In re the Marriage of Semerad ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0471
Filed November 27, 2019
IN RE THE MARRIAGE OF CASSIE ROWAN SEMERAD AND AUSTIN JOSEPH
SEMERAD
Upon the Petition of
CASSIE ROWAN SEMERAD, n/k/a CASSIE JORDAN,
Petitioner-Appellant,
And Concerning
AUSTIN JOSEPH SEMERAD,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,
Judge.
Cassie Jordan appeals from the order modifying the decree dissolving her
marriage to Austin Semerad. AFFIRMED IN PART, MODIFIED IN PART, AND
REMANDED.
Cynthia Ann Bahls of The Law Shop by Skogerson McGinn, LLC, Van
Meter, for appellant.
Austin Joseph Semerad, Des Moines, self-represented appellee.
Considered by Bower, C.J., and May and Greer, JJ.
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BOWER, Chief Judge.
Cassie Semarad, now Cassie Jordan, appeals from the order modifying the
decree dissolving her marriage to Austin Semerad. Cassie argues the court’s
ruling, which modified not only the visitation provisions of the decree but also the
child-support and legal-custody provisions, went beyond the relief requested by
either party. She also challenges the visitation graduated timeline and the amount
of child support ordered. We affirm in part, modify in part, and remand.
I. Background Facts and Proceedings.
Cassie and Austin were divorced on April 20, 2015. The dissolution decree
ordered joint legal custody and shared physical care of the parties’ two minor
children; Z.S., born in 2010, and M.S., born in 2011. Their post-dissolution
relationship has been marked by on-going judicial intervention.
The dissolution decree was first modified on August 30, 2016. In the
modification ruling, the court found:
(5) After the decree was entered, [Austin] threatened to
assault [Cassie] and has harassed her. The parties have had
difficulty reasonably communicating with each other and
co-parenting their children since the decree was entered.
(6) A protective order by consent agreement was entered in
Polk County which provide[d] that Austin not threaten, assault, stalk,
molest, harass, other otherwise abuse Cassie, and the order
restricted communication between the parties to matters affecting
the parties’ children only and that all communication be sent through
a third party. [Austin] entered a plea of guilty to a charge of
harassment in the [second] degree, and received a deferred
judgment on March 15, 2016.
The court modified the decree to provide Cassie sole legal custody and
physical care of the children. The order set out a number of specifics concerning
access to information, parental responsibilities, and visitation. Austin’s scheduled
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parenting time was to be on alternating weekends from Friday at 5:00 p.m. to
Sunday at 5:00 p.m., and every Wednesday overnight from 5:00 p.m. until
Thursday, when Austin would take the minor children to school or return them to
Cassie by 8:00 a.m. Austin was to pay $987.96 monthly in child support.
On September 21, 2017, the district court entered an order modifying the
protective order, eliminating Austin’s Wednesday overnight parenting time,
providing Wednesday visits would be from after school to 7:30 p.m., and reducing
alternate weekend visits from Saturday at 8:00 a.m. to Sunday at 6:00 p.m. Cassie
and Austin were ordered to participate in joint counseling and treatment to address
parenting communication issues. Austin was ordered to direct his psychiatrist to
prepare and file a report detailing his psychiatric care and treatment for the court.
The protection order was modified in a few respects, including allowing the parties
to text or e-mail each other about the children. The court ordered a review hearing
scheduled for mid-January 2018, which was later rescheduled for February 22,
2018. The review hearing was then cancelled upon a report by the parties’
counselor that “the parties are making excellent progress in counseling and are
desirous of voluntarily continuing counseling.”
On March 30, 2018, the parties’ filed a stipulation reducing Austin’s child
support to $800 per month. For reasons not apparent in the record, the court did
not enter a ruling on the stipulation.
On April 15, Austin had the children overnight and Cassie received a call
from Austin’s paramour, stating she needed to come pick up the children. When
Cassie arrived at Austin and his paramour’s residence, the apartment was in
substantial disarray, and Cassie learned Austin had been arrested. Austin was
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subsequently charged with harassment, theft, and false imprisonment related to
the April 15 incident with the paramour.
On April 17, Cassie sought and obtained a temporary domestic-abuse
protective order against Austin. After a hearing was held on May 22, the district
court entered a permanent domestic-abuse protective order and Austin’s visitation
was to be at Cassie’s sole discretion. Cassie informed Austin she would allow
supervised visits after he obtained appropriate treatment for his mental-health
issues.1
On June 5, Austin filed an application to show cause in the dissolution
proceeding, asserting Cassie was in violation of the decree by not allowing him
visits with the children.
