In re the Marriage of Jensen ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1849
Filed September 12, 2018
IN RE THE MARRIAGE OF ELIZABETH HOPE JENSEN
AND NOAH MATTHEW JENSEN
Upon the Petition of
ELIZABETH HOPE JENSEN, n/k/a ELIZABETH HOPE STULGIES,
Petitioner-Appellee,
And Concerning
NOAH MATTHEW JENSEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Richard H.
Davidson, Judge.
Noah appeals from the decree dissolving his marriage to Elizabeth, which
modified custody and child support provisions in the parties’ separate maintenance
decree. AFFIRMED.
Meghan E. Wolf of Cordell Law, LLP, Omaha, Nebraska, for appellant.
Michael J. Winter of Law Offices of Michael J. Winter, Council Bluffs, for
appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.
Noah Jensen appeals from the decree dissolving his marriage to Elizabeth
(Beth) Stulgies, which modified certain provisions contained in the parties’
separate maintenance decree. Noah argues the district court acted improperly by
treating the petition as a modification, finding a substantial change in
circumstances, modifying the custody and care provisions to award joint legal
custody and physical care to Beth, and ordering him to pay child support. He also
contends the district court should not have found Beth and her witnesses credible,
failed to give proper weight to his expert witness, and decided the issues based on
religious grounds. We agree with the court’s treatment of the petition as a
modification and its determinations of witness credibility, and we find the court did
not improperly consider religion. We also agree Beth showed a substantial change
in circumstances warranting modification, and we agree with the court’s awards of
joint legal custody, physical care, and child support. Finally, we award appellate
attorney fees to Beth.
I. Background Facts and Proceedings
Beth and Noah were married in 2005. They have two children together, a
son, born in 2007, and a daughter, born in 2010. At the time of their marriage, they
were both members of Word Center Ministries (Word Center), a bible study group
primarily run by Noah’s parents, Sharon and Rod Jensen.1
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Noah and his mother testified Word Center had no “members” and people were free to
come and go from the group. However, Beth and her witnesses testified Word Center had
“members” who were isolated from non-members. Like the district court, we accept the
testimony of Beth’s witnesses and refer to the group’s “members,” regardless of the
terminology Noah and his family use.
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The children’s primary caretaker during the marriage was Beth, who also
homeschooled the children. In December 2015, Beth was hospitalized for two
days after being found unresponsive. She testified she was taking multiple
medications for rheumatoid arthritis and sleep problems and she believed her
condition was due to a bad reaction to her medications. Following her release,
Beth handwrote and signed a document stating she had mentally and physically
abused her children and they “need to be in the care of someone” safe, specifically
Sharon. At trial, she denied abusing her children and testified she wrote the note
“confessing my sins” under orders from Noah and Sharon because she feared she
would never see her children again if she refused.
Noah filed a petition for separate maintenance. According to him, he filed
for a legal separation because he wanted the chance to work things out with Beth
in the future. She testified “he could not divorce me because Biblically . . . I did
nothing to him” and “I’m not the one that cheated on him.” She signed a stipulation
and agreement that granted him sole legal custody and physical care of the
children, restricted her to supervised visitation, and required her to pay child
support. On February 29, the district court entered an order approving the
stipulation in the form of a decree.
On May 18, 2016, Beth filed a document captioned “Petition for Dissolution
of Marriage,” which sought a divorce and determinations of custody and care of
the children. Her petition asserted she was not represented by counsel at the time
she agreed to the terms of the separate maintenance agreement and she believed
Noah intended to move the children to Tennessee to keep them away from her.
At trial, she testified she signed the stipulation because she feared she would
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never see her children again if she did not do what Noah and his family wanted.
In response to the petition, Noah filed a motion in limine on May 26, which sought
to exclude all of the issues previously decided in the separate maintenance decree.
On June 24, the district court entered an order for temporary custody altering the
terms of the stipulation and agreement as it related to Beth’s visitation and
appointed a guardian ad litem for the children. A trial was held on Beth’s petition
on June 2, 2017. On October 10, the district court filed a decree of dissolution that
dissolved the marriage and modified the separate maintenance decree to order
joint legal custody of the children with physical care to Beth, liberal visitation to
Noah, and $693.00 per month in child support payments from Noah to Beth. Noah
appeals.
