IN THE COURT OF APPEALS OF IOWA
No. 21-1001
Filed August 17, 2022
KIMBERLY A. MEEK,
Petitioner-Appellant,
vs.
GARY BROWN, JR.,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Tama County, Andrew B. Chappell,
Judge.
Kimberly Meek appeals the district court’s denial of her petition to modify a
custody decree. AFFIRMED.
Melissa A. Nine of Nine Law Office, Marshalltown, for appellant.
Fred Stiefel, Victor, for appellee.
Considered by Bower, C.J., Schumacher, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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BOWER, Chief Judge.
Kimberly Meek appeals the district court’s denial of her petition to modify a
custody decree. We affirm the district court’s legal custody ruling and the
modification of Gary’s visitation.
I. Background Facts & Proceedings.
Kimberly and Gary are the unmarried parents of twins born in 2011.
Kimberly and Gary have had various hearings and stipulations regarding custody
of the twins since 2014, including an order dated April 1, 2019. Under the 2019
order, Kimberly and Gary have joint legal custody, Kimberly has physical care,
Gary has visitation during the day on alternating weekends and three one-week
visits in the summer (subject to supervision and caretaking requirements).
In the summer of 2019, the State filed child-in-need-of-assistance (CINA)
petitions based on Gary’s failure to properly supervise the children, specifically
relating to conduct of a relative with the children. The precipitating incidents
occurred before April 2019 but were reported and investigated after the custody
order. The children were initially removed from Gary’s custody, but an August
2019 adjudicatory order returned custody to Gary while requiring his visits with the
children be fully supervised.1 The CINA proceedings were ongoing.
In October, Kimberly and Gary filed a stipulation in these proceedings that
Gary was in contempt of the April 2019 custody order by violating provisions
relating to supervision of the children, working during summer visitation, failing to
1Gary’s visits since spring 2020 have been supervised by Kimberly or her mother
because of service providers’ staffing challenges related to COVID-19.
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ensure the children took prescribed medication, preventing access to technology
which would allow the children to contact Kimberly, and failing to pay child support.
In December 2019, Kimberly filed a petition for modification of the custody
decree with the district court, seeking sole legal custody and requesting Gary’s
visits be changed to supervised visitation once a week. Gary resisted any
changes.
In separate proceedings in June 2020, a court found one of the twins had
been abused by a relative during Gary’s parenting time in an incident predating the
April 2019 custody order. In the CINA proceedings, the juvenile court entered an
August 2020 review order, noting Gary did not support the twins in their claims
against his family member. The juvenile court found supervised visits were in the
children’s best interests because Gary was not fully participating in the
recommended therapy or addressing safety concerns.
A custody modification trial was held on March 9, 2021. The district court
determined Kimberly fell short of justifying a modification of legal custody; the court
found her complaints of inadequate supervision appeared to be isolated incidents
rather than a permanent change and thus were more appropriate for contempt
proceedings.2 The court determined indefinite supervised visitation was not the
best option and ordered Gary’s weekend daytime visits be restored “at such time
2 The modification order included a contempt ruling, finding Gary had purged part
of his contempt sentence and could purge eight more days through filing taxes and
paying child support arrearages by specific deadlines and ordering Gary to serve
two days in jail.
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that the juvenile court removes the requirement for supervised visits or otherwise
closes its case.”
Kimberly appeals.
II. Standard of Review.
We review proceedings tried in equity de novo. Christy v. Lenz, 878 N.W.2d
461, 464 (Iowa Ct. App. 2016). We review the entire record and adjudicate the
issues properly presented anew. See In re Marriage of McDermott, 827 N.W.2d
671, 676 (Iowa 2013). However, because the district court had the opportunity to
hear the evidence and view the witnesses firsthand, we give weight to the district
court’s findings even though they are not binding. Christy, 878 N.W.2d at 464. “In
child custody cases, the first and governing consideration of the courts is the best
interests of the child.” Iowa R. App. P. 6.904(3)(o).
III. Analysis.
Iowa Code chapter 600B (2019) governs cases of paternity, custody,
visitation, and support between unmarried parties. Montgomery v. Wells, 708
N.W.2d 704, 707 (Iowa Ct. App. 2005). Section 600B.40 directs the court to apply
the factors found in Iowa Code section 598.41—governing custody of children in
marriage dissolution cases—to custody and visitation arrangements for children of
unmarried parents.
