IN THE COURT OF APPEALS OF IOWA
No. 19-0724
Filed March 18, 2020
JARED THOMAS CRANK,
Plaintiff-Appellant/Cross-Appellee,
vs.
JESSICA ANNE-MARIE WINTERS,
Defendant-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, John J.
Bauercamper, Judge.
Parties appeal and cross-appeal the modification of a custody decree.
AFFIRMED ON BOTH APPEALS.
Jeremy L. Thompson of Putnam & Thompson Law Office, P.L.L.C.,
Decorah, for appellant.
Kelsey Deabler and Joseph G. Basque of Iowa Legal Aid, Council Bluffs,
for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
2
MULLINS, Judge.
Jared Crank appeals, and Jessica Winters cross-appeals, the modification
of a custody decree concerning the parties’ minor child, R.C., born in 2013. Jared
argues the court erred in increasing Jessica’s visitation because Jessica only
requested modification of physical care.1 Jessica contends the court erred in
denying her request for modification of physical care.
I. Background Facts and Proceedings
The parties have never been married. They are the parents of R.C., born
in 2013. The parties ended their relationship sometime in 2014. Jessica alleges
the relationship was fraught with controlling tendencies and domestic violence on
the part of Jared. The end of the relationship was detrimental to Jessica’s mental
health. In September 2014, Jared filed a petition under Iowa Code chapter
600B (2014), requesting the court to enter a decree awarding the parties joint legal
custody with physical care to Jared. In May 2015, upon the parties’ agreement,
the court granted the parties temporary joint legal custody and shared physical
care. In October, Jared moved for modification of the temporary order, citing
Jessica’s hospitalization following a suicide attempt, and requesting Jessica only
be allowed limited supervised visitation. In November, the parties filed a stipulation
to modifying temporary custody and physical care, in which they agreed the child
would be placed in Jared’s physical care and Jessica’s visitation would be
lessened and supervised.
1 Jared does not otherwise argue the evidence was insufficient to support
modification of the visitation provisions of the decree or challenge the propriety of
the visitation schedule imposed.
3
In February 2016, the parties stipulated to permanent joint legal custody
with physical care being granted to Jared. At this point in time, Jessica was
unemployed and lived in an apartment. The parties also agreed Jessica would
initially be allowed eight hours of supervised visitation every other weekend.2
Jessica would be entitled to less restrictive visitation if she provided Jared with
documentation from her counselor that demonstrated she was engaging in
recommended treatment and did not pose a threat to herself or others. After
Jessica demonstrated competency with unsupervised visitations, she would be
entitled to visitation every other weekend, from Friday evening to Sunday evening.
The parties’ stipulation also allowed Jessica holiday visitation, but directed that
said visitation be supervised until Jessica met the foregoing conditions. The court
entered a decree approving the parties’ stipulation.
In May, Jessica moved for unsupervised visitation and alleged she met the
conditions for the same but Jared would not agree to lessening the restrictions on
visitation. Jared responded with an application for rule to show cause alleging
Jessica engaged in unsupervised visitation over his objection.3 Following a
hearing on Jessica’s motion, the court entered an order denying Jessica’s request
for unsupervised visitation upon its conclusion Jessica failed to meet the conditions
for the same.
2 Jessica could elect to do either two four-hour visits on Saturday and Sunday or
one eight-hour visit on either day. She could also elect to do one or both of her
four-hour visits on weekdays so long as Jared and the child were reasonably
available and the request for weekday visitation could be accommodated.
3 Jared subsequently withdrew his application
4
Jessica continued to suffer from depression. Sometime later in 2016, she
sought medical treatment and was diagnosed with hypothyroidism. She explained
at trial that the condition causes hormonal imbalances, which resulted in her
mental-health issues.4 She now undergoes regular blood assessments, and her
medication regulates her hormones. Her treatment has completely resolved her
mental-health issues. While Jessica continues to suffer from anxiety, she finds
meditation a successful remedy for her symptoms. At some point, Jessica met the
conditions to progress to unsupervised and expanded visitation.
In May 2017, Jessica filed a petition for modification of the custody decree,
alleging the following changes in circumstances necessitated modification of the
physical care arrangement: (1) Jared’s interference with and lack of support for
Jessica’s relationship with the child, (2) Jessica moving into the same school
district as Jared, (3) Jared’s alleged failure to address the child’s developmental
delays, and (4) the resolution of Jessica’s mental-health issues. Jessica requested
she be awarded physical care. She also requested “such other and further orders
as the court deems appropriate.” In his amended answer, Jared requested an
award of sole legal custody, alleging Jessica’s harassing and oppressive conduct
was not conducive to a joint legal custody arrangement.
Following nearly two years of heated pretrial litigation, the matter proceeded
to trial in February 2019. At the time of trial, Jessica was twenty-seven years old.
She had been living in her own residence with her other son, then one-year old,5
4Jessica had previous mental-health diagnoses.
