Jessica relief that exceeded her original petition, so
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long as it was embraced in the petition’s issues.7 The matter of custody was firmly
within the realm of the issues embraced by the original petition—as is the case in
any dissolution, the court had to decide between joint and sole legal custody. See
Iowa Code § 598.41. We affirm the court’s order as it pertains to legal custody of
the children.
C. Are the Visitation Provisions Appropriate?
Tyrel contests the visitation provisions of the decree on multiple grounds.
First, he claims the court improperly delegated the authority to decide visitation to
Jessica and the children. Second, he contends the conditions placed on visitation
related to his sobriety are inappropriate. Finally, he claims the visitation provisions
are not in the children’s best interests because it places them in the middle of their
parents’ disputes. We review child visitation orders de novo. Swift v. Grabill,
No. 18-1926, 2019 WL 1958121, at *1 (Iowa Ct. App. May 1, 2019). Our primary
concern is the best interest of the children. Id. at *2.
We first address the visitation schedule. The district court ruled:
To the extent possible with a [NCO] currently in place, the parties will
cooperate in determining a visitation schedule that takes the wishes
of the children into consideration. The children are not required to
attend visitation with Tyrel but Jessica shall continue to encourage
the children to spend time with Tyrel at least once a week.
“The rule is well established in all jurisdictions that the right of access to one’s child
should not be denied unless the court is convinced such visitations are detrimental
7Jessica also suggests the court did not abuse its discretion when it granted her
motion to amend the original petition, therefore limiting the relief granted to what
her petition contained. However, because the court was free to grant relief beyond
the petition, we need not decide whether the court abused its discretion when it
allowed the amendments.
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to the best interest of the child.” In re Marriage of Kanetomo, No. 19-2008, 2020
WL 5650593, at *3 (Iowa Ct. App. Sept. 23, 2020) (quoting Smith v. Smith, 142
N.W.2d 421, 425 (Iowa 1966)); see also Grabill, 2019 WL 1958121, at *2 (quoting
In re Marriage of Stephens, 810 N.W.2d 523, 531 (Iowa Ct. App. 2012)) (“It is well
established that the district court is the only entity that can modify a custody or
visitation order”). Thus, placing visitation at the discretion of either another parent
or the children is improper. Kanetomo, 2020 WL 5650593, at *3. Here, the court
improperly delegated authority to Jessica and to the children to determine whether
visitation would occur. We determine such delegation is in error, and we remove
it from the court’s decree.
Additionally, the court’s visitation schedule is insufficiently definite as to the
time Tyrel may visit with the children. “The feasible exercise of a parent’s right of
visitation should be safeguarded by a definite provision in the order or decree of
the court.” Id. (emphasis in original). Under the court’s decree, Tyrel is only
entitled to Jessica encouraging the children to visit him once per week. That is not
definite; indeed, it does not entitle him to anything beyond words from his ex-
spouse. Thus, we modify the decree to eliminate language delegating authority
on visitation to Jessica and the children.
The court also placed several restrictions on Tyrel’s visiting time related to
the use of alcohol and illegal substances. Tyrel was prohibited from consuming
such substances immediately prior to or during visits. If he was consuming those
substances, the visit is to immediately cease and the children shall be returned to
Jessica. If Jessica suspects Tyrel has consumed any substances, she can require
him to take an appropriate test of her choosing. Tyrel claims these restrictions are
8
unduly burdensome and place the children in the middle of the parents’ disputes.
Based on previous direction from our supreme court, we agree.
“Conditions related to proof of parental sobriety . . . are disfavored because
they are considered demeaning.” In re Marriage of Coutler, No. 02-0473, 2002
WL 31528589, at *2 (Iowa Ct. App. Nov. 15, 2002) (citing In re Marriage of Fite,
485 N.W.2d 662, 664 (Iowa 1992)). Such conditions are disfavored, in part,
because they permit the other parent to improperly restrict visitation. In re
Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct. App. 1994). Under the decree,
Jessica has the unitary power to cancel visits or compel Tyrel to take tests if she
suspects he has consumed alcohol. This provision is particularly unworkable
because there is a NCO between Tyrel and Jessica—it is unclear how she would
develop her suspicions without either one of the parties violating the order or
asking children to gauge their father’s sobriety, thereby putting them in the middle
of a visitation dispute.
