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IN THE COURT OF APPEALS OF IOWA No. 9-706 / 09-0072 Filed December 17, 2009

IN RE THE MARRIAGE OF KELLY R. GENSLEY AND KANDI J. GENSLEY Upon the Petition of KELLY RAYMOND GENSLEY, Petitioner-Appellant/Cross-Appellee, And Concerning KANDI JEAN GENSLEY, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Iowa County, David M. Remley, Judge.

Kelly Gensley appeals and Kandi Gensley cross-appeals from the decree dissolving their marriage. AFFIRMED AS MODIFIED.

Theodore F. Sporer and Meghan S. Hanson of Sporer & Flanagan, P.C., Des Moines, for appellant. Crystal L. Usher of Nazette, Marner, Nathanson & Shea, L.L.P., Cedar Rapids, for appellee.

Heard by Vogel, P.J., and Doyle and Mansfield, JJ.

2 VOGEL, P.J. Kelly Gensley appeals and Kandi Gensley cross-appeals from the decree dissolving their marriage. Kelly challenges the child custody and visitation

provisions of the decree, as well as the provision regarding the childrens health and dental insurance, the award of the marital residence to Kandi, the personal property division, and the equalization payment Kandi was ordered to pay him. On cross-appeal, Kandi challenges the provision regarding visitation. We modify the visitation provision and affirm. I. BACKGROUND FACTS AND PROCEEDINGS. Kelly and Kandi were married on August 15, 1992. Their marriage

resulted in three children: Kelsi (born 1994), Kodi (born 1996), and Kortni (born 2000). The parties separated on May 25, 2006. Kandi remained in the marital residence with the children and Kelly moved to his mother s house, approximately thirty miles from the marital residence. On that same date, Kandi applied for and was granted a temporary order of protection. On June 1, 2006, a hearing was held and the district court entered an order of protection, which expired in one year, stating that both parties consented to the order. The order also granted Kandi temporary physical care of the children with Kelly having visitation, and ordered Kelly to pay temporary child and spousal support. On June 7, 2006, the district court amended the order of protection with additional terms that were agreed upon by the parties. On June 30, 2006, Kelly filed a petition for dissolution of marriage, requesting joint legal custody and physical care of the children. On July 6, 2006,

3 another hearing to modify the order of protection was held and the district court amended the order to specify that Kellys visitation with the children would be every Monday and Wednesday from 4:00 p.m. to 8:00 p.m. and alternating weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. The following day Kelly filed an application requesting temporary custody of the children in the dissolution action. On July 25, 2006, Kandi answered the petition for dissolution, in which she requested the parties be granted joint legal custody and she be granted physical care of the children. She also resisted Kellys petition for

temporary custody because it had already been determined in the order of protection. On September 14, 2006, a hearing was held on temporary matters. In its subsequent order, the district court stated: The parties have filed a large number of affidavits, apparently again confusing the concepts of quantity and quality. Respondent has filed 20 affidavits and the petitioner has filed 33. I have read all of the affidavits and note that very few of them contain information helpful to the Court, though they appear to clearly draw the battle lines in what the parties expect and perhaps hope will be a long and protracted fight leading to the defeat of the opposing party, though inevitably with substantial "collateral damage" to the children. The district court found that the provisions of the order of protection relating to custody, visitation, and support were incorporated by reference and ordered that they be followed. On November 9, 2006, Kelly was found to be in contempt for violating the order of protection and was sentenced to twenty-four hours in jail. In November and December 2006, Kelly and Kandi attended individual and joint counseling sessions with a family therapist, Dr. Elisabeth M. Robbins. A letter written by Dr.

