IN THE COURT OF APPEALS OF IOWA
No. 20-0302
Filed November 4, 2020
IN RE THE MARRIAGE OF BRIAN PATRICK GALLEGER
AND ALENNA LINDA GALLEGER
Upon the Petition of
BRIAN PATRICK GALLEGER,
Petitioner-Appellee,
And Concerning
ALENNA LINDA GALLEGER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
A mother appeals the district court decision denying her request for
modification of physical care. She also appeals the modification of visitation and
transportation expenses. AFFIRMED AS MODIFIED.
Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des
Moines, for appellant.
Marcy Lundberg of Cordell Law LLP, Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.
A mother appeals the district court decision denying her request for
modification of physical care, visitation, and transportation expenses. Both parties
seek attorney fees for this appeal. We affirm the decision of the district court on
the issues of physical care and transportation expenses and modify the length of
the summer visitation. We deny the requests for appellate attorney fees.
I. Background Facts & Proceedings
Brian Galleger and Alenna Galleger, now known as Alenna Wahlert, were
previously married. They are the parents of J.P.G., who was born in 2012. Brian
has been a service member in the military since he was eighteen years old. At the
time of trial, he was entering his twelfth year of military service.
Brian and Alenna separated in 2015 while they were living in Germany. On
July 28, 2015, the parents signed a parenting plan that provided for joint legal
custody with Brian having physical care of the child. Alenna was granted
“reasonable visitation as the parents agree.” They also signed a settlement
agreement that provided for child support and other financial matters. Brian and
the child moved to the United States, where Brian was stationed at Fort Riley,
Kansas. Alenna remained in Germany.
A dissolution decree was filed in Iowa for the parties on February 19, 2016,
which incorporated the parenting plan and settlement agreement. The court
ordered Alenna to pay child support of eighty-three dollars per month, except for
June, July, and August 2016, when the child would be in her care. The decree
stated, “The parties will agree on a parenting plan once [Alenna] has re-located to
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the United States. They will work cooperatively to assure that the child has the
maximum amount of contact with each parent.”
Alenna moved back to the United States in July 2016. At first, she lived in
Kansas with Brian and the child. After a few months, Alenna moved to Iowa, where
she has extended family. She exercised visitation with the child in Kansas. At
times, Brian brought the child to Iowa, where he also has extended family. In
August 2018, Brian believed he was going to be deployed overseas, and he agreed
the child would stay with Alenna in Iowa while he was deployed. Brian was
ultimately not deployed, and in November 2018, he was stationed in Virginia.
On November 6, 2018, Alenna filed an application for modification of the
dissolution decree. She claimed there had been a substantial change of
circumstances due to Brian’s move to Virginia. Alenna asked to have the child
placed in her physical care. She also sought an injunction prohibiting Brian from
moving the child to Virginia. Her request for an injunction was denied. J.P.G.
moved to Virginia in December 2018.
A modification trial was held beginning January 7, 2020. The district court
denied Alenna’s request for modification of physical care, finding she had not
shown there was a substantial change in circumstances. Alenna was granted
visitation on every third weekend, alternating holidays, four weeks in the summer,
and telephone or video contact no less than two times per week. The court ordered
Brian to pay two-thirds of the child’s travel expenses, and Alenna was ordered to
pay one-third of the expenses. The court increased Alenna’s child support
obligation to $279.82 per month. Alenna appeals the district court’s decision.
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II. Standard of Review
In this equitable action, our review is de novo. In re Marriage of Vaughan,
812 N.W.2d 688, 692 (Iowa 2012). We examine the entire record and adjudicate
the issues anew. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).
We give weight to the fact findings of the district court, especially in determining
the credibility of witnesses, but are not bound by these findings. Iowa R. App. P.
6.904(3)(g); In re Marriage of Olson, 705 N.W.2d 312, 313 (Iowa 2005). Our
overriding consideration is always the child’s best interests. Iowa R. App. P.
6.904(3)(o).
III. Modification of Physical Care
Alenna contends the district court should have granted her request to
modify physical care. She claims there has been a substantial change in
circumstances because Brian and the child moved from Kansas, where she was
able to visit frequently, to Virginia, which is further from Iowa. She points out this
was a move of more than 150 miles and states that under Iowa Code section
598.21D (2018),1 this should be considered a substantial change in circumstances.