We acknowledge that our appellate courts have occasionally found
conditions on visitation to be justified.
Where a father had once failed to return the children after visitation,
we approved a condition which prohibited him from removing the
children from the state of their residence during visitation. In re
Marriage of Smith,471 N.W.2d 70, 73 (Iowa App.1991). Also, where
a father admitted he had engaged in acts of exhibitionism, the
supreme court agreed conditions could be placed on his visitation
rights. Lamansky v. Lamansky, 207 N.W.2d 768, 772 (Iowa 1973).
Rykhoek, 525 N.W.2d at 4–5.
And visitation may be restricted if it will result in harm to either the children
or the other parent. See id. at 5; see also Iowa Code § 598.41(3)(i).
9
While the Department of Health and Human Services’ (DHHS) child abuse
assessments were unconfirmed as to abuse perpetrated by Tyrel, largely due to
the investigated altercations between Tyrel and Jessica occurring outside the
presence of their children, the exhibits offered at trial paint a different picture. On
at least two occasions, the children were present in the home. On one occasion,
the parties’ youngest daughter called 911 to report that her dad was hurting her
mom. Our review of this exhibit demonstrates that while Tyrel did not physically
harm the children, the emotional trauma was substantial.8 And Tyrel’s alcohol
consumption is concerning.
However, given the language in Fite discouraging the type of conditions
found in the instant decree and the existence of the NCO between Jessica and
Tyrel, we eliminate the language regarding the conditions on Tyrel’s visitation
concerning alcohol or substance usage and the language that permits Jessica to
determine whether Tyrel has been using alcohol or other substances and her
ability to request testing. 485 N.W.2d at 664 (“The district court was correct in
providing that [the father] should not be permitted visitation with [the child] if he has
been drinking excessively. We believe, however, that it is unwise to place in the
court’s decree any formal procedure for resolving this question or to formalize a
right to abort visitations based on the subjective belief” of another person). But we
also highlight other language present in Fite as follows: If Tyrel “behaves
8 We recognize that domestic violence in the home can have significant long-term
negative impacts on children even when they are not the target of the violence.
See, e.g., In re Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa 1997). However,
we do not think the children are in danger of physical abuse—which was generally
targeted at their mother—when visiting their father. This is so even in the absence
of such restrictions.
10
irresponsibly in the manner specified in the deleted conditions, his conduct may be
made the subject of further proceedings in the district court and may be grounds
for reduction or elimination altogether of his child visitation rights.” Id.We modify the decree to eliminate the conditions on Tyrel’s visitation
concerning alcohol or substance usage and Jessica’s ability to request testing. We
remand to the district court for the sole purpose of establishing a set visitation
schedule for Tyrel and the children based on the existing record.
D. Attorney Fees
Jessica requests appellate attorney fees. We consider “the needs of the
party seeking the award, the ability of the other party to pay, and the relative merits
of the appeal.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005)
(citation omitted). Given the financial positions of the parties, we decline to award
Jessica appellate attorney fees. Given the financial we attorney
III. Conclusion
We affirm the dissolution decree in all respects except the visitation
provisions. On that portion, we modify the decree to eliminate the restrictions on
Tyrel’s visitation concerning alcohol or substance usage and Jessica’s ability to
request testing. We eliminate the provisions that allow visitation to take place at
the discretion of Jessica and the children. We remand for the district court to
establish a definite visitation schedule based on the existing record consistent with
this opinion.
AFFIRMED AS MODIFIED AND REMANDED.
Vaitheswaran, P.J., concurs; Greer, J., partially dissents.
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GREER, Judge (concurring in part and dissenting in part).
