IN THE COURT OF APPEALS OF IOWA
No. 15-0350
Filed February 24, 2016
IAN GREGORY CHRISTY,
Petitioner-Appellee,
vs.
ABBEY SUE LENZ, n/k/a
ABBEY SUE BRO,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Richard B. Clogg,
Judge.
A mother appeals the district court’s modification of the visitation, legal
custody, and child support provisions of a paternity decree. AFFIRMED.
Eric Borseth of Borseth Law Office, Altoona, for appellant.
Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West
Des Moines, for appellee.
Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.
Abbey Sue Lenz, now known as Abbey Sue Bro, appeals the district
court’s modification decision that altered the visitation, legal custody, and child
support provisions of the paternity decree. Abbey asserts (1) the district court
erred in finding a change of circumstances exists to justify the modification of
visitation and legal custody; (2) the father, Ian Christy’s, proposed visitation
schedule and proposed language for the legal custody provision are not in the
child’s best interest; (3) the court should not have changed the parent
responsible for carrying health insurance for the child to Ian; and (4) the child
support ordered by the district court does not follow the guidelines. Abbey also
asserts the court abused its discretion in denying her request for trial attorney
fees, and she requests an award of appellate attorney fees. Ian defends the
actions taken by the district court and also requests an award of appellate
attorney fees. Having considered the claims made on appeal, we affirm the
district court’s modification decision and award Ian $2000 in appellate attorney
fees.
I. Background Facts and Proceedings.
Ian and Abbey are the parents of a six-year-old child. In 2009, the court
entered an original paternity decree, placing the child in Abbey’s care subject to
Ian’s visitation, granting the parties joint legal custody, ordering child support,
and directing Abbey to provide health insurance for the child with an additional
monthly payment from Ian for cash medical support. At that time both Abbey and
Ian were attending school and were minimally employed. Since the decree was
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entered, Abbey has married, changed jobs, moved residences, and given birth to
another child. Ian has graduated college, moved residences, gotten engaged,
and become employed full time with a job that provides health benefits.
Ian filed a petition to modify the prior decree’s child support amount, the
visitation schedule, the language of the legal custody provision, and the health
insurance requirement. While Abbey agreed some minor changes should be
made, she otherwise objected to the modification action. After hearing from both
parties, the court granted Ian’s modification petition, expanding Ian’s time with
the child during weekly visitation, modifying the holiday visitation schedule,
granting an additional week of summer visitation, ordering Ian to provide health
insurance for the child, increasing the child support amount, and denying both
parties’ request for trial attorney fees. From this order, Abbey appeals.
II. Scope and Standard of Review.
Our review of a modification proceeding is de novo in light of the fact the
case was heard in equity. In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct.
App. 2009). “We therefore give weight to the fact findings of the trial court,
especially when considering the credibility of witnesses, but are not bound by
them.” Id. We give deference “because the trial court has a firsthand opportunity
to hear the evidence and view the witnesses.” Id.
III. Change in Circumstances.
Abbey first asserts there was not a change in circumstances sufficient to
justify the change in the visitation schedule or in the language of the legal
custody provision of the original decree. She maintains the current
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circumstances were anticipated and planned for in the original decree, and
therefore, Ian failed to satisfy his burden of proof in the modification action.
As Ian sought the modification of the visitation schedule, he “must
establish by a preponderance of evidence that there has been a material change
in circumstances since the decree and that the requested change in visitation is
in the best interests of the children.” In re Marriage of Salmon, 519 N.W.2d 94,
95–96 (Iowa Ct. App. 1994). “[A] much less extensive change in circumstances
is generally required in visitation cases” than the change necessary to modify
child custody. Id. at 96. “The rationale for this lower standard is found in the
prevailing principle that the best interests of children are ordinarily fostered by a
continuing association with the noncustodial parent.” Id.
The visitation provision of the paternity decree provided for expanded
visitation as the child entered school. However, what was not anticipated when
the original decree was entered was Abbey’s refusal to accommodate Ian’s
reasonable requests for minor departures from the terms of the decree along with
her inability to communicate important information regarding the child to Ian.
Abbey refused to accommodate Ian’s request to switch weekends in May 2014
so that the child could attend Ian’s college graduation and Ian’s brother’s
wedding, despite the fact Ian asked for the accommodation months in advance.
When asked about the reason she refused to accommodate the request for Ian’s
graduation, Abbey testified she originally agreed Ian could have the child for a
few hours that Saturday, but she refused to permit the visit at all when Ian would
not switch with her the day that she wanted. As to Ian’s brother’s wedding,
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Abbey testified it was over Memorial Day weekend and she had “plans,” although
she could not remember what those plans were at the time of the trial. The child
originally was to participate in the wedding but was denied that opportunity. It is
unclear why the parties could not have switched the weekend visitations in May
of that year.