On June 25, Cassie filed a petition to modify the dissolution decree,
requesting a modification of the visitation and support provisions. On Cassie’s
application, the district court appointed an attorney, Molly McPartland, to represent
the minor children.
At a July 6 review hearing concerning the domestic-abuse protective order,
the district court ruled that the issue of visitation would be determined in the
modification action. The protective order was to remain in effect until modified in
the modification action.
A scheduling hearing was held on July 17 in the dissolution modification
proceeding. Austin, who was self-represented, did not participate despite several
1
Austin has been affected by depression for much of his life, at times being unable to get
out of bed for days on end, and at times subject to bouts of an explosive temper. He was
involuntarily hospitalized twice in early 2018.
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attempted telephone calls. Trial was set for February 14. The scheduling order
provided: “The only contested issues for trial are: Child Support [and] Visitation.”
In his July 19, 2018 answer to the modification petition, Austin states:
While [Austin] agrees with [Cassie’s] opinion that the best
interests of the minor children would be served by a modification of
visitation, it is apparent that [Austin] and [Cassie] have opposing
opinions of how visitation should be modified. [Austin] is requesting
his visitation schedule to be modifying to align with the liberal and
reasonable visitation outlined in the court’s Findings of Fact and
Conclusions of Law in its Ruling and Order Modifying Decree filed on
August 30, 2016. Furthermore, [Cassie], and the undersigned
attorney for [Cassie], are lacking the legal standing to make
assertions about the best interests of the children for the court’s
consideration. The children are represented by Kids First Law
Center, which will represent the interests of the children.
On the morning of trial, February 14, 2019, the parties filed a partial
stipulation agreeing it was in the best interests of the minor children to spend time
with Austin “on a graduated parenting schedule” set out in six phases—phase 1
involved supervised parenting time at a supervised visitation center; phase 2,
Austin would have four hours of unsupervised visitation in a public location;
phase 3, Austin would have unsupervised parenting time from 9:00 a.m. to 5:00
p.m. on alternating Saturdays; phase 4, increased unsupervised parenting time to
9:00 a.m. to 5:00 p.m. on alternating Saturdays and Sundays; phase 5,
unsupervised overnights on alternating weekends; and phase 6, added midweek
visitation after school.
Cassie’s counsel stated, “The parties have reached a partial stipulation
regarding a phased visitation schedule, a graduated schedule. The parts that we
have not reached an agreement on then, Your Honor, are the length of time for
each phase, and any safeguards or other provisions related to those phases.” The
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court asked each party to state their proposals. Cassie argued phase 1 should
last a year, or at least twenty supervised visits; four visits or two months under
phase 2; six months under phase 3; three months under phase 4, six months under
phase five; and then phase 6 would be in effect. Austin argued each phase should
last one and one-half to two and one-half months. Counsel for the children asked
that the each transition “occur at such time as the children’s therapist [Megan
Wych] indicates that it’s a good idea.”
The court approved the partial stipulation of the dissolution decree and
proceeded to hear evidence on the application to modify the decree, as well as on
Austin’s motion for rule to show cause. Following the presentation of evidence
and the parties’ post-trial filings,2 the court entered a ruling in which it stated:
I am well aware that exposing children to domestic violence is
harmful to them. But of significance in all of these situations and all
of these legal proceedings is the absence of any allegation that
Austin has physically harmed or threatened physical harm to his
children. As Cassie testified at trial, she has never been concerned
about the children’s physical safety when in Austin’s care.
According to Austin, he has suffered from mental illness since
age nine. Again according to Austin, his primary diagnosis is
depression. Other secondary diagnoses are not apparent from this
record. Based on this record, his illness manifests in episodic
violence or threats of violence. It has never manifested in physical
violence directed at the children. He has been treated for mental
health issues by a psychiatrist, Dr. Gaylord Nordine, for several
years.
Austin has not seen his children for ten months. Iowa law
requires that each parent have reasonable liberal access to his or
her children consistent with the children’s best interest. That has not
happened.
The children are currently seeing counselor Megan Wych
biweekly. Cassie testified that she expects to continue with this
counseling. Cassie requests that the children attend at least two
sessions with Ms. Wych before the reunification process begins.
2
Austin’s direct testimony was primarily presented through questioning by the district
court.
