IN THE COURT OF APPEALS OF IOWA
No. 17-0282
Filed October 11, 2017
JEFFREY J. MCALLISTER,
Plaintiff-Appellee,
vs.
NICOLE R. POLLARD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Nicole Pollard appeals the district court’s modification of a decree
establishing custody and visitation for her eight-year-old daughter and dismissal
of her application for contempt. CONTEMPT APPEAL DISMISSED;
MODIFICATION APPEAL AFFIRMED.
Nicole R. Pollard, Dubuque, self-represented appellant.
Bradley T. Boffeli of Boffeli & Spannagel, P.C., Dubuque, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
2
TABOR, Judge.
Nicole Pollard and Jeff McAllister are the parents of C.E.M., who is now
eight years old. After Nicole’s arrest on drug-related charges, Jeff sought to
modify a custody decree to obtain sole legal custody of C.E.M. Nicole filed an
application for contempt, alleging Jeff denied her visitation on several occasions.
The district court dismissed Nicole’s application and granted Jeff’s modification
request. Nicole appeals the district court’s rulings. We are without jurisdiction to
consider the district court’s dismissal of her contempt application because the
notice of appeal is not timely as to that ruling. And because Jeff met his
substantial burden regarding modification, we affirm the district court’s order
modifying the custody decree.
I. Facts and Prior Proceedings
Nicole and Jeff entered into a relationship in 2007. They had one child
together, C.E.M., who was born in September 2009. The parties separated in
November 2011. In the year leading up to the separation, Nicole struggled with
abusing substances—both methamphetamine and alcohol. The Iowa
Department of Human Services (DHS) intervened and required Nicole to leave
the family home for three months. While Nicole was away, Jeff acted as the
primary caretaker for C.E.M. and Nicole’s son from a prior relationship.
Jeff filed a petition to establish custody in December 2011. At the time of
trial on October 3, 2012, Nicole had criminal charges pending for operating while
3
intoxicated, third offense,1 and she had missed several visits with C.E.M. At trial,
Jeff asked the district court to award him sole legal custody. In its October 17,
2012 decree, the district court denied Jeff’s request because he had not asked
for sole legal custody in his petition. But the court also reasoned the facts did not
warrant such an award:
Nicole is receiving counseling for her substance abuse issues and
appears to be trying to get her life back on track . . . . The [c]ourt
believes fundamentally that Nicole can be a suitable caregiver for
[C.E.M.] and that her desire to provide that care and be a part of
[C.E.M.’s] life is genuine.
Citing Jeff’s greater stability, as well as the poor communication between Jeff
and Nicole, the court awarded physical care of C.E.M. to Jeff.
On February 19, 2016, Nicole was arrested for driving while barred,
operating while intoxicated, possession of methamphetamine, and possession of
marijuana. C.E.M. was in Nicole’s care that day but was not with her mother at
the time of arrest. Nicole testified she was stopped by the police while driving to
the home of a friend who had agreed to drive C.E.M. home from the roller skating
rink. Jeff found out about the arrest two days later when he picked C.E.M. up
from her visit. The DHS investigated the matter and, although case workers
suspected Nicole was abusing methamphetamine, they concluded C.E.M. had
not been directly harmed or placed at risk of harm by Nicole’s actions. A hair test
indicated C.E.M. had not been exposed to illegal substances.
Nicole’s arrest prompted Jeff to file an application for custody modification
and an application to suspend visitation in early March 2016. The district court
1
Following the sentencing hearing, Nicole was placed on probation. In 2013, Nicole
violated the terms of her probation by testing positive for illegal substances; she served
her sentence in a halfway house.
4
held a hearing on Jeff’s application to suspend visitation on April 1. In its ruling
denying Jeff’s request, the court considered the DHS investigation and observed
Nicole “has obtained an evaluation and is participating in counseling. She is
being screened by [the Department of Correctional Services] for alcohol and drug
use and her tests have thus far come back negative.” The court concluded: “This
ruling is not intended to have precedential effect at trial, when [Jeff] will have an
opportunity to present his full case on the merits.”
