In re Marriage of Beasley, 21-1986

CourtCourt of Appeals of Iowa
Writing for the CourtMULLINS, SENIOR JUDGE.
PartiesIN RE THE MARRIAGE OF THOMAS ALAN BEASLEY AND MIYOKO ELIZABETH HIKIJI Upon the Petition of THOMAS ALAN BEASLEY, Petitioner-Appellant, And Concerning MIYOKO ELIZABETH HIKIJI, Respondent-Appellee.
Docket Number21-1986
Decision Date17 November 2022

IN RE THE MARRIAGE OF THOMAS ALAN BEASLEY AND MIYOKO ELIZABETH HIKIJI Upon the Petition of THOMAS ALAN BEASLEY, Petitioner-Appellant, And Concerning MIYOKO ELIZABETH HIKIJI, Respondent-Appellee.

No. 21-1986

Court of Appeals of Iowa

November 17, 2022


Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

Thomas Beasley appeals a ruling modifying the decree dissolving his marriage to Miyoko Hikiji. AFFIRMED.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

Benjamin Folladori of Marberry Law Firm, P.C., Urbandale, for appellee.

Considered by Bower, C.J., Tabor, J., and Mullins, S.J. [*]

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MULLINS, SENIOR JUDGE.

Thomas Beasley appeals a ruling modifying the legal custody and physical care provisions of the decree dissolving his marriage to Miyoko Hikiji. He argues the court erred in failing to dismiss the petition to modify and abused its discretion in awarding trial attorney fees. Both parties request an award of appellate attorney fees.

I. Background Facts and Proceedings

The parties married in 2005, and the marriage produced two children, born in 2009 and 2010. Thomas petitioned for dissolution of the marriage in 2013. Ultimately, in 2015, the parties stipulated on all issues, and the court entered a dissolution decree awarding the parties joint legal custody and joint physical care. The decree mandated the appointment of a parenting coordinator "to assist the parties in resolving parenting issues that they are unable to resolve on their own."

In December 2017, Miyoko filed an application for rule to show cause, noting Thomas "unilaterally terminated" the parenting coordinator and he thereafter refused to work with Miyoko in obtaining a new coordinator. In his resistance and counter-application, Thomas alleged the parenting coordinator "withdrew" and sessions with the parenting coordinator were not beneficial in any event.[1] In its March 2018 ruling, the court found Thomas in contempt of the parenting-coordinator provision of the decree. As a sanction, the court ordered: "Thomas shall cooperate with Miyoko in the selection of a new parenting

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coordinator." A new parenting coordinator was appointed in June.[2] But according to Miyoko's testimony at the modification trial, the parties only met with the new coordinator for about six months before the coordinator "recognized that it also was not working." By the time of trial, the parties had not met with the coordinator for roughly two years.

Miyoko testified sessions with neither of the appointed parenting coordinators were productive. According to Miyoko, when an agreement is made during these sessions, Thomas does not follow it after he leaves. She testified several decisions about the children never end up being made because they cannot agree on anything.

In September 2019, Miyoko filed a modification petition. Therein, she alleged the decree "contemplated that the parenting coordinator would be able to assist the parties in resolving issues that they could not otherwise resolve themselves" but, despite the utilization of a parenting coordinator, "the parties are still unable to efficiently and adequately resolve parenting issues [that] directly affect their two minor children." Miyoko also alleged Thomas failed to cover his equal share of the children's expenses and Thomas does not support her "relationship with the minor children and has often made unilateral decisions in violation of the parties['] joint legal custody agreement." Based on these allegations, Miyoko requested the decree be modified to place the children in her physical care and "such other and further relief as the court deems just and

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equitable under the circumstances." In his answer, Thomas requested the petition be dismissed.

Trial was ultimately held over two days in August 2021. At the time of trial, the children were ten and twelve years old, Thomas was fifty-eight, and Miyoko was forty-four. Both parties are gainfully employed and receive veteran's benefits, with Thomas and Miyoko respectively earning roughly $97,000 and $90,000 annually. Each have homes suitable for the children. Since the entry of the decree in 2015, the parties' attempts at co-parenting have been less than fruitful. Thomas himself agrees the parties "have a long history of animosity dating back to the dissolution proceedings." Despite specific expectations of the parties being stated in the original decree and the parties' use of parenting coordinators, time has clearly not changed things.