On appeal, Kimberly asserts the court erred in not deferring to the juvenile
court’s recommendation to place sole legal custody with Kimberly and require
Gary’s visits be supervised indefinitely. Kimberly also asserts Gary should pay her
trial and appellate attorney fees.
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A. Custody modification. Courts may modify the custodial terms of a
custody decree “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, which was more or less permanent, and relates to the welfare of the child.”
Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). “[O]nce 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). Our state favors
joint legal custody, deviating “only under the most compelling circumstances.” In
re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). But a parent
can overcome that preference with “clear and convincing evidence . . . that joint
custody is unreasonable and not in the best interest of the child.” Iowa Code
§ 598.41(2)(b).
The changes in circumstances cited by Kimberly are Gary’s admitted
violations of the supervision, medication, and electronic access provisions of the
April 2019 decree, which resulted in the court finding Gary in contempt. The district
court concluded Kimberly’s concerns either already existed and were addressed
in the April 2019 decree or did not appear permanent in nature.
The only circumstance that might give us pause is the CINA case. But the
precipitating event underlying the CINA occurred before the April 2019 decree
modification, though investigated and adjudicated after the modification. Gary’s
failure to supervise was specifically addressed in the April 2019 modification of the
custody decree. In fact, Gary’s lack of supervision resulted in a decrease in
visitation time by eliminating weekend overnight visits. The juvenile court’s CINA
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review order finding supervised visits were in the children’s best interests because
Gary was not fully participating in the recommended therapy or addressing safety
concerns was six months old at the time of the modification trial. And Gary testified
he had since begun attending the children’s therapy and was working on the
juvenile court’s areas of concern. The district court clearly considered the juvenile
court’s order, but the relevant factors and the court’s perspective were different.
As the district court observed, Gary’s violations since the 2019 order are more
appropriately the subject of contempt proceedings. The court issued a ruling of
contempt.
Considering all the facts and circumstances, we agree Kimberly has failed
to establish a permanent and substantial change in circumstances to justify
severing the legal custodial relationship between Gary and the children.
B. Supervised visits. The party seeking a modification of visitation must
establish a material change in circumstances by a preponderance of the evidence.
Christy, 878 N.W.2d at464. This is a lower standard than required for a custody
modification. Id. But we keep in mind “the prevailing principle that the best
interests of children are ordinarily fostered by a continuing association with the
noncustodial parent.” Id. (citation omitted).
The district court expressed concern of the impact permanent supervised
visitation would have on the children’s relationship with Gary. The court
acknowledged the difficult position Gary was in with conflicting stories from the
children and his other family member on the allegations from the CINA case. The
court clarified supervision requirements during Gary’s summer visits and made
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provisions in the event Gary cannot meet them. The court also noted the
resumption of weekend and summer visits would only take effect after the juvenile
court removed the supervision requirement.
This family has been torn apart since the 2019 decree, and it will take
genuine effort on Gary’s part to rebuild his relationship with his children. As the
juvenile court noted in the August 2020 CINA review order, the best way forward
for the children involves Gary’s participation in their counseling sessions to work
through their miscommunications and family turmoil. The district court agreed,
observing Gary’s participation in therapy with the children would be “the closest
thing he will ever have to a fast track back to ‘normalcy’ in his visitation.” We, too,
consider his participation in therapy with the children to be important in helping
Gary rebuild their familial relationship and trust.
Ordering permanent supervised visitation would remove any impetus for
Gary to work on his relationship with the children and cooperate with the juvenile
court’s recommendations. The juvenile court has provided Gary the path back to
unsupervised visitation, and the district court added additional safeguards once
unsupervised visitation is allowed. We affirm the district court’s modification of the
terms of visitation.
C. Attorney fees. Iowa Code section 600B.26 provides “the court may
award the prevailing party reasonable attorney fees” in a custody or visitation
modification action. Because Kimberly was not the prevailing party below, the
court had no discretion to award her reasonable attorney fees.
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“Appellate attorney fees are not a matter of right but may be awarded as a
matter of discretion.” Hensch v. Mysak, 902 N.W.2d 822, 827 (Iowa Ct. App.
2017). “In determining whether to award appellate 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 decision of the
trial court on appeal.” Id. Based on these factors, we decline to award appellate
attorney fees to either party. Any court costs shall be split equally.
AFFIRMED.