In Re the Marriage of Richard R. Schmidt and Jill Schmidt Upon the Petition of Richard R. Schmidt, and Concerning Jill Schmidt ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 3-1249 / 13-0675
Filed May 29, 2014
IN RE THE MARRIAGE OF RICHARD R. SCHMIDT
AND JILL SCHMIDT
Upon the Petition of
RICHARD R. SCHMIDT,
Petitioner-Appellant,
And Concerning
JILL SCHMIDT,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David L. Christensen,
Judge.
Richard Schmidt appeals the district court’s order denying his application
to appoint a reunification therapist and prohibiting him from attending his
children’s extracurricular activities. AFFIRMED IN PART AND REVERSED IN
PART.
Ward A. Rouse, West Des Moines, and Dustin M. Mueller, Des Moines,
for appellant.
Mark R. Hinshaw, West Des Moines, for appellee.
Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
2
DANILSON, C.J.
Richard Schmidt appeals the district court’s denial of his application to
appoint a reunification therapist. He also challenges the court’s order prohibiting
him from attending his children’s extracurricular activities and its denial of his
motion to exclude the testimony of the children’s therapists. We decline to
further this protracted litigation upon temporary orders and affirm the denial of the
application for appointment of a reunification therapist. We reverse the order
prohibiting Richard from attending the extracurricular activities as no modification
action is pending nor did the district court conclude there was a change of
circumstances. The issues of legal custody and visitation have been indefinitely
deferred, and visitation has been improperly delegated to a third-party. We urge
the district court and the parties to resolve these issues forthwith.
I. Background Facts and Proceedings.1
In 2006, the three young children (four-year-old D.S. and six-year-old
twins, E.S. and G.S.) of Richard Schmidt and Jill Schmidt witnessed a domestic
assault during which their father choked their mother.
A. Dissolution Decree.
Richard and Jill were divorced in 2007. Incorporating the parties’
stipulated agreement, the court filed a dissolution decree on December 7, 2007,
which stated in part, “[T]he Court bifurcates this case with regard to [Richard’s]
1
Our review has been made more difficult by the appellant’s failure to follow our rules of
appellate procedure in compiling the appendix. See Iowa Rs. App. P. 6.905(7)(c) (“The
name of each witness whose testimony is included in the appendix shall be inserted on
the top of each appendix page where the witness’s testimony appears.”); 6.905(7)(e)
(“The omission of any transcript page(s) or portion of a transcript page shall be indicated
by a set of three asterisks at the location on the appendix page where the matter has
been omitted.”).
3
legal custodial rights and visitation rights concerning the parties’ minor children.”
Jill was granted physical care of the children and was to make all decisions
affecting the children until Richard’s “legal custodial rights and his visitation rights
are determined by the Court and/or Dr. Sheila Pottebaum.”
The decree also provided:
[Richard] shall not communicate with [Jill] or the children in person,
by telephone, in writing, through third persons, or otherwise.
. . . [Richard] shall not be allowed to go to or contact the
children’s school. [Richard] will be allowed to make arrangements
through Dr. Pottebaum to go to her office to make any
communication with the school regarding the minor children. [Jill]
shall provide to [Richard] the children’s report cards and/or
progress reports, without any indication of the school attending,
address, teachers’ names, etc., through Dr. Sheila Pottebaum.
Dr. Pottebaum will provide this information to [Richard] as she sees
fit.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
by the Court, that [Richard] is not awarded any visitation at this
time. [Richard’s] future visitation will be made upon the
recommendations of Dr. Sheila Pottebaum, upon consultation with
any experts working with the children, including but not limited to:
Jeanne White, LISW, Dr. Sasha Khosravi, D.O.,[2] P.J. McDonald,
and Dave Cowan. The Court will retain jurisdiction of this matter to
resolve any issues if either of the parties is dissatisfied with the
recommendations of Dr. Pottebaum.
(Emphasis added.) Since the entry of the decree, these proceedings have been
a procedural morass.
On February 28, 2008, the district court granted Richard’s motion and
appointed Lora McCollom to be the children’s guardian ad litem (GAL).
On June 30, 2008, upon the recommendations of the GAL and the
children’s visitation coordinator, Maureen Kennedy, the court appointed Bruce
2
Dr. Randall Kavalier became the children’s psychiatrist after Dr. Khosravi left practice.
