In Re the Marriage of Gensley

777 N.W.2d 705, 2009 Iowa App. LEXIS 1655, 2009 WL 4842391
CourtCourt of Appeals of Iowa
DecidedDecember 17, 2009
Docket09-0072
StatusPublished
Cited by89 cases

This text of 777 N.W.2d 705 (In Re the Marriage of Gensley) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Gensley, 777 N.W.2d 705, 2009 Iowa App. LEXIS 1655, 2009 WL 4842391 (iowactapp 2009).

Opinion

VOGEL, P.J.

Kelly Gensley appeals and Kandi Gens-ley cross-appeals from the decree dissolving their marriage. Kelly challenges the child custody and visitation provisions of the decree, as well as the provision regarding the children’s health and dental insurance, the award of the marital residence to Kandi, the personal property division, and the equalization payment Kandi was ordered to pay him. On cross-appeal, Kandi challenges the provision regarding visitation. We modify the visitation provision and affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

Kelly and Kandi were married on August 15, 1992. Their marriage resulted in three children: Kelsi (born 1994), Kodi (born 1996), and Kortni (born 2000).

The parties separated on May 25, 2006. Kandi remained in the marital residence with the children and Kelly moved to his mother’s house, approximately thirty miles from the marital residence. On that same date, Kandi applied for and was granted a temporary order of protection. On June 1, 2006, a hearing was held and the district court entered an order of protection, which expired in one year, stating that both parties consented to the order. The order also granted Kandi temporary physical care of the children with Kelly having visitation, and ordered Kelly to pay temporary child and spousal support. On June 7, 2006, the district court amended the order of protection with additional terms that were agreed upon by the parties.

On June 30, 2006, Kelly filed a petition for dissolution of marriage, requesting joint legal custody and physical care of the children. On July 6, 2006, another hearing to modify the order of protection was held and the district court amended the order to specify that Kelly’s visitation with the children would be every Monday and Wednesday from 4:00 p.m. to 8:00 p.m. and alternating weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. The following day Kelly filed an application requesting temporary custody of the children in the dissolution action. On July 25, 2006, Kan-di answered the petition for dissolution, in which she requested the parties be granted joint legal custody and she be granted physical care of the children. She also resisted Kelly’s petition for temporary custody because it had already been determined in the order of protection. On September 14, 2006, a hearing was held on temporary matters. In its subsequent order, the district court stated:

The parties have filed a large number of affidavits, apparently again confusing the concepts of quantity and quality. Respondent has filed 20 affidavits and the petitioner has filed 33. I have read all of the affidavits and note that very few of them contain information helpful to the Court, though they appear to clearly draw the battle lines in what the parties expect and perhaps hope will be a long and protracted fight leading to the defeat of the opposing party, though inevitably with substantial “collateral damage” to the children.

The district court found that the provisions of the order of protection relating to custody, visitation, and support were incorpo *708 rated by reference and ordered that they be followed.

On November 9, 2006, Kelly was found to be in contempt for violating the order of protection and was sentenced to twenty-four hours in jail. In November and December 2006, Kelly and Kandi attended individual and joint counseling sessions with a family therapist, Dr. Elisabeth M. Robbins. A letter written by Dr. Robbins dated January 5, 2007, was filed with the district court. Dr. Robbins reported that

The high defensiveness and frequent accusations [that] characterize this couple appear to be the result of years of accumulated anger and hurts they have received from the other and which they have never been able to talk out and resolve. It wall take a good deal of time, and recognition from both parties of their personal responsibility in contributing to today’s situation, before their relationship can be healed.

She also reported the parties’ highly-conflicted relationship could result in long term emotional damage to their children.

On July 26, 2007, Kelly filed an application to modify the temporary order. A hearing was held on August 30, 2007, and the district court found there had not been a substantial change in circumstances since the court’s October 5, 2006 order.

On September 18, 2007, Kelly filed an application to inventory the household contents and equipment located at the marital home. Kandi filed a partial resistance. On November 1, 2007, a hearing was held and the district court ordered for an inventory of the household contents and equipment to be held on November 17, 2007. Additionally, the district court stated that it intended to appoint an attorney to represent the parties’ children and ordered the parties to mutually agree on an attorney and submit the attorney’s name to the court. On December 27, 2007, the district court appointed Maurine Braddock to represent the children’s interests. 1

On January 10, 2008, Braddock filed a motion for an emergency hearing and the appointment of an expert. Braddock reported that she met with Kandi, Kelly, and the children. She stated that “[t]he children have clearly been affected by the adversarial actions of the parties,” “both parties have made efforts to involve the children in this dissolution case, which [has] been harmful to the children,” and expressed “concern that there have been deliberate efforts to alienate the children from the parents.” Braddock reported that she discussed her concerns with both parties’ attorneys, after which Kelly confronted Kelsi and refused to allow her to speak with Kandi or participate in extracurricular activities that night. Braddock stated that the children needed to be protected from such future conduct and requested that an expert be appointed to evaluate the parties and the children and make recommendations concerning custody and visitation. On January 16, 2008, a hearing was held. The district court found that neither of the parties resisted the appointment of an expert. Braddock was instructed to find an expert and if neither of the parties objected to the expert, submit the proposed expert’s name to the district court for approval. Additionally, the district court found the children’s attorney “raised valid concerns about the conduct of [Kelly] in some of his communications with the children.” The district court ordered the parent having physical care of or visitation with the children *709 “shall be responsible for making certain that the children attend all of their regular scheduled activities during the time the children are with that parent.” Further, the parties were ordered not to discuss the pending dissolution action with the children and ordered not to use the children to convey messages from one party to the other.

On January 18, 2008, Kelly filed a motion to modify temporary child and spousal support and to establish a health insurance obligation. The company that Kelly had been employed by was filing for bankruptcy protection and Kelly had become unemployed. Following a hearing, the district court modified the temporary child support and terminated the temporary spousal support. 2

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Bluebook (online)
777 N.W.2d 705, 2009 Iowa App. LEXIS 1655, 2009 WL 4842391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-gensley-iowactapp-2009.