In re the Marriage of Christenson

IN THE COURT OF APPEALS OF IOWA
No. 17-2022
Filed October 10, 2018
IN RE THE MARRIAGE OF DAWN RENEE CHRISTENSON
AND CHAD TOTTEN CHRISTENSON
Upon the Petition of
DAWN RENEE CHRISTENSON,
Petitioner-Appellant,
And Concerning
CHAD TOTTEN CHRISTENSON,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
The petitioner appeals the district court’s denial of her application to modify
provisions of the divorce decree, including the provisions regarding legal custody
and physical care of the parties’ minor child and the corresponding child-support
obligation. AFFIRMED.
Blake D. Lubinus of Lubinus Law Firm, PLLC, Des Moines, for appellant.
Cory F. Gourley of Gourley, Rehkemper & Lindholm, PLC, West Des
Moines, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.
Dawn Christenson appeals from the district court’s denial of her petition to
modify provisions of the decree dissolving her marriage to Chad Christenson.
Dawn asked the district court to modify the decree to give her sole legal custody
and physical care of the parties’ minor child; she also asked the court to modify the
child-support obligation accordingly. On appeal, Dawn challenges the district
court’s denial of her motion for default judgment. Alternatively, she argues the
court should have granted her application for modification on the merits because
a substantial change in circumstances warranting modification exists and
modification is in the minor child’s best interests.
I. Background Facts and Proceedings.
Dawn and Chad were married in 1997. They had one child in 1997 and
another in 2001 before divorcing in 2006. The dissolution decree provided for the
parties to share legal custody of the minor children and for Chad to have the
children in his physical care; Dawn was given “reasonable” parenting time with the
children.
Dawn filed the application for modification on February 27, 2017. The only
child at issue is A.C.—the child born in 2001. Dawn asked the court to modify the
decree to give her sole legal custody and physical care of A.C., claiming her and
Chad’s ability to communicate had broken down to the point it negatively impacted
the child. She also alleged that Chad was struggling with substance abuse and,
as a result, had picked up a number of criminal charges, including ones for
domestic violence against his recent ex-wife and arson.
3
On March 6, the court filed an order outlining the “family law case
requirements,” which advised both parties that whether or not they were
represented by an attorney, each was required to attend a “children in the middle”
course, provide certain financial information, and file a child support guideline
worksheet.
On April 20, Dawn filed a notice of intent to file an application for default
judgment as Chad had not filed an answer to her application or any of the required
documents.
According to the pretrial order, neither Chad nor an attorney for Chad
attended the pretrial conference that took place on April 21. Additionally, Chad
had not yet filed an affidavit regarding his financial status, a child support guideline
worksheet, or a certificate showing he completed the “children in the middle”
course. The court ordered Chad to file “the needed documents within fourteen
days” or warned that sanctions may be imposed.
On May 9, Dawn filed an application for entry of a default order modifying
the dissolution decree as she had requested. Dawn noted Chad, in addition to not
filing an answer to the application for modification, had also failed to comply with
the court’s order to file the documents required for family law cases.
The district court scheduled a hearing on the motion for default for June 7.
Chad attended the hearing and told the court he had not yet filed any documents
because he “had a real rough time the last few months, and [he was] slowly getting
things back together.” He advised the court he would like the opportunity to comply
with the order. During the hearing, the court indicated it “thinks that the best
practice is always to have cases heard on their merits and not by default.” The
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court gave Chad twenty-one days to file all of the necessary documents with the
court and warned that if he failed to do so, the court would then find him in default.
Chad filed an answer to the application for modification on June 23. Shortly
thereafter, he filed a motion to show cause, in which he alleged that Dawn was in
violation of the original decree. Chad also filed a motion for writ of habeas corpus.
Specifically, Chad alleged that Dawn had been caring for their minor child since
February 2017 based on a temporary agreement between the parties and that
during that time, she had placed A.C. in a mental-health institution without
informing Chad. Chad stated he only learned of it after receiving a phone call from
A.C. “begging [Chad] to come get him from an institution in Texas.” Chad traveled
to Texas to get the child but was told by the institution that due to the temporary
agreement placing A.C. in Dawn’s care, they could not release the child to him.
Chad asked Dawn to return A.C. to his care, but Dawn refused.
