                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1034
                               Filed May 17, 2017


IN RE THE MARRIAGE OF STEPHANIE KAY MAKELA
AND WAYNE L. MAKELA

Upon the Petition of
STEPHANIE KAY MAKELA,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
WAYNE L. MAKELA,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Mark D. Cleve,

Judge.



      A mother appeals and a father cross-appeals the child-custody and

visitation provisions of the district court’s dissolution decree. AFFIRMED.



      David M. Pillers of Pillers & Richmond, DeWitt, for appellant/cross-

appellee.

      Dawn D. Long of Howes Law Firm, P.C., Cedar Rapids, for

appellee/cross-appellant.



      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VOGEL, Judge.

          Stephanie Makela appeals the visitation provisions of the decree that

dissolved her marriage to Wayne Makela. Stephanie claims the district court

incorrectly granted Wayne the right to contact the children while he is

incarcerated. Wayne claims the district court should not have granted Stephanie

sole legal custody of the children and wrongly determined Iowa Code section

598.41A(2) (2015) requires he have no in-person visits with the children while he

remains incarcerated.

          I.     Background Facts and Proceedings

          Stephanie and Wayne were married in 2011 and made their family home

in Wisconsin. Stephanie worked as a patient care coordinator for a healthcare

company, and Wayne worked as a youth director, teacher, and coach at a private

religious school. Stephanie and Wayne are the parents of two children, who

were three and one-half years old and sixteen months old at the time of trial. The

younger child was born after Wayne was arrested and has never lived with

Wayne.

          On July 2, 2014, Wayne was arrested and charged with multiple sex

crimes involving a minor.1 On November 7, 2014, Wayne entered a no-contest

plea to one count of sexual assault of a child in the second degree, in violation of

Wisconsin Statutes section 948.02(2) (2013-14), and one count of exposing a

child to harmful material, in violation of Wisconsin Statutes section 948.11(2)(a).

On January 16, 2015, Wayne was sentenced to six years in prison and six years

of extended supervision.

1
    The charges did not involve the parties’ children.
                                        3


      Due to Wayne’s arrest and conviction, Stephanie sold the marital home

and moved in with her parents in Iowa. Initially following Wayne’s arrest, the

parties agreed to stay married and keep the family intact. While Wayne was in

jail awaiting sentencing, the parties communicated regularly, mainly through

letters and cards, although Stephanie brought the children to visit him on one

occasion. Stephanie remained supportive of Wayne and wanted him to maintain

a relationship with the children. In a letter she wrote to the Wisconsin sentencing

court prior to sentencing, Stephanie stated:

      I want nothing more than for Wayne to have the opportunity to hug
      and kiss them every day, spend time teaching them how to throw a
      baseball, how to go fishing, and to teach them how to ride a bicycle,
      among countless other activities for fathers and sons. . . . I want
      our boys to grow up with their daddy and see that he was a big part
      of their childhood.

      Despite her initial support for Wayne, Stephanie became increasingly

concerned about Wayne’s situation and petitioned for dissolution of the marriage,

seeking sole legal custody of the children. In determining the issue of legal

custody, the district court raised concerns about Wayne’s ability to participate in

the children’s lives, his judgment based on his past conduct, and his ability to

timely and accurately assess the facts needed to make legal decisions for the

children while in prison. Ultimately, the court determined clear and convincing

evidence supported granting Stephanie sole legal custody.

      In addressing the issue of visitation, the court concluded Wayne’s

conviction for second-degree sexual assault on a minor in Wisconsin constituted

a sex crime for purposes of Iowa Code section 598.41A(2), which provides:

“Notwithstanding section 598.41, an individual who is a parent of a minor child
                                         4


and who has been convicted of a sex offense against a minor as defined in

section 692A.101, is not entitled to visitation rights while incarcerated.”

(Emphasis added.) In construing this provision, the district court stated:

        The Court further determines that Iowa Code section 598.41A
        requires that [Wayne] shall not have any in person, telephonic, or
        other interactive visitation with the minor children of the parties
        until he is released from prison and has otherwise satisfied the
        requirements of Iowa Code section 598.41A(2).

