*1 of Mark J. In re the MARRIAGE and Korine K.

SCHEFFERT

Scheffert. Scheffert, of Mark J. the Petition

Petitioner-Appellee/Cross-

Appellant, Scheffert, K.

Respondent-Appellant/Cross-

Appellee. Appeals of Iowa.

Court of 27, 1992.

Aug. Hammer, Angela L. C. Simon and Hammer, Simon & Jen-

Scott J. Nelson of sen, Dubuque, appellant. for *2 Lemanski, law, ruling. court appel- and did not Dubuque, for A. to Dr. Sannito’s testimo- give lee. noting Dr. ny, Sannito was the OXBERGER, C.J., and by Considered to meet with Mark or obtain and JJ. DONIELSON about Mark from information source than Korine and the children. The DONIELSON, Judge. district both were were married Korine Scheffert Mark and capable caring for the of children equally 22, parties have two on 1974. The March no Mark there was evidence that inten- and 1979, Adria, and children, January born in tionally exposed inappropri- the children to Amanda, in November 1979. born upon Based ate sexual material. separated in December 1988. parties findings, the court concluded Ko- district continu- have lived with Mark The children had been rine failed there a sub- time, during regular except ally since that change in circumstances since the stantial 1990, 29, April the visitation. On of the decree time of dissolution the a decree of disso- granted court custody decree justify modification of the en- of The decree dissolution lution. case. upon stipu- a by approval court of tered the November Korine filed a On parties. stipulation, the lation both support motion to reconsider and a brief agreed Korine the Mark and Mark of the motion reconsider. filed a joint legal custo- placed should 20, 1991, On the resistance. November Mark. dy, physical care with awarded motion district court denied Korine’s to re- appli- filed an March Korine On consider. modify custody provision the child cation At the parties’ of dissolution decree. the has and Korine filed this Mark psycholo- Dr. Thomas a hearing, cross-appealed. has Korine contends the gist, he had the children testified met with (1) failing to district court erred in: find a counseling purpose and Korine for (2) circumstances; change of had not custody a evaluation. Mark give to the failing proper weight expert with informed of children’s visit been (3) testimony psychologist; failing objected Mark to this testimo- Dr. Sannito. personally interview the children. Mark including ny grounds, on several contends the district court should have ex- inter- identify Dr. on her failure to Sannito testimony psychologist cluded the expert for the as an retained rogatories properly identify Korine did not litigation. The district court purpose of interrog- Dr. on her witness Sannito testi- objection. Dr. Sannito overruled He also asks the court for reason- atories. fied, upon his with the based appellate attorney fees. able arrangement girls, present custodial action, equity our review de not continue. should have a R.App.P. duty 4. We novo. hearing, Korine accused Mark At the adjudicate record and to examine entire the children to exposing rights properly present- anew the issues had alleged ual She also material. Steenhoek, ed. variety engaged in a of immoral behaviors. give Following the conclusion of findings of the trial weight to fact evi- asked to consider further court was court, considering the especially cred- the children on the issue dence from witnesses, ibility but are bound taking After matter un- child 14(f)(7). re- R.App.P. them. On our advisement, the court filed an order der view, we affirm the district from the chil- declining to take evidence Change I. Circum Substantial 28, 1991, the district court contends stances. On October fact, failing findings of conclusions erred find substantial entered its spent any never time with Sannito that would material circumstances Mark. The extent of his custody modification. upon interviews with Korine and based provision change the custodial To Therefore, with the two applying of a dissolution district court did not err *3 preponderance of by a must establish testimony. agree weight much to his We the decree since that conditions evidence that Korine’s reliance on Painter v. Ban materially and sub so entered have nister, 258 140 N.W.2d 152 changed that the children’s best stantially (1966), Painter, misguided. In make the expedient it to weight interests make to Supreme gave considerable Fre change. Marriage twenty-five In re requested spent an who had some (Iowa 1983). interviewing 158 hours the child. 