II. Standard of Review
We review actions for dissolution of marriage or modification of child care
or custody de novo as they are heard in equity. In re Marriage of Hoffman, 867
N.W.2d 26, 32 (Iowa 2015) (modification); In re Marriage of McDermott, 827
N.W.2d 671, 676 (Iowa 2013) (dissolution). “Although we make our own findings
of fact, ‘when considering the credibility of witnesses the court gives weight to the
findings of the trial court’ even though we are not bound by them.” Hoffman, 867
N.W.2d at 32 (quoting In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa
1989)). When considering a modification of child care or custody, our controlling
consideration is the best interests of the children. Id. A party who seeks a
modification of child care of custody must establish by a preponderance of the
evidence that there has been a material and substantial change in circumstances
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since the entry of the decree. In re Marriage of Frederici, 338 N.W.2d 156, 158
(Iowa 1983).
III. Motion in Limine
Noah’s motion in limine sought to prohibit Beth from litigating the issues and
facts agreed to, and ruled upon, in the separate maintenance decree. Regarding
the issues, Iowa law allows spouses to “legally separate by filing a petition for
separate maintenance as provided in Iowa Code section 598.28 without dissolving
their marriage.” In re Estate of Whalen, 827 N.W.2d 184, 185 n.1 (Iowa 2013)
(citing 2 Marlin M. Volz, Jr., Iowa Practice Series, Methods of Practice § 31:31, at
869 (2012)); see Iowa Code § 598.21(1) (2015) (prefacing provision on disposition
of property with, “Upon every judgment of annulment, dissolution, or separate
maintenance, the court shall divide the property of the parties . . . .”). Section
598.41, which deals with child custody, applies when “the parents have separated
or dissolved the marriage.” Iowa Code § 598.41(1)(a); see also id. § 598.21B(2)(a)
(outlining the court’s authority to order child support, “upon every judgment of
annulment, dissolution, or separate maintenance”). Accordingly, the provisions
contained in the decree that determined child custody, physical care, and child
support were final orders aptly positioned for appeal or modification. See, e.g., In
re Marriage of Thielges, 623 N.W.2d 232, 235–39 (Iowa Ct. App. 2000)
(considering a modification of physical care and visitation); see also Iowa Code
§ 598.21C (allowing modification of child support).
The district court was tasked with dissolving the parties’ marriage and
issuing a dissolution decree. Had Beth not raised the issues surrounding child
custody, the court could have simply incorporated the provisions contained in the
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separate maintenance decree. But because Beth’s petition for dissolution raised
the issues of child custody, physical care, visitation, and child support, the district
court considered it to be a petition for modification. See Meier v. Senecaut, 641
N.W.2d 532, 539 (Iowa 2002) (“[W]e treat a motion by its contents, not its
caption.”); Jones v. Iowa State Highway Comm’n, 207 N.W.2d 1, 2 (Iowa 1973)
(“We therefore disregard the misleading manner in which plaintiffs entitled their
suit . . . .”). Moreover, Noah answered Beth’s petition by counterclaiming for “sole
temporary and permanent care, custody and control of the minor children” and
“supervised visitation” for Beth. Therefore, his complaint that Beth did not correctly
petition the court to modify the prior custody, visitation, and support arrangement
is unsustainable. See In re Marriage of Blessing, 220 N.W.2d 599, 605 (Iowa
1974) (holding wife’s cross-petition, which raised the same issues as the
husband’s motion, rendered her complaint about the pleadings untenable).
Accordingly, the district court properly treated Beth’s petition as a modification of
the separate maintenance decree along with the requested dissolution of the
marriage.
Regarding the facts, Noah argues the court should have excluded evidence
arising prior to entry of the separate maintenance decree. The district court has
broad discretion in deciding whether evidence has sufficient probative value for
admission. See Iowa R. Evid. 5.403; Thielges, 623 N.W.2d at 239–40 (citing the
predecessor to rule 5.403). Having determined Beth’s dissolution of marriage
petition included a modification of the separate maintenance decree, she needed
to show a substantial change in circumstances occurred. See Frederici, 338
N.W.2d at 158. Showing such change logically requires establishing the facts as
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they existed to warrant entry of the original separate maintenance decree. The
record made prior to the entry of the separate maintenance decree contains little
evidence of the facts or “circumstances” the court relied upon when entering that
decree. Accordingly, the dissolution/modification court refused to exclude
evidence merely because it arose prior to, and therefore in support of, the entry of
the separate maintenance decree. By allowing evidence that pre-dated the
separate maintenance decree, both parties were able to establish the facts that
lead to the entry of that decree and then prove or refute a “substantial change of
circumstances.” We find no abuse of discretion in this decision.