On July 11, 2016, Nicole filed a motion asking the court to find Jeff in
contempt of the October 2012 decree, alleging Jeff withheld visitation on multiple
dates between January 2016 and July 2016.2 Jeff denied interfering with
Nicole’s visitation. Instead, he contended Nicole had failed to exercise visitation
and failed to follow the decree and he “had a reasonable belief that [Nicole] was
under the influence of a controlled substance and therefore a danger to the
safety and welfare of the minor child.”
At the time of trial on January 4, 2017, Nicole’s charges from the February
arrest were still pending. The record showed she had performed poorly on
pretrial supervision in the months after the visitation-suspension hearing. After
failing to attend several appointments with her probation officer and twice testing
positive for methamphetamine, Nicole was arrested for violating her pretrial-
services requirements in November 2016.
At the outset of the hearing, the district court announced that the trial
concerned two separate actions and it would first hear evidence regarding
2
In a supplemental filing, Nicole added more dates to the list, which extended to
November 30, 2016.
5
Nicole’s contempt application. Immediately following Nicole’s presentation of
evidence, the court denied her application, relying upon the following provision of
the custody decree:
Nicole shall complete the Children in the Middle program[3] and file
proof of completion with the Court, as required by statute, within
[sixty] days. If Nicole fails to do so, visitation will be at Jeff’s
discretion unless and until the proof of completion is filed and
furnished to Jeff or his counsel.
The court reasoned that because Nicole had not filed her Children in the Middle
certificate until November 1, 2016,4 “even assuming that Jeff denied visitation on
the dates set forth in the contempt filings, he had the discretion to do so.”
Both parties presented additional testimony regarding modification, and in
a written ruling issued on January 18, 2017, the court granted Jeff’s modification
request. The court awarded Jeff sole legal custody, terminated Nicole’s midweek
visitation, and allowed visitation to be at Jeff’s discretion in the event Nicole
tested positive for illegal substances or violated the terms of either her probation
or any requirements put in place by the DHS.
On February 15, 2017, Nicole filed a motion to amend or enlarge findings,
alleging, among other things, she had presented the Children in the Middle
certificate to the court during the April 2016 hearing on Jeff’s petition to suspend
visitation and believed that action satisfied her filing requirement. Before
receiving a ruling on the motion, Nicole filed a notice of appeal on February 17.
On March 8, the district court entered an order indicating it would take no action
3
The Children in the Middle program is “a court-approved course to educate and
sensitize the parties to the needs of any child or party during and subsequent to” any
action involving child custody or visitation. Iowa Code § 598.15(1) (2016).
4
The completion date on the certificate was February 14, 2012.
6
on Nicole’s motion because it was untimely and Nicole’s notice of appeal had
divested the district court of jurisdiction. Jeff filed a waiver of his opportunity to
respond by appellee’s brief.
II. Jurisdiction
Nicole first argues the district court erred in dismissing her application for
contempt because she proved Jeff denied her visitation. We are without
jurisdiction to review that argument. Jeff has not raised a jurisdictional issue, but
we may consider it on our own motion. See In re M.T., 714 N.W.2d 278, 281
(Iowa 2006).
The district court filed a ruling dismissing Nicole’s contempt application on
January 4, 2017. On Februry 15, Nicole filed an untimely motion to enlarge or
amend the district court’s findings on both her contempt application and Jeff’s
modification request. See Iowa R. Civ. P. 1.904(3) (“[A] rule 1.904(2) motion to
reconsider, enlarge, or amend another court order, ruling, judgment, or decree
will be considered timely if filed within [fifteen] days after the filing of the order,
judgment or decree to which it is directed.”). She did not file a notice of appeal
until February 17, forty-four days after the district court’s contempt ruling. See
Iowa R. App. P. 6.101(1)(b) (“A notice of appeal must be filed within [thirty] days
after the filing of the final order or judgment.”).5
Although both the contempt application and the modification application
arose out of the same underlying case, they constituted two separate final orders
5
In that notice, she mentioned only the district court’s modified decree, making no
reference to the earlier contempt ruling. See Iowa R. App. P. 6.102(1)(a)(1) (requiring
notice of appeal to “specify . . . the decree, judgment, order, or part thereof appealed
from”). Accordingly, it is not clear she intended to appeal the contempt ruling.