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Cassie also requests that joint counseling with Mary
Jankowski be ordered. The parties had participated in joint
counseling pursuant to the court’s September 27, 2017 order but that
counseling ended after April 15, 2018. Cassie accuses Austin of not
being truthful in these sessions, and Austin has expressed distrust
of Jankowski, evidenced in part by his filing of an application that she
be held in contempt of court. Though the parties may agree to joint
counseling voluntarily, I will not order that this continue.
The parties signed and filed a partial stipulation immediately
before the commencement of trial. They have agreed to a
modification of the previous custody order to transition Austin back
to an overnight visitation schedule. The parties were not able to
agree upon a tentative timeline for this transition or conditions
precedent to a transition through the continuum. They left that for
the court.
Thus my job is to establish a timeline and conditions for this
transition consistent with the best interests of the children and
Austin’s right to see his children. Given the time that has already
elapsed, and the mandate of Iowa law that parents are entitled to
reasonable and liberal access to their children, the timeline will
anticipate a restoration of visitation sooner rather than later.
The court then specified a schedule for graduated visitation. The first
transition would occur “[a]s soon as the minor children’s therapist indicates that the
children are ready to progress to Phase 2, or after four (4) supervised visits at
Mosaic Family Counseling, whichever occurs sooner.” Then, “[p]hase 2 visits shall
last until such point as the children’s therapist indicates that the children are ready
to advance to phase 3, but in no event shall phase 2 last longer than two (2) months
encompassing four (4) visits under this phase.” Phase 3 would last eight weeks,
i.e., four visits on alternating weekends. Phase 4 would last eight weeks, and
phase 5 would last twelve weeks. At that point, phase 6 would be invoked.
The court also set out the following “conditions”:
(1) Austin shall continue with counseling and therapy as
recommended by his psychiatrist, follow all recommendations, and
remain med-compliant.
(2) Austin shall follow all terms of probation until discharged.
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(3) Austin shall promptly inform Cassie and the children’s
attorney of any arrests, hospitalizations, or changes in residence.
(4) Austin shall continue to exert reasonable efforts to obtain
employment.
(5) Austin shall secure a residence suitable for young children
at least by the time he is exercising overnight visitations.
(6) Cassie shall not alter the transition schedule without court
approval or Austin and the children’s attorney’s written consent.
(7) Cassie shall not withhold the children from the scheduled
time with Austin absent an emergency directly affecting the safety of
the children. If this occurs, Cassie must promptly file the appropriate
motions or pleadings for court review of the alteration of the
schedule.
(8) Austin’s status as a joint legal custodian of the minor
children will be re-established upon certification that phase 5 has
been completed.
(9) This order will be filed in [the domestic abuse case], and
the protective order in that case is hereby modified consistent with
the terms of this order.
The court dismissed Austin’s motion for rule to show cause, modified
Austin’s support order to $800 per month retroactively pursuant to the parties’
March 30, 2018 stipulated filing. Effective upon the filing of the modification order,
the court modified Austin’s child support to $50 per month.
Cassie appeals.
II. Scope and Standard of Review.
Our review of an order modifying custody is de novo. See In re Marriage of
Sisson, 843 N.W.2d 866, 870 (Iowa 2014). We give weight to the fact-findings of
the district court, particularly concerning witness credibility, but we are not bound
by them. Iowa R. App. P. 6.904(3)(g).
III. Discussion.
A. Modification of custody. Cassie asserts the district court should not have
modified legal custody where no request to modify legal custody was made. We
agree.
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The petition to modify asked that the court “modify the parties’ most recent
ruling and order of September 21, 2017, and order supervised visitation and
parenting time with [Austin] that will ensure the minor children’s health, safety,
welfare and best interests” and order child support in accordance with the Iowa
Child Support Guidelines. In his answer, Austin also asked that the court modify
the September 2017 ruling and “order the visitation and parenting time granted to
[Austin] reflect the court’s ruling and order from August 2016.” Legal custody was
not an issue before the court.3 We therefore eliminate paragraph 8 of the
“conditions” set out verbatim above.4
B. Graduated Timeline. Cassie contends the court’s graduated timeline
overemphasized the fact that Austin had never physically harmed the children and
gave inadequate weight to the emotional and mental harm the children
experienced.
We are not persuaded the court’s ruling does not adequately consider the
children’s best interests. See Iowa R. App. P. 6.904(3)(o) (“In child custody cases,
the first and governing consideration of the courts is the best interests of the
child.”). The court acknowledged domestic abuse posed the threat of harm to
children, acknowledged the children were in therapy, and provided for input from
their therapist. The mother testified the children were in therapy. However, she
also stipulated visitation with their father was important. The structured transition
and conditions placed upon Austin evince the court’s consideration of the
3
The August 2016 modified decree placed the children in Cassie’s sole legal custody.