IV. Witness Credibility
Before we discuss the district court’s reasoning and decision on custody
issues, we address Noah’s contentions that his witnesses were more credible than
Beth’s witnesses. Good reasons exist for us to give close consideration to the
district court’s assessment of the credibility of witnesses. 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.” Id. The court heard testimony from several witnesses during trial and
was able to observe their demeanor first-hand. Beth presented testimony from her
mother and father; Melissa Pennington, an acquaintance from Word Center; and
Adam Jensen, Noah’s estranged brother. The court specifically found “all four of
these witnesses credible.” Noah’s witnesses included Jack Dross as an expert,
and the court summarized his testimony and its findings thusly:
Noah called Jack Dross, as an expert that has been
counseling both [children]. Mr. Dross has met both Noah and Sharon
Jensen as part of his counseling efforts with the children. He was
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provided a copy of Beth’s confessions that she has since recanted.
It is unclear if he reviewed the child abuse assessment. He has not
met with Beth and admitted that his testimony may have been
different if he had. He was called as an effort to vouch for the children
but when testifying that he believed [the daughter] had been bribed
or threatened to write a note in support for her mother he could not
recall whether the child was promised a toy or threatened with
punishment. The court found Mr. Dross’ testimony neither
persuasive nor helpful. The court further notes Noah should have
informed Beth the children were in counseling.
The district court was able to hear all witness testimony first-hand and make
credibility determinations based on witness demeanor and its other observations.
Noah presents several arguments to us as to why his witnesses are more credible
than Beth’s witnesses, and he was able to make the same credibility arguments to
the district court. See Hoffman, 867 N.W.2d at 32. While we conduct a de novo
review, we give weight to the district court’s factual findings and see no reason to
find Beth’s witnesses non-credible. Accordingly, we generally agree with the
court’s determinations of credibility and assignments of weight regarding witness
testimony.
V. Religion
Noah next argues the district court held his religious beliefs against him.
Noah has the constitutional right to practice the religion of his choosing. In re
Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct. App. 2003) (citing In re
Marriage of Anderson, 509 N.W.2d 138, 141 (Iowa Ct. App. 1993)). “It would be
unconstitutional for us to put any restraint on the exercise of either of these parties’
religious freedom.” Id.Noah does not point to any specific religious beliefs he claims the court
discriminated against, other than his association with Word Center. He testified
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that he identifies as Christian, that he attends a Baptist church, and that Word
Center is not a religion but is simply “a ministry that offers Bible study help.”
In its decree, the district court stated: “The court respects Noah’s, and his
family’s, choice of religion and has not considered the religious study at Word
Center Ministries. What the court does consider however, is the attitude displayed
by Noah and his parents toward those that leave the group.” Beth and her
witnesses testified consistently and extensively about the actions Noah and his
family took to isolate Word Center members from non-members. Noah does not
claim this isolation is associated with his religious beliefs, and he denied anything
bad would happen when someone left the Word Center. As explained below, the
district court considered the best interests of the children—and not Noah’s religious
beliefs and practices—in determining physical care, custody, and child support.
We also do not consider his beliefs a factor in weighing against Noah’s claims in
our de novo review. Accordingly, we conclude the district court did not improperly
consider religion in its dissolution decree.
VI. Change in Legal Custody and Physical Care
Noah next argues Beth did not make the required showing to warrant a
change in child custody and care. The party seeking to modify a custody and care
arrangement bears a heightened burden and we will modify the arrangement only
for the most cogent reasons. See Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa
Ct. App. 1996). Generally, the party requesting modification must make two
showings: (1) a substantial change in material circumstances that is more or less
permanent and affects the children’s welfare; and (2) he or she is able to provide
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superior care and minister more effectively to the children’s needs. In re Marriage
of Harris, 877 N.W.2d 434, 440 (Iowa 2016) (citing Frederici, 338 N.W.2d at 158).