5Jessica was not in a relationship with the child’s father. At the time of trial, Jessica
had temporary physical care of the child, pending a trial in the coming months.
5
for more than two years. R.C. and his half-sibling are bonded. Jessica’s home is
located roughly four blocks away from R.C.’s school and fifteen or twenty minutes
from Jared’s residence. Jessica works thirty to forty hours per week as a
receptionist and is allowed flexibility in her schedule. Jessica had previously been
assessed by a therapist, who opined Jessica did not present “any mental health
issues that would interfere with [her] ability to parent.” As noted, Jessica had
progressed to unsupervised visitation, and she was exercising parenting time
every other weekend from Friday evening to Sunday evening and on her holidays.
Since the entry of the decree, Jessica has voluntarily participated in services to
enhance her stability and parenting abilities.
At the time of trial, Jared was thirty-two years old. He and the child live with
Jared’s parents. He typically works forty to forty-five hours per week in his full-time
employment. He also has his own side business, in which he occasionally works
on the weekends. When R.C. is not in school and Jared is working, Jared leaves
him at home with his paternal grandmother.
Following the two-day trial, the court concluded both parties are able to
provide suitable care for the child but Jessica failed to meet her burden for
modification of physical care, namely that she failed to show a superior ability to
care for the child. However, the court modified the visitation provisions of the
decree to provide Jessica expanded visitation. Jared filed a motion to reconsider,
enlarge, or amend pursuant to Iowa Rule of Civil Procedure 1.904(2), arguing the
court was without authority to modify visitation because Jessica did not specifically
request the same. The court denied the motion. As noted, both parties appeal.
6
II. Standard of Review
Appellate review of an equitable action to modify the physical-care or
visitation provisions of a custody decree is de novo. See Iowa R. App. P. 6.907;
Christy v. Lenz, 878 N.W.2d 461, 463 (Iowa Ct. App. 2016); Melchiori v. Kooi, 644
N.W.2d 365, 368 (Iowa Ct. App. 2002); see also In re Marriage of 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 interest of the child is our
primary consideration. Iowa R. App. P. 6.904(3)(o); Hoffman, 867 N.W.2d at 32.
III. Analysis
A. Physical Care
We first consider Jessica’s claim on cross-appeal, that the district court
erred in declining to modify the physical care provisions of the custody decree.
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).
7
Assuming without deciding Jessica met her burden to show a sufficient
change in circumstances, we turn to whether Jessica met her burden to show she
has a superior ability to minister the child’s wellbeing. 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).” 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
likely to bring the child to healthy physical, mental, and social maturity.” Courtade,
560 N.W.2d at 38.
In support of her position that she harbors a superior ability to provide for
the child’s wellbeing, Jessica argues the court “failed to give sufficient weight to
[Jared’s] neglect of the child’s medical and social needs” and “failed to give
sufficient weight to [Jared’s] frustration of the bond between [Jessica] and the
child.”
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The evidence was highly conflicting as to Jessica’s allegations that Jared
has failed to adequately address the child’s medical needs. The child suffers from
food protein induced enterocolitis syndrome, which requires he be on a specialized
diet. According to Jessica, Jared believes the diagnosis is made up. But, Jared
acknowledged in his testimony the child suffers from a food allergy. Jessica also
complains Jared does not adequately attend to the child’s other generic medical
needs, such as taking him to the doctor or keeping him home from school when
he is sick. On two separate occasions in 2018, Jessica kept the child in her care
beyond her visitation time allowed in the decree upon her concerns for the child’s
medical wellbeing. Jessica also made two separate reports, in February and June
2018, to the Iowa Department of Human Services (DHS) that Jared was not
meeting the child’s medical needs. Both of the ensuing assessments by DHS were
unfounded. For his part, Jared testified to his belief that he adequately tends to
the child’s medical needs, he just does not agree with Jessica’s practice of rushing
the child to the hospital upon any sign of illness. The child’s kindergarten teacher
testified the child had only missed two days of school during the academic year,
he generally appears healthy, and she had no concerns that the child was
inappropriately being allowed to go to school when ill. Upon our de novo review
of the evidence, all we see is a difference in parenting styles when it comes to
medical treatment, not a superior ability of either parent to minister to the child’s
physical health. As to Jessica’s claim Jared is not fostering the child’s social
welfare, we find convincing the testimony of the child’s kindergarten teacher
confirming that the child is on track socially.
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The evidence was also conflicting as to each of the parent’s abilities to
support the other’s relationship with the child. While Jessica generally alleges that
Jared refuses her any additional visitation beyond what she is entitled to in the
original decree, she variously conceded that is not really the case, agreeing Jared
occasionally allows her extra time if she “push[es] hard enough.” According to
Jessica, Jared supports his denials of additional visitation with various excuses,
often times taking the position he was not given enough advance notice. But the
evidence does show Jared has allowed Jessica additional visitation and deviations
as to when Jessica exercises her parenting time. According to Jared, he allows
Jessica additional visitation whenever he can make it work. While the evidence is
conflicting, what is clear is that much of the difficulty in communication and co-
parenting is a direct result of Jessica’s demanding tendencies and her campaign
to make Jared look like he cannot adequately address the child’s medical needs.
