IN THE COURT OF APPEALS OF IOWA
No. 18-1451
Filed May 15, 2019
KELLY HOPE TORRES,
Petitioner-Appellant,
vs.
DANIEL ELDON MORRISON,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Tod J. Deck,
Judge.
Kelly Torres appeals a district court order modifying a custody decree.
AFFIRMED.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.
Craig H. Lane of Craig H. Lane, P.C., Sioux City, for appellee.
Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MULLINS, Judge.
Kelly Torres and Daniel Morrison were never married but are the parents of
X.M.-T., born in 2009. A stipulated decree establishing custody, visitation, and
child support was entered in September 2011. At that time, both parties were
residing in Sioux City. The stipulated decree provided for joint legal custody and
shared physical care of the child pursuant to a specific parenting-time schedule.
In August 2014, the decree was modified by stipulation to provide each of the
parties with parenting time on an every-other-week basis.
Daniel is a middle school special education and behavioral teacher. He also
works part time at a boys and girls home. Daniel married his current wife, Heather,
in October 2016. The marriage produced a son, who was eighteen months old at
the time of the modification trial. Heather is a stay-at-home mom. Daniel, Heather,
and their son now live in Remsen, which is roughly forty-five minutes away from
Sioux City. Kelly continues to reside in Sioux City with her adult son from a prior
relationship. Daniel maintains a structured parenting style. Kelly maintains a more
freestyle approach to parenting. Daniel is generally supportive of Kelly’s
relationship with X.M.-T. Kelly appears to be unsupportive of X.M.-T.’s relationship
with Daniel; she says negative things about Daniel in front of X.M.-T. Examples of
these types of comments include statements that Daniel does not love him
anymore or Daniel loves his younger son more than he loves X.M.-T.
The evidence shows the continuing viability of the shared-physical-care
arrangement has deteriorated since the last modification, largely as a result of
Kelly’s conduct. For example, in the spring of 2015, there was an incident in which,
according to Daniel’s testimony, Kelly came to Daniel’s residence and threw
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somewhat of a tantrum as a result of Daniel making the child eat steak for dinner
instead of what the child wanted, chicken. According to Kelly’s testimony, she
came to the residence upon concerns that Daniel was physically abusing the child.
Kelly ultimately called the police. When the police arrived, Kelly told the officers
she observed Daniel throw the child down. Officers inspected the child. No
criminal charges were filed. Then, in June, there was an incident at Daniel’s church
in which Kelly essentially showed up and took the child during Daniel’s parenting
time. A similar incident occurred following one of the child’s t-ball games in June
2016.
In mid-September 2016, a few weeks before Daniel and Heather were to be
married, there was a disagreement between Daniel and Kelly concerning one of
the child’s doctor’s appointments. Kelly alleges Daniel physically assaulted her
during this episode. Her claim is wholly unsubstantiated. Shortly thereafter, Kelly
filed a petition for relief from domestic abuse against Daniel. A temporary
protective order was initially entered prohibiting Daniel from contacting X.M.-T.,
which would have prevented the child from attending Daniel’s wedding. However,
the district court struck that part of the order shortly before the wedding. Kelly’s
petition for relief was ultimately denied because she “failed to meet her burden of
proof that an assault occurred.” On September 22, Kelly filed a petition requesting
modification of the physical-care provisions of the custody decree, alleging Daniel
“has physically abused [Kelly] and the parties’ child.” Daniel counterclaimed for
sole legal custody and physical care. About a week after Kelly filed her
modification petition, Kelly reported to the Iowa Department of Human Services
(DHS) that Daniel physically abused her and the child. A child-abuse assessment
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was conducted, which resulted in a not-confirmed finding. There is evidence that
Kelly coached the child to report negative things about Daniel during the
investigation. More than a year later, in November 2017, Kelly reported to DHS
that Daniel physically abused his younger son. An investigation likewise resulted
in a not-confirmed finding. Again, there is evidence that Kelly coached X.M.-T. in
relation to this investigation.
Kelly agreed in her testimony that she has contacted law enforcement to
conduct welfare checks at Daniel’s residence on several occasions, too many
times to count. As the district court noted, “There was no credible evidence
presented to support the reasonableness of any of these ‘welfare checks.’”
Generally speaking, since the decree was modified in 2014, the parties’ ability to
effectively communicate in furtherance of the child’s best interests has languished.
Prior to the modification trial, Kelly withdrew her request for modification of
physical care. Daniel continued to seek modification of custody and physical care.
In its subsequent modification ruling, the court declined to modify legal custody but
awarded Daniel physical care with liberal visitation for Kelly. The court also
modified other provisions of the decree relative to the modification of physical care.
The court denied Kelly’s motion to reconsider, enlarge, or amend pursuant to Iowa
Rule of Civil Procedure 1.904(2). Kelly appeals. She argues Daniel did not meet
his burden to show a substantial change in circumstances or that he has a superior
ability to minister to the child’s needs.