(Emphasis added). However, following Wayne’s motion to amend and enlarge,

the court determined that section 598.41A(2) only precluded in-person visitation

and amended its ruling. The court allowed Wayne weekly telephone calls with

the children, along with permission “to send correspondence, photos and

recordings,” with Stephanie’s ability to monitor both the telephone calls and the

content of mailings. Stephanie appeals seeking to prohibit all contact between

Wayne and the children while Wayne remains incarcerated; Wayne cross-

appeals seeking in-person visitation and joint legal custody.

       II.    Standard of Review

       We review dissolution cases de novo, giving “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).            However, when the

issues raised on appeal require the interpretation of a statute, our standard of

review is for the correction of errors at law. In re Marriage of Thatcher, 864

N.W.2d 533, 537 (Iowa 2015); In re A.J.M., 847 N.W.2d 601, 604 (Iowa 2014).

       III.   Wayne’s Contact with the Children

       Stephanie claims the district court should not have permitted Wayne to

have telephone contact and correspondence with the children. She asserts this
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contact amounts to visitation, which she claims Wayne is not entitled to while he

is incarcerated under section 598.41A(2).          Wayne argues the district court

incorrectly concluded it had no ability to order in-person visitation under the same

code section.

                A.     In-person visits

         In determining visitation rights, the best interest of the children is the

primary concern. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App.

1992). In general, upon the dissolution of a marriage, after determining physical

care, our courts order:

         liberal visitation rights where appropriate, which will assure the child
         the opportunity for the maximum continuing physical and emotional
         contact with both parents after the parents have separated or
         dissolved the marriage, and which will encourage parents to share
         the rights and responsibilities of raising the child unless direct
         physical harm or significant emotional harm to the child, other
         children, or a parent is likely to result from such contact with one
         parent.

Iowa Code § 598.41. Therefore, in most circumstances, the parent who is not

granted physical care is “entitled” to liberal visitation to achieve these statutory

goals. However, section 598.41A(2) adds another layer to the visitation analysis

when one parent is incarcerated after being convicted of a sex offense against a

minor:

         an individual who is a parent of a minor child and who has been
         convicted of a sex offense against a minor as defined in section
         692A.101, is not entitled to visitation rights while incarcerated.
         While on probation, parole, or any other type of conditional release
         including a special sentence for such offense, visitation shall be
         denied until the parent successfully completes a treatment program
         approved by the court, if required by the court. The circumstances
         described in this subsection shall be considered a substantial
         change in circumstances.
                                          6


(Emphasis added.)

       Wayne argues that while the plain language of 598.41A(2) does not

“entitle” him to visitation neither does it say he “shall not” have court-ordered in-

person visitation rights.

       We agree with the district court that section 598.41A(2) eliminates the

district court’s ability to order in-person visitation. To follow Wayne’s reasoning,

we would need to give only passing consideration to the plain language which

states, “is not entitled to” visitation and then insert a discretionary measure to

allow such visits.   While section 598.41 encourages liberal visitation, section

598.41A(2) carves out a specific situation—when a parent is incarcerated after

being convicted of a sex crime against a minor—and explicitly sets aside the

general rule espoused in section 598.41.           See Iowa Code § 598.41A(2)

(“Notwithstanding section 598.41, . . . .”). If, under normal circumstances, a

noncustodial parent is “entitled to” visitation rights, the effect of the language “not

entitled to,” for a parent in Wayne’s circumstances, is to remove the entitlement

to visitation.

