In re Marriage of Edgerton

IN THE COURT OF APPEALS OF IOWA

No. 21-0695
Filed January 12, 2022

IN RE THE MARRIAGE OF ROBERT EDGERTON
AND JESSICA EDGERTON

Upon the Petition of
ROBERT EDGERTON,
Petitioner-Appellant,

And Concerning
JESSICA EDGERTON,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Mills County, Michael Hooper,

Judge.

A former husband appeals a ruling modifying the joint-physical-care

provision of the stipulated decree dissolving his marriage. AFFIRMED AND

REMANDED.

Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.

P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs,

for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
 2

BADDING, Judge.

When Robert and Jessica Edgerton divorced in March 2019, they agreed

to share physical care of their three children. Eleven months later, the district court

observed that the parties could agree on “only one thing, that the shared care

arrangement no longer works.” Due to the complete breakdown in communication

between the parties, the court granted Jessica’s request to modify the stipulated

dissolution decree to place the children in her physical care. While acknowledging

“both parents, separate from the other, are great loving parents,” the court found

the evidence showed Jessica would render better care than Robert.

On appeal, Robert raises a single issue: did the district court use the wrong

standard in finding Jessica would provide “better,” as opposed to “superior,” care

for the children? We find the court applied the correct standard and considered

appropriate factors in deciding which parent should have physical care. After doing

the same on our de novo review of the record, we affirm the modification

ruling. We remand for the district court to determine a reasonable amount of

attorney fees to be awarded to Jessica.

I. Background Facts and Proceedings

Robert and Jessica have two sons, born in 2010 and 2012, and a daughter,

born in 2016. After Robert filed for divorce in the summer of 2018, the district court

approved the parties’ stipulation to place the children in their joint legal custody

and joint physical care on an alternating week schedule, along with a broad
 3

right-of-first-refusal provision.1 Because Jessica’s job allowed her to work two,

twelve-hour shifts each week, she was able to take significant advantage of this

provision during Robert’s parenting time with the children.

Within five months of the divorce, Robert filed an application for contempt,

claiming Jessica had “unilaterally decide[d] to enroll the children in the Lewis

Central School District after she relocated to Council Bluffs,”2 in violation of the

decree. He alleged it was in the children’s best interests to maintain the status

quo, which was to keep the two school-aged children enrolled in the Glenwood

Community School District as they had been during the marriage. Although the

contempt action was later dismissed based on the parties’ agreement not to

remove the children from their school district, the matter was not ended.

The parties continued to argue about where the children would attend

school even through the modification trial. Jessica pushed to transfer them to a

school in Council Bluffs because she believed there would be more resources

available to help their younger son, who was struggling both academically and

behaviorally at school. She expressed frustration that she couldn’t have an

“open-minded conversation” with Robert about this issue, explaining: “I just want a

chance to talk to Bob about it,” but “[i]t’s Glenwood or nothing.” For his part, Robert

believed Jessica wanted to remove the children from Glenwood not for their

1 This provision stated: “If a party having physical care of the children cannot
provide that physical care, they shall offer the opportunity to provide physical care
to the other parent before making daycare arrangements.”
2 The district court awarded Robert the marital home in Glenwood as stipulated by

the parties, requiring Jessica to move out no later than March 1, 2019.
 4

benefit, but because he has “a good relationship with [school personnel], they tell

me everything that goes on, so she doesn’t like that.”

Besides disputes about school-related matters, the parties repeatedly

fought over the children’s extracurricular activities and medical needs. They often

involved their lawyers in these arguments, which sometimes resulted in the

children missing out on camps and other activities. When it came to the children’s

medical needs, Robert was dismissive of Jessica’s concerns about the children’s

allergies and asthma, while Jessica questioned his concerns about their youngest

child’s speech delay and their middle child’s possible diagnosis of attention deficit

hyperactivity disorder. Even the family’s doctor who conducted a well-child check

for their three-year-old daughter observed: “There is a lot of conflict between

mother and father over just about everything regarding the kids’ care.”

At bottom, Robert’s mistrust of Jessica runs deep. Since the dissolution, he

has insisted on communicating with Jessica only by email or text message

because “[t]hat way it’s all logged, there’s no he said/she said, I have it in a

registry.” He has also videotaped all of his interactions with Jessica, most of which

occur while exchanging the children. When asked why he recorded their

exchanges, Robert replied: “For my safety, because I don’t trust her, and . . . she

twists everything around.” According to Jessica, the children have noticed the

videotaping and asked questions about it, like, “why does Daddy do it, why does

Daddy not trust you, can’t you guys get along.”