4
Buchanan as a reunification therapist. Buchanan was to assist the children in
preparing to meet with their father.
B. Amended Decree.
On October 23, 2008, the court entered an order amending the dissolution
decree by striking and replacing the three paragraphs quoted above. The
amended decree allowed Richard to communicate with Jill “in a therapeutic
setting during the reunification process between [Richard] and the parties’
children.”
The amended decree also authorized Richard to have “reasonable contact
with the children’s teachers” and access to school records regarding the children,
subject to the redaction of Jill’s personal and contact information.
Further, the amended decree ordered:
[Richard] shall have visitation with the parties’ minor children as
recommended by, and pursuant to any conditions imposed by
Bruce Buchanan and/or the Guardian Ad Litem after consultation
with all treating professionals. Maureen Kennedy shall supervise
the visits as recommended by Bruce Buchanan and/or the
Guardian Ad Litem. The Court shall retain jurisdiction of this matter
to resolve any issues if either party is dissatisfied with the
recommendations of Bruce Buchanan and/or the Guardian Ad
Litem.
(Emphasis added.)
C. December 24, 2008 “Interim Order.”
An interim order was entered on December 24, 2008, in which the district
court again deferred the issue of joint legal custody. The court deferred the issue
until the March 2, 2009 “review hearing” and ordered:
[D]uring the remaining pendency of the herein proceedings or until
further Order of this Court:
5
a. Both parents shall have legal access to information
concerning the children, including but not limited to medical,
educational, and law enforcement records. Each party shall be
provided with the names of all persons providing educational,
physical health, mental health, legal, or other services to any child
immediately upon arranging for said service, except in
emergencies, in which the other parent should be notified as soon
as possible. In the event of a medical emergency, or if any child
should be lost or missing, both parties shall make every effort to
notify the other parent as soon as possible and, if possible, talk with
one another about possible courses of action. However, under
such circumstances, either parent can sign legal consents or take
any other necessary actions.
b. Each parent shall support the right of the other to love and
discipline the children. Disciplinary actions taken by one parent will
be supported by the other parent. Disagreements about child-
rearing practices will be resolved outside the presence of the
children.
c. Each of the parties shall act to foster feelings of affection
and respect between the children and the other party, and neither
will do anything which may estrange any child from the other party
or impair any child’s high regard for the other parent.
d. The parties shall only communicate with each other as to
matters concerning their children as set forth in preceding
subparagraphs a, b, and c, and all such communications shall only
be by e-mail until further Order of this court. However, the parties
shall not e-mail each other until the Order of Protection entered
March 1, 2007, (In the lowa District Court for Polk County, State of
lowa vs. Richard Robert Schmidt . . . .
IT IS FURTHER ORDERED that this Court shall not
establish [Richard’s] permanent visitation schedule until it has been
determined that [Richard] should have unsupervised visitation with
the parties’ minor children.
....
IT IS FURTHER ORDERED that [Richard’s] future
supervised visitations after December 29, 2008, shall be scheduled
by the GAL as soon as reasonably possible with time being of the
essence after consulting with Bruce Buchanan and Maureen
Kennedy.
(Emphasis added.) The court also named Dr. Kelli Hill-Hunt as the children’s
therapist, removed Jeanne White as therapist “in the absence of an emergency,”
6
scheduled in detail the specifics of two reunification visits, and ordered the GAL
to file a report by early January 2009.
On January 12, 2009, the GAL reported to the court there had been an
attempt to have the children visit with Richard on December 22, 2008. However,
despite repeated attempts by McCollom, Kennedy, and Jill, the children refused
to see their father. McCollom reported that for weeks after this attempted visit,
the children would not stay in their home; were fearful that their father, Kennedy,
or McCollom would “come get them”; needed continued reassurance from Jill or
her parents that they were safe; and saw their social worker, White, on an
emergency basis. White reported the children were on a waiting list to see
trauma therapist Dr. Hunt-Hill. McCollom and Kennedy reported any continued
attempts at visitation would be inappropriate at this time.
A review hearing was held on March 2, 2009, but there was no resolution
of the remaining issues because Dr. Hill-Hunt could not yet offer any significant
input as she had only seen the children one time. No further reunification
attempts occurred in 2009.
