In re The Marriage of Jenkins

IN THE COURT OF APPEALS OF IOWA

No. 22-0656
Filed January 25, 2023

IN RE THE MARRIAGE OF JESSICA RAY JENKINS
AND TYREL JAMES JENKINS

Upon the Petition of
JESSICA RAY JENKINS,
Petitioner-Appellee,

And Concerning
TYREL JAMES JENKINS,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Bremer County, James Drew, Judge.

A former spouse appeals a decree of dissolution of marriage. AFFIRMED

AS MODIFIED AND REMANDED.

Terry D. Parsons of Olsen & Parsons Law Firm, Cedar Falls, for appellant.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, and Karen Thalacker of Correll, Sheerer, & Benson, Waverly, for

appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2

SCHUMACHER, Judge.

Tyrel Jenkins appeals the district court’s dissolution decree following his

failure to appear at trial. He contends the court’s decree exceeds the permissible

scope of relief, is not in the children’s best interest, and places too much authority

over visitation in the hands of his ex-wife, Jessica, and the parties’ children. He

also claims the court failed to follow the procedures set out in Iowa Code

chapter 598 (2021). We find Tyrel did not preserve error on his challenges

involving chapter 598. We also find the court did not exceed the permissible scope

of relief by granting Jessica sole legal custody. We determine the court should

have set a defined visitation schedule that does not delegate decision making

authority on Tyrel’s visitation to Jessica or the children. Finally, we determine the

conditions on Tyrel’s visits concerning substance use and testing should be

eliminated. Accordingly, we affirm as modified and remand.

I. Background Facts & Proceedings

Jessica and Tyrel married in 2005. They share four children, ages sixteen,

fourteen, eleven, and ten at the time of trial. Tyler has been previously convicted

of domestic abuse assault. The children lived with Jessica since the entry of a no-

contact order (NCO) in January 2021 that prohibited Tyrel from contacting her.1

The incident underpinning the NCO resulted in Tyrel again being criminally

charged with domestic abuse assault, although the outcome of that charge was

pending at the time of the dissolution trial. There were repeated violations of the

1The terms of the NCO were modified shortly after it was put in place to allow the
defendant access to some parts of the familial property. But the NCO was modified
again in June 2021 based on an incident where Tyrel entered the familial home
and obtained a handgun. The incident resulted in a contempt filing.
3

NCO. At trial, Jessica agreed that Tyrel had violated the NCO almost more times

than she could count. On one of Jessica’s audio exhibits, Tyrel states to Jessica,

“Fuck you and your restraining order. How good would it do if I fucking killed you

right now?” Additional audio recordings admitted at trial demonstrate a pattern of

abuse perpetrated by Tyrel, including one incident in 2018 where one of the

children called the authorities because Tyrel was physically harming Jessica. An

additional criminal charge was filed as a result of the violations.

Jessica petitioned to dissolve the marriage on April 16, 2021. Her original

petition sought joint legal custody and physical care. Tyrel’s acceptance of service

was filed May 20; he filed an answer as a self-represented litigant on June 6. His

answer did not specify what relief he was requesting. This is the only document

Tyrel filed before trial.2

Trial was held March 17, 2022. Tyrel failed to appear, resulting in the court

finding him in default.3 Jessica testified and submitted exhibits. Her testimony

mainly focused on Tyrel’s alcohol abuse and his perpetration of domestic violence

against her. Based on her testimony, the court allowed Jessica to amend her

petition to request sole legal custody.

The court entered the dissolution decree on the same day as trial. 4 It

granted Jessica sole legal custody and physical care. The court ordered that Tyrel

2 Contrary to the pretrial order, Tyrel did not file a financial affidavit, witness list, or
proposed exhibits.
3 In another example of a violation of the NCO, Tyrel contacted Jessica the day

before the trial and told her to advise her attorney to stop sending him emails, that
the trial was a joke, and that he could get the trial continued without any problems.
4 The district court ordered Jessica’s counsel to submit a proposed decree

following trial.
4

could visit the children once a week.5 But the decree provided that the children

were not required to participate in the visits. Tyrel was forbidden from consuming

any alcohol or illegal substances prior to or during the visits. Jessica was permitted

to request testing to prove sobriety. If he consumed those substances, the

visitation would immediately cease and the children would be returned to Jessica.

