IN THE COURT OF APPEALS OF IOWA
No. 13-1773
Filed August 13, 2014
IN RE THE MARRIAGE OF BRIAN MARK ALLEN
AND KANDICE MARIE ALLEN
Upon the Petition of
BRIAN MARK ALLEN,
Petitioner-Appellee,
And Concerning
KANDICE MARIE ALLEN,
Respondent-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, Andrea J.
Dryer, Judge.
A mother appeals the district court’s modification of the dissolution decree.
AFFIRMED.
Luke D. Guthrie of Roberts, Stevens, Prendergast & Guthrie, P.L.L.C.,
Waterloo, for appellant.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.
Kandice Allen appeals a modification decree granting her ex-spouse
physical care of their child.
I. Background Facts and Proceedings
Brian and Kandice Allen married in 2005, had one child, and divorced in
2008. The parents stipulated to joint physical care of the child and the district
court approved the agreement. The stipulation provided that the child would be
with Brian half the week and Kandice the other half of the week.
After the decree was entered, Brian’s work hours changed. The parents
informally altered the stipulated schedule to accommodate his new hours.
During the marriage, the parents lived in Cedar Falls. In 2013, Brian
remarried and moved to his new wife’s home in a town eighty miles away. The
same year, he filed a petition to modify the physical care provision of the
dissolution decree. Following a hearing, the district court granted Brian’s request
for physical care of the child. Kandice appealed.
II. Analysis
Our standards for modifying the physical care provisions of a decree are
well-established:
[T]he applying party must establish by a preponderance of
evidence that conditions since the decree was entered have so
materially and substantially changed that the children's best
interests make it expedient to make the requested change. The
changed circumstances must not have been contemplated by the
court when the decree was entered, and they must be more or less
permanent, not temporary. They must relate to the welfare of the
children. A parent seeking to take custody from the other must
prove an ability to minister more effectively to the children’s well
being.
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In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
The district court determined Brian’s move constituted a permanent,
material and substantial change of circumstances not contemplated by the
parties when the dissolution decree was entered. Neither parent takes issue with
this determination. Cf. Iowa Code § 598.21D (2013) (stating court may consider
move of 150 miles or more a substantial change in circumstances). Kandice
focuses on the second prong: whether Brian can minister more effectively to the
child. See Frederici, 338 N.W.2d at 158. She contends (1) the district court
“minimized or downplayed significantly the detrimental consequences on [the
child’s] educational stability and continuity in awarding primary physical
placement to Brian,” and, (2) because she is “living in Cedar Falls, [she] can best
minister to the immediate long-term best interests of [the child].” Both arguments
implicate the child’s educational needs. We will address them together,
reviewing the record de novo.
The child had completed kindergarten and first grade by the time of the
modification hearing. As the district court found, he struggled in school. The
child’s kindergarten teacher testified she had concerns with his academic
progress and recommended retaining him in kindergarten the following year so
he could develop the foundational skills to progress. Kandice opposed this
recommendation and the child proceeded to first grade.
The child’s first grade teacher testified the child did not read at grade level
and had difficulty with writing and math. She also noted that the child’s progress
was impeded by poor attendance: thirty missed days and seventeen tardy days
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in first grade. She stated it was “important for children to be at school any day
that they [ ] possibly” could to “absorb [ ] some of the information.”
According to Brian, he was only responsible for six of the thirty absences,
with four of them being for doctor appointments. Kandice did not dispute this
testimony. That left the vast majority of missed or late days attributable to
Kandice, who acknowledged difficulties in getting the child “up and [] moving” and
stated she kept the child home if he was “extremely congested.”
Kandice did not recognize the import of her actions. She made light of two
truancy notices issued by the school, informing Brian they were “randomly
generated letters” that went “out to all [ ] parents.”
We recognize Kandice was proactive in addressing the child’s mental
health needs; she initiated play therapy to address his aggressive behaviors on
the playground and facilitated an evaluation for learning disabilities and the
formulation of an individualized education plan (IEP). But these commendable
measures did not change the fact that she was unable to ensure the child’s
regular attendance at school.
Brian, in contrast, was willing and able to get the child to school in Cedar
Falls, notwithstanding the eighty-mile commute. And, he was as committed to
play therapy and the IEP as Kandice. The primary concern with his assumption
of physical care was the change in school districts this would require.
The concern was not without justification. The child’s play therapist
testified that the child might have difficulty adjusting to a different location. A
school counselor seconded this opinion, stating the child required structure. And
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Kandice suggested the IEP they had worked so hard to formulate might not be
fully implemented in a different school system.
These very real concerns were mitigated by several circumstances. First,
the child would have been required to adjust to a new classroom and teacher had
he remained in Cedar Falls. Second, as the district court astutely observed, the
joint physical care arrangement required the child to make significant weekly
transitions from one home to another. Those transitions would be minimized with
the new arrangement. Finally, as the child’s play therapist noted, the IEP was
legally required to follow the child to a different school. This meant that, even
though the plan was formulated while the child was in the Cedar Falls school
district, the child would have the benefit of the same plan in his new school
district. Significantly, Brian’s new wife had experience navigating special needs
issues with this school district, having done so with one of her older children.
We conclude Brian could more effectively minister to the child’s
educational needs. This consideration supported the district court’s decision to
modify the decree to grant Brian physical care of the child.
We find it unnecessary to discuss the remaining considerations cited by
the district court in support of the modification decision. Suffice it to say that the
court found Brian to be the more stable parent in several other respects and the
court’s finding is supported by the record.
III. Attorney Fees
Brian seeks an award of appellate attorney fees. An award is
discretionary. See In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App.
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2007). Because Brian is employed and Kandice was unemployed at the time of
the modification hearing, we deny his request to have Kandice pay his fees.
AFFIRMED.