IN THE COURT OF APPEALS OF IOWA
No. 19-1132
Filed March 4, 2020
JASON HEUSINKVELD,
Plaintiff-Appellant,
vs.
KIMBERLY SCHLECHT,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Marlita A. Greve,
Judge.
A father appeals the dismissal of his petition to modify a custody order.
AFFIRMED.
JohnPatrick Brown of Winstein, Kavensky & Cunningham, LLC, Rock
Island, Illinois, for appellant.
Maria K. Pauly of Maria K. Pauly Law Firm, P.C., Davenport, for appellee.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.
A father appeals from a district court ruling dismissing his petition for
modification of custody. We affirm the trial court’s ruling.
Background Facts and Proceedings
Jason Heusinkveld and Kimberly Schlecht are the parents of a minor child,
K.H., who was five years old at the time of trial. The parties have never been
married. K.H. has resided with Kimberly and his maternal grandparents in Clinton,
Iowa since his birth. Jason moved to Maquoketa in 2015, which is approximately
forty miles from Clinton. On November 2, 2016, Jason filed a petition to establish
joint legal custody and visitation. Following trial, the court filed an order
establishing paternity, granting Jason and Kimberly joint legal custody, and
awarding Kimberly physical care. Jason was awarded liberal visitation, including
a midweek visit, alternating weekends, two weeks of summer vacation, and
alternating holidays. In November 2017, Jason moved to Clinton. He resides with
his parents. Jason’s girlfriend also resides in that home. Since 2017, Kimberly
has worked as a certified nursing assistant. In that time, Jason has held several
jobs.
Approximately a year after the entry of the original order, Jason filed a
petition to modify. He amended his petition on December 18, 2018. The amended
petition was captioned “Amended Application For Modification of Visitation.” The
body of the petition, however, requested joint physical care. Jason’s attorney
clarified at trial that Jason was seeking a shared physical care arrangement,
stating, “And I do understand that what we are requesting in our application does
in fact amount to a change in custody to a shared care arrangement, and we are
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relying on the fact that we have to prove a substantial change in circumstances.” 1
In the amended petition, Jason premised his request for shared physical care on
his new residence in relation to Kimberly’s residence, his stable employment, and
regular payments of child support for K.H. Kimberly moved to dismiss the petition
on May 9, 2019. The motion to dismiss was held in conjunction with trial on the
modification petition. Following trial, the court granted the motion to dismiss,
determining there was “no material and substantial change in circumstances
warranting a change in physical custody that was no[t] contemplated by the original
decree.”2 Jason filed a notice of appeal.
Standard of Review
“Petitions to modify the physical care provisions of a divorce decree lie in
equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). “Thus, we
review the district court’s decision de novo.” In re Marriage of Harris, 877 N.W.2d
434, 440 (Iowa 2016). “We give weight to the findings of the district court,
particularly concerning the credibility of witnesses; however, those findings are not
binding upon us.” In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).
Discussion
On appeal, Jason asks us to overturn the district court’s ruling. Based on
our de novo review of the record, we affirm the district court.
1 Counsel for Jason further clarified the issue in briefing, indicating that the
combined certificate mistakenly indicated this was an action for visitation
modification rather than custody.
2 Jason did not testify as to any requested modifications to his visitation schedule.
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I. Modification of Custody
A heavy burden rests on the proponent of a modification to custodial
provisions.
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).
“[T]he burden to show a substantial change of circumstances rests upon the
applicant.” In re Marriage of Feustel, 467 N.W.2d 261, 265 (Iowa 1991). “Prior
cases have little precedential value,” and “we must base our decision primarily on
the particular circumstances of the parties” presently before us. In re Marriage of
Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court’s
findings of fact, but we are not bound by them. Iowa R. App. P. 6.904(3)(g).
Courts are empowered to modify the custodial terms of a dissolution decree
only when there has been a substantial change in circumstances since the time of
the decree not contemplated by the court when the decree was entered, the
change was more or less permanent, and it related to the welfare of the child. See
Frederici, 338 N.W.2d at 158; Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.
App. 1996). A parent seeking to change the physical care from the custodial parent
to the petitioning parent has a heavy burden and must show the ability to offer
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superior care.3 See In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980);
In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998). “The
controlling consideration in child custody cases is always what is in the best
interests of the children.” In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa
Ct. App. 1998).
As the party seeking modification, Jason has the heavy burden of proving
by a preponderance of the 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.” See Hoffman, 867 N.W.2d at
32 (quoting Frederici, 338 N.W.2d at 158).
In support of his claim that circumstances have materially and substantially
changed warranting a custody modification, Jason’s testimony highlights the
following: his recent move from Maquoketa to Clinton, his current employment, his
continued child support payments, and improved communication between Jason
and Kimberly.