On April 14, Tyrel moved to set aside the default dissolution decree

pursuant to Iowa Rule of Civil Procedure 1.977. He filed a notice of appeal the

next day. The district court found that it lacked jurisdiction to rule on his motion

due to the notice of appeal.6

II. Discussion

Tyrel raises several claims on appeal. First, he contends the visitation

framework limits his visits and unduly puts the children in the middle of the parents’

disagreements. He also claims the court exceeded the permissible relief by

allowing Jessica to amend her petition at trial. Tyrel further claims the decree did

not meet the requirements of Iowa Code chapter 598, resulting in a record

insufficient for review.

A. Error Preservation

Jessica contends Tyrel has failed to preserve his claims because he did not

object at trial. “It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

5 While the decree also set out a holiday schedule, the decree also provided that
the children were not required to see their father on those holidays.
6 Jessica asks us to find Tyrel cannot renew his motion to set aside the decree

following this appeal. We decline to do so, as Tyrel’s decision to renew the motion
is hypothetical.
5

them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). She

argues because Tyrel failed to appear at trial, he could not preserve error on any

specific issues. However, “a defaulting party to a dissolution proceeding may seek

appellate review on the merits. But, our de novo review will generally be limited to

(1) scope of relief granted, and (2) equities of the decree as determined by an

examination of the entire record made at trial.” In re Marriage of Huston, 263

N.W.2d 697, 700 (Iowa 1978). Tyrel contests the visitation and custody provisions

of the decree, asserting it wrongly restricts his time with the children. He also

claims the relief exceeded the scope sought in the original petition. Thus, those

claims fall in the exception to our standard error preservation rules. However,

Tyrel’s claims alleging the court failed to comply with chapter 598 are procedural.

As a result, those procedural claims are not preserved, and we do not consider

them.

B. Did Relief Granted in the Decree Exceed the Permissible Scope?

Tyrel claims the decree exceeds the proper scope of relief because it

provided Jessica with sole legal custody despite her request for joint legal custody

in her original petition. We disagree. Iowa Rule of Civil Procedure 1.976 describes

the permissible relief upon a party defaulting: “The judgment may award any relief

consistent with the petition and embraced in its issues; but unless the defaulting

party has appeared, it cannot exceed what is demanded.” The second sentence

necessarily implies a corollary: If the defaulting party has appeared, the relief can

exceed what is demanded. Tyrel appeared and answered Jessica’s petition. The

court was thus free to award Jessica relief that exceeded her original petition, so
6

long as it was embraced in the petition’s issues.7 The matter of custody was firmly

within the realm of the issues embraced by the original petition—as is the case in

any dissolution, the court had to decide between joint and sole legal custody. See

Iowa Code § 598.41. We affirm the court’s order as it pertains to legal custody of

the children.

C. Are the Visitation Provisions Appropriate?

Tyrel contests the visitation provisions of the decree on multiple grounds.

First, he claims the court improperly delegated the authority to decide visitation to

Jessica and the children. Second, he contends the conditions placed on visitation

related to his sobriety are inappropriate. Finally, he claims the visitation provisions

are not in the children’s best interests because it places them in the middle of their

parents’ disputes. We review child visitation orders de novo. Swift v. Grabill,

No. 18-1926, 2019 WL 1958121, at *1 (Iowa Ct. App. May 1, 2019). Our primary

concern is the best interest of the children. Id. at *2.

We first address the visitation schedule. The district court ruled:

To the extent possible with a [NCO] currently in place, the parties will
cooperate in determining a visitation schedule that takes the wishes
of the children into consideration. The children are not required to
attend visitation with Tyrel but Jessica shall continue to encourage
the children to spend time with Tyrel at least once a week.

“The rule is well established in all jurisdictions that the right of access to one’s child

should not be denied unless the court is convinced such visitations are detrimental

7Jessica also suggests the court did not abuse its discretion when it granted her
motion to amend the original petition, therefore limiting the relief granted to what
her petition contained. However, because the court was free to grant relief beyond
the petition, we need not decide whether the court abused its discretion when it
allowed the amendments.
7

to the best interest of the child.” In re Marriage of Kanetomo, No. 19-2008, 2020

WL 5650593, at *3 (Iowa Ct. App. Sept. 23, 2020) (quoting Smith v. Smith, 142

N.W.2d 421, 425 (Iowa 1966)); see also Grabill, 2019 WL 1958121, at *2 (quoting

In re Marriage of Stephens, 810 N.W.2d 523, 531 (Iowa Ct. App. 2012)) (“It is well

established that the district court is the only entity that can modify a custody or

visitation order”). Thus, placing visitation at the discretion of either another parent

or the children is improper. Kanetomo, 2020 WL 5650593, at *3. Here, the court

improperly delegated authority to Jessica and to the children to determine whether

visitation would occur. We determine such delegation is in error, and we remove

it from the court’s decree.