7
on two distinct issues. See Lyon v. Willie, 288 N.W.2d 884, 887 (Iowa 1980)
(“Two final orders are possible in a single case, one putting it beyond the power
of the court to put the parties in their original positions in relation to a specific
issue, and the other adjudicating remaining issues in the case.”). As such, to
properly appeal the contempt ruling, Nicole was required to file a notice of appeal
within thirty days of that ruling (or had she filed a timely 1.904(2) motion, within
thirty days of the district court’s ruling on that motion). She did not do so.
Accordingly, we lack jurisdiction to consider Nicole’s arguments on the contempt
issue. See Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 771 (Iowa
2009) (“A failure to file a timely notice of appeal leaves us without subject matter
jurisdiction to hear the appeal.”).
III. Scope and Standards of Review
Our review of an order modifying custody is de novo. See In re Marriage
of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). Although we give weight to the
fact-findings of the district court, particularly concerning witness credibility, we
are not bound by them. See In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa
Ct. App. 2009). “Even though we engage in a de novo review, we will not disturb
the trial court’s conclusions unless there has been a failure to do equity.” In re
Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995). Our paramount
consideration is the best interests of the child. See In re Marriage of Hoffman,
867 N.W.2d 26, 32 (Iowa 2015).
We review the court’s assessment of court costs for abuse of discretion.
See Wymer v. Dagnillo, 162 N.W.2d 514, 519 (Iowa 1968).
8
IV. Analysis
A. Modification of Custody Nicole argues the district court should
not have modified the decree to grant Jeff sole legal custody of C.E.M. As the
party seeking modification of the decree, Jeff had the burden to demonstrate by a
preponderance of the evidence that “conditions since the decree was entered
have so materially and substantially changed” that it would be in C.E.M.’s best
interests to alter the custody arrangement. Hoffman, 867 N.W.2d at 32 (citation
omitted). These changes “must not have been contemplated by the court when
the decree was entered,” “must be more or less permanent,” and “must relate to
the welfare of the child[].” Id. (citation omitted). In addition, Jeff was required to
demonstrate he could more effectively minister to C.E.M.’s long-term needs. See
id.
In its decision to modify legal custody, the district court reasoned that at
the time of the original decree, it had anticipated Nicole would continue on her
path of substance-abuse recovery and become a more stable parent for C.E.M.,
but instead, “her issues appear to be getting worse as opposed to better.” Nicole
disagrees and contends there has not been a substantial change of
circumstances warranting modification.6 She also asserts the court failed to
consider C.E.M.’s best interests.
6
Relying largely on her allegations in the contempt action that Jeff had withheld
visitation, Nicole also argues the district court erred in not modifying the custody decree
to award physical care to her. Assuming Nicole preserved error on this issue, we
conclude a change in physical care would not be appropriate here. Not only do we
disagree with Nicole’s assertion that Jeff unreasonably withheld visitation, but we also
find no evidence in the record Nicole was the superior caregiver. See Hoffman, 867
N.W.2d at 32.
9
We agree with the district court that Jeff proved a material and substantial
change in circumstances warranting modification. As the court noted:
[Nicole] has continued to commit crimes that result in her being
incarcerated. If she is convicted of the charges pending against her
at the time of trial, she will face up to seven years of incarceration.
She has not maintained a stable residence and has become even
more nomadic. She has not worked or earned wages, and has
paid only $120 in child support over the last four-plus years.
Essentially, she has chosen to do nothing with the opportunity the
[c]ourt gave her in October of 2012 to be a significant part of
C.E.M.’s life—a joint custodian with normal visitation rights.
