In Re the Marriage of Ernest Paul McGachey and Stephanie Elain McGachey Upon the Petition of Ernest Paul McGachey, and Concerning Stephanie Elain McGachey, N/K/A Gilland

• Court: Court of Appeals of Iowa
• Decided: August 5, 2015
• Docket: 14-2086
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-2086 Filed August 5, 2015

IN RE THE MARRIAGE OF ERNEST PAUL MCGACHEY AND STEPHANIE ELAIN MCGACHEY

Upon the Petition of ERNEST PAUL MCGACHEY, Petitioner-Appellee,

And Concerning STEPHANIE ELAIN MCGACHEY, n/k/a GILLAND, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Wapello County, Annette

Scieszinski, Judge.

A mother appeals from the order modifying visitation pursuant to Iowa

Code section 598.41D (2013) to assign the father’s weekend visitation to his

family while he is deployed. AFFIRMED.

Cynthia D. Hucks of Box & Box Attorneys, Ottumwa, for appellant.

Jeffrey R. Logan and Patrick Francis Curran of Curran Law Office,

Ottumwa, for appellee.

Considered by Potterfield, P.J., and Tabor and McDonald, JJ. 2

MCDONALD, J.

Stephanie Gilland f/k/a McGachey and Ernest (“Paul”) McGachey divorced

in 2007. At that time, Paul was an active duty service member in the United

States Air Force stationed in Arizona. The stipulated decree of dissolution

awarded Paul visitation with the parties’ child, W.M., when Paul was on leave

and in Iowa. After the parties divorced, Paul continued his military service, and

his current term of service expires on February 2, 2017.

In 2013, Stephanie filed her petition to modify the dissolution decree,

seeking an increase in the amount of Paul’s child support obligation. Paul filed

his cross-petition to modify the visitation provisions of the decree. Specifically,

Paul sought to increase his visitation with W.M. and sought to assign his

visitation rights, pursuant to Iowa Code section 598.41D (2013), to his mother

during those times Paul was on active duty and stationed outside Iowa. Section

598.41D(1) provides “a parent who has been granted court-ordered visitation

with the parent's minor child may file . . . a petition for modification of an order

regarding child visitation, prior to or during the time the parent is serving active

duty in the military service of the United States, to temporarily assign that

parent’s visitation to a family member of the minor child, as specified by the

parent.” This statutory entitlement was passed by the legislature in 2010. See

2010 Iowa Acts ch. 1168, §§ 2, 3 (codified at Iowa Code § 598.41D (2011)).

At the modification trial, Paul testified telephonically that he was deployed

outside the United States but that his duty station was confidential. The parties

stipulated as to the amount of the monthly child support obligation. On the 3

visitation issue, the district court found that there had been a material change in

circumstances since the dissolution decree and that modification of the visitation

provisions would be in the best interest of W.M. Among other things, the district

court increased Paul’s visitation with W.M. to one weekend per month (Friday

through Sunday) and ordered that Paul be entitled to reasonable telephone and

Internet contact with W.M. The district court also ordered that Paul’s monthly

weekend visitation be assigned to Paul’s mother pursuant to Iowa Code section

598.41D. Stephanie timely filed this appeal. Our review is de novo. See Iowa

R. App. P. 6.907; see In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa

2014).

Stephanie contends the modification should not have been granted

because the petition was unsupported by the necessary affidavit. See Iowa

Code § 598.41D(1) (providing the “petition shall be accompanied by an affidavit

from the family member indicating the family member’s knowledge of the

application or petition and willingness to exercise the parent’s visitation during

the parent’s absence”). We need not resolve the issue on the merits. Stephanie

never raised this or any other procedural defect related to section 598.41D in the

district court. Error is not preserved. See In re Marriage of Winegard, 257

N.W.2d 609, 613 (Iowa 1977) (stating “it is our responsibility to review the facts

as well as the law and determine from the credible evidence rights anew on

those propositions properly presented, provided issue has been raised and error,

if any, preserved in the trial proceedings”). 4

Stephanie also contends the district court impermissibly modified the

visitation provisions by awarding Paul visitation while he was overseas and could

not exercise the same. On de novo review, we affirm the modification. There

has been a material change in circumstances since the dissolution decree: Paul

is deployed overseas in a confidential location with limited ability to return home

for leave; a statutory right to assign his visitation rights to a family member was

created since the time of the decree; the evidence showed a deteriorating

relationship between Stephanie and Paul’s mother; and the evidence showed

Stephanie was not facilitating communication between Paul and W.M. The

district court concluded, and we agree, it is in W.M.’s best interests to have

increased contact and communication with his father and his father’s family.

Finally, we note the statute specifically contemplates the modification action

sought in this case. See Iowa Code § 598.41D(1) (“The application or petition

shall also request any change in the visitation schedule necessitated by the

assignment.”); Iowa Code § 598.41D(4)(a) (“The court may grant the parent’s

request for temporary assignment of visitation or physical care parenting time

and any change in the visitation or physical care parenting time schedule

requested if the court finds that such assignment of visitation or physical care

parenting time is in the best interest of the child.”).

We have considered the parties’ arguments, whether or not set forth in full

herein, and we affirm the judgment of the district court without further opinion.

See Iowa Ct. R. 21.26(1)(d) and (e).

AFFIRMED.