IN THE COURT OF APPEALS OF IOWA
No. 22-0193
Filed September 21, 2022
KEVIN JAMES NOEL,
Plaintiff-Appellant,
vs.
JESSICA ANN DORSEY,
Defendant-Appellee.
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Appeal from the Iowa District Court for Scott County, Jeffrey D. Bert, Judge.
Kevin Noel appeals the physical care provision in a custody modification.
AFFIRMED IN PART AS MODIFIED AND REMANDED.
Chase Cartee of Cartee Law Firm, P.C., Davenport, for appellant.
John Q. Stoltze of Stoltze Law Group, PLC, Des Moines, for appellee.
Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
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BOWER, Chief Judge.
Kevin Noel appeals a portion of a custody modification order allowing for
joint physical care. We affirm in part as modified and remand for further
proceedings.
I. Background Facts & Proceedings.
Kevin Noel and Jessica Dorsey are the unmarried parents of a child born in
2014. In 2017, a stipulated decree ordered joint legal custody, physical care with
Jessica, and “liberal and extraordinary visitation” for Kevin.
For the first few months of 2020, Kevin and Jessica were effectively
maintaining joint physical care of the child. In spring 2020, Jessica told Kevin she
wanted to move to another state for a job promotion. Kevin opposed Jessica
moving with the child. The child started kindergarten that fall in Grinnell. In
November 2020, Kevin filed an application to modify the decree. He also filed an
application for temporary injunction to enjoin Jessica from moving the child out of
state. One week later, before notice of the modification application and injunction
were served, Jessica moved to Texas with the child, claiming she would be starting
a new job in three days.
A modification trial was held on October 19 and 20, 2021. After hearing the
evidence, the court expressed concerns about Jessica’s behavior and lack of
candor, finding she intentionally misled Kevin about her employment status in Iowa
and Texas. The court noted Kevin’s family lives in Wisconsin and Jessica’s mother
lives near Kevin, while Jessica had a limited support system in Texas. Jessica
testified she would move back to Iowa if the child was placed with Kevin.
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The district court ordered that if Jessica remained in Texas—or anywhere
outside a one-county radius around Scott County—Kevin would have physical care
of the child and Jessica’s visitation would be one weekend a month, five weeks
during summer vacation, and spring break in alternate years.1 If, however, Jessica
relocated to Scott County or an adjoining county by February 7, 2022, the parties
would have joint physical care, alternating custody week to week. Kevin was
authorized to enroll the child in school beginning in January 2022 regardless of
whether Jessica stayed in Texas or moved back to Iowa.
Kevin filed a motion to reconsider, asserting because neither party had
requested joint physical care, the court lacked the authority to order it. In her
response, Jessica asserted the court had the authority to order whatever physical
care arrangement it determined to be in the child’s best interests.2 The court
denied Kevin’s motion to reconsider, stating Jessica’s request for “any and all relief
the court deems just and equitable” was an implicit recognition of the court’s power
to determine the appropriate relief.
Kevin appeals the joint-physical-care portion of the district court’s order.
II. Standard of Review.
“Our review of a modification proceeding is de novo in light of the fact the
case was heard in equity.” Christy v. Lenz, 878 N.W.2d 461, 464 (Iowa Ct. App.
2016). “We give weight to the findings of the district court, particularly concerning
1No provision was made for holiday visitation if Kevin had physical care.
2Jessica’s brief includes facts from the time period following the court’s ruling on
Kevin’s motion to reconsider. Those facts were not in evidence at the time of the
court’s decision, and counsel should not have included or attempted to base
arguments on them. We do not consider facts outside the evidentiary record.
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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).
III. Analysis.
“If joint legal custody is awarded to both parents, the court may award joint
physical care to both joint custodial parents upon the request of either parent.”
Iowa Code § 598.41(5)(a) (2020); see id. § 600B.40(2) (stating section 598.41
applies in determining visitation and custody arrangements of unmarried parents).
In his petition to modify, Kevin asked for physical care of the child and for Jessica
to have reasonable visitation. In her answer and counterclaim, Jessica asked the
court to deny Kevin’s modification and to modify Kevin’s visitation because of the
move. Noticeably absent from either filing was an alternative request for joint
physical care if the court denied their claims. Neither party mentioned the
possibility of joint physical care during the modification hearing. Because neither
Jessica nor Kevin requested joint physical care, the issue was not properly before
the district court and should not have been ordered. See id.; In re Marriage of
Fennelly, 737 N.W.2d 97, 101–02 (Iowa 2007) (finding joint physical care was
requested); In re Marriage of Cerwick, No. 12-1188, 2013 WL 2370722, at *3 (Iowa
Ct. App. May 30, 2013) (“Our statute makes clear, however, that the district court
may consider joint physical care upon the request of either party.”). We reverse
the portion of the modification order establishing joint physical care.
We modify the district court decision awarding joint physical care to Kevin
and Jessica. As Jessica has not contested the portion of the ruling awarding
physical care to Kevin absent a joint-physical-care arrangement, we affirm the
modification. However, the district court’s visitation schedule is highly restrictive—
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not even accounting for major holidays. We direct the district court to award
Jessica liberal visitation and remand to set forth an appropriate visitation schedule
ensuring continuity and stability for the child, to place the child in the best position
for active contact and attention from both parents, and to support the parent–child
relationships. See Iowa Code § 598.41(3)(b), (d), (e); Christy, 878 N.W.2d at
464-65, 467 (discussing visitation schedule).
IV. Attorney Fees.
Kevin and Jessica each request appellate attorney fees. We “may award
the prevailing party reasonable attorney fees.” Iowa Code § 600B.26. “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).
“Whether such an award is warranted is determined by considering ‘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.’” Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005) (citation omitted).
Based on these factors, we decline to award appellate attorney fees to either party.
Costs of the appeal shall be split equally.
AFFIRMED IN PART AS MODIFIED AND REMANDED.