Joint legal custody requires Jeff and Nicole to agree about basic decisions
related to C.E.M.’s upbringing. See In re Marriage of Miller, 390 N.W.2d 596,
601–02 (Iowa 1986). Although “[o]ur statutes express a preference for joint
custody over other custodial arrangements,” In re Marriage of Bartlett, 427
N.W.2d 876, 878 (Iowa Ct. App. 1988), modification to sole legal custody is
appropriate “if the actions of the parties indicate that they are no longer able to
cooperate,” In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996); see also
In re Marriage of Gensley, 777 N.W.2d 705, 715 (Iowa Ct. App. 2009) (“The
overriding factor weighing against joint legal custody is the parties’ utter inability
to communicate with each other, which is a result of their toxic relationship.”).
Due to Nicole’s continuing instability since the entry of the original decree,
Jeff already has been engaging in many of the decision-making tasks that come
with the role of sole legal custodian. See Iowa Code § 598.1(5) (defining “rights
and responsibilities” of “legal custody” as including decision making affecting
child’s legal status, medical care, education, extracurricular activities, and
religious instruction). For instance, Nicole did not attend C.E.M.’s school
conferences for four years, nor did she attend C.E.M.’s medical appointments.
10
According to Jeff, Nicole had missed between fifty and one hundred visits since
the entry of the decree and often placed C.E.M. in the care of others when she
did exercise visitation.
At trial, Jeff described his communication with Nicole as “almost
nonexistent.” Jeff acknowledged “a lot of times [Nicole] doesn’t put up a fight
over school and doctor, stuff like that, since she . . . doesn’t show up to [C.E.M.’s]
events.” But when the parties needed to make joint decisions, they floundered.
Jeff testified: “There is no compromise with her. Unless it’s her way, there’s no
way at all.” Nicole similarly criticized Jeff’s rigidity, claiming: “Anything that would
make it more difficult for me to see [C.E.M.], he’s done.” Nicole’s actions leading
up to the trial—unilaterally attempting to enroll C.E.M. in a different school and to
change her health insurance—demonstrate the extent of the parties’
communication breakdown. See In re Marriage of Bloss, No. 98-2177, 2000 WL
63192, at *4 (Iowa Ct. App. Jan. 26, 2000) (“Joint legal custody presupposes
some ability to exchange information and assumes at least a minimum of respect
for the other parent’s role. When those qualities are not present, the concept of
joint custody exists in name only.”). Because of Nicole’s minimal involvement in
C.E.M.’s life as well as the parties’ increasingly acrimonious relationship, we
agree with the district court that Jeff, who has demonstrated his superior ability to
minister to C.E.M.’s needs, should be awarded sole legal custody of C.E.M.
We also find the district court considered C.E.M.’s best interests by
applying the guidelines of Iowa Code section 598.41(3). Jeff provides stability for
C.E.M., and she is thriving in his care. Nicole’s continued substance abuse and
criminal activity has hindered her ability to fulfill the role of C.E.M.’s joint legal
11
custodian. Accordingly, we agree modification is in C.E.M.’s best interests and
affirm the district court’s order.7
B. Assessment of Costs
Nicole next argues the district court erred in its “award of court costs,
attorney fees, and monthly child support.” In its modification order, the district
court did not award Jeff attorney fees and did not address the issue of child
support. Accordingly, we consider only the assessment of court costs. Nicole
contends it would be “more equitable to base the assessment in this case on the
parties’ incomes, which are not equal.” While it is true that Jeff currently earns
more than Nicole, as the district court noted, Nicole is capable of working and
presented no evidence to explain her lack of employment. Moreover, Nicole was
unsuccessful in the underlying proceedings. See Iowa Code § 625.1 (“Costs
shall be recovered by the successful against the losing party.”). We conclude the
district court did not abuse its discretion in ordering Nicole, the unsuccessful
party, to pay court costs. See Wymer, 162 N.W.2d at 519 (“The rule is well
established that in an equity action the trial court has a large discretion in the
matter of taxing costs and we will not ordinarily interfere therewith.”).
CONTEMPT APPEAL DISMISSED; MODIFICATION APPEAL
AFFIRMED.
7
W e note Nicole also generally alleges violations of various constitutional rights. We
find Nicole has failed to preserve these arguments for our review and decline to address
them. See State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999) (noting “we require error
preservation even on constitutional issues”).