Stern v. Stern (In re Marriage of Stern)

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Docket Number

No. 13-2087

Attorney(S)

Ryan G. Koopmans and Keith P. Duffy of Nyemaster Goode, P.C., Des Moines, for appellant. Nicole S. Facio of Newbrough Law Firm, L.L.P., Ames, for appellee.

Judges

Christopher L. McDonald

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Smart Summary

Factual and Procedural Background

The parties met in Israel in 2000; Michelle moved to Israel in 2001 and the parties had a religious marriage; their child, D.J.G.S., was born in 2003. In 2005 Michelle was accepted to a Ph.D. program at Iowa State University; Menachem executed a written authorization allowing the child to leave Israel and live with Michelle in the United States for the duration of her Ph.D. studies. The family moved to Ames; Menachem returned to Israel in February 2008. Michelle filed for dissolution in October 2007. After protracted litigation, including a Hague Convention child-abduction action in federal court, the Iowa district court entered a dissolution decree in June 2011 that deferred custody/visitation/support issues pending resolution of the Hague matter. Following trial in July 2013, the district court awarded joint legal custody with Michelle having physical care and ordered a visitation schedule that (1) limited out-of-country visitation by Menachem—requiring all visitation to occur within the United States until the child turned sixteen and (2) awarded six weeks' summer visitation and one-half of the winter break. Menachem appealed the visitation provisions.

Legal Issues Presented

Whether the district court properly restricted the father's summer visitation to within the United States until the child is sixteen years old.
Whether the father should receive two weeks of winter-break visitation rather than one week.

Arguments of the Parties

Appellant's (Menachem) Arguments

He should be permitted to exercise summer visitation with the child in Israel prior to the child turning sixteen.
He should be awarded two weeks' winter-break visitation because travel from Israel is expensive and one week is insufficient after long intervals between visits.
Requested that Michelle share or offset travel costs (split costs or reduction in child support).
Opposed any bond requirement for international visitation.

Appellee's (Michelle) Arguments

The geographic restriction is proper because Menachem is unlikely to return the child to the United States after visitation; he previously considered leaving the country with the child and has been found in contempt for noncompliance with visitation.
Return of the child from Israel would be difficult and expensive; requested a $30,000 bond to secure return.
Asserted inability to pay half the travel costs due to limited income.
Agreed to two weeks' winter visitation only if the child does not miss school.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009)	Standard of review for dissolution decrees (de novo).	Cited to establish appellate review standard.
In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003)	Give weight to trial court's factual findings and credibility determinations.	Supported deference to the district court's credibility findings regarding testimony.
In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984)	Need for child of divorce to maintain meaningful relations with both parents.	Used to emphasize policy favoring continuing contact with both parents.
In re Marriage of Hatzievgenakis, 434 N.W.2d 914, 917 (Iowa Ct. App. 1998)	Out-of-country visitation not barred solely because a parent lives abroad; vacating restrictions when no evidence of intent to not return.	Relied on to support allowing visitation in father's country of citizenship absent evidence of intent to abscond.
In re Marriage of Rudinger, No. 09-0281, 2009 WL 3337609, at *3 (Iowa Ct. App. Oct. 7, 2009)	Describes Hague Convention's purpose to discourage international parental child abduction and secure return of wrongfully retained children.	Used to explain relevance of Hague Convention signatory status to out-of-country visitation risk assessment.
Abouzahr v. Matera-Abouzahr, 824 A.2d 268, 281 (N.J. Super. Ct. App. Div. 2003)	Courts generally approve out-of-country visitation where country is Hague signatory and insufficient proof of intent to wrongfully retain child.	Relied on as a guiding factor list and precedent for permitting visitation abroad when no evidence of intent to retain.
In re Rix, 20 A.3d 326, 329 (N.H. 2011)	Foreign country's Hague signatory status is significant but not determinative of best interests.	Cited to note the signatory status is an important factor but not conclusive.
Katare v. Katare, 283 P.3d 546, 552-53 (Wash. 2012) (en banc)	Out-of-country visitation may be denied where parent's abusive/controlling behavior increases abduction risk.	Referenced as an example where risk justified denying foreign visitation.
Keita v. Keita, 823 N.W.2d 726, 732 (N.D. 2012)	Absence of specific evidence of intent to abscond supports finding parent not a flight risk.	Used to support conclusion that lack of evidence of intent to abscond weighs against restricting foreign visitation.
Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006)	Appellate attorney fees are discretionary; consider needs, other's ability to pay, and obligation to defend trial decision.	Applied in determining appellate fee request was not warranted and costs should be split equally.