The court set a hearing on both Chad’s application for rule to show cause
and his motion for writ of habeas corpus for August 14, 2017, and ordered Dawn
to bring A.C. with her to the hearing, which she did. At the hearing, Dawn
introduced into evidence the residential treatment center application she had filled
out, which included a narrative she provided the center about A.C. She reported
to the center her contact had been extremely limited with both children for years,
seeing them only “for approximately eight weeks during the summers and
sometimes a few days to a week over Christmas vacation, and one or two spring
breaks.” She explained she had care of A.C. since February 2017 because Chad
called her and told her he was unable to care for him at the time. After she took
A.C. to live with her in Kansas—where she was then stationed for her job in the
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military—she learned Chad had a drinking problem, was in the process of getting
divorced, and had recently received a number of criminal charges against him,
including charges for operating while intoxicated, domestic abuse, and arson. She
also reported to the center that A.C. had been “extremely depressed, lethargic,
and angry” since moving in with her; she claimed he was lying to her about how
he was doing in school and had recently damaged many items in their home. On
one occasion, he barricaded himself in a room, where he made “growly/moan
noises and pull[ed] his hair . . . and kick[ed] his legs at the wall”; on another
occasion, he had an outburst and began hitting his head on the stair railing and
doorjamb. In an August 2017 report from the residential treatment facility, the
medical director of the facility provided an update, stating in part:
Since his admission, [A.C.] has not displayed any aggressive
behaviors towards staff or peers at the facility. He is cooperative and
respectful to all members of the staff and immediately complies with
staff requests. He denies symptoms of depression and becomes
upset when anyone claims he is depressed. He has not identified
any additional coping skills since his admission due to his continued
belief that he does not need to be in residential treatment. . . . In
family sessions with his mother, [A.C.] reports no desire to
communicate with his mother. He becomes very hostile towards his
mother and has a difficult time regulating his emotions.
Chad testified A.C. had not had any mental-health or behavioral issues
before moving in with Dawn. He stated his relationship with A.C. had always been
good and that he was now in a better place to resume care of him. He testified he
had received a deferred judgment for a number of his charges and was currently
serving a one-year probation. As part of that probation, he had to attend treatment
for his drinking and refrain from drinking alcohol; he had successfully completed
the treatment program.
6
During the hearing, the parties, with the aid of the court, came to an
agreement that A.C. would return to Iowa to live with Chad pending the court’s
determination on the application for modification. In its written order filed after the
hearing, the court stated, in part:
The parties, in consultation with the court, agreed to a plan
that would allow A.C. to return to Chad’s physical care. First, the
parties agreed that A.C. would be taken for an evaluation by a doctor
in the Des Moines area. Second, Chad agreed to comply with any
recommendations made under that evaluation, whether it be
continued inpatient treatment or some form of outpatient treatment.
This would allow A.C. the opportunity to return to Chad’s care and
begin school back in Iowa. Additionally, [the older brother] agreed to
return to [living with the father] to assist in monitoring A.C. [The older
brother] has a good relationship with A.C. and is regarded by both
parents as a reliable person to help ensure a smooth transition.
There were other factors that assisted the court in accepting
this agreement. First, A.C. had not shown the same type of
behaviors while in Chad’s care that he showed while living with
Dawn. This may not have anything to do with Dawn, but rather A.C.’s
frustration with being moved to a different state and away from his
school and friends. Second, Chad has concluded his divorce and
resolved his criminal charges by accepting a plea that resulted in one
year probation. He has been successful on probation and is no
longer consuming alcohol. He has good employment and was living
alone in his own residence at the time of the hearing. Third, while
A.C. has not been discharged from the Texas facility, he has not had
any aggressive behaviors toward peers or staff and the parties are
not concerned about acts of self-harm. It is not abundantly clear why
continued inpatient treatment is needed after several weeks of
treatment, and a follow-up evaluation will help identify A.C.’s current
mental health needs. Based on all of these facts, the court believes
there to be a high likelihood that implementation of the agreement
would benefit A.C.
It will be important for Chad to comply with this order and all
recommendations by A.C.’s providers in the Des Moines area. Dawn
has filed a modification action that is pending. Any failure to comply
may be considered by the court at the time the modification is
adjudicated. Chad is required to keep Dawn apprised of A.C.’s
condition and treatment. It is clear their communication has not been
great in the past, but it will be critical to have good communication in
light of A.C.’s diagnoses.
