IN RE MARRIAGE OF RIGGERT

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Docket Number

No. 94-1408.

Attorney(S)

Randy E. Trca of Randy Trca Law Firm, Iowa City, for appellant. Randall B. Willman of Leff, Haupert Traw, Iowa City, for appellee.

Judges

Rosemary Sackett

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Smart Summary

Factual and Procedural Background

James Edward Riggert and Julie Ann Riggert were married in September 1978 and separated in June 1992. They have two daughters born in 1983 and 1986. Both parties are college graduates and have held various jobs; Julie worked as a medical technologist at the University of Iowa, and James owns a security systems business. During the marriage, each assumed primary responsibility for the children at different times. After separation and the filing of the dissolution petition, they agreed to divided custody with alternating weeks.

The marriage dissolution arose after James discovered Julie had engaged in an emotional and sexual relationship with a minor female student, Julie's pupil at a school where she taught. James first learned of this relationship through a newspaper inquiry related to a lawsuit filed by the alleged victim. The trial court dissolved the marriage and made custody and visitation determinations, which Julie and James both appealed.

Legal Issues Presented

Whether primary physical care of the children should be awarded to Julie or to James.
Whether the trial court erred in its findings regarding Julie's relationship with the minor and its impact on custody.
Whether physical care should alternate between the parents on a yearly basis.
Whether Julie should be required to undergo counseling or treatment related to the sexual abuse findings.
Whether James is entitled to appellate attorney fees.

Arguments of the Parties

Appellant's (Julie Ann Riggert) Arguments

Primary physical care of the children should have been awarded to her rather than James.
Challenges the trial court’s findings concerning her relationship with the minor girl, her anger toward James, and the conclusion that James can provide superior care.
Contends that the sexual acts did not result in total molestation or destruction of the minor, who already had personal problems.
Argues that James’ sexual conduct with multiple partners is more damaging than her actions.
Requests that if she is not granted primary care, physical care should alternate annually between the parents.
Filed a motion alleging recantation of the minor’s testimony to justify a remand for further examination, which was denied.

Appellee's (James Edward Riggert) Arguments

The trial court should have required Julie to undergo counseling or treatment related to the sexual abuse.
Contends the trial court awarded too much visitation to Julie.
Opposes alternating physical care annually.
Seeks appellate attorney fees.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Marriage of Harris, 499 N.W.2d 329 (Iowa App. 1993)	Standard of review: de novo review of custody determinations.	The court applied de novo review to assess which parent would better raise the children.
In re Marriage of Rodgers, 470 N.W.2d 43 (Iowa App. 1991)	Determination of which parent will do the better job of raising the children.	The court used this precedent to frame the central custody question.
In re Marriage of Winter, 223 N.W.2d 165 (Iowa 1974)	Factors to consider in custody decisions.	The court examined factors set forth in this case to determine custody.

Court's Reasoning and Analysis

The court reviewed the custody dispute de novo, focusing on which parent would better raise the children. It gave significant weight to the trial court’s findings concerning Julie’s sexual relationship with a minor student, which the court characterized as a predatory and enduring molestation. The court noted that although Julie argued the acts showed poor judgment rather than a total breakdown, the trial court and the custody evaluator, Dr. John Tedesco, both concluded that James was the better option for primary care due to concerns about Julie’s judgment and behavior.

The court distinguished between sexual conduct between consenting adults and sexual contact between an adult teacher and a minor, emphasizing the latter’s gravity. It found no valid reason to modify custody or visitation orders and denied Julie’s request for alternating physical care. Regarding counseling, the court deferred to the trial court’s decision not to require it as a condition of visitation despite expert testimony recommending treatment to minimize risk. Finally, the court awarded James $500 in appellate attorney fees and taxed costs to Julie.

Holding and Implications

AFFIRMED.

The court affirmed the trial court’s dissolution decree, including custody and visitation arrangements. Primary physical care remains with James, and visitation provisions stand as ordered. The court denied Julie’s request for alternating physical care and deferred to the trial court’s discretion regarding counseling requirements. James was awarded $500 in appellate attorney fees, with costs taxed to Julie. No new precedent was established; the decision reinforces existing custody principles prioritizing child welfare and parental fitness based on conduct and judgment.

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In re the MARRIAGE OF James Edward RIGGERT and Julie Ann Riggert. Upon the Petition of James Edward Riggert, Petitioner-Appellee/Cross-Appellant, And Concerning Julie Ann Riggert, Respondent-Appellant/Cross-Appellee.

SACKETT, Judge.

Respondent-appellant/cross-appellee Julie Ann Riggert appeals and petitioner-appellee/cross-appellant James Edward Riggert cross appeals from the decree dissolving their marriage. Julie contends primary physical care of the children should have been awarded to her, not James. She asks, if she is not granted physical care, the primary physical care be alternated each year. James on cross appeal contends the trial court should have required treatment or counseling for Julie and awarded too much visitation. He contends he should have appellate attorney fees. We affirm.