D. October 28, 2010 ruling.
In August 2010, Richard filed a motion to appoint a reunification
counselor. Initially, Bruce Buchanan was appointed as a reunification counselor
and pursuant to the amended decree Richard was to have visitation rights under
such conditions imposed by Buchanan and the GAL. However, at some point
7
Buchanan exited these proceedings, and no one has been appointed in his
place.3
The GAL resisted Richard’s motion, noting Dr. Hill-Hunt “has repeatedly
stated that it is not in the children’s best interest for them to be forced into contact
with their father at this time. The children continue to demonstrate significant
fear of their father and all things associated with him, including his parents.” She
asked that the court “defer to the expertise” of Dr. Hill-Hunt and “refrain from
making any further order regarding reunification therapy or contact” with Richard
“until such time as Dr. Hill-Hunt deems it appropriate.”
On October 28, 2010, following a telephonic hearing, the district court
noted that both the GAL and Dr. Hill-Hunt resisted the motion to appoint a
reunification therapist as not being in the children’s best interests. The court
denied the motion and ruled it “will not enter any further orders regarding
reunification until such time as Dr. Kelli Hill-Hunt deems it appropriate.”
E. November 7, 2011 ruling.
Richard again filed a motion to appoint a reunification counselor and
request for a status hearing on August 17, 2011. GAL McCollom’s resistance
stated that on August 30, 2011, Dr. Hill-Hunt indicated “it is not appropriate for
the children to begin the process of reunification with their father at this time.” On
November 7, 2011, the court denied the motion to appoint a reunification
therapist and request for status hearing.
3
The record does not reflect when Buchanan exited these proceedings.
8
F. August 15, 2012 Declaratory Judgment.
On August 15, 2012, the court entered a declaratory judgment upon
Richard’s request “as to the status of contact between the Petitioner,
Respondent, and the minor children.” The court determined “there are no
protective orders in effect at this time.”
G. Motion re: Extracurricular Activities.
On October 22, 2012, Jill filed a “motion for expedited hearing to
determine [Richard’s] attendance at extracurricular activities of the minor
children.” Jill’s motion stated Richard indicated he and his parents intended to
attend the children’s activities. Jill reported she had
consulted with Kelli Hill Hunt, Ph.D. and Randall A. Kavalier, D.O.
with regard to [Richard’s] intentions. Both experts who see the
children on a regular basis have expressed that if [Richard] and his
parents attend the children’s activities that it would be very
traumatic for the children.
Her prayer for relief asked that the court determine “whether or not [Richard]
and/or his parents should be allowed to attend the children’s activities.”
On October 24, Richard filed a resistance to the motion to restrain him
from attending the children’s activities and made application for the appointment
of a parenting coordinator and reunification therapist.
Also on October 24, Richard filed a motion to compel, asserting he had
served Jill with a request for production of documents, specifically requesting a
medical release for Drs. Hill-Hunt and Kavalier for mental health records of the
parties’ minor children, and that the mental health providers had refused to
9
provide the children’s mental health records. A hearing on the motion to compel
was scheduled for November 2.
On November 1, Richard filed a motion to exclude the testimony of
Drs. Hill-Hunt and Kavalier, pursuant to an unpublished opinion of this court, In re
R.G., No. 11-0577, 2011 WL 2695281 (Iowa Ct. App. July 13, 2011) (finding in a
child-in-need-of-assistance proceeding that father was entitled to child’s medical
records to cross-examine the therapist who testified in detail about therapy
sessions concerning allegations the father sexually abused the child).
That same date, GAL McCollom moved to quash subpoenas served on
Drs. Hill-Hunt and Kavalier, asserting the children’s doctor/patient and
therapist/patient privileges pursuant to Iowa Code section 622.10 (2011) and
Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson & Sanger, L.L.P., 764
N.W.2d 534 (Iowa 2009). McCollom also resisted the application for appointment
of a reunification therapist and parenting coordinator.
A hearing was held on November 2 to address the motion to exclude the
doctors’ testimony, the motion to compel the release of information, and the
motion to quash the subpoenas. Dr. Kavalier testified that he was acting as an
advocate for the children and was willing to provide “his clinical impression of my
patients,” but was not willing to release the children’s medical records to Richard
because to do so “would cause a regression in their physical and emotional
state.” He stated the children believed Richard had tried to kill their mother and,
at the time, “they thought their mother was dying.”