4 Robbins dated January 5, 2007, was filed with the district court. Dr. Robbins reported that The high defensiveness and frequent accusations [that] characterize this couple appear to be the result of years of accumulated anger and hurts they have received from the other and which they have never been able to talk out and resolve. It will take a good deal of time, and recognition from both parties of their personal responsibility in contributing to todays situation, before their relationship can be healed. She also reported the parties highly-conflicted relationship could result in long term emotional damage to their children. On July 26, 2007, Kelly filed an application to modify the temporary order. A hearing was held on August 30, 2007, and the district court found there had not been a substantial change in circumstances since the courts October 5, 2006 order. On September 18, 2007, Kelly filed an application to inventory the household contents and equipment located at the marital home. Kandi filed a partial resistance. On November 1, 2007, a hearing was held and the district court ordered for an inventory of the household contents and equipment to be held on November 17, 2007. Additionally, the district court stated that it intended to appoint an attorney to represent the parties children and ordered the parties to mutually agree on an attorney and submit the attorneys name to the court. On December 27, 2007, the district court appointed Maurine Braddock to represent the childrens interests.1

1

Braddock was appointed as the childrens attorney, but throughout the proceedings Braddock was interchangeably referred to as the childrens attorney and the childrens guardian ad litem.

5 On January 10, 2008, Braddock filed a motion for an emergency hearing and the appointment of an expert. Braddock reported that she met with Kandi, Kelly, and the children. She stated that "[t]he children have clearly been affected by the adversarial actions of the parties," "both parties have made efforts to involve the children in this dissolution case, which [has] been harmful to the children," and expressed "concern that there have been deliberate efforts to alienate the children from the parents." Braddock reported that she discussed her concerns with both parties attorneys, after which Kelly confronted Kelsi and refused to allow her to speak with Kandi or participate in extracurricular activities that night. Braddock stated that the children needed to be protected from such future conduct and requested that an expert be appointed to evaluate the parties and the children and make recommendations concerning custody and visitation. On January 16, 2008, a hearing was held. The district court found that neither of the parties resisted the appointment of an expert. Braddock was instructed to find an expert and if neither of the parties objected to the expert, submit the proposed experts name to the district court for approval. Additionally, the district court found the childrens attorney "raised valid concerns about the conduct of [Kelly] in some of his communications with the children." The district co urt

ordered the parent having physical care of or visitation with the childr en "shall be responsible for making certain that the children attend all of their regular scheduled activities during the time the children are with that parent." Further, the parties were ordered not to discuss the pending dissolution action with the children and ordered not to use the children to convey messages from one party to the other.

6 On January 18, 2008, Kelly filed a motion to modify temporary child and spousal support and to establish a health insurance obligation. The company that Kelly had been employed by was filing for bankruptcy protection and Kelly had become unemployed. Following a hearing, the district court modified the temporary child support and terminated the temporary spousal support.2 Kandi was ordered to provide health insurance for the children. Additionally, both

parties were enjoined from unilateral disposition of assets and were "encouraged to cooperate and amicably resolve without further court involvement any disputes or disposition of personal property, including [Kellys] tools." On January 28, 2008, Braddock filed an application requesting the district court appoint an expert because Kelly would not consent to the only expert she could find in the area willing to "undertake this case." On February 6, 2008, another hearing was held and the district court found that although Kelly had previously objected to the specific expert, "[b]oth parents now stipulate to the appointment of Lou Blankenburg to evaluate the parties and the children and make recommendations concerning custody and visitation." Numerous filings continued, including applications for rule to show cause, a motion to compel regarding discovery, and a motion to modify temporary child support.3 Additionally, prior to trial Kandi requested, and was later granted, leave

2 3

The hearing was held on February 1, 2008. On February 15, 2008, Kelly filed a motion to compel regarding discovery, to which Kandi responded that she had provided initial and supplementary discovery responses. Kelly later withdrew this motion on April 10, 2008. On February 25, 2008, the childrens attorney filed an application for rule to show cause alleging that Kelly had violated the district courts order by failing to take the children to their activities and discussing the pending dissolution and financial matters with the children. On April 3, 2008, Kelly filed another motion to modify temporary child support. On April 10, 2008, Kandi filed an application for order to show cause stating that Kelly had failed to pay the fees ordered