With only one side of the story before it, I agree with how the district court
resolved concerns over visitation for Tyrel Jenkins, who failed to show for the trial
date in this dissolution-of-marriage case. So, I disagree with the majority over its
determinations that some of the decree’s provisions must be removed and the
case returned to the district court for further consideration. The majority remanded
to the district court to have it establish a set visitation schedule for Tyrel and the
children based on the existing record and removed conditions and requirements
over Tyrel’s alcohol consumption from the decree. Even so, we all agree that an
award of sole custody to Jessica is warranted here.
The record developed at trial included only information offered by Jessica,
as Tyrel did not attend the trial. But in none of his filings does Tyrel explain his
non-attendance. So, on our de novo review, I would find the district court’s
decision to be appropriate with a few tweaks.
First, the majority concluded the district court “improperly delegated
authority to Jessica and the children to determine whether visitation should occur.”
But I believe the district court set a definitive schedule. It did award Tyrel visitation
once each week and set out a holiday/special day schedule but qualified that the
children would be encouraged, not required, to go.9 So, here we have definite
provisions for visitation, just no enforceable means to require visitation. Cf.
Thompson v. Fowler, No. 17-0284, 2017 WL 6513973, at *2–3 (Iowa Ct. App.
9 Addressing a question about supervised visitation, Jessica confirmed that the
children would prefer not to be forced to go to visitation, but “if they have to see
him, it would be nice if someone was there.” It would then be appropriate on
remand for the district court to review this request, given the majority’s ruling.
12
Dec. 20, 2017) (finding that undefined visitation only given at the mother’s
discretion is an impermissible delegation of judicial authority by the district court
and reiterating that the “right of visitation should be safeguarded by a definite
provision in the order or decree” (citation omitted)). As a general statement we
typically disfavor placing visitation at the discretion of a parent or child. See In re
Marriage of Kanetomo, No. 19-2008, 2020 WL 5650593, at *3–4 (Iowa Ct. App.
Sept. 23, 2020) (modifying visitation provisions by setting out general time periods
for visitation that were not date specific and removing the child’s discretion to
attend); see also In re Marriage of Retterath, No. 14-1701, 2005 WL 6509105, at
*3–4 (Iowa Ct. App. Oct. 28, 2015) (removing condition that the father could
establish the “time, place, frequency, circumstances, nature and duration of any
communication or visitation” with the mother, but retaining the requirement that
visitations be supervised and remanding to set specific visitation parameters).
Thus, I agree with the majority that the option of the children to avoid visitation
should be removed from the decree, but I still believe conditions are necessary
under this record to terminate a visitation if Tyrel is intoxicated.
To me, disfavor does not imply total rejection. And in Smith v. Smith, 142
N.W.2d 421, 425 (Iowa 1966), while suggesting a district court should not make
visitation contingent on consent from one parent, the supreme court also qualified
the discretionary option by noting “the right of access to one’s child[ren] should not
be denied unless the court is convinced such visitations are detrimental to the best
interest of the child[ren].” (Emphasis added) (citation omitted).10 In Kanetomo,
10In Smith, the two older children (ages seventeen and nineteen) were not required
to attend visitations based upon their history with the father, and he did not seek
13
2020 WL 5650593, at *3, factors influencing the visitation were the father’s lack of
contact with the children and the mother’s failure to support his relationship with
the children. Unlike Kanetomo, here the district court addressed the safety and
health of the children by providing some discretion to the mother to terminate
visitation if Tyrel was consuming alcohol. This was an option selected, even
though other witnesses suggested only a supervised visitation format.11 From the
record at the trial, we know Tyrel had violated the no-contact order the day before
trial and was described as a potentially violent person, even pointing guns at
Jessica during disputes. Jessica’s testimony was as follows:
Q. Do you believe that he’s a danger to you? A. Yes.
Q. Do you believe he’s a danger to the children? A. Yes.
Q. Have many or most of these incidents occurred in the
presence of the children? A. Yes.