Court's Reasoning and Analysis

The court reviewed the decree de novo while giving weight to the district court's factual and credibility findings. It applied Iowa statutes favoring liberal visitation and maximum continuous physical and emotional contact with both parents, noting these considerations are not limited by a parent's residence outside Iowa or the United States. The court found Menachem's testimony—that he briefly considered leaving with the child in 2005 but has not done so since—credible and found Michelle's testimony on her concerns not credible. The court discounted an isolated contempt finding as having little probative value and noted Michelle's past inflexibility on visitation contributed to problems. The court considered Israel's Hague Convention signatory status and the U.S. State Department's reports showing no recent noncompliance designations. Relying on precedents (including Abouzahr, Hatzievgenakis, Rix, and Keita), the court concluded there was insufficient evidence Menachem intended not to return the child and that the district court erred in prohibiting visitation in Israel until the child turned sixteen and in requiring prior written agreement or court application to take the child abroad. The court vacated the geographic restriction, remanded the question of any bond and the allocation of travel costs to the district court, and modified winter-break visitation to two weeks (final two weeks if break exceeds two weeks). The court exercised discretion to deny Michelle's request for appellate attorney fees and taxed costs of appeal equally.

Holding and Implications

AFFIRMED AS MODIFIED AND REMANDED.

Direct effects and implications for the parties:

The court reversed the district court provisions that restricted visitation to within the United States until the child is sixteen and that required either a written agreement or a court order to take the child outside the United States.
The issue of whether Menachem must post a bond (and the amount) is remanded to the district court for determination.
The question of allocation of travel costs for visitation in Israel is remanded to the district court for determination.
The winter-break visitation award was modified to provide Menachem two weeks' visitation (the final two weeks if the break exceeds two weeks), with the child returned when school resumes.
No appellate attorney fees were awarded; appeal costs are taxed equally to both parties.

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IN RE THE MARRIAGE OF MICHELLE NICHOLE GARLAND STERN AND MENACHEM MEDEL STERN Upon the Petition of MICHELLE NICHOLE GARLAND STERN, Petitioner-Appellee, And Concerning MENACHEM MEDEL STERN, Respondent-Appellant.

MCDONALD, J.

Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge. A father appeals from the visitation provisions of the decree of dissolution. AFFIRMED AS MODIFIED AND REMANDED. Ryan G. Koopmans and Keith P. Duffy of Nyemaster Goode, P.C., Des Moines, for appellant. Nicole S. Facio of Newbrough Law Firm, L.L.P., Ames, for appellee. Heard by Vaitheswaran, P.J., and Doyle and McDonald, JJ. MCDONALD, J.

A father appeals the visitation provisions of the decree dissolving his marriage. Specifically, the father challenges a geographical restriction in the decree that limits the father's summer visitation with his son to visitation within the United States until the child is sixteen years old. The father contends he should be able to exercise summer visitation with his son in Israel prior to the child turning sixteen. The father also challenges the duration of the winter-break visitation awarded him. He contends he should have two weeks' winter visitation rather than a single week.

The father, Menachem Medel Stern, is a dual Israeli-Canadian citizen, and the mother, Michelle Nichole Garland, is a dual Israeli-American citizen. The child, D.J.G.S., is a dual Israeli-American citizen. The parties met in 2000 when Michelle visited Israel, where Menachem lived and worked. In 2001, Michelle moved to Israel, with her two children from a previous marriage, to live with Menachem. The parties married in a religious ceremony according to the Jewish faith. Their child, D.J.G.S., was born in 2003. In 2005, Michelle was accepted into a Ph.D. program at Iowa State University. Menachem executed a written authorization for D.J.G.S. "to leave Israel and live with Michelle in the United States for as long as she is enrolled in her Ph.D. studies at Iowa State University." Michelle moved with the children to Ames. Later in 2005, Menachem joined Michelle. The parties married in a civil ceremony in June 2006.

In October 2007, Michelle commenced an action to dissolve the parties' marriage. Menachem returned to Israel in February 2008. After a protracted series of court proceedings, including Menachem filing a child abduction action under the Hague Convention in federal court, the Iowa district court entered a decree of dissolution of marriage in June 2011. The decree dissolved the parties' marriage but ordered that child custody, physical care, visitation, and support be tried in future proceedings after the conclusion of the parties' case arising under the Hague Convention.