7 to amend her answer to request sole legal custody and physical care of the children. Trial was held July 21-23, 2008. At the time of trial, both parties were forty-four years old. Prior to the marriage, Kelly had obtained an Associate of Science degree in tool and die making. Throughout the marriage he had been employed by Victors Plastics. The last position he held in the company was as a senior designer and purchasing agent, at which he earned twenty-five dollars per hour. As of January 24, 2008, Kelly was unemployed. After his employment ended, Kelly completed a twelve to thirteen week training program. He received unemployment benefits and earned income from odd-jobs, but testified that his goal was to be self-employed in product and tooling design and anticipated his income would be similar to that which he had at Victors Plastics. Kelly remained living with his mother at the time of trial. Prior to the marriage, Kandi had earned a Bachelor of Arts degree in accounting from the University of Northern Iowa. At the beginning of the

marriage she was employed by Mercy Hospital in Cedar Rapids as the budget director. After Kodi was born, she continued working for Mercy Hospital but moved to a part-time position as a staff accountant. Additionally, during the

marriage she was an Avon consultant and at the time of trial was a Tastefully Simple consultant.

for payment of an expert and for child support. Kandi withdrew this application after Kelly made the payments on May 28, 2008. On June 9, 2008, Kelly filed an application for order for rule to show cause, alleging that Kandi was in contempt because he did not have visitation with Kelsi during a weekend scheduled in May.

8 Both parties testified as to the high degree of difficulty they had communicating with each other. Kandi testified that after the first year-and-onehalf to two years of marriage, Kelly began exhibiting abusive behavior. Two specific instances in May 2006 prompted her to file for an order of protection. The parties attempted to reconcile from May to August 2007, and after the attempt failed, Kandi testified that Kelly continued to harass and intimidate her. There were several incidents where Kelly reported Kandi to the Sheriffs Office for animal neglect and to the Iowa Department of Human Services and Sheriff s Office for child abuse, all of which were unfounded. Kelly testified that there had been communication problems in their marriage that lasted through the date of the trial. When questioned about why he and Kandi filed separate income tax returns since 1999 or 2001, Kelly responded that it was as a result of communication problems.4 When asked whether he and Kandi had been "civil toward each other in memorable history," he responded that they had been "in our early years of marriage." Finally, Kelly stated there was an "intense hostility" between him and Kandi. Kelly requested joint legal custody and that Kandi have physical care of Kelsi, he have physical care of Kodi, and they share physical care of Kortni. As for scheduling, he proposed that Kodi remain with him except for spending Tuesday and Wednesday nights with Kandi. Since the children began school, they had attended a private school, Lutheran Interparish School, which offered classes for kindergarten through eighth grade. Kelsi was entering ninth grade
4

The record included Kandis income tax returns from 2001 to 2007 and Kellys income tax returns from 2001 to 2006. The parties filed separate federal income tax returns in all years except 2006.

9 the month following trial at Williamsburg Public Schools. Kelly requested Kodi and Kortni switch to public schools. Kandi requested sole legal custody and physical care of the children. She wanted the children to continue attending their current church and Kodi and Kortni to continue attending their private school. Braddock, the childrens attorney, recommended that Kandi be granted sole legal custody and physical care and Kelly be granted visitation. Blankenburg, the child custody evaluator, made the same recommendation. Blankenburg described "the level of animosity betwe en [Kelly and Kandi as] unusual." W hen asked to describe the family, she stated that there was "a

