In Re the Marriage of Stephanie Kay Makela and Wayne L. Makela Upon the Petition of Stephanie Kay Makela, petitioner-appellant/cross-appellee, and Concerning Wayne L. Makela, respondent-appellee/cross-appellant.
16-1034
| Iowa Ct. App. | May 17, 2017Background
- Parents Stephanie and Wayne Makela divorced after Wayne was arrested, pled no-contest to sexual offenses against a minor in Wisconsin, and was sentenced to prison and extended supervision. Charges did not involve the parties’ children.
- The family moved to Iowa; Stephanie sought dissolution and sole legal custody of two young children (ages ~3.5 and ~1.3 at trial). The younger child had never lived with Wayne post-arrest.
- The district court awarded Stephanie sole legal custody, finding by clear and convincing evidence joint legal custody was unreasonable due to Wayne’s conviction, incarceration, limited contact with the children, and concerns about his judgment.
- The district court initially barred all contact but amended its order to prohibit in-person visitation while allowing weekly phone calls and written correspondence (subject to Stephanie’s monitoring).
- Stephanie appealed to prohibit all contact while Wayne is incarcerated; Wayne cross-appealed seeking in-person visitation and joint legal custody.
Issues
| Issue | Stephanie’s Argument | Wayne’s Argument | Held |
|---|---|---|---|
| Whether a parent incarcerated after conviction for a sex offense against a minor is entitled to court-ordered in-person visitation while incarcerated | Section 598.41A(2) bars all visitation while incarcerated; therefore no contact should be allowed | 598.41A(2) does not expressly say courts “shall not” order in-person visits; statute should not eliminate court discretion to order in-person visitation | 598.41A(2) precludes court-ordered in-person visitation while incarcerated (affirmed) |
| Whether telephone calls and correspondence are barred by §598.41A(2) as “visitation” | All communication constitutes visitation and is barred while incarcerated | Telephone/correspondence are not necessarily "visitation"; statute does not prohibit all communication and courts retain discretion to allow contact consistent with rehabilitation and best interests | Telephone calls and written correspondence permitted; statute does not prohibit all communication (affirmed) |
| Whether joint legal custody was unreasonable and not in children’s best interest, requiring sole legal custody | Stephanie: sole legal custody is necessary given Wayne’s incarceration, limited participation, and judgment concerns | Wayne: joint legal custody is still appropriate; conviction alone insufficient to sever legal custody | Clear and convincing evidence supported sole legal custody to Stephanie due to limited ability to participate, judgment concerns, and incarceration (affirmed) |
| Appellate attorney fees | Seeks fees | Seeks fees | Court declined to award appellate attorney fees to either party |
Key Cases Cited
- In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003) (de novo review of dissolution with weight to trial court fact findings)
- In re Marriage of Thatcher, 864 N.W.2d 533 (Iowa 2015) (statutory interpretation in dissolution appeals reviewed for correction of errors at law)
- In re A.J.M., 847 N.W.2d 601 (Iowa 2014) (statutory interpretation standard)
- In re Marriage of Stepp, 485 N.W.2d 846 (Iowa Ct. App. 1992) (best-interest standard and presumption of liberal visitation)
- Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010) (interpretation based on legislative text—what legislature did)
- Gardin v. Long Beach Mortg., 661 N.W.2d 193 (Iowa 2003) (discovering legislative intent in statutory interpretation)
- Markey v. Carney, 705 N.W.2d 13 (Iowa 2005) (factors for awarding appellate attorney fees)
- In re Marriage of Ask, 551 N.W.2d 643 (Iowa 1996) (factors for awarding attorney fees)
- State v. Ahitow, 544 N.W.2d 270 (Iowa 1996) (use of plain and ordinary meaning when a term is undefined)