       Wayne further argues that such a plain reading of the statute—not

allowing court ordered visitation under section 598.41A(2)—is incongruous with

section 598.41B(1)(b), which prohibits a court from awarding “visitation rights to a

child’s parent who has been convicted of murder in the first degree of the child’s

other parent, unless the court finds that such visitation is in the best interest of

the child.” In making this argument Wayne omits a crucial phrase contained in

that statute that is absent from section 598.41A(2).          Section 598.41B(1)(b)

prohibits a court from awarding “visitation rights to a child’s parent convicted of
                                         7

murder in the first degree of the child’s other parent, unless the court finds that

such visitation is in the best interest of the child.” (Emphasis added.) Section

598.41B(2) shifts the focus away from the rights of the incarcerated parent and

focuses instead on the child by outlining the criteria a court is to use in

determining whether visitation is in the child’s best interest. By contrast, section

598.41A(2) does not contain a “best interest” exception, nor does it contain any

criteria by which a court could determine whether visitation rights for a parent

incarcerated after being convicted of a sex crime against a minor would be in the

child’s best interest. If the legislature intended a best interest exception to apply

in section 598.41A(2), it could have included it.      See Swiss Colony, Inc. v.

Deutmeyer, 789 N.W.2d 129, 137 (Iowa 2010) (“[W]e must base our

interpretations on what the legislature did, not on what it might have done or

should have done.”). Absent such a caveat, the language of section 598.41A(2)

plainly does not provide for court-ordered visitation for a parent incarcerated for a

sex offense against a minor.

       Moreover, the legislative history of section 598.41A indicates the

legislature intended to prevent district courts from ordering visitation when a

parent was incarcerated after being convicted of a sex crime against a minor.

See Gardin v. Long Beach Mortg., 661 N.W.2d 193, 198 (Iowa 2003) (“We start

with the often-repeated goal of statutory interpretation which is to discover the

true intention of the legislature.”).   Until amended in 2013, section 598.41A

included only one subsection: “Notwithstanding section 598.41, the court shall

consider, in the award of visitation rights to a parent of a child, the criminal

history of the parent if the parent has been convicted of a sex offense against a
                                          8

minor as defined in section 692A.101.” See Iowa Code § 598.41A (2011). The

legislature amended the statute and enumerated that clause as subsection (1)

and added subsection (2) in 2013. The amendment evinces an intent on the part

of the legislature to contrast the criminal history of sex crimes against a minor by

a parent under subsection (1) with the current incarceration of the parent

convicted of such crimes under subsection (2).            The former is a criminal

background consideration; the latter speaks to the current incarcerated situation.

We conclude a plain reading of section 598.41A(2) (2015) precludes the district

court from ordering visitation rights when a parent is incarcerated after being

convicted of a sex crime against a minor. Wayne’s cross-appeal of this issue is

affirmed.2

               B.    Other contact

       Next, we address Stephanie’s appeal, which claims the district court

should not have allowed Wayne to have telephone contact and correspondence

with the children while incarcerated. Stephanie claims such contact is “extended

visitation” and is prohibited by the broad language of section 598.41A(2), that

Wayne is “not entitled to visitation rights while incarcerated.”

       Section 598.41A does not define “visitation,” nor is the term defined in any

other part of chapter 598. However, we do not believe telephone contact and

other correspondence necessarily falls within the plain and ordinary meaning of

visitation.   See State v. Ahitow, 544 N.W.2d 270, 272 (Iowa 1996) (“Absent

legislative definition or a particular and appropriate meaning in law, we give

2
 We note however, nothing in Iowa Code section 598.41A(2) precludes the physical
care parent from voluntarily offering in-person visitation to the incarcerated parent
absent any no-contact order which may be in effect.
                                        9


words their plain and ordinary meaning.”). We consider the plainest meaning of

“visit” in the context of child custody is “to go to see or stay at (a place) for a

particular purpose.”     Visit, Webster’s New Collegiate Dictionary (1981).

Telephone calls and correspondence, on the other hand, are better seen as

simply “contact.”

