Stephens v. Stephens

• Decision Date: 15 February 2012
• Docket Number: No. 11–0054.,11–0054.
• Citation: 810 N.W.2d 523
• Parties: In re The MARRIAGE OF Douglas STEPHENS and Leslie Ellen Stephens.Upon the Petition of Craig Douglas Stephens, Petitioner–Appellant,andConcerning Leslie Ellen Stephens, Respondent–Appellee.
• Court: Iowa Court of Appeals

810 N.W.2d 523

In re The MARRIAGE OF Douglas STEPHENS and Leslie Ellen Stephens.Upon the Petition of Craig Douglas Stephens, Petitioner–Appellant,andConcerning Leslie Ellen Stephens, Respondent–Appellee.

No. 11–0054.

Court of Appeals of Iowa.

Feb. 15, 2012.

Judd N. Kruse and Daniel J. Tungesvik of Kruse & Dakin, L.L.P., Boone, for appellant.

Leslie Stephens, Des Moines, pro se appellee.

Considered by EISENHAUER, C.J., VOGEL, J., and SACKETT, S.J.^*SACKETT, S.J.

Craig Douglas Stephens filed a direct appeal from a December 1, 2010 order of the district court finding he was in contempt of court for not following an October 13, 2009 order modifying certain visitation provisions of a decree dissolving his marriage to Leslie Ellen Stephens. We treat his notice of appeal as a petition for writ of certiorari, and find the October 13, 2009 modification order contained an improper delegation of judicial authority. Because Craig cannot be held in contempt for violating said order, we sustain the writ.

I. BACKGROUND AND PROCEEDINGS. The marriage of Craig and Leslie was dissolved in September of 2006, and the parties were granted joint legal custody of their four children, sons born in February of 1991 and May of 1993, and daughters born in September 1996 and December of 1998. Craig was awarded primary physical care on the basis of a guardian ad litem report.

On July 3, 2007, the district court entered an order modifying the decree and declaratory judgment. The district court found that Craig should continue to have primary physical care of the children and the parties should remain joint legal custodians, but provided Craig did not need to consult with Leslie prior to taking action on the children's behalf. Craig was ordered to notify Leslie within forty-eight hours of the following occurrences concerning the children, (a) any medical care received by any child, (b) any change in any child's prescription medication, (c) any change in any child's legal status, and (d) any change in any child's education, extra-curricular activities, or religious instruction.

The modification order also limited Leslie's contact with the children to a therapeutic setting under the supervision of therapist, Susan Gauger; precluded her from contacting the youngest child while Leslie worked at the youngest child's school; and prevented Leslie from approaching or seeking direct contact with any child at any function or location. It also provided for a number of other things including co-parent counseling. The guardian ad litem, Diane Dornburg, was ordered to continue serving for an additional period of one year.

One year later in the summer of 2008, Dornburg filed an extensive recommendation concerning primarily the children's relationships with their mother. She noted Craig put the children's interests as top priority and noted in her opinion he can be trusted to do so in the future. She recommended extensive rules and guidelines for Leslie to follow in exercising visitation.

On October, 13, 2009, the district court approved what was referred to as a “Consent Modification of Decree of Dissolution of Marriage and Order for Modification.” Leslie was given minimum visitation with the children, which included after school on Wednesdays until 9 p.m., the second weekend of the month from Friday at 5 p.m. to Sunday at 9 p.m., and the fourth Sunday of every month from 8:30 a.m. to 8:30 p.m. The order also provided that the visits would increase at the discretion of Sue Gauger or her designee, to include, “a. The last weekend day of Sunday works up to the entire weekend; b. Wednesdays move to overnight; c. Weekend moves to Friday–Monday morning; and d. Holidays added.”

A little over a month after this modification was entered, on November 20, 2009, Gauger sent a letter to counsel for both Craig and Leslie stating since the modification order she had been bombarded with never ending calls, requests, and demands from Leslie regarding the visitation arrangement. Because the youngest child in particular had indicated a desire to spend more time with Leslie, it was Gauger's recommendation that the two youngest children, age thirteen and ten at the time, begin to spend every other weekend with Leslie starting after school on Friday until Sunday at 6 p.m. Gauger also recommended including holiday visitation, but no extra accommodations be allowed because these requests caused chaos and scheduling problems. The letter stated Craig indicated he would not force any child to go to visitation if that child did not want to go. Gauger also indicated it was not in the best interests of the younger son, then age sixteen, to be forced to attend visitation with Leslie.