In addition, when visitations were cut short due to weather, Abbey refused
to cooperate to permit Ian to make up the missing time with the child. Abbey
denied any requests for extra time. Finally, the evidence established Abbey
manipulated the summer visitation schedule to maximize the time the child was
away from Ian.
While Abbey claims there has not been a material change in
circumstances to justify the visitation modification, she admitted “some
adjustments” in the schedule would be beneficial to the child. Her proposed
“adjustment” would be to eliminate the midweek visit, which would result in Ian
not seeing the child for nearly two weeks. Abbey conceded she would not like to
have this schedule imposed on her and agreed the child would not like her
proposed schedule either.
We agree with the district court’s decision to modify the visitation schedule
in light of the change in circumstances brought about by Abbey’s refusal to be
flexible in accommodating Ian’s reasonable requests for minor alterations to the
schedule. The change made by the district court increases Ian’s time with the
child and furthers our “prevailing principle that the best interests of children are
ordinarily fostered by a continuing association with the noncustodial parent.” See
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id. Notwithstanding the new visitation schedule—with all its detail—we
encourage the parties to consider the best interests of the child and be flexible in
adjusting visitation times to accommodate special events.
Abbey likewise maintains there was not a substantial change in
circumstances sufficient to justify modifying the language in the joint custody
provision of the original decree. See Brown, 778 N.W.2d at 51 (“The custodial
terms of a dissolution decree may be modified only when there has been a
substantial change in circumstances . . . .”). While Abbey asserts the higher
burden of proof is applicable to Ian’s request to modify the language in the joint
custody provision, Ian did not seek to change who would be the child’s custodial
parent. Instead, he merely sought for the court to further clarify and define what
the court meant in the original decree when it awarded the parties joint legal
custody. A party need not demonstrate a change in circumstances when the
party seeks only to clarify the terms of the dissolution decree. See In re Marriage
of Russell, 559 N.W.2d 636, 637 (Iowa Ct. App. 1996) (“A decree for dissolution
of marriage is susceptible to interpretation in the same manner as other
instruments.”); see also Orvedal v. Orvedal, 669 N.W.2d 89, 91–92 (N.D. 2003)
(“When a divorce decree fails to specify some particulars, and uncertainties in
the decree arise from subsequent events, clarification of the decree is often
appropriate.”); Lassiter v. Lassiter, Nos. C-020494, C-020370, C-020128, 2003
WL 21034193, at *2 (Ohio Ct. App. May 9, 2003) (noting the parent was not
seeking a modification but rather a clarification of the decree and so the parent
did not have the burden to show a change in circumstances); Rivard v. Rivard,
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451 P.2d 677, 679 (Wash. 1969) (noting a modification occurs when visitation
rights are extended or reduced but a clarification of the decree “is merely a
definition of the rights which have already been given and those rights may be
completely spelled out if necessary” and a party need not show a change in
circumstances to obtain a “clarification” of the decree). We thus conclude Ian
need not show a change in circumstances, material or substantial, in order for
the district court to clarify the terms of the joint legal custody provision of the
paternity decree.
The original decree provided:
CUSTODY: The parties will share joint legal custody of [the
child]. Joint legal custody means an award of the rights of legal
custody of a minor child to a parent under which a parent has legal
custodial rights and responsibilities toward the child. The rights
and responsibilities of legal custody include, but are not limited to,
decision making effecting the child’s legal status, medical care,
education, extra-curricular activities, and religious instruction.
Ian testified Abbey does not provide him with the needed information
regarding the child, has given him untimely information, and has given him
misinformation as well. Ian was not informed the child had started preschool for
several months and did not know which preschool the child was attending until
he called various preschools in town to locate the correct one. When he did
make contact with the correct preschool, the school had no record of Ian as the
child’s father. Ian was not promptly provided notice of events and activities that
were taking place at the preschool. It was not until a week before the child
started kindergarten that Abbey informed Ian of the school the child would be
attending, and she did not provide Ian with the child’s teacher’s information.
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Ian was not made aware that Abbey was moving the child to live in
another town until the day of the move when she directed him to drop off the
child at the new address following his visitation. Ian testified he has been
informed of only one doctor’s appointment for the child since the child was
born—the child’s six-month check-up—and Abbey gave him the wrong time to
meet at the doctor’s office.
Abbey disputes this testimony, claiming she has informed Ian of all of the
child’s medical appointments and medications by leaving messages on his voice
mail or sending him text messages. She admitted to providing Ian no information
regarding the school activities for the child because she claimed Ian told her he
would be obtaining that information directly from the school.