      We do not read section 598.41A(2)—“not entitled to visitation”—to

necessarily prohibit all communication between a parent and the children. The

section does not explicitly state such intent and clearly contemplates the

opportunity for full restoration of the parent-child relationship (presumably upon

the convicted parent’s release from prison and completion of a treatment

program). If the ultimate goal of maintaining the parent-child relationship is to

have any chance for success, the district court must have some discretion in

setting the parameters of communication. In her letter to the sentencing court,

Stephanie acknowledged that she wanted Wayne to have a relationship with the

children. While her thinking has certainly evolved since then, she testified she

wishes her children could have a relationship their father, Wayne is respectful in

his communication with her, the children are unaware of his crimes, she has no

reason to believe Wayne harmed the children, and Wayne’s correspondence with

the children has not been inappropriate. Evaluating these facts in light of section

598.41A(2)’s intent to maintain the possibility of a parent-child relationship and

considering the best interest of the children, we conclude the district court

complied with section 598.41A(2), while also allowing some communication to

foster the potential of an eventual restoration of the parent-child relationship.
                                         10


Accordingly, we reject Stephanie’s appeal and affirm the district court’s order

regarding telephone calls and correspondence.

       IV.    Sole Legal Custody

       Wayne also cross-appeals on the issue of sole legal custody being

granted to Stephanie. He claims the district court erred in finding clear and

convincing evidence joint legal custody was unreasonable and not in the

children’s best interest.

       Iowa Code section 598.41(2)(b) provides:

       If the court does not grant joint custody under this subsection, the
       court shall cite clear and convincing evidence, pursuant to the
       factors in subsection 3, that joint custody is unreasonable and not
       in the best interest of the child to the extent that the legal custodial
       relationship between the child and a parent should be severed.

Subsection 3 lists several factors to be considered in making the custody

determination. Iowa Code § 598.41(3)(a)–(j). In ruling on the issue of sole legal

custody, the district court stated:

       As a result of his arrest and incarceration, he has been unable to
       play an active role in the life of the parties’ younger son. The Court
       notes that the parties have the capacity to communicate regularly
       and frequently about the children, although as a practical matter the
       bulk of that communication would have to take place by mail. The
       Court has also taken into consideration each party’s stated wishes
       for legal custody, and the grounds urged in support of those
       positions. The Court also has some concern regarding [Wayne’s]
       judgment as it may pertain to child custody issues, given his past
       conduct, although that concern may be allayed in the future upon
       [Wayne’s] completion of sex offender treatment. The Court has
       also taken into consideration the geographical proximity of the
       parents and [Wayne’s] very limited ability to assess the facts “on
       the ground” that may relate to decisions on different courses of
       action involving the children, due to his incarceration.

       Upon our de novo review, we agree with the district court Stephanie

proved by clear and convincing evidence joint legal custody was unreasonable.
                                         11


Stephanie has shown herself to be a responsible caregiver, who is attentive and

responsive to her children’s needs. Meanwhile, Wayne’s actions, which he takes

responsibility for, have rendered him only minimally able to participate in his

children’s lives. He has not been able to actively care for the children since his

arrest and has only seen the younger child once since he was born. See Iowa

Code § 598.41(3)(a), (d). Additionally, his criminal actions demonstrated poor

judgment when it comes to the care of minors. See id. § 598.41(3)(a), (i). When

the questions about his judgment are combined with his incarceration and his

relative isolation from the children, it is clear that he is not currently capable of

making the decisions required of a child’s legal custodian.              See id. §

598.41(3)(h). Thus, we affirm the district court’s grant of sole legal custody to

Stephanie.

       V.     Attorney Fees

       Both parties seek an award of appellate attorney fees. Whether to award

attorney fees on appeal is left to our discretion. Markey v. Carney, 705 N.W.2d

13, 26 (Iowa 2005). “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. (quoting In re Marriage of Ask, 551

N.W.2d 643, 646 (Iowa 1996)). Considering these factors, we decline to award

attorney fees to either party.

       VI.    Conclusion

       Because we conclude section 598.41A(2) precludes in-person visitation

rights for Wayne but does not prohibit all communication, we affirm the district
                                        12


court’s denial of visitation rights and permission for telephone contact and

correspondence. Because we agree Stephanie proved by clear and convincing

evidence joint legal custody was unreasonable, we affirm the district court’s grant

of sole legal custody to Stephanie.

      AFFIRMED.