10
Dr. Hill-Hunt testified she had not and would not release the children’s
records to anyone other than a treating physician. She stated that “because of
the trauma [the children] experienced, [they] have significant trust issues.” She
testified that if their records were released, the children “would regress,” “[t]heir
anxiety would increase,” and they may develop “panic symptoms again, difficulty
with sleep,” and other symptoms.
On November 6 the district court granted the GAL’s motion to quash the
subpoenas and overruled Richard’s motions to compel the production of
treatment records and exclude the testimony of Drs. Hill-Hunt and Kavalier.
On January 22, 2013, a hearing was held to address Jill’s motion
regarding Richard’s attendance at the children’s activities and Richard’s motion
to appoint a reunification therapist and parenting coordinator. Drs. Hill-Hunt and
Kavalier both testified. Dr. Hill-Hunt testified that while the boys were making
progress in a number of areas in their lives, the children were not ready for
reunification therapy.
Dr. Kavalier testified he was a child and adolescent psychiatrist who had
been involved with the three Schmidt boys for about five years. He stated two of
the boys were currently on medications to alleviate anxiety. He opined it was not
in the children’s best interests to have their father attend their activities or to have
a reunification therapist appointed because the children were not ready for either
occurrence.
Dr. Craig Rypma testified he had completed a risk assessment of Richard
in 2010 and concluded he did not see “any significant risk for future violence on
11
Rick’s part.” Dr. Rypma testified as to his general disagreement with the course
of the children’s treatment and lack of progress toward getting over their fear of
their father.
H. February 26, 2013 Order—the Subject of this Appeal.
On February 26, 2013, the district court ruled “[Richard] shall be enjoined
from going to the children’s extracurricular activities. [Jill] shall timely provide
[Richard] with information about when and where the children’s extracurricular
activities are occurring so that he doesn’t inadvertently attend.”
The court also denied the application for the appointment of a reunification
therapist and parenting coordinator, finding “it is premature to order the services
of a reunification therapist or a parenting coordinator.”
The court “reaffirm[ed]” its December 24, 2008 interim order quoted
above.
On March 13, 2013, Richard filed a motion to enlarge findings, asking that
the court provide its “legal theories supporting the determinations made in the
Court’s Order.” The court overruled the motion on April 10.
On April 24, 2013, Richard appealed the “Final Order entered in this case
on the 10th of April, 2013.” Richard contends the district court acted inequitably
in denying his application for appointment of a reunification therapist; in enjoining
him from attending any of his children’s extracurricular activities; and in allowing
the children’s therapists to testify without releasing the children’s treatment
records to him.
12
II. Scope and Standard of Review.
Our review of the rulings of the district court sitting in equity is de novo.
Harder, 764 N.W.2d at 536.
III. Discussion.
This court has painstakingly reviewed the record before it. While we
appreciate the district court’s efforts to deal with the motions presented to it, the
procedural difficulties are a result of the indefinite deferral of a determination of
custody and visitation rights of the parties. This case exemplifies why the district
court in a dissolution action is ill-equipped to provide on-going supervision or
micromanagement of custody and visitation arrangements notwithstanding the
well-intentioned efforts of the district court.
To resolve the issues presented, we must consider the procedural morass
from the time the decree was entered. The dissolution decree was entered in
2007, but bifurcated the case and retained jurisdiction to fix Richard’s legal
custodial and visitation rights at a later date. On October 23, 2008, the court
amended the dissolution decree, providing “[Richard] shall have visitation with
the parties’ minor children as recommended by, and pursuant to any conditions
imposed by Bruce Buchanan[4] and/or the Guardian Ad Litem after consultation
with all treating professionals.” Bruce Buchanan was appointed as a
reunification therapist.
Our supreme court has taken a dim view, but has not prohibited decrees
that reserve jurisdiction to resolve issues in the future. “Although stopping short
of forbidding the practice,” our supreme court has “discouraged the retention of
4
The record contains no report by or mention of Bruce Buchanan after January 2009.
