in-re-the-marriage-of-michelle-nichole-garland-stern-and-menachem-medel ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 13-2087
Filed February 11, 2015
IN RE THE MARRIAGE OF MICHELLE NICHOLE GARLAND STERN
AND MENACHEM MEDEL STERN
Upon the Petition of
MICHELLE NICHOLE GARLAND STERN,
Petitioner-Appellee,
And Concerning
MENACHEM MEDEL STERN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Timothy J. Finn,
Judge.
A father appeals from the visitation provisions of the decree of dissolution.
AFFIRMED AS MODIFIED AND REMANDED.
Ryan G. Koopmans and Keith P. Duffy of Nyemaster Goode, P.C., Des
Moines, for appellant.
Nicole S. Facio of Newbrough Law Firm, L.L.P., Ames, for appellee.
Heard by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
2
MCDONALD, J.
A father appeals the visitation provisions of the decree dissolving his
marriage. Specifically, the father challenges a geographical restriction in the
decree that limits the father’s summer visitation with his son to visitation within
the United States until the child is sixteen years old. The father contends he
should be able to exercise summer visitation with his son in Israel prior to the
child turning sixteen. The father also challenges the duration of the winter-break
visitation awarded him. He contends he should have two weeks’ winter visitation
rather than a single week.
I.
The father, Menachem Medel Stern, is a dual Israeli-Canadian citizen, and
the mother, Michelle Nichole Garland, is a dual Israeli-American citizen. The
child, D.J.G.S., is a dual Israeli-American citizen. The parties met in 2000 when
Michelle visited Israel, where Menachem lived and worked. In 2001, Michelle
moved to Israel, with her two children from a previous marriage, to live with
Menachem. The parties married in a religious ceremony according to the Jewish
faith. Their child, D.J.G.S., was born in 2003. In 2005, Michelle was accepted
into a Ph.D. program at Iowa State University. Menachem executed a written
authorization for D.J.G.S. “to leave Israel and live with Michelle in the United
States for as long as she is enrolled in her Ph.D. studies at Iowa State
University.” Michelle moved with the children to Ames. Later in 2005,
Menachem joined Michelle. The parties married in a civil ceremony in June
2006.
3
In October 2007, Michelle commenced an action to dissolve the parties’
marriage. Menachem returned to Israel in February 2008. After a protracted
series of court proceedings, including Menachem filing a child abduction action
under the Hague Convention in federal court, the Iowa district court entered a
decree of dissolution of marriage in June 2011. The decree dissolved the
parties’ marriage but ordered that child custody, physical care, visitation, and
support be tried in future proceedings after the conclusion of the parties’ case
arising under the Hague Convention.
In July 2013, following trial, the district court resolved the outstanding
issues regarding child custody, physical care, visitation, and support. The court
ordered joint legal custody with Michelle having physical care. The court divided
the visitation schedule into two periods: first, when Menachem “can visit the child
in the United States,” and later, “when the court will allow Menachem to take the
child with him to Israel.” The court determined all visitation must be held in the
United States “until the child is sixteen years of age.” “After age sixteen,
Menachem may file an application for specific visitation rights outside of the
United States.” Specifically, the court ordered Menachem
shall be entitled to take the child out of the United States, provided
that prior to that time he either reaches a written agreement with
Michelle or has applied [for] and obtained a court order concerning
the application to take the child outside of the United States. The
issue of whether Menachem should be required to post a bond will
be addressed at that time.
The court found reasonable visitation for Menachem included one-half of the
winter break from school and six weeks during the summer. Menachem filed this
appeal.
4
II.
We review dissolution decrees de novo. See In re Marriage of Brown, 776
N.W.2d 644, 647 (Iowa 2009). “Although we decide the issues raised on appeal
anew, we give weight to the trial court's factual findings, especially with respect to
the credibility of the witnesses.” In re Marriage of Witten, 672 N.W.2d 768, 773
(Iowa 2003).
III.
A.
