Opinion
No. 2-869 / 02-0292.
Filed April 30, 2003.
Appeal from the Iowa District Court for Boone County, DALE E. RUIGH, Judge.
Douglas Eischeid appeals from the dissolution decree entered by the district court dissolving his marriage to Kathleen Eischeid. AFFIRMED.
Joseph Halbur, Carroll, and Robert Kohorst of Kohorst, Early, Gross Louis, Harlan, for appellant.
Vicki Copeland of Wilcox, Polking, Gerken, Schwarzkopf Copeland, P.C., Jefferson, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Douglas Eischeid appeals from the dissolution decree entered by the district court dissolving his marriage to Kathleen Eischeid. He contends the court erred in ordering that his visitation with his children be supervised, and that he pay the great majority of Kathleen's trial attorney fees. Kathleen requests an award of appellate attorney fees. We affirm.
Douglas and Kathleen were married on August 20, 1986. This was each party's first marriage, neither had children prior to their marriage, and neither brought significant assets into the marriage. Four children were born of this marriage: Jacob, born May 15, 1992; Isaac, born August 18, 1994; Timothy, born September 12, 1996; and Michael, born January 12, 2000. Kathy filed a petition for dissolution on January 25, 2001 and moved out of the family home with the four children in February 2001. Trial on the matter was held October 3, 2001 and the district court filed its written ruling on January 22, 2002.
At the time of trial Douglas was thirty-nine years old and Kathleen was thirty-seven years of age. Except for Kathleen's minor difficulties with depression and Douglas's alcohol and substance abuse problems the district court found both parties to be in good health. The parties had agreed prior to trial to joint custody of the children with Kathleen as the primary caretaker and the court found this to be in the best interest of the children. The court also determined the proper alimony and child support amounts Douglas was to pay to Kathleen, as well as the appropriate division of the parties' marital property. The only issues Douglas pursues on appeal are the court's determinations regarding his visitation rights and responsibility for litigation expenses.
The court ordered all of Douglas's contacts and visits with the children be supervised by either his parents, his adult sister, or a third party agreed to by Kathleen. The court further ordered Douglas to pay $5,000 of Kathleen's approximately $6,000 of trial attorney fees. Douglas contends the court erred in ordering his visits with the children be supervised because there is no justification in the facts of this case to support such a measure, and the decree of the court is solely punitive and not calculated to help the children. He further argues the court erred by imposing almost all of Kathleen's attorney fees on him based on his impending bankruptcy and the fact the gap between his income and Kathleen's is not substantial enough to warrant such an award.
In this equity case our review is de novo. Iowa R.App.P. 6.4. We therefore examine the record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).
The trial court based its decision to order supervised visitation on Douglas's long history of alcohol and substance abuse. In making its determination the court noted Douglas's prior operating while intoxicated and possession of a controlled substance with intent to deliver convictions, as well as Kathleen's testimony that he had previously admitted to her his use of methamphetamine. The court also relied heavily on two incidents which occurred during 2001 after the parties' separation. The court found that on April 4, 2001 Douglas and the woman he was cohabitating with at the time got a babysitter for her children and went out for the evening. When they returned at approximately 2:00 a.m. Douglas drove the babysitter home while intoxicated and struck two parked cars. The babysitter hurt her neck in the collision and reported the incident to law enforcement officials. Douglas was charged with failure to have control of his vehicle, striking an unattended vehicle, and leaving the scene of an accident. The court further found that, "Contrary to Mr. Eischeid's assertion, the accident was not caused by his wrestling with another male occupant of the vehicle." In September of 2001 Douglas was involved in a similar incident in which he again struck several parked cars while driving and was charged with public intoxication and striking an unattended vehicle.
The trial court also considered the results of a prior drug test that had been ordered by the district court and the court's findings in regard to its results. On April 23, 2001 the court ordered Douglas to perform urine testing for certain specified illegal substances by 4:00 p.m. that day. He did not appear for the urinalysis until 4:24 p.m. on April 25, 2001, approximately forty-eight hours after the time ordered by the court. In an order dated May 3, 2001 the district court found that although the results of the test were below the established "positive" limits for the presence of illegal substances, the results did indicate traces of cannabis. There was also an indication that the urine specimen was diluted. Based on an extrapolation from the diluted specimen to obtain the actual results of the test, the court found such extrapolation would "strongly suggest a positive result and likely recent use of cannabis."