Ian testified that laying out the obligations of a joint legal custodian in more
detail would help the parties understand what it means and would provide the
parties direction as to what information must be provided. The new joint legal
custody provision provides:
Joint Legal custody means the following:
a. Both parties shall have legal access to information
concerning the children including, but not limited to, medical,
educational, and law enforcement records.
b. Both parties shall participate equally in the rights and
responsibilities of legal custodians including, but not limited to,
decisions affecting the children’s legal status, medical care,
education, extracurricular activities, and religious training.
Specific discussion and agreement involving medical matters
include, but are not limited to, both parents providing notice and an
opportunity for discussion to be involved in all medical treatment of
the minor children. Both parties will be notified of all pre-planned
appointments as soon thereafter as the appointment is made. Both
parties will be notified of any emergency medical needs as soon as
possible.
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Involvement in educational matters will include notice and an
opportunity to consult and discuss all matters of educational
interest. Both parties will be notified by the other of school
conferences, programs, open houses, and other school sponsored
events and programs. The primary care parent will provide the
non-physical care parent with a calendar of events and copies of all
notices, report cards, and other progress reports from the school.
Involving extracurricular activities, the parties will notice each
other and provide an opportunity for discussion and consulting in
enrollment and participation of all extracurricular activities.
c. As a general rule, both parties will be named on all legal
notices, including school, medical, and extracurricular activities
wherein it is required to note a parent or other individual as a
person to notice in the event of an emergency. Such notice will
include their name, address, and telephone number.
In light of Abbey’s admitted failure to provide Ian with information concerning the
child’s medical and educational well-being, we agree the district court was
justified in providing a more detailed definition of the parties’ obligations as joint
legal custodians.
IV. Best Interests of the Child.
Next, Abbey claims the changes made to the visitation schedule are not in
the child’s best interests. She contends the new schedule is complicated,
contradictory, and results in constant modifications, which will result in the child
feeling confused and unstable.1 Upon our review of the new visitation schedule,
we do not see its complexity or contradictory nature. Abbey claims the new
holiday schedule complicates the entire visitation routine and creates a conflict
1
She also faults the district court for adopting Ian’s proposed visitation schedule “word
for word.” We note the modification decision is not a “whole sale” adoption of a party’s
proposed decision but contains only selected portions of Ian’s modification request
pertaining to the visitation schedule and joint legal custody language. See In re
Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct. App. 1996). Even if the district court
copied from Ian’s modification request, “[w]e do not apply a separate standard of review
on appeal from a decree prepared by counsel. Moreover, in equity actions such as this
we review the evidence anew, disconnected, ultimately, from the trial court findings.” Id.
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for every weekend. We disagree. A simple application of the schedule to a
calendar will provide the parties and the child the prediction they need for
planning purposes. Abbey’s proposed elimination of the midweek visitation is
inequitable to Ian and not in the child’s best interests as this would result in the
child not seeing Ian for up to two weeks at a time—a schedule Abbey conceded
at trial she would not like to have imposed on her and a schedule the child would
not like either.
Abbey likewise asserts the change to the joint custody language is not in
the best interests of the child. She maintains Ian should just be happy with the
information she has provided him over the years, and she claims it is his
expectations and attitude that are the problem with the parties’ lack of
communication. She claims there was not a problem with complying with the
spirit and intent of the original language regarding joint legal custody. We
disagree. Based on the evidence presented, it is clear Abbey does not think Ian
needs or deserves information regarding the child’s education, medical
appointments, or living arrangements. We agree with the district court’s
conclusion that Abbey needed a further explanation of her obligations to provide
information on a timely basis as the physical care parent.
V. Health Insurance.
Abbey next asserts the court should not have modified the provision
requiring her to provide health insurance for the child. She notes the child’s
health insurance is currently provided through her new husband’s employer.
This coverage encompasses her entire family of four, and the amount they pay
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for the coverage will not change whether the child at issue is covered by the plan.
Thus, she claims the most economical way to provide coverage for the child is for
the child to remain on her family plan and for Ian to pay her cash medical support
in the amount permissible under the child support guidelines. At trial, Abbey
testified the only reason she wanted to cover the child on the insurance provided
by her new husband’s employer—coverage that is more expensive than what is
available to Ian—is so that she will continue to receive the explanation of benefits
documents that come from the insurance company after the services are
rendered.