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The application for modification was tried to the court on November 1.
Dawn testified about her career in the military, including that she had been
stationed outside the country a number of times since the parties’ divorce; she
never lived in the same state as the children after the divorce. At the time of trial,
she had just recently been stationed in Texas. Dawn had always considered her
relationship with A.C. to be good, even though she did not get to spend much time
with him. Their relationship deteriorated, with A.C. growing more hostile and
distant, after Chad sent A.C. to live with her in February. Dawn testified having
A.C. in her care originally went well, but then he “had a bit of a breakdown, and he
started becoming destructive and violent in [her] home.” According to Dawn, she
then decided to place A.C. in an inpatient treatment facility at the recommendation
of a licensed family therapist. Although Dawn was living in Kansas, she placed
A.C. in a treatment facility in Texas. At the time Dawn placed A.C. in Texas, she
was not aware she would be stationed there soon. The treatment facility
diagnosed A.C. with severe recurrent major depressive disorder and oppositional
defiance disorder.
During her testimony, Dawn conceded that A.C. was very angry with her
and that she understood the anger was not likely to be solved by again removing
A.C. from Iowa and requiring him to move to Texas, but she testified she believed
it was in his best interests because she could provide a safe, stable home and
would make sure he received any mental-health counseling that was necessary.
Chad testified he had taken A.C. to a local hospital to have him evaluated
for treatment following the court’s August order, but the hospital would not evaluate
A.C. because he did not have an emergent situation. The paperwork from the
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hospital showed that it referred Chad and A.C. to a local provider to have the
evaluation completed, but Chad failed to follow through. Chad admitted during his
testimony that he had begun consuming alcohol again at times. He also testified
that A.C. was doing well in his care, stating A.C. was doing well in school in Iowa
and had not exhibited any signs of depression or aggression.
The older brother also testified; he had moved back into Chad’s home
following the August 2017 court order returning A.C. to Iowa. He stated that when
confronted with the prospect of having to return to Dawn’s care, A.C. had “a lot of
anger. . . . There’s been a little of bit denial but mostly just anger.” He believed
that A.C.’s anger was generally directed at Dawn. The older brother believed A.C.
was doing well in school in Iowa and that the situation in Chad’s home had
improved since August 2016. When asked about concerns he had, the brother
expressed concerns regarding A.C. living with either parent. In regard to Dawn,
the brother expressed “concern[] that [A.C.] would become too angry to function
again” In regard to Chad, the brother stated, “I know he’d be happier in Iowa, but
I don’t know that if it’s the best place for him” due to “[t]he continued evidence of
alcoholism” in Chad’s home. The brother indicated he was unsure if he had seen
Chad intoxicated since he moved back into the home but noted that he had seen
liquor bottles in the home.
After the close of evidence, the court ruled from the bench, stating in part:
I am fairly well convinced that if [Dawn] were to be awarded
physical care in this case, there would be an almost immediate
resumption of the animosity and conflict that plagued the household
once [A.C.] voluntarily went to live with her in February or March of
this year. I am sure that there would be an effort to obtain similar
treatment than what would have been similar treatment comparable
to what was afforded him when he was living initially in Kansas and
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then ultimately in Texas. I don’t have a good sense as to the
therapeutic value of that treatment.
It’s concerning, as I think it was to [the court hearing the
motions to show cause and for writ of habeas corpus], that the child
was in an inpatient setting for an extended period of time, really
receiving, from what I could tell from the limited documentation, very
little of anything that would constitute treatment or progress toward
some sort of goal.
And then I think it’s a fair assessment that the problems that
prompted the treatment were not pre-existing but more related to the
change in custody and this long-standing animosity between him and
his mother, the sources of which I can’t begin to delve into because
they go far beyond the record in this case. So that’s the one side of
it. Sending the child to live with his mother, we have an idea as to
what that’s going to look like because we saw it unfold in the spring
of this year.
On the other hand, [Chad], you’ve not done yourself any
favors in this case, I’ll be honest with you. [The court], I thought, was
fairly clear in what [it] expected of you in the interim while this case
was pending. And you just dropped the ball. There’s no other way
to say it. You had some pretty lame excuses up here. Whatever
was going on, it just wasn’t going to happen as far as you were
concerned. And that’s—that’s not what I would want to see happen
by someone who claims that their continued parenting for a child
would be in that child’s best interest when the one thing they’re asked
to do in the course of a court proceeding they don’t follow up on.