On June 22, 2010, Leslie filed an application for rule to show cause contending Craig had willfully and repeatedly refused to abide by Gauger's recommendations, and refused to notify her prior to the children having medical treatment, and counseling, and failed to notify her of issues relating to the children's schooling. She also claimed Craig had alienated the affections of the children by failing to communicate with her. She asked he be found in contempt, be ordered to comply with visitation recommended by Gauger, support her relationship with the children, and be committed to jail for thirty days on each count of contempt.

The matter came on for trial on November 12, 2010. Leslie testified that the visitation went fine after the October modification and prior to Gauger's recommendation. However, she asserted the visitation was never increased after Gauger's letter because Craig refused to permit every other weekend. She further testified:

Q. .... Out of 16 weekend visits from November 2009 to June 2010, how many would you say that you were actually able to exercise visitation? A. Saying it's eight months, I had eight weekend visits.

Q. According to the increase in visitation, you would have on average been getting two visits—two weekend visits a month; correct? A. Right. So I missed eight weekends.

Q. So from November 2009 to June 2010, you were only getting one weekend visit a month? A. That's correct.

Q. What was happening on the other weekends that you weren't getting visitation? A. As in that should have been my scheduled weekend?

Q. Yes. A. I was getting them for 12 hours on Sunday.

Q. Why were you only getting them for 12 hours on Sunday? A. Because we were not going by Sue's recommendations per Craig's statement.

Q. So would you request to have visitation from Friday to Sunday—A. Yes.

Q. —per the order? A. Yes.

Q. And what were you being told? A. “We're not going by that schedule.”

Q. And who was telling you that? A. Craig.

Leslie further related in a thirty-day time period she would have them every Wednesday after school, the second weekend of the month, and the last Sunday of the month, and this schedule was occurring most of the time. She admitted there were times when the children attend events instead of visitation based on Craig's permission and the cancellation was not within her control. She also testified she stopped requesting the second full weekend visit because Craig was not going to let her have it.

Gauger testified she had been providing therapy to the Stephens children since October 2005. She said she had seen the children four times in the two months leading up to the hearing and noted the children reported their mother would criticize their father a lot and hound them with questions. The children reported being stressed out and worried about the questions their mother would ask. The children indicated being angry at their mother for being overly critical of their dad which would make them feel highly uncomfortable. They told Gauger that they have called their father in secret crying and asking him to pick them up because they cannot take it anymore. She further indicated the children see Craig as their safety net, and that if he were to force visitation, the children would be extremely angry with him and their mother. She did not believe forcing visitation would help the relationships the children had with their parents.

Gauger stated she wrote the letter in November of 2009 recommending additional visitation because the girls had been asking for more time with their mother. However, since that time, the girls told her they liked the visitation schedule of Wednesday evenings, one weekend a month, and one Sunday a month, because it limits their exposure to what they feel are uncomfortable interactions with their mother.

The children have told her that they are allowed to decide whether or not they go with their mother, and Gauger believes the children are aware of their tolerance levels. When she was asked if the children had the skills to deal with the situation, Gauger opined the older daughter had limited skills for coping and her mental health status was in constant flux. Gauger had previously informed Craig that this child has depressive factors in her personality and she needed to be on medication. She further testified if the child were forced to spend more time with her mother, it would increase her tantruming.

Gauger was of the opinion that Craig should encourage the children to spend time with their mother and noted he had done so many times while in her office. She had never gotten the sense that Craig was not encouraging the children to spend time with their mother.

Gauger did acknowledge that it was her understanding the visitation she recommended in her November 2009 letter never occurred. In addition, she believed Craig told the girls that the increased visitation was available to them, but left it up to them on whether or not they wanted the extra time with their mother. She went on to testify that to force visitation particularly with these children would not be good or healthy. She stated she thought Leslie did not get the additional visitation that was recommended because the children had experienced additional difficulties during...