IN THE COURT OF APPEALS OF IOWA
No. 18-0360
Filed November 21, 2018
IN RE THE MARRIAGE OF SARAH ANNE ENKE
AND JASON A. ENKE
Upon the Petition of
SARAH ANNE ENKE,
Petitioner-Appellant,
And Concerning
JASON A. ENKE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Gregg R.
Rosenbladt, Judge.
A mother appeals the ruling on a petition to modify child custody, awarding
physical care to the father. AFFIRMED.
Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, LLP, Charles City,
for appellant.
Jacqueline R. Conway of Heiny, McManigal, Duffy, Stambaugh &
Anderson, P.L.C., Mason City, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.
Sarah Enke appeals the ruling granting Jason Enke’s petition to modify the
child-custody provisions of their divorce decree. Sarah argues there was not a
substantial change in circumstances to warrant modifying the decree. In the
alternative, she argues this court should modify the district court’s ruling to provide
equal parenting time. Jason requests appellate attorney fees.
I. Background Facts and Proceedings.
The parties married in 1999. They have four children: D.E., born in 2000;
J.E., born in 2002; B.E., born in 2006; and P.E., born in 2008. The parties divorced
in April 2014 through a stipulated agreement. Both parties agreed to share joint
legal custody and physical care. According to the stipulation, Sarah had the
children from Monday to Wednesday, Jason had the children from Wednesday to
Friday, and the parties alternated weekends. The parties split childcare expenses
equally, and Jason was ordered to pay child support.
In September 2014 Jason filed an application for rule to show cause. He
argued Sarah failed to inform him she had scheduled the children’s school
conferences, foster the children’s feelings of affection for him by declaring he was
“unsafe,” notify him of her new address, communicate regarding co-parenting
beyond one e-mail per week, be flexible with visitation, and she did not accurately
account for her share of expenses.
In October, Sarah filed a counterclaim, arguing Jason failed to consult her
before signing the children up for activities, support her reasonable disciplinary
actions, foster the children’s feelings of affection for her, notify her of the children’s
enrollment in flag football or notify her of the schedule, and accurately account for
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shared expenses. Also in October, Sarah applied for and was granted a protective
order against Jason.
In December, the district court denied Jason’s application for rule to show
cause, finding Sarah had not violated the custody agreement. The district court
found Sarah had notified Jason of the school conferences (but suggested they
attend separate conferences); had not disparaged Jason in front of the children;
properly notified Jason of her change in address; and that her attempts to limit
communication to one e-mail per week, in light of Jason’s “barrage of text
messages,” was appropriate barring any emergency. The district court found both
parents were inflexible with the visitation schedule, and it had to resolve several
disputes between the parties as to what constitutes a necessary expense that the
parties should split. The district court found Jason in contempt regarding
disparaging comments he made about Sarah in front of the children.
Jason filed a petition to modify physical care in April 2015, asking the court
to grant him physical care. Jason argued Sarah refused to modify her protective
order against him, making it difficult to co-parent and impossible to attend the
children’s activities. He also argued Sarah failed to share expenses according to
the decree and refused to foster affection between him and the children. Sarah’s
counterclaim also requested physical care.
The district court modified the original decree in November 2015. The
district court determined the parties had difficulty communicating with each other
and sharing parenting expenses. The district court found joint physical care was
not workable between the parties and awarded physical care to Sarah.
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The instant petition to modify was filed by Jason in March 2017, requesting
physical care of the children be awarded to him. In that petition, Jason alleged
there was a substantial change in circumstances. Sarah’s counterclaim requested
the court revise the weekend visitation schedule due to college classes she was
enrolled in.
A three-day trial was held on the matter in November 2017, before the same
judge who had awarded Sarah physical care in 2015. The court appointed a
guardian ad litem (GAL), who recommended a visitation schedule similar to the
schedule in the parties’ initial agreement. D.E., the parties’ oldest child, had
chosen to move in with Jason full time. The district court found there was a
substantial change in circumstances and awarded Jason physical care of all four
children.
Sarah appeals.
II. Standard of Review.
Child custody and child support matters are reviewed de novo. In re
Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). “Although we make our
own findings of fact, ‘when considering the credibility of witnesses the court gives
weight to the findings of the trial court’ even though we are not bound by them.”
Id. (citation omitted). The best interests of the children is the controlling
consideration. Id.
III. Discussion.
We must first determine whether there was a substantial change in
circumstances warranting modification.