Iowa Code section 252E.1A(2) (2013) requires the court to order a parent
to cover the child with a health benefit plan if the plan is accessible and the cost
of the plan is reasonable. The prior decree provided that Ian to pay Abbey
$11.00 per month for cash medical support because neither party had health
insurance available through their respective employers. Thus, Abbey was
required to provide the health insurance. That situation has changed, and now
both parties have access to health insurance for the child. However, the cost of
Abbey’s plan is unreasonable in light of Ian’s gross income.2 The cost of Ian’s
plan is reasonable as provided by section 252E.1A(2)(a)(1)—the premium cost
for the child does not exceed five percent of the parent’s gross income. There
was no evidence regarding the adequacy of the specific benefits provided for the
child under either plan. In light of availability of health coverage for the child
through Ian’s employer’s plan at a reasonable cost, we determine the district
2
Abbey conceded her husband’s plan’s cost remains the same whether there are two or
an unlimited number of people covered. We conclude the guidelines do not require Ian
to subsidize Abbey’s family coverage for herself and her other child.
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court correctly applied the child support guideline provisions, and we affirm the
district court’s modification.3
VI. Child Support.
Abbey also claims the court was wrong to impute to her income in the
amount of $17,320.68 in the child support calculations because she claims
evidence shows she actually earns $14,560, annually. Abbey testified she works
between twenty and twenty-four hours per week at her step-father’s business
earning $14.00 per hour. At twenty hours per week, Abbey would earn an annual
income of $14,560. However, at twenty-four hours per week, Abbey would earn
an annual income of $17,472. Six months before trial, Abbey filed a child support
worksheet indicating she earned $17,320.68 while working part time (twenty to
twenty-four hours per week) for the State of Iowa. Abbey quit working for the
State of Iowa and started working for her step-father at a slightly decreased
hourly wage shortly before trial. She testified she made the career move
because of greater flexibility in hours and the ability to bring her youngest child to
the office, saving daycare costs.
In calculating child support, the district court used an annual income equal
to her prior earnings with the State—$17,320.68—which is in line with what she
claimed her earnings will be at her new employment. We discern no error in the
district court’s child support calculation.
Abbey also requests we make the child support modification retroactive.
See Iowa Code § 598.21C(5) (noting a court may make an increase in support
3
Neither party raised at the district court or briefed on appeal a possible proration of
health insurance premium as allowed under Iowa Court Rule 9.14(5).
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retroactive “only from three months after the date of the notice of the pending
petition for modification is served on the opposing party”). The trial court made
the support modification effective beginning in February 2015, when the
modification decree was filed. Abbey notes Ian initiated the modification
proceeding in March 2014. She filed her answer in April 2014. Therefore, she
claims the child support should be retroactive to August 2014.
Ian did not start his new job until September 2014. It was the change in
Ian’s income that justified the change in the child support. In addition, at trial
Abbey did not request the support be retroactive to August or September 2014;
instead, in her pretrial filing she requested the obligation be changed beginning in
January 2015. Making a support award retroactive is permissible, not
mandatory, and the district court has discretion in determining whether such
retroactive application is warranted. In re Marriage of Ober, 538 N.W.2d 310,
313 (Iowa Ct. App. 1995). We conclude the district court did not abuse its
discretion when ordering the increase in child support to be effective as of
February 2015.
VII. Attorney Fees.
A. Trial Attorney Fees. Finally, Abbey claims the court should have
awarded her trial attorney fees. We review the district court’s decision to award
attorney fees for abuse of discretion. In re Marriage of Michael, 839 N.W.2d 630,
635 (Iowa 2013). “Whether attorney fees should be awarded depends on the
respective abilities of the parties to pay.” In re Marriage of Sullins, 715 N.W.2d
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242, 255 (Iowa 2006). We find no abuse of discretion in the district court’s
decision not to award Abbey trial attorney fees.
B. Appellate Attorney Fees. Both parties request an award of appellate
attorney fees. “Appellate attorney fees are not a matter of right, but rather rest in
this court’s discretion. In determining whether to award 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 McDermott,
827 N.W.2d 671, 687 (Iowa 2013). We also consider whether a party was
obligated to defend the district court’s decision. In re Marriage of Berning, 745
N.W.2d 90, 94 (Iowa Ct. App. 2007). Upon our consideration of these factors, we
award Ian $2000 in appellate attorney fees.
VIII. Conclusion.
Upon our de novo review, we conclude the district court’s modification of
the visitation schedule and clarification of the parties’ obligations as joint legal
custodians was in the best interests of the child at issue. Because Ian has health
coverage available through his employer at a reasonable cost, we determine the
district court correctly modified who would be responsible for providing health
insurance for the child. Finally, we discern no error in the district court’s child
support calculation. Abbey is responsible for $2000 of Ian’s appellate attorney
fees and for the costs of this appeal.
AFFIRMED.