The parties’ ability to effectively communicate about the child is unquestionably
strained. While the strain is attributable to the conduct of both parents, we find at
least a preponderance of the strain to be attributable to Jessica. We also find
hollow Jessica’s allegation that Jared volitionally ostracizes her from being
involved in the child’s education; the child’s kindergarten teacher’s testimony easily
disposes of such a notion. As to the complaint that Jared inappropriately denied
Jessica access to the child’s insurance card, the record shows Jared went out of
his way to facilitate getting insurance information to Jessica.
While we are without the benefit of the express credibility determinations of
the district court, the court’s rejection of the credibility of Jessica’s allegations
10
against Jared is implicit in its conclusion that Jessica failed to show a superior
ability to provide for the child’s wellbeing.
While we might have made different findings had we been the trier
of fact, the district court heard the witnesses, and we did not. Since
this particular case turns largely on the relative credibility of [the
parties], and more generally on their trustworthiness, we defer to the
district court’s findings
and agree with its conclusions. See In re Marriage of Brown, No. 19-0705, 2020
WL 569344, at *4 (Iowa Ct. App. Feb. 5, 2020) (quoting In re Marriage of Zogg-
Kellet, No. 09-0652, 2010 WL 625023, at *4 (Iowa Ct. App. Feb. 4, 2010)).
We do not conclude that Jessica is an unsuitable parent. Nor do we find
Jared is a perfect parent. We simply conclude Jessica failed to meet her heavy
burden to show she has a superior ability to minister more effectively to the child’s
wellbeing. See Frederici, 338 N.W.2d at 158. For that reason, we affirm the denial
of Jessica’s request for modification of physical care.
B. Visitation
We turn to Jared’s challenge on appeal, that the court erred in modifying
the visitation provisions of the decree. He complains Jessica only requested
modification of physical care and argues he was thus not on notice that
modification of visitation was in play and the court’s alleged sua sponte
modification of visitation was therefore impermissible.
Jared discusses two of this court’s prior decisions. He first discusses In re
Marriage of Hute, a case in which a modification applicant requested mere
modification of visitation, not legal custody or physical care. See No. 17-0046,
2017 WL 3283382, at *3 (Iowa Ct. App. Aug. 2, 2017). The court ultimately
modified legal custody. Id. at *1. We concluded “[t]he parties were not given notice
11
that custody was at issue” and, “[u]nder the circumstances, sua sponte
modification of the custodial provisions of the decree was not proper.” Id. at *3.
However, we distinguished Hute in the second case noted by Jared. In In re
Marriage of Seward, the modification petitioner specifically requested modification
of physical care and broadly requested the court to “enter such orders” as to “other
matters appropriate under the circumstances.” No. 18-1690, 2019 WL 1934002,
at *1 (Iowa Ct. App. May 1, 2019). The court denied the request for modification
of physical care but modified visitation. Id. at *2. The court denied the appellant’s
argument in her motion to reconsider, enlarge, or amend that the court
impermissibly modified visitation, because that issue was not before the court. See
id. When the argument was echoed on appeal, we concluded the appellant “had
fair notice the visitation provision was potentially at issue given the modifications
broadly worded prayer,” which “permitted the court to modify ‘other matters
appropriate under the circumstances,’ which would include the visitation provision
under the decree.” Id.
Here, Jessica’s petition likewise broadly requested modification of “other
and further” matters “the court deems appropriate.” Jared goes on to argue that
the direct examination of the appellant in Seward additionally put her on notice that
modification of visitation was in play, see id. at *3, while Jessica indicated in her
testimony that she was not seeking a mere modification of visitation. But, we do
not find that circumstance to be dispositive. Jared’s primary complaint on appeal
is that he was not on notice visitation was at issue and he was therefore not
prepared to make an adequate record on the issue. We disagree. It makes sense
to not provide relief beyond what is requested, e.g., Hute, 2017 WL 3283382, at
12
*3. But this proceeding was unquestionably and obviously driven by Jessica’s
desire to have more time with the child. An award of physical care would have
effectuated that desire, as does a lesser award of expanded visitation. While
Jessica specifically requested modification of physical care but did not make a
specific prayer for modification of visitation, we liberally construe her prayer for
general equitable relief to include a request for modification of visitation, as the
petition and evidence fairly conform to that relief. See, e.g., Lee v. State, 844
N.W.2d 668, 679 (Iowa 2014). While Jared claims surprise because Jessica
testified she was seeking modification of physical care as opposed to expanded
visitation, interpreting her testimony as all or nothing is simply illogical given the
overarching theme of the proceedings—Jessica’s desire to have more time with
the child. We reject Jared’s argument that the court was without authority to modify
visitation.
IV. Conclusion
We affirm the district court’s modification of the custody decree.
AFFIRMED.