So bottom line is this is a difficult decision. So what I have to
look at is what is the upside of having this young man continue to live
with [Chad]. I don’t have much in that regard either. I’ve been told
he’s doing well in school. I don’t have any records of that.
I really don’t have much beyond that except for the report of
his older brother who has been tasked with a difficult job, a job a
sibling, frankly, shouldn’t have if the parents were doing their jobs
appropriately. But I think it’s one he is trying to discharge in good
faith. And I found his testimony to be credible in that regard both as
concerns, frankly, [Chad], your shortcomings as far as continuing to
struggle with alcohol, but more importantly the fact that his brother
[A.C.] is doing okay in terms of school, et cetera, and the things that
you would expect a 16-year-old to be doing at this time of their life.
So while, [Chad], you’ve disappointed the Court in terms of
your reluctance to follow through with the Court’s direction, I am not
convinced that the best thing for this child right now is to have him
go back to Texas to live with [Dawn]. I am convinced that it would
be better for the relatively short duration that remains of his minority,
couple years, that he continue to live up here with his father.
Hopefully with the continued oversight of his brother, and, [Chad], I
hope with little better work out of you, frankly. But at this point I don’t
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believe that it would be in the child’s best interest to change physical
care at this late stage.
I can appreciate your concerns, [Dawn], but I think a lot of
them are resulting of what occurred once he got in your care and not
things that developed prior to that transfer. And I don’t want to repeat
that again for him. And I am convinced it would occur if that were to
happen.
So my ruling is that the petitioner has failed to establish
sufficient grounds to modify either the legal custodial arrangement or
the physical care arrangements in this decree, and that the
requested modification would not be in the child’s best interest.
Dawn appeals.1
II. Standard of Review.
“A decision to grant or deny a motion for default judgment rests in the sound
discretion of the trial court.” Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 515 (Iowa
2012) (citation omitted). We will only reverse the court’s decision if its discretion
has been abused. Id.We review de novo the proceedings for the modification of child custody. In
re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997).
III. Discussion.
A. Default Judgment.
Dawn maintains the district court should have granted her application for
default judgment. Dawn concedes that the “general policy in this jurisdiction has
been to allow trial on the merits.” Whatff v. Iowa Methodist Hosp., 219 N.W.2d 18,
21 (Iowa 1974). But she maintains default should have been entered here
because Chad failed to establish “good cause” for his late answer and never filed
1
Chad has not filed an appellate brief nor a written statement waiving the brief. See Iowa
R. App. P. 6.901(1)(b).
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the necessary documents for the family law case. She also claims Chad was given
special treatment as a pro se litigant.
We agree with Dawn that Chad was in default when she filed her motion for
default judgment. However, because it is generally disfavored to take an action
that prevents a trial on the merits, and because dismissal and default judgment do
just that, “the range of trial court’s discretion to impose such sanctions is narrow.”
In re Marriage of Williams, 595 N.W.2d 126, 129 (Iowa 1999) (citation omitted).
Additionally, in matters involving custody of children, the district court has the extra
burden of ensuring that the action it takes—even when granting a default
judgment—is in the best interests of the child at issue. See Fenton v. Webb, 705
N.W.2d 323, 326–27 (Iowa Ct. App. 2005) (reversing the district court’s entry of a
default judgment because the court made a custody determination without
evidence to warrant the judgment; “the court should have entertained evidence
relating to the best interests of the child” because “[a] child does not lose his or her
rights because a parent fails to comply with court rules”).
While Dawn has established that default judgment as a sanction may have
been appropriate, “in an action for custody, the court’s ultimate ruling must be
governed by the child’s best interests—not a sanction.” Carmichael v. Philpott,
No. 17-0124, 2018 WL 739275, at *3 (Iowa Ct. App. Feb. 7, 2018). Under these
circumstances, we cannot say the district court abused its discretion in denying
her application for default.