The parties have not been careful about shielding the children from their

animosity. For starters, Robert will not let Jessica pick the children up at his house

when it’s her time with them. Instead, he demands that they meet at a public
 5

location, most often the police station. When Jessica did go to his house once, he

refused to let their youngest child leave with her and called the police to report her

for trespassing. Another time, when they were meeting at a Pizza Hut to exchange

homework their oldest child had left behind, Jessica called the police just to “help

[her] with the exchange.” The parties have even involved the police in exchanges

at the children’s school. On Valentine’s Day 2020, Robert refused to let the oldest

child go with Jessica after school was dismissed early because he still had an hour

left according to the parenting schedule. Jessica recalled he had their child

“grasped on his upper arm” and was acting “belligerent” while other parents and

children watched. She testified that, at this point, Robert began recording the

onlookers, saying “look, look who’s all my witnesses.” Three police cruisers had

to intervene to diffuse the situation.

Eleven months into co-parenting, the parties agreed this level of parental

conflict constituted a material and substantial change in circumstances warranting

a modification of the dissolution decree. While neither wanted to continue joint

physical care, both believed they should have physical care. Unable to resolve

their dispute through court-ordered mediation, the parties went to trial in January

2021. Following trial, the district court expressed regret that the parties could not

set aside their differences for their children, noting, “It is sad for the court to see

parents who individually want what is best for their children but who refuse to work

together in making those decisions.” The court found both Robert and Jessica

were capable and loving parents, but as co-parents, they were “both equally

lacking.”
 6

Considering the hostility exhibited by both sides during trial, the court

confirmed that joint physical care was no longer in the children’s best interests. In

turning to the more “difficult” question of which parent should be awarded physical

care, the court set forth what it considered to be the applicable legal standard:

Because the Stipulated Decree created a shared-care arrangement
and the parties now agree that a material and substantial change in
circumstances has occurred, the parties are on equal footing and
bear the same burden as they would in an initial custody
determination; thus the question is, which parent can render “better”
care, rather than superior care.

Based on the relevant factors in Iowa Code section 598.41(3) (2020) and In re

Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974), the court determined

that Jessica would provide better care for the children. The court accordingly

modified the decree to give her physical care with liberal visitation for Robert.

Robert appeals.

II. Standard of Review

We review the modification of a dissolution decree de novo. In re Marriage

of Harris, 877 N.W.2d 434, 440 (Iowa 2016). We give weight to the district court’s

fact findings, especially on witness credibility, but they do not bind us. In re

Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

III. Analysis

In Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002), our court

held that the

parent seeking to change the physical care from the primary
custodial parent to the petitioning parent has a heavy burden and
must show the ability to offer superior care. Where one parent has
primary care, that parent has been found to be the better
parent. That is not the situation here, where the parents shared
equally the physical and primary care of [the child]. The result of the
 7

initial paternity order was they were both found suitable to be primary
care parents.

Robert contends the district court misread Melchiori “as supporting the premise

that the parties only have to show ‘better’ care” rather than “superior” care. There

are several problems with Robert’s argument.

First, as Jessica points out, the terms “better” and “superior” are

synonymous. Better, Merriam-Webster, https://www.merriam-

webster.com/dictionary/better#synonyms (last visited Dec. 14, 2021). The

important point from Melchiori and our cases since then is that in a joint-physical-

care modification—unlike a modification where just one parent has physical

care—“the parties are on equal footing and bear the same burden as the parties

in an initial custody determination.”3 Paulsen, 2018 WL 2727803, at *2. Put

differently,

If it is determined the joint physical care arrangement needs to be
modified, the physical care provider should be the parent “who can
administer most effectively to the long-term best interests of the
children and place them in an environment that will foster healthy
physical and emotional lives.”

In re Marriage of Berns, No. 13-0013, 2013 WL 4009678, at *2 (Iowa Ct. App. Aug.

7, 2013) (quoting In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct. App.

1998)).

3 We recognize that our cases have not always consistently stated the standard to
be applied in joint-physical-care modifications. Compare In re Marriage of
Paulsen, No. 17-1595, 2018 WL 2727803, at *2 (Iowa Ct. App. June 6, 2018)
(framing the question as “which parent can render ‘better’ care”), with In re
Marriage of Flick, No. 20-1535, 2021 WL 2453111, at *3 (Iowa Ct. App. June 16,
2021) (examining whether the father established he is the “superior parent”). We
believe this is a distinction without a difference given the equivalence between
“better” and “superior.”
 8

Second, at the start of the modification trial, counsel for both sides stipulated

that there was a material and substantial change in circumstances to warrant a

modification of the original decree. Based on that stipulation, the court described

the dispute as follows:

And so, in essence, I don’t need to make a determination today
based on what you’re both telling me that there’s been a change in
circumstances, and because you both had shared—a shared-care
arrangement, the decision that I make today comes down to which
one of you I find is a better parent.