Menachem requests D.J.G.S. “be allowed to visit his father and his
siblings in Israel” prior to the time D.J.G.S. is sixteen years of age. Iowa courts
have “long recognized the need for a child of divorce to maintain meaningful
relations with both parents.” In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa
1984). Iowa Code section 598.41(1) (2013), provides the court shall order
custody and “liberal visitation rights where appropriate” to “assure the child the
opportunity for the maximum continuing physical and emotional contact with both
parents.” Section 598.1(1) defines “best interest of the child” to include “the
opportunity for maximum continuous physical and emotional contact possible
with both parents.” The Code does not in any way limit these considerations
solely because one of the parents resides outside the borders of Iowa or the
United States.
Our case law also does not recognize any limitation on visitation rights
solely because one of the parents resides outside the borders of Iowa or the
United States. “The world does not end at the borders of Iowa.” In re Marriage
5
of Hatzievgenakis, 434 N.W.2d 914, 917 (Iowa Ct. App. 1998). “Our hope for
justice for our citizens in foreign courts can best be forwarded by our efforts to
offer fair and equitable treatment to foreign nationals in our jurisdiction.” Id.D.J.G.S. is a citizen of two countries—he was born in Israel to Israeli citizens,
lived there during the first two years of his life, has many extended family
members there, including a half-brother and half-sister—and has a right to build a
meaningful relationship with his father and fully experience his dual heritage.
See id. (finding child should be allowed to visit father in Greece as the child “is a
citizen of two countries and has a right to be introduced and exposed to both”).
Michelle argues the restriction on international visitation is proper because
Menachem is not likely to return D.J.G.S. to the United States following visitation.
Michelle notes Menachem stated, in 2005, that he briefly considered leaving the
country with D.J.G.S. During trial, Menachem admitted he briefly considered
leaving the country with D.J.G.S. in 2005. He also testified he has not
considered it since that time. We find his testimony credible. In contrast, the
district court found Michelle’s testimony regarding her concerns with Menachem
to be not credible. The court made several pointed credibility findings regarding
Michelle, finding much of her testimony “fanciful,” “exaggerated,” and “simply not
true.” We give great weight to the district court’s credibility determination.
Michelle also notes the court has previously found Menachem in contempt
for not complying with a visitation order. We conclude that isolated incident is of
little probative value. As the district court noted, “some of this behavior was
aggravated by Michelle’s attitude and inflexibility on visitation.” For instance,
6
“after the visitation schedule was adopted, Michelle moved from Ames to
Postville, but she was not willing to be flexible on the midweek visitation times
even though she and D.J.G.S. now lived 175 miles farther away than when the
schedule was set up.”
Michelle also argues the restriction on international visitation is proper
because it would be incredibly difficult and expensive to have D.J.G.S. returned
to the United States if Menachem did not voluntarily return D.J.G.S. Israel is a
signatory of the Hague Convention on the Civil Aspects of International Child
Abduction.1 The Hague Convention on the Civil Aspects of International Child
Abduction is “an international treaty the purpose of which is to discourage
international parental child abduction and to ensure children who are abducted or
wrongfully retained in a party’s country are returned to their country of habitual
residence.” In re Marriage of Rudinger, No. 09-0281, 2009 WL 3337609, at *3
(Iowa Ct. App. Oct. 7, 2009). The United States State Department publishes a
report regarding signatory country compliance with the Hague Convention.
Areas of concern for the State Department are: (1) countries not compliant with
the Convention; (2) countries with a pattern of non-compliance with the
Convention; and (3) countries with enforcement concerns. During the last three
years, Israel has not been identified as non-compliant in any of these respects.
See http://travel.state.gov/content/dam/childabduction/complianceReports.
Although not an explicit rule or standard, “[g]enerally, courts have
approved out-of-country visitation when the country is a signatory to the Hague
1
See http://travel.state.gov/content/childabduction/english/country/hague-party-
countries.html
7
Convention and there is insufficient proof of an intention to wrongfully retain the
child.” Abouzahr v. Matera-Abouzahr, 824 A.2d 268, 281 (N.J. Super. Ct. App.