Additionally, the court’s visitation schedule is insufficiently definite as to the

time Tyrel may visit with the children. “The feasible exercise of a parent’s right of

visitation should be safeguarded by a definite provision in the order or decree of

the court.” Id. (emphasis in original). Under the court’s decree, Tyrel is only

entitled to Jessica encouraging the children to visit him once per week. That is not

definite; indeed, it does not entitle him to anything beyond words from his ex-

spouse. Thus, we modify the decree to eliminate language delegating authority

on visitation to Jessica and the children.

The court also placed several restrictions on Tyrel’s visiting time related to

the use of alcohol and illegal substances. Tyrel was prohibited from consuming

such substances immediately prior to or during visits. If he was consuming those

substances, the visit is to immediately cease and the children shall be returned to

Jessica. If Jessica suspects Tyrel has consumed any substances, she can require

him to take an appropriate test of her choosing. Tyrel claims these restrictions are
8

unduly burdensome and place the children in the middle of the parents’ disputes.

Based on previous direction from our supreme court, we agree.

“Conditions related to proof of parental sobriety . . . are disfavored because

they are considered demeaning.” In re Marriage of Coutler, No. 02-0473, 2002

WL 31528589, at *2 (Iowa Ct. App. Nov. 15, 2002) (citing In re Marriage of Fite,

485 N.W.2d 662, 664 (Iowa 1992)). Such conditions are disfavored, in part,

because they permit the other parent to improperly restrict visitation. In re

Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct. App. 1994). Under the decree,

Jessica has the unitary power to cancel visits or compel Tyrel to take tests if she

suspects he has consumed alcohol. This provision is particularly unworkable

because there is a NCO between Tyrel and Jessica—it is unclear how she would

develop her suspicions without either one of the parties violating the order or

asking children to gauge their father’s sobriety, thereby putting them in the middle

of a visitation dispute.

We acknowledge that our appellate courts have occasionally found

conditions on visitation to be justified.

Where a father had once failed to return the children after visitation,
we approved a condition which prohibited him from removing the
children from the state of their residence during visitation. In re
Marriage of Smith,471 N.W.2d 70, 73 (Iowa App.1991). Also, where
a father admitted he had engaged in acts of exhibitionism, the
supreme court agreed conditions could be placed on his visitation
rights. Lamansky v. Lamansky, 207 N.W.2d 768, 772 (Iowa 1973).

Rykhoek, 525 N.W.2d at 4–5.

And visitation may be restricted if it will result in harm to either the children

or the other parent. See id. at 5; see also Iowa Code § 598.41(3)(i).
9

While the Department of Health and Human Services’ (DHHS) child abuse

assessments were unconfirmed as to abuse perpetrated by Tyrel, largely due to

the investigated altercations between Tyrel and Jessica occurring outside the

presence of their children, the exhibits offered at trial paint a different picture. On

at least two occasions, the children were present in the home. On one occasion,

the parties’ youngest daughter called 911 to report that her dad was hurting her

mom. Our review of this exhibit demonstrates that while Tyrel did not physically

harm the children, the emotional trauma was substantial.8 And Tyrel’s alcohol

consumption is concerning.

However, given the language in Fite discouraging the type of conditions

found in the instant decree and the existence of the NCO between Jessica and

Tyrel, we eliminate the language regarding the conditions on Tyrel’s visitation

concerning alcohol or substance usage and the language that permits Jessica to

determine whether Tyrel has been using alcohol or other substances and her

ability to request testing. 485 N.W.2d at 664 (“The district court was correct in

providing that [the father] should not be permitted visitation with [the child] if he has

been drinking excessively. We believe, however, that it is unwise to place in the

court’s decree any formal procedure for resolving this question or to formalize a

right to abort visitations based on the subjective belief” of another person). But we

also highlight other language present in Fite as follows: If Tyrel “behaves

8 We recognize that domestic violence in the home can have significant long-term
negative impacts on children even when they are not the target of the violence.
See, e.g., In re Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa 1997). However,
we do not think the children are in danger of physical abuse—which was generally
targeted at their mother—when visiting their father. This is so even in the absence
of such restrictions.
10

irresponsibly in the manner specified in the deleted conditions, his conduct may be

made the subject of further proceedings in the district court and may be grounds

for reduction or elimination altogether of his child visitation rights.” Id.