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To change a custodial provision of a dissolution decree, the
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. The heavy
burden upon a party seeking to modify custody stems from the
principle that once custody of children has been fixed it should be
disturbed only for the most cogent reasons.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
Here, Jason argues there has been a substantial change in circumstances
for a number of reasons, including: (1) Sarah excluding Jason from medical
decisions and appointments; (2) Sarah refusing to foster feelings of affection and
respect between the children and Jason; (3) Sarah refusing to provide the children
with clothing for visitation; (4) Sarah refusing to inform or include Jason in the
children’s extracurricular activities; (5) Sarah refusing to be flexible with the
visitation schedule; (6) the need for police involvement several times in transferring
custody or obtaining clothing for visitation; (7) the incompatibility of the schedule
with the children’s needs, particularly transfers on Saturday mornings interfering
with the children’s extracurricular activities and the holiday schedule resulting in
long periods of time where the children do not see one parent; (8) Sarah
disparaging Jason in front of the children; (9) Sarah inflicting emotional harm on
the children, and (10) the children’s request for modification. Sarah denied Jason’s
claims and counterclaimed for a modification in the visitation schedule.
The parties’ circumstances since the November 2015 modification are
largely the same. Both parties continue to reside in the same town and work at
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the same jobs. The district court in the 2015 modification ruling found that
“communication has been difficult and has essentially broken down between them,
that accounting for parenting expenses was impossible, and that the two parents
have very different priorities and parenting styles.” The district court found the
parties were “incapable of co-parenting.” Both parents made allegations against
the other about disparaging comments made in front of the children. The parents
had involved law enforcement to enforce the divorce decree. Jason accused
Sarah of being inflexible with the visitation schedule and failing to properly provide
for the children.
In 2015, when determining that Sarah should be awarded physical care, the
district court found that “Sarah is less likely to overreach or be overly controlling,
and that she will base decisions more on the best interests of the children and the
common sense realities of a busy schedule, and to make appropriate and
reasonable decisions regarding ‘wants versus needs.’”
To compare, in the 2018 ruling, the district court found there was a
substantial change in circumstances because financial difficulties and arguments
about expenses have continued and communication has not improved—including
Sarah communicating poorly regarding medical appointments and extracurricular
activities. The district court judge, who presided over the 2015 modification as
well, stated he did not contemplate the present conditions in his 2015 modification.
While these circumstances are similar to the circumstances in the 2015
modification, our court has found a lack of improvement to be a change in itself.
The court also found its previous award of physical care to Sarah created stress
on the children that modification would ameliorate.
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In In re Marriage of Downing, 432 N.W.2d 692, 694 (Iowa Ct. App. 1988),
this court discredited the mother’s argument that the problems the parents were
facing at the time of modification were the same they were facing at the time of
dissolution, noting, “When entering the original decree, the court no doubt
understood certain natural animosities exist during a divorce, however it strains
credulity to believe the trial court did not contemplate the parties, mature adults,
overcoming these feelings to concentrate on the best interests of their [children].”
Similarly, in In re Marriage of Grabill, 414 N.W.2d 852, 853 (Iowa Ct. App. 1987),
our court held that the custodial parent’s lack of cooperation with the noncustodial
parent’s efforts to maintain satisfactory communication and visitation with the
children constituted a substantial change in circumstances.
The district court further justified the 2018 modification because the parties’
oldest child, D.E., has moved into his father’s home. We have found that a child
refusing to abide by the custody decree constitutes a substantial change in
circumstances. See In re Marriage of Walters, No. 11-1746, 2012 WL 2411183,
at *3 (Iowa Ct. App. June 27, 2012). Additionally, the district court found the 2015
modification has not worked out well—the arrangement at the time of the 2017
modification hearing was causing stress for the children. Finding there is a
substantial change in circumstances warranting modification, we next consider
whether Jason has established he can provide the children with superior care. See
Hoffman, 867 N.W.2d at 32
The district court found joint care is not an option, although the children,
except for D.E., prefer to spend equal time with each parent. In support of
transferring physical care to Jason, the district court found Jason exercised better
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financial judgment by purchasing a more moderate home, Jason has moved fewer
times than Sarah and has chosen to not reside with his partner, and the GAL
reported the children believe Jason would be a more flexible parent. The district
court found several witnesses credibly testified the children were more relaxed and
less anxious in Jason’s care. Awarding Jason physical care would allow all the
children to live in the same residence. Jason has established he can provide the
children with superior care. We find it is in the children’s best interest to place
them in the physical care of Jason.
Jason asks us to award him appellate attorney fees. Such an award is
discretionary. See Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). “Factors
to be considered in determining whether to award attorney fees include: ‘the needs
of the party seeking the award, the ability of the other party to pay, and the relative
merits of the appeal.’” Id. (quoting In re Marriage of Okland, 699 N.W.2d 260, 270
(Iowa 2005)). Given the income disparity between the parties, we decline to award
Jason appellate attorney fees.
AFFIRMED.