A. Substantial Change in Circumstances
The district court found Beth established six substantial changes:
1. Assuming in February 2016, that Beth was so ill and
abusive that she could not be left alone with her children, that is not
the case today. The court doubts there was ever a time Beth should
have been so restricted but Noah relied on that suggestion to justify
the custody ordered.
2. Beth is reunited with her family and [the children] have a
relationship with a whole new extended family including
grandparents, aunts, uncles and cousins. Beth allows the children
to share a relationship with Adam Jensen and his family as well.
3. The weight of the evidence demonstrates Noah and his
mother Sharon manipulated and controlled Beth throughout the
marriage and certainly at the time of the separate maintenance
proceeding. Beth is no longer under their control and is thinking for
herself.
4. Beth has recanted her statement referred to at trial as her
“confession of sins.” The court finds her testimony credible: she
believed she had no choice but to sign the statement if she wanted
to see her children.
5. Beth is no longer in fear of not seeing her children.
6. Beth’s overall mental health and behavior has changed.
Melissa Pennington described Beth as somewhat depressed at the
time of the separation and now a more independent and happier
person. Ms. Pennington’s testimony was echoed by Beth’s family
and Adam Jensen.
These six changes, none of which were contemplated at the time of the separate
maintenance decree, are more than sufficient to show a substantial change in
circumstances. Many of Beth’s problems related to a lack of family support around
her and isolation she experienced as a member of Word Center, which Beth and
other witnesses described as a “cult” controlled by Sharon. Beth initially joined
Word Center with her parents and siblings around 2000, but her family left the
group around the time she married Noah. Her father left the group before her
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wedding, and he testified the group threatened to arrest him if he attended the
wedding. Her mother testified that if they tried to contact Beth or the children after
leaving the group, Beth “would get in trouble, and in trouble meaning she would
have meetings upon meetings, days upon days of browbeating meetings.” Beth
testified why she did not contact her family after they left:
Once somebody leaves Word Center, you’re not allowed to go talk
to them. And I understand [Noah’s counsel] talked about didn’t [I]
have a phone, didn’t [I] have a car. Yes, I did, but I could have lost
my kids. I could have been kicked out, feared that I couldn’t go see
my family. I’m not allowed back in the church, so I would be left with
nothing.
Beth also experienced health issues, including anxiety and rheumatoid
arthritis that she treated with medication. She testified Sharon forbade her from
taking her rheumatoid arthritis medication and wanted to bury it in a sort of funeral
because Sharon believed it was developed from “dead babies.” She also testified
her December 2015 hospitalization became a “big deal” because Sharon “wanted
to know all the medicine that I was on. She was trying to take over my life.”
Since Beth left Word Center she has been able to reunite with her family
and introduce her children to them and to Adam Jensen and his family. Beth’s
mother testified that Beth is no longer fearful, as she had been during her time with
Word Center, and she is now allowed to think for herself. As a result, Beth is
working and enrolled in college courses, which, she testified, she was forced to
end at the time of her marriage. Accordingly, a substantial change of
circumstances occurred when Beth left Word Center because she is now able to
reunite with her family, introduce her children to her family, and pursue a career
that was not attainable while she was a member.
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B. Superior Care
Having shown a substantial change in circumstances, Beth must also show
she could provide superior care to warrant a change in care and custody. See
Harris, 877 N.W.2d at 440. The district court found:
There are factors that weigh in Beth’s favor. First, the court
finds if she were awarded primary care the children would spend
more time with extended family. Not only would they see Beth’s
parents and siblings more often, Beth made clear she would also
reunite the children with their uncle and his family. Noah has a close
relationship with his parents and will insure they also see the
children. Interaction with extended family is important for the children
and they stand a better chance of the contact if Beth were to be
awarded primary care.
...
Beth intends on remaining in the Omaha/Council Bluffs area.
An award of joint custody with primary physical care with Beth
coupled with extraordinary visitation with Noah, assuming he
reconsiders his move, is in [the children’s] best interest. Considering
this custodial arrangement and weighing all of the factors discussed
above the court concludes Beth has demonstrated she is able to
provide superior care.
It is obvious to the court, and irrespective as to what physical
care determination was made, that Beth and Noah need to learn how
to better communicate and show mutual respect for each other. The
court is satisfied that to foster better communication and mutual
respect the parties should participate in counseling and will order the
same.
