                  IN THE COURT OF APPEALS OF IOWA

                                 No. 18-1605
                          Filed September 11, 2019


IN RE THE MARRIAGE OF JOYCE CAROL GRIFFITH
AND SCOTT REID GRIFFITH

Upon the Petition of
JOYCE CAROL GRIFFITH,
      Petitioner-Appellee,

And Concerning
SCOTT REID GRIFFITH,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Emmet County, Don E. Courtney,

Judge.



      Scott Griffith appeals from the decree dissolving his marriage to Joyce

Griffith. AFFIRMED.




      Michael H. Johnson of Johnson Law Firm, Spirit Lake, for appellant.

      Matthew T.E. Early of Fitzgibbons Law Firm, L.L.C., Estherville, for

appellee.



      Considered by Mullins, P.J., and Bower and May, JJ.
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BOWER, Judge.

        Scott Griffith appeals from the decree dissolving his marriage to Joyce

Griffith. Scott argues the district court erred in failing to order continued conciliation

efforts, in finding Joyce was capable of establishing the breakdown of the

marriage, and in refusing to grant Scott’s motion to compel discovery of mental

health records. We affirm.

        Scott and Joyce were married on July 6, 1979. On May 25, 2017, Joyce

filed a dissolution petition. On July 5, Scott filed an answer denying there had been

a breakdown of the marriage relationship and prayed the court dismiss the petition

and order conciliation. Trial was scheduled for December 5.

        On November 17, counsel for Scott filed a motion to continue the trial and

order conciliation, noting Joyce had refused to voluntarily participate in conciliation.

Joyce resisted. Following a hearing, the court ordered conciliation and continued

the trial.

        On February 8, 2018, Scott filed a motion to enforce court-ordered

conciliation. Joyce responded, noting she had attended one meeting and the

conciliator had indicated she need not attend further conciliation sessions as they

would be futile. Later, Joyce filed an affidavit from Tina Friesner, Joyce’s daughter,

who opined further conciliation or counseling sessions were not in Joyce’s best

interest: “My mother suffers from dementia and has indicated to me that she never

wants to see Scott Griffith again and is in fear of him. She gets very tearful and

upset when we discuss the possibility of continued counseling sessions with her

husband.” Also filed was a letter from the person selected by Scott to be the

conciliator, Chelsi Jahn, who wrote she met with Joyce on December 28, 2017,
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and Joyce stated “she wishes to get divorced and she has felt this way for a long

time” and she no longer wanted to attend sessions.

       On March 1, Scott filed a motion to compel discovery of Joyce’s medical

records for the past five years.      Joyce resisted, asserting the motion was

technically deficient and without merit.

       The district court denied the motions to compel further conciliation and to

compel discovery.

       Trial was held on March 20. Scott asked that the court find Joyce was not

competent to request dissolution due to dementia. Joyce and Scott both testified.

Joyce stated she wanted a dissolution of the marriage and there had been a

breakdown of the marriage.      Scott testified it was not Joyce’s desire but the

dementia speaking. The court accepted Joyce’s testimony as credible and found

there had been a “breakdown of the marriage relationship to the extent that the

legitimate objects of matrimony have been destroyed, and that there remains no

reasonable likelihood that the marriage can be preserved.” A decree of dissolution

was entered, incorporating the parties’ stipulated property division. Scott appeals.

       We review dissolution proceedings de novo. In re Marriage of McDermott,

827 N.W.2d 671, 676 (Iowa 2013). Nonetheless, we give weight to the findings of

the trial court, particularly with respect to credibility determinations. Iowa R. App.

P. 6.904(3)(g).

       Scott first contends the court erred in failing to order continued conciliation

efforts. Because an initial order of conciliation had already been entered, we look

to Iowa Code section 598.16(3) (2018), which states, “At any time upon its own

motion or upon the application of a party the court may require the parties to
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participate in conciliation efforts for sixty days or less following the issue of such

an order.” The emphasized language indicates the district court has discretion in

conciliation matters following the initial order of conciliation.1 Conciliation efforts

were ordered. Joyce attended one session and decided she did not wish to

proceed with further efforts. We find no abuse of discretion in the district court’s

order denying Scott’s motion to compel further conciliation.

        Next, we turn to Scott’s claim the court erred in denying his motion to compel

discovery of Joyce’s medical records. “Discovery decisions are typically reviewed

for [an] abuse of discretion.” Ashenfelter v. Mulligan, 792 N.W.2d 665, 668 (Iowa

2010). “Mental health and medical records are protected by a constitutional right

to privacy.” Id. at 672. We find no abuse of discretion in the court’s denial of

Scott’s motion to compel discovery of Joyce’s medical records. See id. (“This is a

civil case. Iowa Rule of Civil Procedure 1.503 prohibits discovery of privileged

materials. Therefore, because the medical records are privileged materials under

section 622.10, they are not discoverable under rule 1.503.”); see also In re

Marriage of Mulligan, No. 10-1752, 2011 WL 2420005, at *6 (Iowa Ct. App. June

15, 2011) (noting the only type of civil case Ashenfelter may have left open the

ability to order disclosure of medical and mental health records for is a child-in-

need-of-assistance action).


1
  Pursuant to subsection 2—until July 1, 2019—a conciliation order was mandatory when
requested by either party during a specific timeframe. Iowa Code § 598.16(2); see In re
Marriage of Schroeder, 393 N.W.2d 808, 809 (Iowa 1986) (statutory language—“court
shall require parties to participate”—imposes a duty). However, Iowa Code section
598.16(2) recently has been amended: “The court may on its own motion or upon the
motion of a party require the parties to participate in conciliation efforts for a period of sixty
days or less following the issuance of an order setting forth the conciliation procedure and
the conciliator.” 2019 Iowa Acts, ch. 63 §1 (codified at Iowa Code § 698.16(2)) (effective
July 1, 2019) (emphasis added).
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       Upon our de novo review, we find Joyce has established the necessary

breakdown of the marital relationship. We affirm the entry of the decree dissolving

the parties’ marriage.

       Joyce requests an award of appellate attorney fees. “Appellate attorney

fees are not a matter of right, but rather rest in this court’s discretion.” In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We consider “the needs

of the party seeking the award, the ability of the other party to pay, and the relative

merits of the appeal.” Id. (citation omitted). Joyce’s request for attorney fees is

denied.

       AFFIRMED.