In July 2013, following trial, the district court resolved the outstanding issues regarding child custody, physical care, visitation, and support. The court ordered joint legal custody with Michelle having physical care. The court divided the visitation schedule into two periods: first, when Menachem "can visit the child in the United States," and later, "when the court will allow Menachem to take the child with him to Israel." The court determined all visitation must be held in the United States "until the child is sixteen years of age." "After age sixteen, Menachem may file an application for specific visitation rights outside of the United States." Specifically, the court ordered Menachem

shall be entitled to take the child out of the United States, provided that prior to that time he either reaches a written agreement with Michelle or has applied [for] and obtained a court order concerning the application to take the child outside of the United States. The issue of whether Menachem should be required to post a bond will be addressed at that time.

The court found reasonable visitation for Menachem included one-half of the winter break from school and six weeks during the summer. Menachem filed this appeal.

II.

We review dissolution decrees de novo. See In re Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009). "Although we decide the issues raised on appeal anew, we give weight to the trial court's factual findings, especially with respect to the credibility of the witnesses." In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003).

III. A.

Menachem requests D.J.G.S. "be allowed to visit his father and his siblings in Israel" prior to the time D.J.G.S. is sixteen years of age. Iowa courts have "long recognized the need for a child of divorce to maintain meaningful relations with both parents." In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984). Iowa Code section 598.41(1) (2013), provides the court shall order custody and "liberal visitation rights where appropriate" to "assure the child the opportunity for the maximum continuing physical and emotional contact with both parents." Section 598.1(1) defines "best interest of the child" to include "the opportunity for maximum continuous physical and emotional contact possible with both parents." The Code does not in any way limit these considerations solely because one of the parents resides outside the borders of Iowa or the United States.

Our case law also does not recognize any limitation on visitation rights solely because one of the parents resides outside the borders of Iowa or the United States. "The world does not end at the borders of Iowa." In re Marriage of Hatzievgenakis, 434 N.W.2d 914, 917 (Iowa Ct. App. 1998). "Our hope for justice for our citizens in foreign courts can best be forwarded by our efforts to offer fair and equitable treatment to foreign nationals in our jurisdiction." Id. D.J.G.S. is a citizen of two countries—he was born in Israel to Israeli citizens, lived there during the first two years of his life, has many extended family members there, including a half-brother and half-sister—and has a right to build a meaningful relationship with his father and fully experience his dual heritage. See id. (finding child should be allowed to visit father in Greece as the child "is a citizen of two countries and has a right to be introduced and exposed to both").

Michelle argues the restriction on international visitation is proper because Menachem is not likely to return D.J.G.S. to the United States following visitation. Michelle notes Menachem stated, in 2005, that he briefly considered leaving the country with D.J.G.S. During trial, Menachem admitted he briefly considered leaving the country with D.J.G.S. in 2005. He also testified he has not considered it since that time. We find his testimony credible. In contrast, the district court found Michelle's testimony regarding her concerns with Menachem to be not credible. The court made several pointed credibility findings regarding Michelle, finding much of her testimony "fanciful," "exaggerated," and "simply not true." We give great weight to the district court's credibility determination.

Michelle also notes the court has previously found Menachem in contempt for not complying with a visitation order. We conclude that isolated incident is of little probative value. As the district court noted, "some of this behavior was aggravated by Michelle's attitude and inflexibility on visitation." For instance, "after the visitation schedule was adopted, Michelle moved from Ames to Postville, but she was not willing to be flexible on the midweek visitation times even though she and D.J.G.S. now lived 175 miles farther away than when the schedule was set up."

Michelle also argues the restriction on international visitation is proper because it would be incredibly difficult and expensive to have D.J.G.S. returned to the United States if Menachem did not voluntarily return D.J.G.S. Israel is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention on the Civil Aspects of International Child Abduction is "an international treaty the purpose of which is to discourage international parental child abduction and to ensure children who are abducted or wrongfully retained in a party's country are returned to their country of habitual residence." In re Marriage of Rudinger, No. 09-0281, 2009 WL 3337609, at *3 (Iowa Ct. App. Oct. 7, 2009). The United States State Department publishes a report regarding signatory country compliance with the Hague Convention. Areas of concern for the State Department are: (1) countries not compliant with the Convention; (2) countries with a pattern of non-compliance with the Convention; and (3) countries with enforcement concerns. During the last three years, Israel has not been identified as non-compliant in any of these respects. See http://travel.state.gov/content/dam/childabduction/complianceReports.