140 N.W.2d 338 N.W.2d derick Here, custody from the at 157. Dr. Sannito testified visit party seeking to take only separate ed with the children on two ability to minister must an other find Dr. occasions. We do not Sannito’s be effectively the children’s well more to Adria and Amanda to be interviews with Marriage In re Gra ing. Id. also See comparable. (Iowa vatt, App.1985). 371 N.W.2d 836 that principle from the This stems burden Mark, cross-appeal, in asserts the dis- his fixed, it child has been custody of a once admitting the testi- trict court erred even co only for the most disturbed should be have mony of Dr. Sannito. Because we Mikel Marriage In re gent reasons. deny- decision affirmed the district court’s 1980). (Iowa son, 671 299 N.W.2d modify custody, ing application Korine’s to we will not address this issue. the deci- the facts and We have reviewed court. III. Failure to sion of the district District Court’s Ko- Personally there had been no Interview the Children. court erred to rine also contends the district sufficient change circumstances the chil personally to interview agree. We Amanda dren. asserts interviews with She Mark came against Much of the evidence and Adria have enabled to testimony of Dr. from the disputes factual to resolve the better insofar whom we will Amanda said surrounding what Adria and to an ever as he was not and did. find no evidence of Mark. We meet with it properly determined The district court part of Mark effort on the any intentional modi- to rule on the had sufficient evidence to expose his children not- In final the court fication. find evidence We do not ual materials. that probative value questionable ed the any danger to his chil- presents that Mark have: with the children would sum, many of simply find we the Court that appears It ... Mark’s im- allegations regarding their are well aware what unsubstantiated. moral behavior have doing, appear parents are show, by preponder- failed to their from advantage taken since that conditions ance of with them. gain time to time to favor entered, materially have so the decree was changed have appear The children also changed that the chil- substantially time, depend- from time to opinions change. require the interests dren’s best talking to. parent they are ing on which failed to meet her bur- Because Korine has declining did not err The district court proof, affirm the district den of the chil- from consider further evidence deci- district court’s dren. We affirm the Ko- Testimony. II. Dr. Sannito’s sion. court erred fail rine asserts the district Attorney Fees. Appellate IV. ing give proper weight to requests appel cross-appeal, hear expert testimony at the his unrebutted attorney An award of attorney fees. ing. copy of Dr. Sannito’s right, rests received written a matter of but fees par report. discretion and the the court’s within positions. Marriage In re ties’ financial deny an I am concerned that we accused Kern, App. 408 N.W.2d himself, his chance to defend but needs of the are to consider the reputable expert ready to dismiss a am not request, ability making the party the father is en- witness’s pay, party and whether sexual conduct gaging making obligated to de volving his appeal. court’s decision fend the trial not award fees at this Castle, time. considering (Iowa App.1981). After $1,500 factors, appel award Mark *4 fees. are taxed to costs of

Korine. par- issues the

We determine either covered may

ties have raised are merit. For all opinion or are without stated, of the reasons of Karin Renee re MARRIAGE affirmed. Eugene and Ronald JOHNSTON Johnston, AFFIRMED. Sr. Karin J., the Petition of Renee concurs. Johnston, Appellant, C.J.,

OXBERGER, dissents. OXBERGER, Judge (dissenting). Chief Eugene Ronald Johnston, Sr., Appellee. I dissent. I would remand respectfully appoint Mi- the trial court to this case to Mr. Murray P. of Hillcrest Services. chael Appeals Iowa. Murray by the court to do a appointed family at the time of custody evaluation Aug. 27, 1992. I original dissolution action. Murray investigate the Mr.

daughters’ sexual claims Murray to direct Mr.

conduct. tests psychological

conduct whatever their children as he determines necessary.

are reputable Professor College,

Psychology Loras interviewed at ages now thirteen and daughters, interviews, Dr. Based on those

twelve. he was concerned with the

Sannito said reported by girls. as

father’s conduct trial appreciate majority’s give weight to Dr.

court’s reluctance did he However, the

terview father. noncus- parent in a difficult situation when

todial report

her sexual parent. In this

conduct the custodial

case, girls punished