We modify the decree to eliminate the conditions on Tyrel’s visitation

concerning alcohol or substance usage and Jessica’s ability to request testing. We

remand to the district court for the sole purpose of establishing a set visitation

schedule for Tyrel and the children based on the existing record.

D. Attorney Fees

Jessica requests appellate attorney fees. 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.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005)

(citation omitted). Given the financial positions of the parties, we decline to award

Jessica appellate attorney fees. Given the financial we attorney

III. Conclusion

We affirm the dissolution decree in all respects except the visitation

provisions. On that portion, we modify the decree to eliminate the restrictions on

Tyrel’s visitation concerning alcohol or substance usage and Jessica’s ability to

request testing. We eliminate the provisions that allow visitation to take place at

the discretion of Jessica and the children. We remand for the district court to

establish a definite visitation schedule based on the existing record consistent with

this opinion.

AFFIRMED AS MODIFIED AND REMANDED.

Vaitheswaran, P.J., concurs; Greer, J., partially dissents.
11

GREER, Judge (concurring in part and dissenting in part).

With only one side of the story before it, I agree with how the district court

resolved concerns over visitation for Tyrel Jenkins, who failed to show for the trial

date in this dissolution-of-marriage case. So, I disagree with the majority over its

determinations that some of the decree’s provisions must be removed and the

case returned to the district court for further consideration. The majority remanded

to the district court to have it establish a set visitation schedule for Tyrel and the

children based on the existing record and removed conditions and requirements

over Tyrel’s alcohol consumption from the decree. Even so, we all agree that an

award of sole custody to Jessica is warranted here.

The record developed at trial included only information offered by Jessica,

as Tyrel did not attend the trial. But in none of his filings does Tyrel explain his

non-attendance. So, on our de novo review, I would find the district court’s

decision to be appropriate with a few tweaks.

First, the majority concluded the district court “improperly delegated

authority to Jessica and the children to determine whether visitation should occur.”

But I believe the district court set a definitive schedule. It did award Tyrel visitation

once each week and set out a holiday/special day schedule but qualified that the

children would be encouraged, not required, to go.9 So, here we have definite

provisions for visitation, just no enforceable means to require visitation. Cf.

Thompson v. Fowler, No. 17-0284, 2017 WL 6513973, at *2–3 (Iowa Ct. App.

9 Addressing a question about supervised visitation, Jessica confirmed that the
children would prefer not to be forced to go to visitation, but “if they have to see
him, it would be nice if someone was there.” It would then be appropriate on
remand for the district court to review this request, given the majority’s ruling.
12

Dec. 20, 2017) (finding that undefined visitation only given at the mother’s

discretion is an impermissible delegation of judicial authority by the district court

and reiterating that the “right of visitation should be safeguarded by a definite

provision in the order or decree” (citation omitted)). As a general statement we

typically disfavor placing visitation at the discretion of a parent or child. See In re

Marriage of Kanetomo, No. 19-2008, 2020 WL 5650593, at *3–4 (Iowa Ct. App.

Sept. 23, 2020) (modifying visitation provisions by setting out general time periods

for visitation that were not date specific and removing the child’s discretion to

attend); see also In re Marriage of Retterath, No. 14-1701, 2005 WL 6509105, at

*3–4 (Iowa Ct. App. Oct. 28, 2015) (removing condition that the father could

establish the “time, place, frequency, circumstances, nature and duration of any

communication or visitation” with the mother, but retaining the requirement that

visitations be supervised and remanding to set specific visitation parameters).

Thus, I agree with the majority that the option of the children to avoid visitation

should be removed from the decree, but I still believe conditions are necessary

under this record to terminate a visitation if Tyrel is intoxicated.

To me, disfavor does not imply total rejection. And in Smith v. Smith, 142

N.W.2d 421, 425 (Iowa 1966), while suggesting a district court should not make

visitation contingent on consent from one parent, the supreme court also qualified

the discretionary option by noting “the right of access to one’s child[ren] should not

be denied unless the court is convinced such visitations are detrimental to the best

interest of the child[ren].” (Emphasis added) (citation omitted).10 In Kanetomo,

10In Smith, the two older children (ages seventeen and nineteen) were not required
to attend visitations based upon their history with the father, and he did not seek
13