1 Iowa Code section 598.21D provides:
If a parent awarded joint legal custody and physical care or sole legal
custody is relocating the residence of the minor child to a location
which is one hundred fifty miles or more from the residence of the
minor child at the time that custody was awarded, the court may
consider the relocation a substantial change in circumstances. If the
court determines that the relocation is a substantial change in
circumstances, the court shall modify the custody order to, at a
minimum, preserve, as nearly as possible, the existing relationship
between the minor child and the nonrelocating parent. If modified,
the order may include a provision for extended visitation during
summer vacations and school breaks and scheduled telephone
contact between the nonrelocating parent and the minor child. The
modification may include a provision assigning the responsibility for
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Alenna additionally asserts there have been other changes—she moved to
Kansas from Germany and then moved to Iowa, and the child lived with her from
August to December 2018. In addition, Alenna argues for modification of physical
care due to the fact that she is remarried, she and her husband have a child, and
J.P.G. is bonded with his younger half-sibling. Lastly, Alenna argues Brian is
inattentive to J.P.G.’s schooling and medical needs.
On the issue of modification of physical care, the Iowa Supreme Court has
stated:
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).
The court may consider the relocation of the child’s residence of more than
150 miles from his or her current residence a substantial change in circumstances
for purposes of modification of physical care. Iowa Code § 598.21D. “[T]he statute
tempers the ability of a parent who is responsible for his or her child[ ]’s physical
care to relocate.” In re Marriage of Thielges, 623 N.W.2d 232, 237 (Iowa Ct. App.
2000).
transportation of the minor child for visitation purposes to either or
both parents.
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Brian argued that because he was in the military, it would be within the
contemplation of the court at the time of the dissolution decree that he would be
required to move as a result of his service, and therefore, the provision in section
598.21D should not be applied. In Thielges, the parties’ dissolution decree
restricted relocation of the children. 623 N.W.2d at 234. Despite this restriction,
which showed relocation was within the contemplation of the court at the time of
the decree, we considered the application of section 598.21D. Id. at 236–37. We
determined that even when the statute applies, it “does not change the burdens of
proof applicable to custody modification requests.” Id. at 237.
Although Brian and the child have moved more than 150 miles, which may
be considered a substantial change of circumstances under section 598.21D, “not
every change in circumstances constitutes a sufficient basis for modification.” See
In re Marriage of Chmelicek, 480 N.W.2d 571, 574 (Iowa Ct. App. 1991). The
district court determined there had not been a substantial change in circumstances
due to the military move. Even if we were to find that the move from Kansas to
Virginia was a substantial change of circumstances, based on the record, we
conclude that Alenna falls short on the second required prong, as Alenna must
also show she has the ability to provide superior care for the child. See In re
Marriage of Malloy, 687 N.W.2d 110, 114 (Iowa Ct. App. 2004). “Our focus is on
the long-range best interests of the child[ ].” In re Marriage of Grabill, 414 N.W.2d
852, 853 (Iowa Ct. App. 1987).
We find Alenna has not met her heavy burden to show she can minister
more effectively to the child’s best interests. Alenna testified the child needs
stability. In this case, that stability can be achieved by leaving the child in Brian’s
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physical care. Brian has been the child’s primary caretaker since he and the child
moved from Germany to Kansas, with the exception of a short period when Brian
believed he would be deployed. We note that once Brian moved from Kansas, as
he was required to do for his military service, there would be a relocation of the
child to either Virginia or Iowa. “[O]ur case law places greater importance on the
stability of the relationship between the child and the primary caregiver over the
physical setting of the child.” In re Marriage of Williams, 589 N.W.2d 759, 762
(Iowa Ct. App. 1998). Brian’s continued physical care of the child provides stability,
and we conclude this is in the child’s long-term best interests. J.P.G. is attending
school in Virginia and participating in extra-curricular activities, and Brian is actively
involved in all aspects of his son’s life. Importantly, he has assured a relationship
between the child and the mother.
As to Alenna’s other concerns, we, like the district court, find Brian’s
response to each of the allegations to be reasonable “and that even if the
assertions are accurate, they neither individually nor in the aggregate amount to a
substantial and material change in circumstances.” We affirm the district court’s
decision denying Alenna’s request to modify physical care.
IV. Visitation
Alenna asserts if she is not awarded physical care of the child, she should
be granted more summer visitation time. The district court determined she should
have four weeks with the child in the summer, in addition to her regular visitation.
Alenna asks for nine weeks with the child each summer.
“Upon awarding one parent physical care, the district court shall award the
other parent visitation that assures the child[ ] ‘the opportunity for the maximum
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continuing physical and emotional contact with both parents.’” In re Marriage of
Gensley, 777 N.W.2d 705, 717 (Iowa Ct. App. 2009) (quoting Iowa Code
§ 598.41(1)(a)). We “apply a less demanding burden of proof to modifications of
visitation,” than a modification of physical care. In re Marriage of Brown, 778
N.W.2d 47, 52 (Iowa Ct. App. 2009). “A parent seeking to modify visitation must
only establish ‘that there has been a material change in circumstances since the
decree and that the requested change in visitation is in the best interests of the
child[ ].’” Id. at 51–52 (quoting In re Marriage of Salmon, 519 N.W.2d 94, 96 (Iowa
Ct. App. 1994)).