We agree with the district court’s assessment. Upon our review of the
record, the evidence shows considerable tension between the parties made all the
more difficult because of their inability to communicate. Beth testified that many
decisions were made according to Sharon’s directives, including how Beth was to
discipline her children. For much of the parties’ relationship, Beth was the
children’s primary caregiver. Until she was hospitalized and signed the separate
maintenance agreement, Noah raised no complaints as to the care she provided
for the children. While she acknowledges the children have sometimes missed
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taking medication while in her care, the record does not support his allegations
that she abused the children. Moreover, Noah expressed a desire to move to
Tennessee to be closer to his mother who had recently moved there. Despite his
contention that he will remain in Iowa if the court requires him to do so, the court
was satisfied Beth will remain in the Council Bluffs area, near their maternal
grandparents and both Noah’s and Beth’s extended family. Accordingly, we agree
with the district court that Beth carried her burden of showing she could provide
superior care, warranting a change in the physical care arrangement.
Regarding legal custody, the stipulation and agreement signed by the
parties, which granted Noah sole legal custody of the children, does not state “that
joint custody is unreasonable and not in the best interest of the child[ren].” Iowa
Code § 598.41(2)(b). Likewise, the separate maintenance decree does not
provide reasons why sole custody in Noah is in the children’s best interests. See
id.We agree with the district court that sole custody in Noah is unwarranted.
As stated above, the record establishes a substantial change in circumstances—
including Beth freeing herself from the control of Noah and Sharon, regaining her
ability to think for herself, and reuniting herself and the children with her family and
Noah’s estranged family members—that warrants modification. The record
provides no reason why Beth should not have equal rights and responsibilities in
making decisions “affecting the child’s legal status, medical care, education,
extracurricular activities, and religious instruction.” Id. § 598.41(5)(b). Accordingly,
we agree with the district court that joint legal custody to both parties was
appropriate.
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VII. Child Support
Noah asserts the district court should not have ordered him to pay Beth
child support. In its dissolution decree, the district court stated:
Beth is employed . . . and earns $29,680 annually. Noah is
employed . . . and earns $48,161 annually. Based on the parties’
annual incomes and applying the Iowa Supreme Court guidelines to
the facts of this case and the extraordinary visitation ordered, the
Court determines Noah’s child support obligation to be $693.00 for
two children and $464.00 for one child.
A district court is directed to determine the amount of child support specified
by our child support guidelines. In re Marriage of Powell, 474 N.W.2d 531, 534
(Iowa 1991). “Although Iowa Code section 598.21(4)(a) provides that the child
support amount should be reasonable and necessary, the support award is not
limited to the actual current needs of the child but may reflect the standard of living
the child would have enjoyed had there not been a dissolution.” Id. (citing In re
Marriage of Campbell, 451 N.W.2d 192, 194 (Iowa Ct. App. 1989)). The child
support guidelines are to be strictly followed unless their application would lead to
an unjust or inappropriate result. See Iowa Code § 598.21(4)(a).
Upon our de novo review, we conclude that $693.00 for two children is a
reasonable and necessary amount of child support. The award was based on the
parties’ tax returns and pay stubs, and it was made in conjunction with the child
support guidelines.
VIII. Appellate Attorney Fees
Noah and Beth also request an award of appellate attorney fees. In re
Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct. App. 1997). An award of
appellate attorney fees is not a matter of right but rests within our discretion. Id.15
In determining whether to award appellate attorney fees, we consider the needs of
the party making the request, the ability of the other party to pay, and whether the
party making the request was obligated to defend the decision of the trial court on
appeal. Id. We decline to award Noah appellate attorney fees. Beth was forced
to defend the district court’s order and, given the disparity in the parties’ income,
we award Beth $3000 in appellate attorney fees.
IX. Conclusion
The district court properly treated Beth’s petition as a modification and
determined credibility of witnesses, and it did not improperly consider religion.
Because Beth proved a substantial change of circumstances and her ability to
provide superior care of the children, we affirm the district court’s modification,
granting Beth physical care of the children and granting the parties joint legal
custody. We affirm the modification of child support and award Beth appellate
attorney fees.
AFFIRMED.