In Re the Marriage of Agnieszka K. Marcinowicz-Flick and Ramon Flick Upon the Petition of Agnieszka K. Marcinowicz-Flick, and Concerning Ramon Flick

• Court: Court of Appeals of Iowa
• Decided: March 8, 2017
• Docket: 16-0944
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No.16-0944 Filed March 8, 2017

IN RE THE MARRIAGE OF AGNIESZKA K. MARCINOWICZ-FLICK AND RAMON FLICK

Upon the Petition of AGNIESZKA K. MARCINOWICZ-FLICK, Petitioner-Appellee,

And Concerning RAMON FLICK, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.

Ramon Flick appeals the child-custody, property-division, and child-

support provisions of the decree dissolving his marriage to Agnieszka

Marcinowicz-Flick. AFFIRMED.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Brent A. Cashatt and Stacey N. Warren of Babich Goldman, P.C., Des

Moines, for appellee.

Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ. 2

PER CURIAM.

Ramon Flick appeals the child-custody, property-division, and child-

support provisions of the decree dissolving his marriage to Agnieszka (“Aga”)

Marcinowicz-Flick. Finding no reason to modify the district court’s decree (as

modified pursuant to Iowa Rule of Civil Procedure 1.904(2) on May 11, 2016), we

affirm.

We review dissolution cases, which are tried in equity, de novo. Iowa R.

App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa

2012). We give weight to the factual findings of the district court, especially when

considering the credibility of witnesses, but are not bound by them. Iowa R. App.

P. 6.904(3)(g). “Precedent is of little value as our determination must depend

upon the facts of the particular case.” In re Marriage of Fennelly, 737 N.W.2d 97,

100 (Iowa 2007) (citation omitted).

After more than three years of preliminary proceedings and several days

of trial, the district court entered a thoughtful and comprehensive decree in which

the parties’ two children were placed in Aga’s sole physical care and legal

custody. Ramon was granted visitation twice weekly, alternating holidays, and

two weeks during the summer, all of which was to “be supervised by a person

designated by Aga and at a place approved by her.” The trial court distributed

what remained of the marital estate after Ramon had “spent all the securities in

his possession[,] incurred thousands and thousands of dollars in new debts[,

and] failed to pay the obligations he was required to pay under the Temporary

Matters Order,” bringing “financial ruin” to the parties. The district court ordered

Ramon to pay child support in the amount of $1000 per month and a portion of 3

the children’s uncovered medical expenses and granted Aga both tax

exemptions. The district court also found Ramon in contempt for failing to deliver

the spare key for Aga’s car to her, failing to communicate with Aga in a courteous

and respectful manner, and for violating the Temporary Matters Order on twenty-

nine separate occasions.1

On appeal, Ramon contends the district court erred in placing the minor

children in Aga’s sole legal custody and ordering his visitation supervised by a

person designated by Aga, and challenges the property-distribution, child-

support, and tax-exemption orders. On our de novo review, however, there is

solid support in the record for the trial court’s findings and conclusions, and we

adopt them as our own.

We note particularly the expressions of concern about Ramon’s inability to

set aside his disdain for Aga to the detriment of his relationship with his children.2

While we might not have used the same analogies as the trial court, we agree

Ramon has “engaged in a campaign during this case to gain custody of the

children, ruin their relationship with Aga, and to destroy her financially, just as he

promised to do in the early days of the separation.” Ramon’s behavior during the

pendency of these proceedings has been detrimental to the children. The older

child’s counselor of three years, Dr. Judith Rudman, testified the child “seems to

feel that if she has positive feelings toward her mom, she’s somehow betraying

her dad,” which “creates an unhealthy dynamic and polarizes relationships, and it

1 Ramon’s petition for writ of certiorari challenging the findings of contempt was denied by the supreme court. 2 The trial court stated to Ramon, “Until you get to the point where you’re willing to love your kids more than you hate your ex-wife, it’s not going to work out well for you.” 4

makes it hard to establish healthy interactions moving forward as she becomes

an individual person.” The counselor stated she “was very concerned that [the

child] was becoming alienated from her mom and that it was creating undue

stress and significant anxiety” for the child.

In 2014, Dr. Sheila Pottebaum conducted a comprehensive custody

evaluation and recommended physical care of the children be placed with Aga,

with Ramon receiving liberal visitation. By 2015, Michael Bandstra, the guardian

ad litem appointed at Ramon’s insistence, was recommending Aga have sole

legal custody. By the time this matter went to trial in February 2016, the court

realized Ramon was oblivious to the advice of his own three therapists and

continued to alienate the children from their mother. We need not repeat the

methods Ramon employed to alienate the children because they have been

thoroughly set out in the trial court’s decree.

Ramon also contends the district court imposed onerous conditions on his

visitation rights. We have stated, “[W]e will not restrict a parent’s visitation unless

direct physical or significant emotional harm to the child, other children, or a

parent is likely to result from such contact.” In re Marriage of Rykhoek, 525

N.W.2d 1, 4 (Iowa Ct. App. 1994). Here, there is ample evidence to support the

conditions imposed to minimize or eliminate the significant emotional harm

Ramon inflicts upon the children and Aga. Ramon is capable of being a good

parent, but his actions reflect a mindset contrary to the children’s best interests

and well-being. It is obvious the district court gave substantial consideration to

the conditions imposed and, upon our de novo review, we conclude the court’s

reasons support the conditions imposed. 5

We have also carefully reviewed Ramon’s complaints concerning the

economic provisions of the decree and find them to be without merit. The district

court’s orders dividing the parties’ assets and debts are equitable under the

troublesome circumstances presented here. See In re Marriage of McDermott,

827 N.W.2d 671, 676 (Iowa 2013) (stating we do not disturb a dissolution court’s

ruling unless “there has been a failure to do equity” (citation omitted)). Ramon’s

self-imposed underemployment weighs toward the use of imputed earnings in the

child-support determination, and the district court made all appropriate findings to

do so. See Iowa Ct. R. 9.11(4) (allowing the court to impute income if the court

finds “that a parent is voluntarily unemployed or underemployed without just

cause” but must make a written determination “substantial injustice would occur

or adjustments would be necessary to provide for the needs of the child(ren) or to

do justice between the parties”). We affirm the final decree in all respects.

Aga seeks an award of appellate attorney fees. An award of appellate

attorney fees is discretionary and made in consideration of the needs of the

requesting party, the other party’s ability to pay, and whether the requesting party

was obligated to defend the district court’s decision on appeal. In re Marriage of

Davis, 608 N.W.2d 766, 773 (Iowa 2000). Applying these considerations in light

of the facts in this case, we award Aga $3500 in appellate attorney fees.

AFFIRMED.