considerable amount of anger between the parents that affect the children" and the "protracted animosity [ ] has done a lot of damage to the children." She further testified: Q. [P]lease tell the Court your observations about whether each parent would be a suitable custodian for the children? A. In my observation, Kandi is able to consider the childrens needs and to provide resources to have their needs met and to manage her emotions well enough to implement those things for the children. In my observations, I think Kelly cares for the children, but is so angry about the situation that he finds himself in that anger, [which] interferes with his ability to take care of the children at some level. . . . A. I think that Kandi is affected by the divorce that she s going through, but that she has a sense of needing to --to do-- provide care to her children and do her motherly duties that they can rely on, so that shes able to be consistent in terms of providing for the childrens needs even though shes very upset. I think Kelly is--Ive seen him repeatedly return to focusing more on his anger with Kandi than on thinking through the childrens needs, and so that concerns me. . . . [H]e is, for whatever reason, at this time more focused on himself and his needs than the children s, although I think he cares for the children. ... Q. What have you observed about the ability of each parent to communicate with the other parent regarding the children s needs? A. Id say that--that communication between the two parents is poor, and that each parent has difficulties. Kandi,

10 however, is able to continue trying to get business done, even though she gets upset with Kelly, and Kelly especially resorts to accusing Kandi of making problems and wanting to keep the children from him. ... Q. What have you observed to the degree to which each parent can support the other parents relationship with the children? A. Ive noticed that Kandi, in spite of her feelings about Kelly, seems to understand that the childrens relationship with him is important, and that she encourages that. And that Kelly is so angry at Kandi that he seems to discourage the children thinking well of their mother. ... Q. What is your understanding of each of the parents  views on custody? A. My impression is that Kandi wants to have sole custody so that there is less interaction between her and Kelly around making decisions for the children, but that she wants the children to have adequate visitation with Kelly so that they can have a good relationship with their father. And that Kelly seems to resent any relationship that Kandi has with the children. ... Q. So do you think that it would be better to divide these children up or keep them together predominantly in one home? A. . . . I think it would be better to keep them together in many ways ... Q. Okay. What are the potential harmful effects of splitting children up? A. They have a deep sense of loss. They feel that they--in the long run, theyre likely to either feel that they were inadequate in some way, and so they--this destructive thing happened to their family, so theyre likely to feel angry and act out a lot of anger or both. And theyre likely to have more difficulty forming relationships with other people in adult life, and even have more difficulty in work and maintaining their health. . . . A. . . . [I]t would be preferable for them actually to not have to interact more than the bare minimum that it takes to exchange the children. And that I think the children will feel closer to both of them if the parents argue less and have less to argue about. . . . there will be less discord between them than if there would be if they had joint legal custody. Finally, along with several other witnesses, Kelsi and Kodi also testified. Kelsi reported that she was upset with her father and had refused to see him for

11 his scheduled visitation since mid-May. Kodi reported that he preferred to live with Kelly. Following trial and pending the district courts decree, the discord and litigation between the parties continued.5 On August 6, 2008, Braddock filed an application for order for rule to show cause stating that Kelly was not taking the children to their activities and failed to return Kodi and Kortni to Kandis care following visitation on August 4. On August 9, 2008, Braddock amended her application stating that after visitation on August 4, Kelly did not return Kodi and Kortni to Kandis care and although Kelly returned Kortni on August 6, he had not yet returned Kodi. On August 27, 2008, Braddock again amended her

application stating that Kelly still had not returned Kodi to Kandis care, had not been taking Kodi to his counseling appointments and many of his activities, and had removed Kodi from the private school he attended and enrolled him in the public school without the knowledge or consent of Kandi. A hearing was held, during which Kodi testified outside of the presence of both his parents. On

September 15, 2008, the district court found that the temporary order had been in effect for two years and was clear and unambiguous as to Kellys obligation to return the children to Kandis care on August 4 at 8:00 p.m. The district court discussed Kellys failure to return Kodi to Kandis care, stating in part, The Court finds that Kelly has not EVER . . . encouraged Kodi to return to his mothers care. . . . Kelly stated he has done all that he could to abide by the Court Orders. To be kind, Kellys testimony can only be countenanced in a "nod, nod, wink, wink" category. Kelly has intentionally placed his twelve-year-old son in the completely untenable position of having to publicly choose between
5

We discuss some of the filings that occurred after the trial, but note there were numerous others.

