McFarland v. McFarland
| Decision Date | 20 September 2011 |
| Docket Number | No. C08-4047-MWB,No. C09-4047-MWB,C08-4047-MWB,C09-4047-MWB |
| Parties | BURNS F. MCFARLAND, Plaintiff, v. ROBIN MCFARLAND, et al., Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
TABLE OF CONTENTS
The summary judgment record reveals the following undisputed facts. Plaintiff Burns H. McFarland ("Burns") is a resident of Mississippi. Burns is an attorney. Defendants Robert Van Es ("Robert") and Rhonda Van Es ("Rhonda") (collectively "the Van Es's"), as well as Robin McFarland a.k.a. Robin Van Es ("Robin") are residents of Iowa. Robert and Rhonda are Robin's parents. Robin is the owner of defendant Robin's School of Dance and Tumbling ("Robin's School of Dance") in Sioux Center, Iowa. Burns and Robin were married on June 11, 2004. They have one son, HRBM. On June 4, 2007, Robin filed for divorce in the Iowa District Court for Sioux County.
Robin solicited affidavits for use in her divorce proceedings in obtaining temporary physical custody of HRBM. To obtain affidavits, Robin and her friend, Dori Groenendyk, sent the following email to the parents of students at Robin's School of Dance:
Email at 1, Plaintiff's Supplemental App. at 1. Robin filed forty-five affidavits to support her request for temporary physical custody of HRBM.
Robert submitted two affidavits for Robin during her divorce and Rhonda provided three affidavits. Robert's affidavits were executed on June 8, 2007, and August 15, 2007, and filed June 8th and August 16th. Robert personally prepared the content of his affidavits. Rhonda's affidavits were executed on June 8, 2007, August 14, 2007, andMay 12, 2008, and were filed June 8th and August 16th. Rhonda personally prepared the content of her affidavits.
Trial in Burns and Robins's divorce began on November 4, 2009, with Iowa District Court Judge Jeffrey A. Neary presiding. The trial continued on November 5, and 6, 2009, and then reconvened on November 17, and continued on until November 23, 2009. During the trial, Judge Neary heard testimony from Burns and Robin as well as the following witnesses: Kim Scorza, a child custody evaluator; Dr. Andre Clayborne, an educational psychologist; Dr. Michael Baker, a psychologist; Teresa McElroy, a licensed social worker; Robert Hall, a HealthOne, Inc. employee; Mark Zwart, a HealthOne, Inc. employee; Robert McFarland, Vice President of HealthOne, Inc. and Burns's son; Marty Wallace, a licensed mental health care counselor and play therapist; and HRBM's counselor; Dr. Eli Chesen, a psychiatrist/neurologist; and John Visser, a businessman and Burns's friend. In addition to the live testimony presented at trial, deposition testimony was received from Robert and Rhonda, and the following individuals: Stacey Hofer-Ahrenstorff, a mental health counselor; Dr. Daniel Dees, a psychiatrist; Kirbee VanDeBerg, Robin's daughter from her first marriage; Troy VanDeBerg, Robin's first husband; Dr. Shawn Scholten, a psychologist and therapist for Robin's daughter Kirbee; Dr. Thomas Price, a psychologist; Karen Peters, Robin's friend and employee of Robin's School of Dance; Kelsey Schmidt, a babysitter for HRBM; Shawna Van Wyhe, a babysitter for HRBM; Colleen Horstman, a house cleaner of Robin's; Shelly Gesink, a house cleaner of Robin's; Niccie Kliegl, a friend of Robin's; Kimber Kroschell, a friend of Robin; Tyler Knobloch, a friend of Robin's; Craig DeHaan, an acquaintance of Robin and Burns; Dori Groenendyk, a friend of Robin's; Brenda Scheiteman, a friend and spiritual mentor of Robin's; Denise Harrison, a loan officer at American State Bank; Cherilynn Rozeboom, a trust officer at American State Bank; Ellen Bennett, Burns's friendand employee of HealthOne, Inc.; Mary Harelson, Burns's friend and employee of HealthOne, Inc.; Denise McKnight, Burns's friend and employee of HealthOne, Inc.; Michelle Watson, Burns's friend and employee of HealthOne, Inc.; and Susan McFarland, Burns's mother. After trial, Judge Neary gave Burns three weeks to submit additional evidence.
On May 6, 2010, Judge Neary filed a Decree of Dissolution of Marriage in McFarland v. McFarland, Equity No. CDCD021600 (Iowa Dist. Court, Sioux County). In his ruling, Judge Neary made extensive findings of fact. He discussed Robin's soliciting affidavits for use in her divorce, explaining:
At the onset of this case, Robin sought to obtain affidavits from many individuals and she was assisted by her friend Dori Groenendyk. They solicited by email affidavits in favor of Robin's claim for temporary physical custody of H.R.B.M. at a hearing on temporary matters early on. . . To dispel the concerns raised with regard to the affidavits, this Court has not given any weight to affidavits in evidence. This Court has only considered the testimony and other documentary evidence presented in reaching the conclusions and findings herein. Further, the Court concludes from review of the testimony and other evidence that the witnesses presented here did not in any significant way rely on the content of the hotly contested affidavits.
Divorce Decree at 11, Plaintiff's App. at 75.
Judge Neary further found Burns had been using hydrocodone for over ten years
and was addicted to it, and that Burns illegally smoked marijuana in Robin's home.1Divorce Decree at 10, Plaintiff's App. at 74. In addition, Judge Neary found Burns and his company, HealthOne, Inc., had not filed tax returns for several years and, as a result, Burns was the subject of a criminal tax investigation. Divorce Decree at 11-12, Plaintiff's App. at 75-76.
Judge Neary also found Burns emotionally and verbally abused Robin during the marriage, and that Burns subjected Robin to "rough and perverted sex."2 Divorce Decree at 11-12, Plaintiff's App. at 75-76. On June 4, 2007, Robin and HRBM sought refuge in an area abuse shelter. Robin subsequently filed for an order of protection, alleging she was the victim of abuse. Divorce Decree at 14, Plaintiff's App. at 78. Judge Neary observed:
From the various witnesses both live and by deposition, the Court sees a clear picture of what it must have been like living around Burns McFarland. He had to be in control, had to be respected, and had to be revered. When this was not happening, he became angry, exercised control through intimidation and fear thereby getting what he expected. Generally the testimony about was described as emotional and verbal abuse is found to be credible. . . . [T]he evidence of abuse when confirmed by the experts is clear and sufficient inits quantity and quality for this Court to find that Burns subjected Robin to emotional and verbal abuse. He was controlling, sometimes dictatorial, and manipulative of Robin during their marriage. He exercised control of Robin through financial means, physical means, and emotional means.
Divorce Decree at 11, Plaintiff's App. at 75. In making these observations, Judge Neary noted one expert witness, Kim Scorza, who was ordered to conduct a child custody evaluation as part of the divorce proceedings, observed what she termed as "appalling treatment by Burns of Robin" and characterized it "as the worst she'd seen in 20 years of work." Divorce Decree at 18, Plaintiff's App. at 82. Judge Neary concluded Robin was the parent most capable to administer to HRBM's long term best interests and awarded physical custody to her.
In addition to determining custody of HRBM, Judge Neary made findings concerning property division and alimony. Judge Neary found:
Financially, Robin did...
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