4
Because we strike the provision, we need not address Cassie’s additional argument
concerning modification of legal custody.
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children’s well-being. We find no failure to do equity. See In re Marriage of
McKenzie, 709 N.W.2d 528, 531 (Iowa 2006) (“We recognize that the district court
‘has reasonable discretion in determining whether modification is warranted and
that discretion will not be disturbed on appeal unless there is a failure to do equity.’”
(citation omitted)).
C. Child support modification. “In Iowa, child support is calculated using the
child support guidelines.” In re Marriage of Erpelding, 917 N.W.2d 235, 245 (Iowa
2018); see Iowa Code § 598.21B; Iowa Ct. R. 9.2. “To compute the guideline
amount of child support,” the district court must first compute the adjusted net
monthly income of each parent. Iowa Ct. R. 9.14. That amount is ascertained by
first determining each parent’s gross monthly income and then subtracting
specified taxes and deductions. See Iowa Ct. R. 9.14(1). Gross monthly income
is the “reasonably expected income from all sources.” Iowa Ct. R. 9.5(1).
The guidelines “provide for the best interests of the children by recognizing
the duty of both parents to provide adequate support for their children in proportion
to their respective incomes.” Iowa Ct. R. 9.3(1). There is a “rebuttable
presumption that the amount of child support which would result from the
application of the guidelines prescribed by the supreme court is the correct amount
of child support to be awarded.” Iowa Code § 598.21B(2)(c); Iowa Ct. R. 9.4. The
child support award “may be adjusted upward or downward, however, if the court
finds such adjustment necessary to provide for the needs of the children or to do
justice between the parties under the special circumstances of the case.” Iowa Ct.
R. 9.4.
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The district court’s ruling provides: “Austin is not currently employed. The
evidence does not establish that he is voluntarily unemployed or under-employed.
He is not currently able to pay significant child support. His current child support
will [be] established consistent with these findings.” The court ordered his child
support obligation to be set at $50 per month for two children.
The court’s ruling does not specifically determine Austin’s income but infers
it is nonexistent. We are not convinced the inference is warranted. In answering
the court’s questions, Austin stated he was unemployed and was not receiving
unemployment. On cross-examination, Austin testified he left work at Bankers
Trust to work for Casey’s, where he was employed from November 25, 2015, to
May 20, 2016. He was unemployed until November 2016, and then went to work
for Wells Fargo. His employment there was terminated in March 2017 for
absenteeism. Austin worked at a restaurant for about two months beginning in
June 2017 and supplemented his income driving for Lyft. In January 2018, Austin
obtained employment with Principal where he was earning an hourly wage “but it
worked out to $47,500 per year.” He testified he was fired for tardiness on
August 21. Yet, in completing his October 10, 2018 guidelines worksheet, Austin’s
calculations would call for his child support obligation to be set at $739.79 per
month. The record also includes Austin’s application materials to Principal in which
Austin asserted he provided independent consultation to businesses.
Cassie contends the court’s child support order is inequitable. She asserts
the court failed to consider Austin’s earning capacity in setting his child support
obligation. Cassie argues, “Austin is capable of earning a decent living when he
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is in control of his mental health issues.”5 For child support purposes, however,
the court is not to use earning capacity rather than actual earnings “unless a written
determination is made that, if actual earnings were used, substantial injustice
would occur or adjustments would be necessary to provide for the needs of the
children or to do justice between the parties.” Iowa Ct. R. 9.11(4).
Here, the district made no finding as to Austin’s gross monthly income,
which is the “reasonably expected income from all sources.” We remand for the
district court to make the findings necessary to determine the parties’ child support
obligations under the guidelines considering actual earnings, or earning capacity
if appropriate.
D. Appellate attorney fees. We decline Cassie’s request to award her
appellate attorney fees. See In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa
2005) (noting appellate attorney fees are discretionary).
AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED.
5
Austin does not challenge Cassie’s statement as to his earning capacity.
Austin has two bachelor of science degrees in mathematics and statistics and has
worked for several years in the financial industry. He appears capable of earning income.
And a condition of the modified decree includes that Austin “continue to exert reasonable
efforts to obtain employment.” Nonetheless, Cassie’s argument as to the graduated
visitation appears to be based on her acknowledgement that Austin is not currently “in
control of his mental health issues.” These issues are best determined by the district court.