Appellate review of an equitable action to modify the physical-care
provisions of a custody decree is de novo. See Iowa R. App. P. 6.907; Melchiori
v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002); see also In re Marriage of
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Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We give weight to the factual findings
of the district court, especially when considering the credibility of witnesses, but
we are not bound by them. Iowa R. App. P. 6.904(3)(g). The best interests of the
child is our primary consideration. Iowa R. App. P. 6.904(3)(o); Hoffman, 867
N.W.2d at 32.
The following principles apply to modification of the physical-care provisions
of a custody decree:
[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 [child’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 child[]. A
parent seeking to take custody from the other must prove an ability
to minister more effectively to the [child’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).
On appeal, Kelly agrees “the record is filled with incidents of tension,
selfishness and anger.” However, she argues the circumstances show “the parties
can effectively co-parent and communicate when it comes to” furthering the child’s
best interests and, therefore, no change in circumstances has occurred. Upon our
de novo review, we disagree. Kelly has deliberately made unsubstantiated claims
against Daniel in her apparent quest to extricate him from the child’s life. Daniel
has taken the high road and chosen not to follow suit by engaging in similar tactics.
We have no doubt the acrimony between the parties resulting from Kelly’s conduct
is the root of the child’s anxiety and related mental-health issues. Simply stated,
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“[t]he shared custody provisions agreed to by these parties and incorporated into
the decree have not evolved as envisioned by either of the parties or the court.”
Melchiori, 644 N.W.2d at 368. The discord between the parties has had a
disruptive effect on the child and amounts to a substantial change in circumstances
warranting modification of the physical-care provisions of the decree. See id. The
fact that Kelly has continued in her tirade over several years shows the change in
circumstances is “more or less permanent, not temporary.” See Frederici, 338
N.W.2d at 158. We conclude Daniel met his burden to show a substantial change
in circumstances.
We turn to whether Daniel met his burden to show he has a superior ability
to minister to the child’s well-being. See In re Marriage of Harris, 877 N.W.2d 434,
440 (Iowa 2016); Frederici, 338 N.W.2d at 158. Our primary consideration in
making this determination is the long-term best interests of the child. See In re
Marriage of Zabecki, 389 N.W.2d 396, 395 (Iowa 1986). “Prior cases are of little
precedential value, except to provide a framework for our analysis, and we must
ultimately tailor our decision to the unique facts and circumstances before us.” See
In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995).
“The factors the court considers in awarding custody are enumerated in
Iowa Code section 598.41(3)” (2016). In re Marriage of Courtade, 560 N.W.2d 36,
37 (Iowa Court App. 1996). “Although Iowa Code section 598.41(3) does not
directly apply to physical care decisions, . . . the factors listed here as well as other
facts and circumstances are relevant in determining” physical care. In re Marriage
of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). “In determining which parent serves
the child’s best interests, the objective is to place the child in an environment most
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likely to bring the child to healthy physical, mental, and social maturity.” Courtade,
560 N.W.2d at 38. The following factors are relevant to the determination of which
parent can more effectively minister to the child’s long-term well-being in this case:
(1) whether each parent would be a suitable custodian, (2) whether the child will
suffer due to lack of active contact with and attention from both parents, (3) whether
the parents can effectively communicate about the child’s needs, (4) whether both
parents have actively cared for the child, (5) whether each parent can support the
other’s relationship with the child, (6) whether one or both parents agree to or
oppose shared physical care, and (7) the geographic proximity of the parents. See
Iowa Code § 598.41(3). We also note our consideration of the characteristics of
the child and parents, the child’s needs and the parents’ capacity and interests in
meeting the same, the relationships between the parents and child, the effect of
continuing or disrupting an existing physical-care arrangement, the nature of each
proposed environment, and any other relevant matter disclosed by the evidence.
See In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).
We acknowledge that neither parent is perfect nor a bad parent.
“Determining what custodial arrangement will best serve the long-range interest of
a child frequently becomes a matter of choosing the least detrimental available
alternative for safeguarding the child’s growth and development.” Id. at 167. Upon
our de novo review of the record and consideration of the foregoing factors, we
agree with the district court that Daniel met his burden to show he can provide
superior care to the child. That is not to say that we think Daniel can provide
perfect care, or that Kelly has not historically provided good care; we only conclude
placement in Daniel’s physical care will be “most likely to bring the child to healthy
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physical, mental, and social maturity.” See Courtade, 560 N.W.2d at 38.
Consequently, we affirm the district court’s modification ruling.
Daniel requests an award of appellate attorney fees. See Iowa
Code § 600B.26; Schaffer v. Frank Moyer Constr. Inc., 628 N.W.2d 11, 23 (Iowa
2001) (holding that a statute allowing an award of trial attorney fees permits an
award of appellate attorney fees as well). An award of appellate attorney fees is
not a matter of right but rests within this court’s discretion. In re Marriage of
Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining whether to award
attorney fees, we consider the needs of the party making the request, the ability of
the other party to pay, and whether the party making the request was obligated to
defend the district court’s decision on appeal. Id. Although we acknowledge
Daniel was required to defend the modification ruling on appeal, in consideration
of the foregoing factors, we deny Daniel’s request for fees. Costs on appeal are
assessed to Kelly.
AFFIRMED.