See http://travel.state.gov/content/childabduction/english/country/hague-party-countries.html

Although not an explicit rule or standard, "[g]enerally, courts have approved out-of-country visitation when the country is a signatory to the Hague Convention and there is insufficient proof of an intention to wrongfully retain the child." Abouzahr v. Matera-Abouzahr, 824 A.2d 268, 281 (N.J. Super. Ct. App. Div. 2003); see, e.g., id. at 282 (allowing father out-of-country visitation with his daughter in Lebanon, despite it being a non-signatory country, and noting father "has made no effort to sneak [his daughter] out of this country [when he has had previous visitation], although he had opportunities to do so"); In re Rix, 20 A.3d 326, 329 (N.H. 2011) ("[W]e conclude that while a foreign country's Hague Convention signatory status should be a significant factor for the trial court to consider, it cannot, standing alone, be determinative of whether it is in the best interests of a child to travel with a parent outside the country."); Katare v. Katare, 283 P.3d 546, 552-53 (Wash. 2012) (en banc) (denying father's request to take children to India, a non-signatory nation, where father's "pattern of abusive, controlling, punishing behavior put the children at risk of being used as tools to continue this conduct," thus convincing the court of an increased risk of abduction especially in light of the father's threats to take the children to India without permission).

Considering the best interest of the child, the lack of evidence establishing that Menachem intends not to return D.J.G.S. to the United States following visitation, the fact that Israel is a signatory to the Hague Convention, and the factors set forth in Abouzahr, we conclude the district court should not have prohibited visitation in Israel until D.J.G.S. is sixteen years old. See Hatzievgenakis, 434 N.W.2d at 917 (vacating restrictions on out-of-county visitation where there was no evidence of intent not to return other than mother's generalized fears); see also Keita v. Keita, 823 N.W.2d 726, 732 (N.D. 2012) (finding father who lived in Mali, West Africa, was not a flight risk with the child because "[t]he record does not include specific evidence that [father] has an intent to abscond or flee with the child or that he hindered [mother's] custody of the child"). Accordingly, we reverse those provisions of the court's order that restrict visitation to within the United States and that require Menachem either to reach a written agreement with Michelle or to apply for and obtain a court order concerning the application to take the child outside of the United States.

The district court deferred the question of posting a bond until visitation in Israel was possible. Because we have vacated the geographic restriction on visitation prior to D.J.G.S. turning age sixteen, the issue whether Menachem should post a bond and in what amount is ripe for determination. Michelle requests a bond of $30,000 because she would not have the financial resources to fight abduction of D.J.G.S. by Menachem, while Menachem requests no bond based on the district court's determination he earns only $14,950 per year, of which $6900 goes to child support. We remand this issue to the district court for determination.

Menachem requests that Michelle split the costs of having D.J.G.S. travel to Israel, either through direct payment by Michelle or through a reduction in Menachem's child-support payments, while Michelle asserts she lacks the resources to pay half the costs of transportation as she only makes $16,347 per year, plus child support. Because of the district court's restrictions on visitation until D.J.G.S. reached age sixteen, it did not address this issue. Based on our removal of the geographic restrictions on summer visitation, we remand this issue to the district court for determination.

Menachem next contends the court should have allowed him visitation for the two weeks of D.J.G.S.'s winter break from school. Menachem argues travel from Israel to Iowa is very expensive, and one week of visitation is not long enough for someone who has not been able to see their child for six months. Michelle agreed Menachem should be allowed visitation for the two weeks of winter break, so long as D.J.G.S. does not miss any school. We see no reason not to adopt the agreement of the parties. We modify the court's order to provide that Menachem shall have visitation with D.J.G.S. during the winter school break, but he must return D.J.G.S. when school resumes. If the winter break is longer than two weeks, Menachem's visitation shall be for the final two weeks of the school break.

Michelle requests appellate attorney fees in the amount of $3000. "An award of appellate attorney fees is within the discretion of the appellate court." Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). "Whether such an award is warranted is determined by considering '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. (citation omitted). Michelle claims this protracted litigation has cost her well over $35,000 in total attorney fees and she therefore deserves $3000 in appellate attorney fees. Based on the parties' nearly equal financial positions and our resolution of the issues, we determine no award of appellate attorney fees is appropriate. Costs of this appeal shall be taxed equally to both parties.