Based on these facts and all of the evidence submitted at trial the court summarized its findings and conclusions.
In summary, the record clearly shows that Mr. Eischeid has an ongoing, untreated alcohol and/or substance abuse problem, which poses risks to the children's safety. While he should be allowed visits with the children, those visits should be supervised. The Court acknowledges that restrictions on visitation rights, by supervision or otherwise, are extraordinary and should not be imposed absent compelling circumstances. Those circumstances exist here. . . . In fashioning the below visitation order, the Court has provided for an indefinite period of supervised visits. The Court has done so because the evidence makes it impossible to competently anticipate when Mr. Eischeid's substance abuse will no longer pose a significant risk to the children. The abuse has existed for many years. Mr. Eischeid exhibits little insight into the problem and sees no reason to seek treatment. As indicated by a negative drug test on the day before Mr. Eischeid's April 4, 2001, accident, one or two drug screens may be inadequate to show that the children are safe during unsupervised visits. Under these circumstances, the court deems it equitable to put the burden on Mr. Eischeid to show a substantial change in circumstances in a modification action before the visitation restrictions are lifted or changed. Of course, Mrs. Eischeid can allow unsupervised visits at any appropriate time by agreement with Mr. Eischeid. The Court would urge her to do so, if circumstances warrant. Such would spare the parties the time and expense of further litigation.
We agree with the findings and conclusions of the trial court and adopt them as our own. The following additional facts further support the court's order requiring supervised visitation.
At trial Douglas admitted to using marijuana and that Kathleen had made it very clear that in order to keep their marriage together Douglas had to get drug and alcohol treatment. However, Douglas testified he never sought any such treatment, he did not think he has ever had a problem with drugs or alcohol, and he did not believe he needed any type of treatment or counseling for such a problem. Douglas claimed at trial that he had only used marijuana once since April of 2000. However, his urinalysis results of April 25, 2001 appear to contradict this assertion.
Based on these and all of the reasons given by the trial court set forth above, we find the court appropriately ordered Douglas's visitations with the children to be supervised. The court was well aware that its order requiring supervision was a serious restriction on Douglas's visitation rights but found compelling reasons existed to order such restrictions. We agree with the trial court that Douglas's ongoing and untreated substance abuse problems, which he has yet to realize and admit to himself, pose a serious risk to his young children's safety and require his visitations with the children be supervised until circumstances change.
Douglas next argues the court erred in ordering that he pay $5000 of Kathleen's trial attorney fees. An award of trial attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). The court should make an attorney fee award which is fair and reasonable in light of the parties' financial positions. In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct.App. 1998). For the following reasons we find the trial court did not abuse its considerable discretion in awarding Kathleen $5,000 in trial attorney fees.
First, there is a disparity between the parties' present incomes and earning capacities. The court found, and it is not disputed on appeal, that Kathleen has a net monthly income of $401-$500 while Douglas has a net monthly income of $1,685.21. Furthermore, the court found Douglas "probably had the capacity to earn more than $31,200 per year in the future." Kathleen, on the other hand, does not appear to have the ability to earn a significantly greater amount, unless and until she earns the degree she is presently working towards. Second, at the time of trial Kathleen had moved in with her parents because she was unable to support herself and the parties' four children. She was also attending college to obtain her nursing degree in order to improve her ability to support the children, as well as raising the parties' four children and working a part-time job. Therefore, we find Douglas is in a significantly better position to pay the litigation expenses of this action than Kathleen is, and the trial court did not abuse its discretion in ordering him to pay $5000 of Kathleen's trial attorney fees.
Finally, Kathleen seeks appellate attorney fees from Douglas. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. Id. We find Kathleen was obligated to defend the trial court's decision on appeal and has done so successfully. In addition, Douglas's ability to pay for the expenses related to this obligation exceeds Kathleen's at this point in time. Douglas shall pay $2000 of Kathleen's appellate attorney fees.
The dissolution decree entered by the trial court is affirmed in its entirety. We award Kathleen $2000 in appellate attorney fees.