B. Merits.
Dawn maintains the district court should have granted her application to
modify the physical-care provision of the dissolution decree to place A.C. in her
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physical care. To be successful, Dawn has the burden to establish, by a
preponderance of the evidence, a substantial change in circumstances justifying
her requested modification. See In re Marriage of Thielges, 623 N.W.2d 232, 235
(Iowa 2000). She must also prove she can minister more effectively to A.C.’s well-
being than Chad is able. See id. This is a heavy burden, as we are ultimately
guided by the principle “that once custody of [a] child[] has been fixed it should be
disturbed only for the most cogent of reasons.” Id. (citation omitted).
We agree with Dawn that a substantial change in circumstances exists.
Several years after the parties’ 2006 divorce, Chad developed a drinking problem
and incurred a number of criminal charges—some as a direct result of his abuse
of alcohol and others more tangentially related. One such incident—which resulted
in Chad being charged with arson, a class “B” felony—involved Chad throwing
pillows on the top of the stove and lighting them on fire, while A.C. and Chad’s
recent ex-wife were in the home. While Chad had dealt with the criminal charges—
entering guilty pleas to reduced charges and ultimately receiving deferred
judgments—he was still on probation at the time of the modification trial and
appeared to continue to struggle with alcohol, despite the fact he had successfully
completed substance-abuse treatment.
However, we cannot find that Dawn is able to more effectively minister to
A.C.’s wellbeing. We acknowledge Chad’s failure to follow through with court
orders in this case; he failed to file a number of required documents and, even
more importantly, failed to follow through with obtaining a psychological evaluation
of A.C. We also have concerns Chad is continuing to drink alcohol. However, as
the district court did, we note that A.C.’s angry outbursts and issues in school did
13
not begin until he was sent to live with Dawn. We are not suggesting Dawn is at
fault, but it seems A.C.’s struggles were magnified when he was forced to move in
with a mother he has seen only sporadically since early childhood2 and who lives
several states away from his friends and older brother—to whom A.C. is especially
close. In reaching this decision, we credit the older brother’s testimony that A.C.’s
issues—as described by Dawn—did not continue after A.C. was returned to
Chad’s home in Iowa in August 2017. Additionally, A.C. was sixteen and in his
junior year of high school at the time of the modification trial; we cannot say
uprooting A.C. at this point in his life is in his best interests. While Dawn has
established she is prepared to care for and support A.C., in determining which is
the better placement for A.C., we have to consider the characteristics of the
specific child at issue, “including [his] age, maturity, mental and physical health.”
See In re Marriage of Winters, 223 N.W.2d 165, 166 (Iowa 1974). Having done
that here, we agree with the district court that Dawn’s request to modify the
physical-care arrangement should be denied.3
For the same reasons, we decline Dawn’s request to grant her sole legal
custody of A.C. See In re Marriage of Morrison, No. 16-0886, 2017 WL 936152,
at *4 (Iowa Ct. App. Mar. 8, 2017) (“To modify an award of joint legal custody to
sole custody, the applying party must prove by a preponderance of the evidence
that there has been a material and substantial change in circumstances that it
2
Dawn initially filed for dissolution in April 2005, when A.C. was three years old. At the
time, Dawn was living in Maryland, where she was stationed for work, and Chad and the
children resided in Iowa. Dawn testified at the modification trial that Chad had moved with
the children to Iowa in “late 2004,” while she remained living in Maryland.
3
Because we do not modify the physical-care determination, we need not reach Dawn’s
request to modify her child-support obligation accordingly.
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would be in the child’s best interest to grant the parent sole custody, include sole
decision-making power” (citing In re Marriage of Leyda, 355 N.W.2d 862, 865
(Iowa 1984))).
C. Attorney Fees.
Dawn asks that we award her appellate attorney fees. Iowa Code section
598.36 (2017) provides that the court “may award attorney fees to the prevailing
party in an amount deemed reasonable by the court.” See In re Marriage of
Dawson, 467 N.W.2d 271, 176 (Iowa 1991) (applying the code section in a request
for appellate attorney fees). Because Dawn has not prevailed, she is not entitled
to attorney fees.
IV. Conclusion.
As the district court is bound to reach custody determinations based upon
the best interests of the child at issue, we cannot say the court abused its discretion
when it denied Dawn’s application for default judgment. In considering the merits
of the application for modification, we find Dawn established a substantial change
in circumstances exists, but we cannot say she is better able to minister to A.C.’s
well-being. Thus, we affirm the district court’s denial of her application for
modification.
AFFIRMED.