2020 WL 5650593, at *3, factors influencing the visitation were the father’s lack of

contact with the children and the mother’s failure to support his relationship with

the children. Unlike Kanetomo, here the district court addressed the safety and

health of the children by providing some discretion to the mother to terminate

visitation if Tyrel was consuming alcohol. This was an option selected, even

though other witnesses suggested only a supervised visitation format.11 From the

record at the trial, we know Tyrel had violated the no-contact order the day before

trial and was described as a potentially violent person, even pointing guns at

Jessica during disputes. Jessica’s testimony was as follows:

Q. Do you believe that he’s a danger to you? A. Yes.
Q. Do you believe he’s a danger to the children? A. Yes.
Q. Have many or most of these incidents occurred in the
presence of the children? A. Yes.
....
Q. And do you believe that Mr. Jenkins is an alcoholic?
A. Yes.
Q. And he drinks every day? A. Yes.
Q. And he is intoxicated, you believe, every day? A. Yes.
....
Q. And I mean, do you—do you believe it is possible that he
could kill you and the children and—or all of you? A. Yes.
....
Q. Is he violent only when he’s not [sic.] been drinking, or is
he also violent when he’s sober? A. Both.

visitation privileges as to them. 142 N.W.2d at 424. But as to the two younger
children (ages eight and ten), because the father had made significant changes to
his lack of emotional control, the court removed the requirement to let the mother
restrict visitations. See id.
11 It is not surprising that a parent’s excessive use of alcohol and intoxication might

make children afraid to be around them. See Noecker v. Cloyd-Hirz, No. 21-1447,
2022 WL 1664076, at *1 (Iowa Ct. App. May 25, 2022). Or that watching a parent
abuse the other parent, which is emotionally harmful, might chill the children’s
desire to visit the abuser parent. See In re Marriage of Daniels, 568 N.W.2d 51,
54–55 (Iowa Ct. App. 1997).
14

Further, Jessica produced evidence of Tyrel’s threat to disregard the no-contact

order to “kill her.” The majority rightly characterizes Tyrel’s behavior as a “pattern

of abuse.” The long-range negative implications for the children’s general well-

being resulting from a parent’s abusive behavior are presumptive. See Daniels,

568 N.W.2d at 54–55.

In particular, I disagree with the majority eliminating the language in the

decree that allowed Jessica to cancel visitation if Tyrel is intoxicated. See In re

Marriage of Fite, 485 N.W.2d 662, 664 (Iowa 1992) (eliminating language in the

decree setting out a formal procedure to resolve the question of sobriety or

allowing the child to abort visitation based upon the child’s subjective belief of

intoxication). I agree that the condition to take a test is not appropriate, but if

Jessica can determine that Tyrel has been drinking excessively, she should be

able to block or terminate the visit with the children for their safety. See id. (noting

“the district court was correct in providing that [the father] should not be permitted

visitation with [the child] if he has been drinking excessively”). And as pointed out

by the majority, with a no-contact order in place, Jessica’s ability to assess the

danger is difficult; thus, with the ages of the children here, it is appropriate to

consider their observations or require someone to supervise these visitations.

Evidence presented at the trial related observations of the children that their

father was passed out or extremely intoxicated. As a practical matter, Tyrel’s

behavior has placed the children in a position of having to gauge when it is unsafe

for them to be in contact. This behavior necessitated the children leaving Tyrel’s

care on their own since one child has a driver’s license. Likewise, one exhibit

described a motor vehicle accident when Tyrel hit a parked car while intoxicated
15

with the children in the vehicle. Thus, there are reasons to allow for conditions

over Tyrel’s alcohol consumption to protect the children. See In re Marriage of

Rykhoek, 525 N.W.2d 1, 5 (Iowa Ct. App. 1994) (concluding conditions may be

placed on a parent’s visitation rights “only when visitation without the placement of

conditions is likely to result in direct physical harm or significant emotional harm to

the child[ren]”). The conditions must be established with the best interests of the

children in mind. Id.

Given this record, I would find that the condition to refrain from alcohol use

and cancel visits because of it be kept in the decree with the option to terminate

visitation if the children report they feel unsafe or have observations similar to what

they have already experienced by way of extreme intoxication. I give deference to

the district court’s findings on this issue given its ability to assess Jessica’s

demeanor and testimony. See In re Marriage of Kirchoff, No. 01-0489, 2002 WL

571790, at *2 (Iowa Ct. App. Feb. 20, 2002) (giving deference to the district court’s

findings that restrictions on visitation, such as not drinking alcohol and supervision,

should be implemented).

I would affirm the district court on all provisions of the decree, except for the

delegation of decision over visitation to the children and the option for Jessica to

require testing for sobriety.