When asked if they understood the scope of the court’s inquiry, both parties

replied, “Yes, I do.” Robert cannot now complain the court used the wrong

standard in its modification ruling. See Hackman v. Beckwith, 64 N.W.2d 275, 281

(Iowa 1954) (“[I]t is elementary a litigant cannot complain of error which he has

invited or to which he has assented.”).

And third, in examining the parties’ dueling modification requests, the district

court did not simply focus on which parent was “better.” The court instead

balanced the strengths shown by both parties in light of the relevant factors before

concluding “primary care with Jessica will most likely bring the children to healthy

physical, mental, and social maturity and is in the children’s best interest.” As

stated above, this was the key inquiry. See In re Marriage of Ruckman, No.

13-1920, 2014 WL 3748601, at *8 (Iowa Ct. App. July 30, 2014). In reaching that

determination, the court reasoned that Robert was less likely to put the children’s

needs first due to “his dislike and/or distrust of Jessica.” See In re Marriage of

Garvis, 411 N.W.2d 703, 707 (Iowa Ct. App. 1987) (“[W]hatever discord that may

exist between [the parents] must end when the well-being of their children is

involved.”). The court noted that Robert tended to dismiss Jessica’s concerns
 9

about the children’s medical needs; he refused to let Jessica pick the children up

from his home; he recorded all of their interactions; and he held a grudge against

Jessica that created tension between them and the children. Indeed, this need

that Robert has to record his communications with Jessica “speaks volumes about

the virulence of [his] animosity and [his] lack of trust and respect” for her, which is

not lost on the children. See Harris, 877 N.W.2d at 442.

While acknowledging that “Jessica is not without fault,” the court found she

was more likely to communicate the children’s needs and support their relationship

with Robert than if the roles were reversed. See Iowa Code

§ 598.41(3)(c), (e). She expressed a desire to be able to talk to him on the phone

and in person about their children. She set up co-parenting therapy and tried to

use a parenting app to improve their communication. Robert did not make the

same efforts. As for their respective parenting abilities, both Robert and Jessica

testified about their active involvement in the children’s daily lives. But the court

found Jessica more credible than Robert in deciding she was providing more of

the day-to-day routine parenting since the decree was entered. We defer to these

credibility findings. See In re Marriage of Hynick, 727 N.W.2d 575, 580 (Iowa

2007).

Robert nevertheless argues the district court’s findings are unsupported by

the record. He asserts “[Jessica] was both manipulating a poorly drafted right of

first refusal and also simply had more opportunity to take on the more mundane

parenting tasks.” He claims the court’s decision to award physical care to Jessica

based on her ability to attend more regularly to the children’s needs, in effect,

“punished [him] for maintaining his employment and being unable to exercise his
 10

right of first refusal with the same frequency as [Jessica].” While Robert blames

Jessica for exercising her right of first refusal, we note that this right was part of

the parties’ stipulated decree. See In re Marriage Klemmensen, No. 14-1292,

2015 WL 2089699, at *3 (Iowa Ct. App. May 6, 2015) (recognizing the right of first

refusal in custody disputes). In any event, it is not our job to resolve physical care

issues based on the perceived fairness to the parents. In re Marriage of Hansen,

733 N.W.2d 683, 695 (Iowa 2007). We instead must do what it is in the children’s

best interests. Id.

With that in mind, we agree with the district court’s conclusion that placing

the children in Jessica’s physical care is in their best interests because she is the

parent most likely to bring them to physical, mental, and social maturity. See id.

But we caution the parents that they have an “ongoing mutual responsibility to

cooperate in the best interests of the children.” Harris, 877 N.W.2d at 444. As we

have repeated too often:

Even though the parents are not required to be friends, they
owe it to their child[ren] to maintain an attitude of civility, act decently
toward one another, and communicate openly with each other. One
might well question the suitability as custodian of any parent unable
to meet these minimum requirements.

In re Marriage of Bolin, 336 N.W.2d 441, 447 (Iowa 1983).

IV. Attorney Fees

Jessica requests an unspecified amount of attorney fees for this

appeal. The decision to award appellate attorney fees rests within our

discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Factors

to be considered 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.
 11

We find an award of appellate attorney fees to Jessica is appropriate

because Robert earns almost twice as much as her, and he did not succeed on

appeal. But because Jessica did not provide an affidavit of attorney fees with

documentation to support her request, we remand with instructions for the district

court to determine a reasonable amount for the award. See, e.g., In re Marriage

of Heiar, 954 N.W.2d 464, 473–74 (Iowa Ct. App. 2020); In re Marriage of

Pleggenkuhle, No. 19-0030, 2020 WL 376552, at *3 (Iowa Ct. App. Jan. 23, 2020);

In re Marriage of Tribolet, No. 18-1929, 2019 WL 4302130, at *7 (Iowa Ct. App.

Sept. 11, 2019).

AFFIRMED AND REMANDED.