James and Julie were married in September 1978, and they separated in June 1992. They have two daughters born in 1983 and 1986. James and Julie are college graduates and have held various jobs. They moved to Iowa City in 1991, where Julie accepted a position at the University of Iowa as a medical technologist. James currently owns his own business involved with selling and installing security systems. They both have at certain times during the marriage assumed primary responsibility for the children. When they separated and after the dissolution was filed, they agreed to divided custody providing they have the children on alternating weeks.

The marriage broke up when James discovered Julie had been involved in an emotional and sexual relationship with a young teen-aged girl, who had been her student at a school where she was teaching. Julie had not been honest with James about the situation and he first learned of it when the Iowa City Press Citizen called him in reference to a lawsuit the alleged victim had filed concerning the abuse.

Julie contends physical care of the girls should have been awarded to her. She challenges specific findings of the trial court, particularly findings about her relationship with the young girl, her anger toward James, and the finding James can provide superior care.

We review de novo. Iowa R. App. P. 4 (1993); In re Marriage of Harris, 499 N.W.2d 329, 330 (Iowa App. 1993). The question is which parent will do the better job of raising the children. In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa App. 1991). We look to the factors set forth in In re Marriage of Winter, 223 N.W.2d 165, 166-167 (Iowa 1974).

Julie argues too much emphasis was placed on her relationship with the young girl, Miss Morgan. The girl testified at the custody hearing. Julie filed a recent motion with this court contending the girl has now recanted the testimony as to the extent of the abuse. Julie requested a remand for the purposes of recalling the girl as a witness and reexamining her concerning the events. The recanted testimony allegedly would not deny the abuse but would concern the extent of the abuse. We denied this motion.

Julie started the relationship with the girl when the child was twelve and Julie was twenty-three. At the time, Julie was a teacher in the girl's school. The girl testified at trial. She testified as to sex acts, including oral vaginal sex. She said sex occurred in an automobile, at both women's homes, and in the presence of the children.

Julie objects to the following finding of the trial court:

The court cannot grant primary care to the Respondent who has demonstrated in the past by her actions such a breakdown in personality that permitted her to engage in a perverted sexual relationship with a minor female. Respondent's relationship with Julie Morgan was not an isolated event; but, rather a calculated, enduring predatory action which resulted in the total molestation of a child.

Dr. John Tedesco of the Child and Adolescent Guidance Center was appointed to do a custody evaluation, and he recommended physical care of the children be awarded to James.

The evaluation report of Dr. Tedesco provided, in part:

The last factor to be considered in the issue of primary care and custody is related to the child sex abuse allegations referred to earlier in this report. While the exact nature of the events that took place between Mrs. Riggert and her student remain unclear, it seems quite obvious that an improper relationship developed and continued across a rather lengthy period of time. At best, Mrs. Riggert made a series of decisions that exhibited extremely poor judgment. At worst, she is a sexual offender who is denying her offense, attempting to mitigate the seriousness of the problem, and is portraying herself as a victim. Regardless of which view is most accurate, the issue of poor judgment is of great concern. Whether it be in the area of sexual behavior or other areas of functioning, it is not clear to me that Mrs. Riggert is going to be able to apply the knowledge, skills, and abilities she obviously possesses in a consistent and productive fashion as her children grow and develop. For all these reasons, primary care and custody with Mr. Riggert appears to be the best option at this time.

Julie now argues, while the acts showed a poor lack of judgment on her part, the acts did not indicate she would be less likely to continue with the loving and caring manner she had provided to her girls. She says the acts did not result in total molestation and destruction of Morgan because Morgan already suffered personal problems at home and had stolen from her parents and other people.

Julie contends her activities were not as offensive as James' who might have contacted AIDS and given it to her and a baby she was carrying. She contends James having sex with multiple partners is more damaging than her activities.

Both James and Julie have put their family at risk with their sexual activities. We do not approve of James' conduct, but look differently at sexual contact between consenting adults than we do at sexual contact between an adult school teacher and a child who has not reached her majority. We find no valid reason to modify the custody and visitation decisions made by the trial court. We affirm on this issue.

We also deny Julie's request we provide for physical care to change in alternating years. James is opposed to that and there is no evidence it would serve the children's interests.

James contends Julie should have been ordered to have counseling and treatment. The trial court found Julie admitted the sexual contact during trial but has refused to participate in a sexual abuse program and the only evidence she has recovered is her own testimony. Julie's treating psychologist testified there is no guarantee Julie will not again engage in sexual abuse, and she needs treatment to minimize the risk. Julie admits she sexually abused the young girl in question but seeks to minimize her contact contending the abuse was not as substantial as set forth in the record.

We agree that there is a difference between the opinion of the experts as to whether Julie should have further counseling for her daughters' benefit. There is no evidence suggesting she has ever sexually abused her daughters, although there is evidence the sexual abuse of Morgan took place in her daughters' presence. The trial court elected not to make counseling a condition of her visitation, and we defer to the trial court on this issue.

James has requested attorney fees on appeal. We award him $500. Costs on appeal are taxed to Julie.

AFFIRMED.