13
jurisdiction to modify divorce decrees without a showing of change of
circumstances.” In re Marriage of Schlenker, 300 N.W.2d 164, 165 (Iowa 1981)
(citations omitted). Although the original dissolution decree in this action
reserved jurisdiction to resolve the custody and visitation issues, it was a final
judgment that was not appealed. In re Marriage of Fenchel, 268 N.W.2d 207,
209 (Iowa 1978) (concluding a final decree is the one in which the marriage is
terminated). “If the decree is supplemented by a later decree, only the
supplemental decree may then be appealed. A supplementary decree which
decides an issue reserved in the original decree is procedurally analogous to an
order modifying a decree.” Id. Here, there was also no appeal taken from the
amended decree. Unfortunately, the amended decree still did not resolve either
the custody or visitation issues, and nearly seven years later the issues remain
unresolved. In regard to Richard’s visitation rights with the minor children, the
amended decree stated, “The Court shall retain jurisdiction of this matter to
resolve any issues if either party is dissatisfied with the recommendations of
Bruce Buchanan and/or the Guardian Ad Litem.”
Later in these proceedings various orders were entered, which further
complicate the status of Richard’s visitation rights. The “interim order” entered
on December 24, 2008, provided that Richard’s future visitation rights shall be
supervised and “shall be scheduled by the Guardian Ad Litem as soon as
reasonably possible with time being of the essence after consulting with Bruce
14
Buchanan and Maureen Kennedy.” 5 The order also appoints Dr. Kelli Hill-Hunt
as the children’s therapist.
Apparently, after the entry of this order, Buchanan discontinued serving as
the reunification therapist because Richard filed a motion for the appointment of
a reunification therapist. The GAL resisted the motion and, on October 28, 2010,
after a hearing, the court entered a ruling on the motion that provided in part, “the
court will not enter any further orders regarding reunification until such time
Dr. Hill-Hunt deems it appropriate.”6
Although no appeals were taken from the interim order filed December 24,
2008, or the ruling on October 28, 2010, both clearly effectuated a modification of
the amended decree. The “order” required visitation to be supervised after
consultation with Buchanan and Kennedy. The “ruling” prevented Buchanan
from being replaced as the reunification therapist until Dr. Hill-Hunt
recommended it. The result left Richard with no ability to exercise any visitation
rights until Dr. Hill-Hunt thought it was appropriate.
Our court has disapproved delegating the power to control or modify
visitation rights to a therapist or any third party. In In re Marriage of Stephens,
810 N.W.2d 523, 530-31 (Iowa Ct. App. 2012), our court stated,
It is well established that the district court is the only entity
that can modify a custody or visitation order, subject to the review
of the appellate courts. In re Marriage of Brown, 778 N.W.2d 47,
54 (Iowa Ct. App. 2009); see also Iowa Code § 598.41 (providing
5
Kennedy’s status is not defined by the order but we suspect she was to supervise the
visitation.
6
A subsequent attempt on August 17, 2011, to seek the appointment of a reunification
therapist failed because Richard’s counsel “failed to cooperate in scheduling a hearing
on the motion.” We note, too, the GAL also resisted the motion contending Dr. Hill-Hunt
“does not deem it appropriate to begin the reunification process.”
15
the factors the court should considering in awarding custody and
visitation rights). This obligation to modify a decree cannot be
delegated to any person or entity because that person or entity has
no jurisdiction to render such a decision. The legislature has
granted to the court the responsibility to make an impartial and
independent determination as to what is in the best interests of the
child, and this decision cannot be controlled by the agreement or
stipulation of the parties. See Walters v. Walters, 673 N.W.2d 585,
592 (Neb. Ct. App. 2004). While the district court could seek and
consider the therapist’s recommendations only the district court
could modify the decree after the parties had the right to be heard.
(Footnote omitted.) In Stephens, the mother was granted some limited visitation
by a modified decree, but also permitted the visitation to increase at the
discretion of a therapist. 810 N.W.2d at 525. Our court concluded the district
court had impermissibly delegated its authority to the therapist. Id. at 530.
We are also guided by the principle that a party seeking a modification of a
decree “must establish by a preponderance of the evidence that there has been
a substantial change in circumstances since the entry of the decree or its last
modification.” In re Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995).