....
Q. And do you believe that Mr. Jenkins is an alcoholic?
A. Yes.
Q. And he drinks every day? A. Yes.
Q. And he is intoxicated, you believe, every day? A. Yes.
....
Q. And I mean, do you—do you believe it is possible that he
could kill you and the children and—or all of you? A. Yes.
....
Q. Is he violent only when he’s not [sic.] been drinking, or is
he also violent when he’s sober? A. Both.
visitation privileges as to them. 142 N.W.2d at 424. But as to the two younger
children (ages eight and ten), because the father had made significant changes to
his lack of emotional control, the court removed the requirement to let the mother
restrict visitations. See id.11 It is not surprising that a parent’s excessive use of alcohol and intoxication might
make children afraid to be around them. See Noecker v. Cloyd-Hirz, No. 21-1447,
2022 WL 1664076, at *1 (Iowa Ct. App. May 25, 2022). Or that watching a parent
abuse the other parent, which is emotionally harmful, might chill the children’s
desire to visit the abuser parent. See In re Marriage of Daniels, 568 N.W.2d 51,
54–55 (Iowa Ct. App. 1997).
14
Further, Jessica produced evidence of Tyrel’s threat to disregard the no-contact
order to “kill her.” The majority rightly characterizes Tyrel’s behavior as a “pattern
of abuse.” The long-range negative implications for the children’s general well-
being resulting from a parent’s abusive behavior are presumptive. See Daniels,
568 N.W.2d at 54–55.
In particular, I disagree with the majority eliminating the language in the
decree that allowed Jessica to cancel visitation if Tyrel is intoxicated. See In re
Marriage of Fite, 485 N.W.2d 662, 664 (Iowa 1992) (eliminating language in the
decree setting out a formal procedure to resolve the question of sobriety or
allowing the child to abort visitation based upon the child’s subjective belief of
intoxication). I agree that the condition to take a test is not appropriate, but if
Jessica can determine that Tyrel has been drinking excessively, she should be
able to block or terminate the visit with the children for their safety. See id. (noting
“the district court was correct in providing that [the father] should not be permitted
visitation with [the child] if he has been drinking excessively”). And as pointed out
by the majority, with a no-contact order in place, Jessica’s ability to assess the
danger is difficult; thus, with the ages of the children here, it is appropriate to
consider their observations or require someone to supervise these visitations.
Evidence presented at the trial related observations of the children that their
father was passed out or extremely intoxicated. As a practical matter, Tyrel’s
behavior has placed the children in a position of having to gauge when it is unsafe
for them to be in contact. This behavior necessitated the children leaving Tyrel’s
care on their own since one child has a driver’s license. Likewise, one exhibit
described a motor vehicle accident when Tyrel hit a parked car while intoxicated
15
with the children in the vehicle. Thus, there are reasons to allow for conditions
over Tyrel’s alcohol consumption to protect the children. See In re Marriage of
Rykhoek, 525 N.W.2d 1, 5 (Iowa Ct. App. 1994) (concluding conditions may be
placed on a parent’s visitation rights “only when visitation without the placement of
conditions is likely to result in direct physical harm or significant emotional harm to
the child[ren]”). The conditions must be established with the best interests of the
children in mind. Id.Given this record, I would find that the condition to refrain from alcohol use
and cancel visits because of it be kept in the decree with the option to terminate
visitation if the children report they feel unsafe or have observations similar to what
they have already experienced by way of extreme intoxication. I give deference to
the district court’s findings on this issue given its ability to assess Jessica’s
demeanor and testimony. See In re Marriage of Kirchoff, No. 01-0489, 2002 WL
571790, at *2 (Iowa Ct. App. Feb. 20, 2002) (giving deference to the district court’s
findings that restrictions on visitation, such as not drinking alcohol and supervision,
should be implemented).
I would affirm the district court on all provisions of the decree, except for the
delegation of decision over visitation to the children and the option for Jessica to
require testing for sobriety.