When one party moves, “the court can modify the custody order at issue by
granting the nonrelocating parent ‘extended visitation during summer vacations
and school breaks and scheduled telephone contact.’” Thielges, 623 N.W.2d at
238 (quoting Iowa Code § 598.21D). Our primary consideration is the best
interests of the child. Gensley, 777 N.W.2d at 718. “[T]he best interests of [a]
child[ ] are ordinarily fostered by a continuing association with both parents.”
Brown, 778 N.W.2d at 52; see also Salmon, 519 N.W.2d at 95 (recognizing
“reasonable discretion of the trial court to modify visitation rights” and declining to
“disturb its decision unless the record fairly shows it has failed to do equity”).
The parties agreed a modification of the visitation provision of the
dissolution decree was required, as the original decree did not provide a visitation
schedule. Rather, visitation was set as the parties could agree. In the modified
decree, Alenna was granted visitation on every third weekend, alternating holiday
and school breaks, and four weeks in the summer. The parties are also able to
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agree to additional visitation.2 Alenna has the ability to contact the child by
telephone or video no less than two times per week.
Not unlike other cases where the parties’ focus is on the physical care issue
at trial, the record is scarce as to what type of visitation schedule is in the child’s
best interest. We have not been provided with the length of the summer school
break in Virginia for the child. While Alenna points to her exhibit R to support her
request for nine weeks of summer visitation, such exhibit represents the visitation
she believed appropriate for Brian in the event she was awarded physical custody.
Her proposal for Brian included only holidays and four “three or four” day contacts
throughout the school year, with a longer period in the summer. Further, while
Alenna argues that Brian testified she could have the bulk of the summer with
J.P.G., such conversation occurred as part of settlement negotiations, not as part
of either parent’s trial requests.
However, the visitation schedule constructed by the district court limits
Alenna’s summer visitation to substantially less time than she has exercised in
past summers. We are also mindful the monthly travel for Alenna to Virginia, given
the young child in her home, will be burdensome. Additionally, Brian
acknowledged that he scheduled military training required of him for the summer
months when J.P.G is with his mother. Given the same, we increase the summer
visitation for Alenna to seven weeks. We find increasing the summer visitation,
given the physical distance between the parents, does equity between the parties
2 Brian has historically allowed liberal visitation for Alenna and her family. On
several occasions, Brian allowed Alenna and her boyfriend to stay at his home
during visitation when Brian was stationed in Kansas.
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and affords a continued association with both parents and the opportunity for the
maximum continuing physical and emotional contact with both parents. We
conclude this modification “preserve[s], as nearly as possible, the existing
relationship between the minor child and [Alenna].” See Iowa Code § 598.21D.
This expansion will likely still allow the child to experience some summer vacation
with each parent. We affirm the visitation schedule as modified.
V. Transportation Expenses
The modification order provides, “The parties shall share in payment of all
expenses associated with the child’s travel. Based on the parties’ income disparity
[Brian] shall pay two-thirds (2/3) and [Alenna] shall pay one-third (1/3) of said travel
expenses.” Alenna asserts that the decree does not address her travel expenses.
She notes that when she exercises visitation on every third weekend, she is
required to pick up the child and drop him off at Brian’s residence. She points out
this will require her to travel to Virginia, rent a car, and obtain a hotel room.
Although Brian is the party who moved, it is equitable for the parties to share
visitation expenses. See In re Marriage of Wahlert, 400 N.W.2d 557, 561 (Iowa
1987). In the case In re Marriage of Moyer, No. 11-1695, 2012 WL 2412075, at *6
(Iowa Ct. App. June 27, 2012), we approved a provision requiring a mother to share
in the travel expenses for an out-of-state father’s visitation during school breaks
and the summer, but not share in the father’s travel expenses for weekend
visitation.
We find the district court’s order regarding travel expenses—requiring Brian
to pay two-thirds of the expenses for holiday and school breaks and summer
visitation but not requiring him to contribute to Alenna’s expenses for weekend
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visitation—is equitable under the facts of the case. As noted by Brian, Alenna
travelled to Kansas and paid her own expenses for visitation with the child prior to
the modification. We affirm the district court on this issue as well.
VI. Attorney Fees
Alenna and Brian seek attorney fees for this appeal. Appellate attorney fees
are not awarded as a matter of right but rest within the court’s discretion. In re
Marriage of Stenzel, 908 N.W.2d 524, 538 (Iowa Ct. App. 2018). In considering
appellate attorney fees, we look to “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 Sullins, 715 N.W.2d 242, 255 (Iowa 2006)). Brian was the
successful party on the majority of issues on appeal. However, Alenna does not
have the ability to pay Brian’s attorney fees. We determine each party should pay
his or her own appellate attorney fees.
We affirm the decision of the district court as modified.
AFFIRMED AS MODIFIED.
In re the Marriage of Galleger
Combined Opinion