Jason’s November 2017 move from Maquoketa to Clinton appears central
to his plea for modification. The move results in Jason living approximately five
minutes away from Kimberly’s home. While the move to Clinton is undoubtedly
more convenient, we agree with the district court that Jason’s move to Clinton is
not a substantial change in circumstances warranting modification of custody.
3We have previously held that a parent seeking modification of a custodial order
and requesting joint physical care rather than sole physical care bears the same
burden of a parent seeking a modification of sole physical care. In re Marriage of
Davis, No. 02-0314, 2002 WL 31641272, at *2 (Iowa Ct. App. Nov. 25, 2002).
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Jason argues, and we agree, that the instant modification differs from much
of our prior case law concerning changes in residences of parents. Jason’s move
to Clinton shrank, rather than expanded, the distance between the child’s parents.
See id. at 28–29 (finding the custodial parent’s move of approximately seventy
miles was not a substantial change in circumstances); In re Marriage of Schau,
No. 00-1854, 2001 WL 710230, at *2 (Iowa Ct. App. June 13, 2001) (holding the
mother’s move of approximately forty-five miles was not a substantial change in
circumstances warranting the grant of the father’s petition to modify the dissolution
decree). However, a residence of a parent is only one of the considerations for a
trial court in a modification action and, like the trial court, we do not find that a move
of forty miles by the noncustodial parent meets the heavy burden to modify
custody.
We consider as well the other changes, in conjunction with the move, that
Jason cites as sufficient to warrant modification of custody. Based on our review
of the record, we conclude these additional considerations also do not meet the
heavy burden required in a custody modification action.
Jason testified at the 2019 hearing that communication between Kimberly
and Jason has improved, however, some difficulties in communicating remained.
In the court’s 2017 order concerning Jason’s original petition, the district court
noted Jason and Kimberly did not “effectively communicate for the benefit of [their
child].” In 2019, Jason testified that communication difficulties occur regarding his
requests for additional time with K.H. Notably, Jason also testified that Kimberly
provided extra time to Jason with K.H. approximately twice per month when
requested by Jason. We find the limited improvement in the parents’
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communication and Kimberly’s flexibility in allowing additional visitation
commendable. However, we do not find such sufficient to warrant a change in the
current custodial arrangement.
Jason also supports his request for modification by noting his regular child
support payments and his stable employment. We do not find regular payment of
previously ordered child support payments to be a significant consideration in
meeting the heavy burden in a modification of custody action.4 In addition, while
Jason’s employment was consistent for several months prior to the hearing, his
employment history since the entry of the original order has been marked by
frequent changes. His most recent employment started after his amended petition
for modification was filed. When questioned at the hearing, Jason agreed that he
has had frequent employment changes. We agree with the trial court’s
characterization of Jason’s employment situation as unstable.
Lastly, the record is void of any evidence as to what effect the proposed
change would have on K.H. or how the proposed change in custody would be in
the child’s best interest, a critical factor in the equation for a modification action.
Jason’s minor change in location, the parents’ improved communication, Jason’s
employment, and payment of court-ordered child support do not rise to the level of
material and substantial changes since the entry of the original order not
contemplated by the trial court that would warrant a modification of custody.
Importantly, Jason failed to provide evidence that such proposed change would be
4Both the father and the mother have a duty to financially support the child. Moore
v. Kriegel, 551 N.W.2d 887, 889 (Iowa Ct. App. 1996).
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in the best interest of K.H. After considering the limited change in circumstances
Jason has highlighted, we conclude Jason has not met his high burden to warrant
a custody modification, including a demonstration that such is in K.H.’s best
interest. Accordingly, we affirm the district court’s dismissal of Jason’s petition to
modify custody.
II. Appellate Attorney Fees
Kimberly requests that this court award her appellate attorney fees. An
award of appellate attorney’s fees is not a matter of right but rests within the
discretion of the court. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa
1996). In exercising such discretion, “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 trial court’s decision on appeal.” In re Marriage
of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Although Jason was unsuccessful
below and Kimberly was required to defend a trial court decision on appeal, we
decline to award appellate attorney fees in the instant case after examining each
party’s financial position. We assess costs on appeal to Jason.
Conclusion
We do not find the limited changes in circumstances to be substantial and
material to warrant modification of custody, nor do we find evidence that the
proposed change would be in the child’s best interest. We therefore affirm the
district court’s decision granting Kimberly’s motion to dismiss the petition for
modification. We decline to award appellate attorney fees. We assess costs on
appeal to Jason.
AFFIRMED.
Jason Heusinkveld v. Kimberly Schlecht
Combined Opinion