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noting the absence of evidence in the record as to whether a deferred judgment "was completed and expunged"
Summary of this case from In re Marriage of FreigergOpinion
No. 6-184 / 05-0342
Filed April 12, 2006
Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.
Respondent appeals from visitation provisions of dissolution decree. AFFIRMED.
Nathan Tucker of Tucker Law Firm, South Sioux City, Nebraska, for appellant.
Kalinga Karagi, Sr., Sioux City, pro se.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Respondent Esperance Lofele appeals from the visitation provisions of the decree dissolving her marriage with Kalinga Karagi, Sr., petitioner. Kalinga has not filed an appellee's brief. That failure does not entitle Esperance to a reversal as a matter of right, but does provide a basis for sanctions. State ex rel. Buechler v. Vinsand, 318 N.W.2d 208, 209 (Iowa 1982). We limit our consideration of the issues to those raised in Esperance's brief. Id. I. Background Facts and Proceedings
Esperance's brief cites exclusively to the district court's dissolution decree in her statement of facts. Therefore, we conclude there is no dispute as to the court's findings of facts, which are as follows. Esperance and Kalinga are natives of Congo who came to the United States in 1997 and 2000, respectively. Esperance has two children from a prior relationship: Brandon, age twelve and Madeleine, age eleven. Kalinga and Esperance began living together in September 2001. They separated in May 2002 due to domestic violence and remained apart until they reconciled in September 2002. Their son Kalinga, Jr. was born in August 2002, while the parties were separated. The parties were married on September 24, 2002.
In March 2003, a drinking incident between the parties led Esperance to take the children and move out for a period of twelve weeks. Following the parties' reconciliation in or around June 2003, their daughter Mukandayi was born in October 2003.
On July 7, 2003, Kalinga entered a plea of guilty to domestic abuse assault, a serious misdemeanor, and received a deferred judgment and sentence. There was no evidence presented at the dissolution trial whether this was completed and expunged.
The parties separated for the final time sometime between April and June 2004. Kalinga filed a petition for dissolution in June 2004. Esperance moved to Ponca City, Oklahoma, with the children in the fall of 2004 for a job training program after receiving a promotion from her employer. In a temporary order, the district court granted Esperance primary physical care of the parties' children, with visitation rights to Kalinga. Esperance was still living in Oklahoma at the time of the dissolution trial in January 2005.
On September 5, 2004, Esperance did not show up in Kansas City for exchange of the children for visitation. On September 9 she filed a protective order in Oklahoma alleging inappropriate sexual contact between Kalinga and her oldest daughter in July 2004. The Iowa Department of Human Services (DHS) conducted an assessment of the alleged inappropriate sexual contact. DHS determined there was sufficient credible evidence to indicate sexual abuse in the second degree had occurred. The department did not recommend juvenile court or any other action because Esperance's oldest daughter was living with her in Oklahoma. Kalinga filed an administrative appeal of the sexual abuse finding. At the dissolution trial, Kalinga testified he passed a polygraph examination and did not anticipate any criminal charges would be filed.
The district court filed its findings of fact, conclusions of law, and dissolution decree on February 4, 2005. The decree granted Esperance sole legal custody of the parties' two minor children and granted Kalinga specific visitation rights. Esperance appeals, arguing the district court erred in allowing Kalinga unsupervised or unrestricted visitation. Our review is de novo. Iowa R. App. P. 6.4.
II. Discussion
Esperance contends the district court failed to consider the following factors when determining the best interests of the children:
(i) Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.
(j) Whether a history of domestic abuse, as defined in [Iowa Code] section 236.2, exists.
Iowa Code § 598.41(3)(i), (j) (2005). We disagree.
The district court did take into consideration the history of domestic abuse when making its custody determination. The court determined placing sole legal custody of the children with Esperance was preferred over joint physical care or joint custody based on the "animosity, domestic abuse and distance involved."
As for the alleged sexual abuse of Esperance's oldest daughter, the court concluded as follows:
The court is faced with the situation of a disputed physical care custody with a founded child abuse against Kalinga. This court is also aware Kalinga has by his own and the [DHS] worker accounts passed a polygraph examination and there are at least no criminal charges filed in Woodbury County at the present time. The court also knows the Iowa [DHS] has not stepped in since the children are now in Oklahoma, and [Kalinga] as not had the opportunity to exercise visitation. It is possible if [Kalinga] is awarded visitation (which already does exist) the [DHS] of either Oklahoma or Iowa could step in.
After awarding visitation, the court continued:
The court expects this visitation to occur unless there is some further order of a court or order which prevents it, meaning if the Iowa [DHS] has genuine concerns, they may step in and exercise jurisdiction. Because of the limited evidence available to the court, it is not going to outright deny visitation based on the evidence presented.
This court is faced with the same dilemma as the district court in deciding visitation. Specifically, we have a founded child abuse against Kalinga, which this court takes seriously. At the same time, however, Kalinga has passed a polygraph examination, has no charges pending for the alleged incident, and DHS has not stepped in to take any further action. In addition, we have a record that is less than ideal. We must, therefore, agree with the decision of the district court and let further intervention, if any, be initiated by DHS in Iowa or Oklahoma.
In her appellate brief, Esperance cites to events that have occurred since the filing of the dissolution decree. Our review, however, is limited to the evidence before the district court at the time of the dissolution hearing. Based on that evidence, we conclude the district court's award of visitation was appropriate. If circumstances have changed since the entry of the decree, the appropriate remedy for Esperance is to seek a modification of the decree.