12 his parents, has deprived Kodi of his mothers love and attention (and vice versa) thereby potentially causing significant emotional harm to Kodi, has obviously orchestrated at least a portion of Kodi s resentment toward his mother, and has enthusiastically allowed the "tail to wag the dog." Having done all the above, he chooses to lay the blame for the violation of the Court Orders on this twelve-yearold sons shoulders. He has inappropriately conveyed to Kodi that he need not return to his mothers care until he wants to; that the choice is somehow his. . . . The Court finds that it has been established beyond any reasonable doubt that Kelly has intentionally and repeatedly violated known Court Orders regarding the custody, schooling, and visitation with respect to Kodi, and that Kelly has established no legal excuse for his failure to comply with Court Orders. The district court found Kelly was in contempt of court for his failure to timely return Kortni to Kandis care and his failure to return Kodi at all and sentenced him to serve twenty days in jail, with sixteen days suspended upon the return of Kodi to Kandis care. On September 17, 2008, an Iowa Department of Human Services assessment found that Kelly had caused Kodi to be so distressed so as to result in mental injury. On September 4, 2008, Kelly filed an application for order for rule to show cause alleging that he had been denied visitation with Kelsi since May 23, 2008. On September 19, 2008, Braddock, at Kelsis request, filed an application for an order for Kelly to return Kelsis personal property. On October 3, 2008, the district court ordered Kelly to return Kelsis personal property, including her iPod and a new laptop computer. Additionally, the court ordered that Iowa Child

Advocate Services "provide remedial in home family services, . . . including a plan for immediately commencing visitation" between Kelly and Kelsi and "the Abbe Center for Community Mental Health shall provide counseling services to

13 the parties and the children until they conclude that the family has achieved maximum benefits or further court order." On October 30, 2008, the district court entered the dissolution decree. 6 The district court granted Kandi sole legal custody and physical care of the three children. Kelly was granted visitation and ordered to pay child support. Kandi was ordered to provide medical and dental insurance for the children and Kelly was ordered to reimburse Kandi for one-half of her out-of-pocket expense for the insurance. The district court divided the marital assets and debts. Kandi was awarded the marital home. Although the parties were awarded certain personal property items, the parties had numerous exhibits listing over 600 additional items of personal property and did not agree as to the value or distribution of these items. The district court found "it is impossible to value these items of personal property without speculating as the value of hundreds of items . . . the only practical way to value these items and to provide for the disposition of these items is to order a private auction between the parties to be conducted by the attorneys." Finally, Kandi was ordered to pay $139,000 to Kelly to equalize the distribution of assets. Both parties appeal. II. SCOPE OF REVIEW. We review the provisions of a dissolution decree de novo. Iowa R. App. P. 6.907 (2009); In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007); In

6

Both parties filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). On December 9, 2008, the district court ruled on the motions. The district court made minor modifications to the property division and visitation schedule, which is reflected in this recitation of facts.

14 re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). However, we

recognize that the district court was able to listen to and observe the parties and witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986); In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) ("[The district court] is greatly helped in making a wise decision about the parties by listening to them and watching them in person. In contrast, appellate courts must rely on the printed record in evaluating the evidence. We are denied the impression created by the demeanor of each and every witness as the testimony is presented."). Consequently, we give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g); Sullins, 715 N.W.2d at 247 (quoting In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003)). III. ANALYSIS. A. Child Custody. Upon dissolving a marriage involving minor children, the district court must determine whether one or both parents shall have legal custody of the children. In re Marriage of Hynick, 727 N.W.2d 575, 578 (Iowa 2007). "Legal custody" carries with it certain rights and responsibilities, including but not limited to "decision making affecting the childs legal status, medical care, education, extracurricular activities, and religious instruction." Iowa Code

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