However, to modify visitation rights, a lesser burden is required. “The parent
seeking to modify child visitation provisions of a dissolution decree must
establish by a preponderance of evidence that there has been a material change
in circumstances since the decree and that the requested change in visitation is
in the best interests of the children.” In re Marriage of Salmon, 519 N.W.2d 94,
95-96 (Iowa Ct. App. 1994) (citing In re Marriage of Frederici, 338 N.W.2d 156,
158 (Iowa 1983)). Further, where a decree retains jurisdiction to review custody
and visitation terms, our supreme court has determined, “Only when the decree
unequivocally provides for later trial court review without the necessity of showing
16
a change of circumstances will we say this was the court’s intent.” In re Marriage
of Schlenker, 300 N.W.2d 164, 166 (Iowa 1981). After Schlenker, our court
stated,
We find in future cases that prior to entering any provision
into a decree of dissolution allowing future review of child custody
without the necessity of a showing of a change in circumstances,
the trial court must require a showing that the case is within the
exceptional circumstances contemplated by the supreme court in
Schlenker. Such showing must be on the record and a finding
stating the reasons for the stipulation must be stated in the decree.
In re Marriage of Vandergaast, 573 N.W.2d 601, 603 (Iowa Ct. App. 1997).
But the even more fundamental problem is that the court has never
determined Richard’s permanent visitation or custody rights. “One of the oldest
fundamental liberty interests consistently recognized by the Supreme Court is the
interest of parents in the care, custody, and control of their children.” Hensler v.
City of Davenport, 790 N.W.2d 569, 581 (Iowa 2010) (citing numerous cases,
including Troxel v. Granville, 530 U.S. 57, 65–66 (2000), and Santosky v.
Kramer, 455 U.S. 745, 753 (1982)). Thus, “state action infringing on that interest
must be narrowly tailored to serve a compelling state interest.” Spiker v. Spiker,
708 N.W.2d 347, 352 (Iowa 2006). For example, chapter 232 authorizes the
juvenile court to intercede in certain instances. See, e.g., Iowa Code §§ 232.2(5)
(defining a child in need of assistance), .2(20) (defining a family in need of
assistance). And chapter 598 authorizes and mandates the district court to
intercede in a dissolution-of-marriage proceeding to order custody and visitation.
Id. § 598.41(1)(a) (stating “[t]he court . . . shall order the custody award . . . .”).
17
Without the benefit of a pending modification action before us, we are
unable to remand with directions that the district court determine Richard’s legal
custodial and visitation rights as error has not been preserved. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“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.”); see also Iowa R. App. P.
6.1206 (concerning remands). We strongly urge that the protracted litigation on
the temporary measures end and custody and visitation be permanently fixed. If
necessary to resolve the issues, the court has authority to order a mental or
physical examination of the children and to appoint separate counsel for the
children.7 In re Marriage of Bingman, 209 N.W.2d 68, 71 (Iowa 1973).
A. Appointment of Reunification counselor.
With this backdrop we consider the first issue on appeal, whether the
district court erred in denying Richard’s application for appointment of a
reunification therapist.8 Although there is no specific statutory authority for
7
If a mental examination of the children is ordered, in light of the length of time since
Richard has seen the children and the children’s alleged great fear of him, the court may
be well advised to require the examination to include a determination of whether the
children have suffered from parental alienation. See Marlene Moses & Beth A.
Townsend, Parental Alienation in Child Custody Disputes, 47 Tenn. B.J. 25 (May 2011).
Such a determination may assist the court in determining if the children still suffer from
the effects of the incident of domestic abuse seven years ago or if there are other
causes for their unusual conduct.
8
There is some question whether the district court’s order was a final order for purposes
of appeal. We need not decide the issue, however. Even if this issue is interlocutory,
we conclude the matter meets the requirements provided in Iowa Rule of Appellate
Procedure 6.104(2), which allows review upon a finding that “such ruling or order
involves substantial rights and will materially affect the final decision and that a
determination of its correctness before trial on the merits will better serve the interests of
justice.” Iowa R. App. P. 6.108 (“If any case is initiated by a notice of appeal, an
application for interlocutory appeal, an application for discretionary review, or a petition
for writ of certiorari and the appellate court determines another form of review was the
18
appointing a reunification therapist, the court does have authority to order “age-
appropriate counseling for children who are involved in a dissolution of marriage
action.” Iowa Code § 598.15(6). Absent the ruling filed October 28, 2010,
preventing the appointment of a reunification therapist until Dr. Hill-Hunt
recommended such an appointment, clearly a therapist should have been
appointed to replace Buchanan because Richard was granted supervised
visitation arranged by the GAL in consultation with Buchanan and Kennedy.
Although Richard did not appeal the ruling filed October 28, 2010, we conclude
Richard’s ability to exercise any visitation was improperly delegated to Dr. Hill-
Hunt as Buchanan was no longer serving in a capacity to provide his consultation
to the GAL.
