In re Makela, 22-0304

CourtCourt of Appeals of Iowa
Writing for the CourtVAITHESWARAN, Presiding Judge
PartiesIN RE THE MARRIAGE OF STEPHANIE KAY MAKELA AND WAYNE L. MAKELA Upon the Petition of STEPHANIE KAY MAKELA, Petitioner-Appellee, And Concerning WAYNE L. MAKELA, Respondent-Appellee.
Docket Number22-0304
Decision Date17 November 2022

IN RE THE MARRIAGE OF STEPHANIE KAY MAKELA AND WAYNE L. MAKELA Upon the Petition of STEPHANIE KAY MAKELA, Petitioner-Appellee, And Concerning WAYNE L. MAKELA, Respondent-Appellee.

No. 22-0304

Court of Appeals of Iowa

November 17, 2022


Appeal from the Iowa District Court for Clinton County, Henry W. Latham II, Judge.

Stephanie Makela appeals the district court's order on Wayne Makela's petition to modify the parties' dissolution decree.

M. Leanne Tyler of Tyler &Associates, PC, Bettendorf, for appellant.

Dawn D. Long of Howes Law Firm, Cedar Rapids, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.

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VAITHESWARAN, Presiding Judge

In this appeal from an order modifying a dissolution of marriage decree, we are asked to resolve questions of legal custody and visitation.

Wayne and Stephanie Makela married in 2011, had two children in 2012 and 2014, and divorced in 2016. The trial court granted Stephanie sole custody of the children in light of Wayne's conviction and incarceration in Wisconsin for second-degree sexual assault of a child. The court denied Wayne in-person visits with the children but granted a motion to allow telephone contact and correspondence. The court of appeals affirmed the decision. See In re Marriage of Makela, No. 16-1034, 2017 WL 2181544, at *5 (Iowa Ct. App. May 17, 2017).

Approximately four years later, Wayne filed a petition to modify the decree. He sought joint rather than sole legal custody and "appropriate temporary and permanent orders for visitation." He cited several factors, including his prison release the prior year, his "successful completion of [s]ex [o]ffender 2 treatment," his "additional training and employment to be able to provide financially for the children," and Stephanie's "limited willingness to provide information in the best interest of" the children.

Following a hearing, the district court (1) found a material and substantial change of circumstances for modification of legal custody and visitation; (2) modified the decree to provide for joint legal custody of the children, with carve outs for education and medical care; and (3) afforded Wayne immediate "video contact" with the children "twice weekly," "supervised visitation . . . for a period of two hours" after sixty days, "supervised visitation . . . for a period of four hours" after ninety days to last for four months, and six-hour supervised visits thereafter.

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Finally, the court ordered supervised overnight visits "on a monthly basis" to "begin on a mutually agreed upon Saturday at 11:00 a.m. and conclude on Sunday at 5:00 p.m. Stephanie appealed.

"To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of the evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change." In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). The legislature has identified certain circumstances that may or must constitute a substantial change. See, e.g., Iowa Code §§ 598.21D (2021) (allowing the court to consider relocation of 150 miles or more "a substantial change of circumstances"), 598.41A(2) (requiring the court to consider a convicted sex offender's conditional release and successful completion of a treatment program as "a substantial change of circumstances" for purposes of visitation).

The district court found a substantial change of circumstances warranting a modification of legal custody and visitation. The court based its conclusion on Iowa Code section 598.41A(2), which states:

Notwithstanding section 598.41, an individual who is a parent of a minor child and who has been convicted of a sex offense against a minor as defined in section 692A.101, is not entitled to visitation rights while incarcerated. While on probation, parole, or any other type of conditional release including a special sentence for such offense, visitation shall be denied until the parent successfully completes a treatment program approved by the court, if required by the court. The circumstances described in this subsection shall be considered a substantial change in circumstances.

(Emphasis added.) That provision applies to visitation rights. A court is obligated to find a substantial change of circumstances for purposes of modifying visitation

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following a sex offender's conditional release and successful completion of a treatment program. It does not appear the same circumstances will amount to a substantial change for purposes of modifying legal custody. Accordingly, we apply the general modification standard to Wayne's request for a modification of legal custody. See In re Marriage of Hute &Baker, No. 17-0046, 2017 WL 3283382, at *6 (Iowa Ct. App. Aug. 2, 2017) ("As a general rule, a party seeking to modify the custodial provisions of a decree must prove 'by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to [change legal custody]'" (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983))).

Stephanie argues Wayne failed to establish a material and substantial change of circumstances to support modification of sole legal custody. She notes that, despite his release from prison, Wayne was on "lifetime parole/supervision by the State of Wisconsin including lifetime monitoring by a global positioning device."

"'[J]oint legal custody' means an award of legal custody of a minor child to both parents jointly under which both parents have legal custodial rights and responsibilities toward the child and under which neither parent has legal custodial rights superior to those of the other parent." Iowa Code § 598.1(3) (emphasis added). "Rights and responsibilities of joint legal custody include but are not limited to equal participation in decisions affecting the...

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