In re Marriage of Freiberg

IN THE COURT OF APPEALS OF IOWA
No. 21-0449
Filed November 23, 2021
IN RE THE MARRIAGE OF BRIAN L. FREIBERG
AND AMANDA J. FREIBERG
Upon the Petition of
BRIAN L. FREIBERG,
Petitioner-Appellant,
And Concerning
AMANDA J. FREIBERG,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Christopher C.
Polking, Judge.
Brian Freiberg appeals the district court’s order on remand following a
modification proceeding. AFFIRMED.
Eric Borseth of Borseth Law Office, Altoona, for appellant.
C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
2
VAITHESWARAN, Presiding Judge.
This is the third appeal involving a dissolution of marriage decree. See In
re Marriage of Freiberg, No. 19-0092, 2020 WL 109589 (Iowa Ct. App. Jan. 9,
2020); In re Marriage of Freiberg, No. 16-1135, 2016 WL 7394886 (Iowa Ct. App.
Dec. 21, 2016). Brian Freiberg contends “[t]he nexus of this appeal is the
interpretation of the Court of Appeal’s ruling reversing in part and remanding on
the issue of visitation and child support.”
In our 2020 opinion, we addressed visitation as follows:
In response to questioning by the court during oral arguments,
Amanda’s attorney conceded Brian’s proposed visitation schedule
was agreeable to Amanda. Based on that concession, we reverse
the visitation portion of the modification decree and remand for
substitution of Brian’s proposed visitation schedule set forth in his
request for relief filed on October 9, 2018, which provides the
following:
i. Summer break: Alternating weeks beginning the day school
excuses for the summer at 9:00 a.m. and ending the day
school resumes at 9:00 a.m. The parties will exchange the
children Friday at 9:00 a.m.
a. The midweek visits during the summer are vacated.
There shall be no midweek visits during the summer
break from school.
ii. School Year:
a. Weekends: Alternating weekends beginning Friday
at 9:00 a.m. and ending Monday at 9:00 a.m. If there is
no school on Monday then visitation will continue until
Tuesday at 9:00 a.m.
b. Midweek Visit: Every Thursday at 9:00 a.m. and
ending Friday at 9:00 a.m.
Freiburg, 2020 WL 109589, at *3–4. We also “reverse[d] and remand[ed] for
substitution of Brian’s requested visitation provision, as set forth in this opinion and
his October 9, 2018 request for relief, and for reconsideration of child support in
light of the change.” Id. at *4.
3
On remand, Brian asked the district court to interpret our opinion to require
substitution of more than the quoted visitation provision. The court declined the
request, reasoning:
While the appeals court references Brian’s requested
visitation provision, that language is qualified by the phrase “as set
forth in this opinion and his October 9, 2018 request for relief . . . .”
(emphas[i]s added). That request for relief contains only one
subparagraph that is entitled “Visitation.” This indicates that the
language to be substituted is that language which is both set forth in
the opinion and in Brian’s request for relief. That is bolstered by
looking at the other location in the opinion where what language to
be substituted on remand is referred to: “substitution of Brian’s
proposed visitation schedule set forth in his request for relief filed on
October 9, 2018, which provides the following: . . . .” (emphasis
added). Those two areas of the appellate opinion taken together
signal that the intent of the court was to only substitute that portion
of the language that was both contained in Brian’s request for relief
and directly referenced by the appellate court in its opinion.
Otherwise the use of the word “and” italicized above, and the phrase
“which provides the following” would both be unnecessary.
Taking that language from the appeals opinion and comparing
it to the district court’s opinion, the court finds that paragraphs i.
Summer Break and ii. School Year were meant to substitute for
paragraphs 4(a) and 4(b) of the district court order which deal with
visitation amounts. Paragraphs 4(c) and 4(d) of the district court
order deal with exchanges and phone contact, not visitation time, and
would not be replaced.
Brian now argues, “It seems clear that the Court of Appeals intended that
not only would the specific provision they recited in the opinion be included in the
remand,” but also holiday provisions, spring break provisions, and phone call
provisions contained in his request for relief. If our opinion were interpreted in that
manner, he asserts, his extraordinary visitation credit against his child support
obligation would increase from fifteen to twenty percent. See Iowa Ct. R. 9.9
(revised on other grounds effective September 3, 2021).
4
The district court correctly interpreted our prior opinion. See In re Marriage
of Lawson, 409 N.W.2d 181, 182 (Iowa 1987) (“The determinative factor is the
intention of the court as gathered from all parts of the judgment.”). As the district
court inferred from the related parts of the opinion, our intent was to substitute
paragraph (b) of Brian’s request for relief, titled “Visitation,” and no other
paragraph. The holiday and spring break provisions appeared in a different
paragraph of Brian’s request for relief, as did the phone call provision. The district
correctly concluded those provisions were not to be substituted on remand.
Amanda seeks appellate attorney fees. Because she prevailed, we order
Brian to pay $1000 toward her appellate attorney fee obligation. See In re Marriage
of Okland, 699 N.W.2d 260, 270 (Iowa 2005) (considering relative merits of
appeal).
AFFIRMED.