However, if we reverse the district court’s order and require the
appointment of a reunification therapist, we are simply prolonging litigation in
furtherance of the original decree, the amended decree, and subsequent orders
we view to be temporary measures, which have improperly delegated authority to
a therapist contrary to the children’s best interests. See Vandergaast, 573
N.W.2d at 603; Stephens, 810 N.W.2d at 530-31. Accordingly, we affirm the
denial of the application for an appointment of a reunification therapist. We do
not suggest that an appointment of a reunification therapist would be improper in
any future proceedings between these parties.
proper one, the case shall not be dismissed, but shall proceed as though the proper form
of review had been requested.”).
19
B. Extracurricular Activities.
In its February 26, 2013 ruling, the district court enjoined Richard from
even inadvertently attending his children’s extracurricular activities for an
indefinite period of time, and reaffirmed a December 24, 2008 “interim order” that
deferred ruling on Richard’s joint legal custody and refused to establish Richard’s
permanent visitation schedule.
Richard argues the district court acted without authority in enjoining him
from attending the children’s activities. We agree. Jill did not seek an injunction.
See generally Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 639
(Iowa 1991) (“An injunction is an extraordinary remedy which should be granted
with caution and only when clearly required to avoid irreparable damage. An
injunction should issue only when the party seeking it has no adequate remedy at
law.”). Jill also did not file a modification action. Rather she filed a motion to
determine petitioner’s attendance at extracurricular activities of the minor
children. At the time the motion was filed, there was no prohibition or order
preventing Richard from having contact with the minor children although he had
no visitation rights. Only the initial decree prevented his contact with the minor
children but that provision was stricken upon the entry of the amended decree.
Whether the court’s order was intended to provide injunctive relief or was
a restraining order, we conclude it effectuated a modification of the amended
decree. See In re Marriage of Lower, 269 N.W.2d 822, 825-26 (Iowa 1978)
(concluding a restraining order preventing the removal of a minor child from the
state of Iowa was a modification of the decree where the decree did not include a
20
provision restraining the permanent removal of the child). In Lower the court
stated, “To conclude that the restraining order entered by the trial court is not a
modification of the initial decree would be in effect for us to read implicit terms
into the decree and disrupt the certainty and security which the parties are
afforded by that document.” Id. at 826. Similarly, the court’s order enjoining
Richard from attending the children’s extracurricular activities effectively modified
the terms of the decree as amended.
We do not consider lightly a parent’s desire to attend their children’s
extracurricular activities. Even when there is a no contact between parents,
distance parameters may be imposed so that both parents may attend their
children’s activities. Here, Richard was not prevented by the amended decree
from having contact with the minor children on the sidewalk, grocery store, or
anywhere they might meet. To prevent his attendance of extracurricular activities
when he can have other contact with the minor children is simply nonsensical.
Moreover, to modify the amended decree required a showing of a change of
circumstances not existing in this record; the district court’s order also did not
recite any such change. We conclude the district court acted inequitably in
granting Jill’s motion.
C. Testimony of Experts and Release of Their Records.
Because we have concluded the court acted inequitably in granting Jill’s
motion regarding extracurricular activities, we need not decide if the court erred
in allowing Dr. Hill-Hunt and Dr. Kavalier to testify. However, in the event the
21
issue should arise in subsequent proceedings, we simply note that under the
December 2008 interim order,
Both parents shall have legal access to information
concerning the children, including but not limited to medical,
educational, and law enforcement records. Each party shall be
provided with the names of all persons providing educational,
physical health, mental health, legal, or other services to any child
immediately upon arranging for said service, except in
emergencies, in which the other parent should be notified as soon
as possible.
However, “when a mental health provider claims the release of such
information is not in the child’s best interest, the court must determine whether
the records should be released applying the best-interest-of-the-child test.”
Harder, 764 N.W.2d at 538
IV. Conclusion.
We affirm the district court’s denial of Richard’s application for
appointment of a reunification therapist, but reverse the district court’s order
granting injunctive relief or a restraining order prohibiting Richard’s attendance of
extracurricular activities. We further conclude the issue regarding the testimony
of Dr. Hill-Hunt and Dr. Kavalier is moot in light of our decision relative to the
extracurricular activities. Costs on appeal shall be paid by Jill.
AFFIRMED IN PART AND REVERSED IN PART.