For example, in January 2016, mere months after the decree was entered, the older child's therapist informed the parties that she could not work with the child any longer due to the hostilities between the parties. The therapist opined the child's "issues directly stem from the hostility and ongoing conflict that exists between" the parties and "she has been regularly exposed to this conflict and [it] is having a negative and traumatic impact on her." Due to the parties being "unable or unwilling to work on addressing the co-parenting relationship," the therapist determined she could no longer work effectively with the child.

Thomas has initiated contact with the children's school without including Miyoko, which, according to Miyoko, has been a part of Thomas's smear campaign against her. Specifically, in emails beginning in early 2017, Thomas indicated to educators that the children feel unsafe in Miyoko's home due to her discipline

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practices, Miyoko talks negatively about him around the children, and she uses profanity. None of Thomas's allegations are supported by the record. Thomas's actions were later addressed by the parenting coordinator and, in September, the parties signed an agreement that all communications by either party with the school would include the other party. According to Miyoko, however, Thomas disregarded this agreement and continued to contact educators to further his smear campaign against her. Thomas's emails to educators also disclose that he has developed code words with the children that the children should use to alert others of abuse at the hands of Miyoko. The district court found this both disturbing and outrageous, as do we.

Also in the spring of 2017, someone began lodging child-welfare complaints against Miyoko with the Iowa Department of Human Services (DHS). While Thomas denied in his testimony that it was him, the district court found he instigated the complaints. All in all, Miyoko has been investigated by DHS five times since the entry of the decree, all of which concluded the allegations were unfounded. There is also evidence that Thomas speaks negatively about Miyoko to the children. In one text message sent by Thomas in or about March 2018,[3]Thomas spoke to the older child about "the misery your mom has caused" and describing "[c]ombat" with her "as hell on Earth," noting "[l]iving with your mom . . . or leaving her has been worse and I am convinced more of what hell must look like." According to Thomas, he was responding to the child about the child's

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concerns for Miyoko's discipline practices, and he was encouraging the child "to just deal with her mother's actions." All things considered, Thomas's conversations with the children have resulted in Miyoko's authority being undermined when the children are in her care. On another occasion shortly before trial, Thomas berated Miyoko over the phone while he was in the children's presence about a change in the parenting schedule that he had already agreed to. Miyoko testified she could hear the children crying in the background.

One of many examples of the parties' inability to effectively communicate involved the children's return to in-person learning. Miyoko conveyed to Thomas her reservations about the children returning to in-person learning but, unbeknownst to Miyoko, Thomas went ahead and enrolled them to return to inperson learning. Miyoko did not know about this until the school called her about it. When Miyoko emailed Thomas about her confusion and concerns, he responded, "I will not discuss this at all with you other than I talked to the school and there will be no change at least until the Spring semester." When the children were attending school virtually, Miyoko desired the children attend tutoring outside of school to ensure they remained on track. When Miyoko attempted to discuss tutoring with Thomas through email, he responded, "I will not pay any of the cost of the tutoring" and complained tutoring was insufficient to make up for in-person learning.

Registering the children for activities has also been difficult. The children's participation in extracurriculars appears to turn on whose care they are in. What should have been a minor exchange between the parties regarding extracurricular activities for the fall of 2021 ended up being an angry string of emails between the

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parties that accomplished next to nothing, other than more hostility. The parties could not even agree about something as simple as an eye exam and glasses for one of the children. In January 2021, Miyoko advised Thomas through email that she was getting one of the children new frames, and Thomas responded: "I do not agree. I will be doing the eye exam and frames differently." In his testimony, Thomas basically explained he just wanted to take the child to a provider that was covered by his insurance. Even if that is true, Thomas certainly did not advise Miyoko of that preference. While Miyoko has traditionally taken the children to all of their health-related appointments, Thomas took one of the children to the doctor on one occasion because she was short of breath. The child ended up getting prescribed an inhaler, but Thomas never told Miyoko about it; she only learned about it when the pharmacy called her about the prescription. Had she not been the pharmacy's point of contact, Miyoko probably would have...

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