Div. 2003); see, e.g., id. at 282 (allowing father out-of-country visitation with his
daughter in Lebanon, despite it being a non-signatory country, and noting father
“has made no effort to sneak [his daughter] out of this country [when he has had
previous visitation], although he had opportunities to do so”); In re Rix, 20 A.3d
326, 329 (N.H. 2011) (“[W]e conclude that while a foreign country’s Hague
Convention signatory status should be a significant factor for the trial court to
consider, it cannot, standing alone, be determinative of whether it is in the best
interests of a child to travel with a parent outside the country.”); Katare v. Katare,
283 P.3d 546, 552-53 (Wash. 2012) (en banc) (denying father’s request to take
children to India, a non-signatory nation, where father’s “pattern of abusive,
controlling, punishing behavior put the children at risk of being used as tools to
continue this conduct,” thus convincing the court of an increased risk of
abduction especially in light of the father’s threats to take the children to India
without permission).
Considering the best interest of the child, the lack of evidence establishing
that Menachem intends not to return D.J.G.S. to the United States following
visitation, the fact that Israel is a signatory to the Hague Convention, and the
factors set forth in Abouzahr, we conclude the district court should not have
prohibited visitation in Israel until D.J.G.S. is sixteen years old. See
Hatzievgenakis, 434 N.W.2d at 917 (vacating restrictions on out-of-county
visitation where there was no evidence of intent not to return other than mother’s
8
generalized fears); see also Keita v. Keita, 823 N.W.2d 726, 732 (N.D. 2012)
(finding father who lived in Mali, West Africa, was not a flight risk with the child
because “[t]he record does not include specific evidence that [father] has an
intent to abscond or flee with the child or that he hindered [mother’s] custody of
the child”). Accordingly, we reverse those provisions of the court’s order that
restrict visitation to within the United States and that require Menachem either to
reach a written agreement with Michelle or to apply for and obtain a court order
concerning the application to take the child outside of the United States.
The district court deferred the question of posting a bond until visitation in
Israel was possible. Because we have vacated the geographic restriction on
visitation prior to D.J.G.S. turning age sixteen, the issue whether Menachem
should post a bond and in what amount is ripe for determination. Michelle
requests a bond of $30,000 because she would not have the financial resources
to fight abduction of D.J.G.S. by Menachem, while Menachem requests no bond
based on the district court’s determination he earns only $14,950 per year, of
which $6900 goes to child support. We remand this issue to the district court for
determination.
Menachem requests that Michelle split the costs of having D.J.G.S. travel
to Israel, either through direct payment by Michelle or through a reduction in
Menachem’s child-support payments, while Michelle asserts she lacks the
resources to pay half the costs of transportation as she only makes $16,347 per
year, plus child support. Because of the district court’s restrictions on visitation
until D.J.G.S. reached age sixteen, it did not address this issue. Based on our
9
removal of the geographic restrictions on summer visitation, we remand this
issue to the district court for determination.
B.
Menachem next contends the court should have allowed him visitation for
the two weeks of D.J.G.S.’s winter break from school. Menachem argues travel
from Israel to Iowa is very expensive, and one week of visitation is not long
enough for someone who has not been able to see their child for six months.
Michelle agreed Menachem should be allowed visitation for the two weeks of
winter break, so long as D.J.G.S. does not miss any school. We see no reason
not to adopt the agreement of the parties. We modify the court’s order to provide
that Menachem shall have visitation with D.J.G.S. during the winter school break,
but he must return D.J.G.S. when school resumes. If the winter break is longer
than two weeks, Menachem’s visitation shall be for the final two weeks of the
school break.
C.
Michelle requests appellate attorney fees in the amount of $3000. “An
award of appellate attorney fees is within the discretion of the appellate court.”
Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). “Whether such an award is
warranted is determined by considering ‘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 trial court's decision on appeal.’” Id. (citation
omitted). Michelle claims this protracted litigation has cost her well over $35,000
in total attorney fees and she therefore deserves $3000 in appellate attorney
10
fees. Based on the parties’ nearly equal financial positions and our resolution of
the issues, we determine no award of appellate attorney fees is appropriate.
Costs of this appeal shall be taxed equally to both parties.
AFFIRMED AS MODIFIED AND REMANDED.