IN THE COURT OF APPEALS OF IOWA
No. 22-0062
Filed September 21, 2022
IN RE THE MARRIAGE OF ELIZABETH KATHRYN ANDERSON
AND DARRICK MAURICE ANDERSON
Upon the Petition of
ELIZABETH KATHRYN ANDERSON, n/k/a ELIZABETH KATHRYN
SHECKELLS,
Petitioner-Appellant,
And Concerning
DARRICK MAURICE ANDERSON,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Samantha Gronewald,
Judge.
A former spouse appeals the denial of her petition to modify the
physical-care provisions of a dissolution decree. AFFIRMED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
Jaclyn M. Zimmerman of Miller, Zimmerman & Evans, P.L.C., Des Moines,
for appellee.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2
BADDING, Judge.
In a stipulated decree dissolving their marriage, Elizabeth Sheckells and
Darrick Anderson agreed their son should be placed in their joint physical care.
Eighteen months later, Elizabeth petitioned to modify that arrangement so that she
could move to Georgia to be with her new husband who was stationed there on
military orders. The district court denied Elizabeth’s request, finding her planned
move was not a substantial change in circumstances.
Trying a different angle on appeal, Elizabeth now claims “Darrick’s failure
to participate in the responsibilities of [joint] physical care establishes that custodial
arrangement has failed and is a substantial change in circumstances warranting a
modification.” Because we agree with the district court that Elizabeth did not prove
the required change in circumstances, we affirm.
I. Background Facts and Proceedings
Elizabeth and Darrick married in 2012. They had one child together—M.A.,
who was born in 2015. Elizabeth filed a dissolution petition in August 2018.
Around the same time, she started using a dating app on which she met her current
husband, John. They dated very casually at first since Elizabeth was still living
with Darrick until their divorce was finalized in January 2019. Once Darrick moved
out, Elizabeth’s relationship with John became more serious. They got engaged
during Memorial Day weekend in 2020 and married in June. The day before the
wedding, Elizabeth petitioned to modify the divorce decree, citing her “planned
move to the state of Georgia.”
John is an active-duty member of the United States Marine Corps. He was
stationed in Des Moines when he started dating Elizabeth. John is about four
3
years away from retiring with full benefits after twenty years of service. During his
military career, John has been stationed in seven locations and had six overseas
deployments. While he doesn’t expect any further deployments, John is still
subject to being moved to different military bases in the United States. Shortly
after he married Elizabeth, John received orders to report for duty in Georgia. He
moved there in August 2020, while Elizabeth remained behind in Iowa with M.A.
At the time of the trial in November 2021, Elizabeth and John were expecting their
first child together. They both said the situation has been “very tough” on them,
emotionally and financially.
Elizabeth testified that she stayed in Iowa after John moved because of her
caretaking arrangement with Darrick. The parties’ stipulated dissolution decree
placed M.A. in their joint legal custody and physical care. They crafted a parenting
schedule around Darrick’s variable hours as an air traffic controller.1 Unless they
agreed otherwise, Elizabeth was to have parenting time the last full weekend of
each month, with Darrick having every remaining weekend from Friday at 2:00
p.m. to Monday at 12:00 p.m. and every Thursday from 2:00 p.m. until 7:30 p.m.
M.A. was to be in Elizabeth’s care the rest of the time unless Darrick asked to use
what the parties called his “flex time,” which allowed Darrick to exercise “up to six
additional overnights each calendar month if he is able to bid off time or adjust his
schedule to accommodate.” If Darrick did not use the flex time, any unused days
1 Darrick explained that when the stipulation was entered into, he had Saturdays
and Sundays off. The rest of the week, he normally worked from 2:00 p.m. until
11:00 p.m. on Monday, noon to 9:00 p.m. on Tuesday, Wednesday from 9:00 a.m.
until 5:00 p.m. or 10:00 a.m. until 6:00 p.m., Thursday from 6:00 or 7:00 a.m. until
2:00 or 3:00 p.m., and Friday from 5:30 or 6:00 a.m. until 12:30 or 1:00 p.m.
4
would “‘carry over’ to the summer” to be “added to his two weeks of summer
parenting time . . . up to a maximum of seven additional days of summer parenting
time.”
According to Elizabeth, and a chart she kept, Darrick rarely used his six flex
overnights per month. Darrick disagreed, testifying that he did request more time
with M.A., but it was denied by Elizabeth. Darrick explained that when the
pandemic started in March 2020, all of the air traffic controllers were moved to a
five-day-on, ten-day-off rotation, with their shifts starting at 6:00 a.m. While this
meant Darrick couldn’t care for M.A. overnight when he was working, he had “ten
days off after that so [he] could have had more time” then. But when he requested
that time, Darrick said Elizabeth’s “response was always no.” In any event, Darrick
typically used just one to two nights of his flex time with M.A. each month.
Because Darrick did not use all of his flex time, M.A. was primarily in
Elizabeth’s care during the week, which meant she attended to most of his routine
daily needs like “packing the snacks, washing the masks, making sure that
everything is ready to go, the homework is done, the appointments are made, [and]
the prescriptions are refilled.” Her flexible schedule as a market research manager
was conducive to this. During the pandemic, Elizabeth was able to work remotely
from home full-time and care for M.A. And when he returned to school on a hybrid
schedule, Elizabeth was “able to rearrange [her] work around his schedule.”
Once M.A. went back to school full time, the couple noticed he struggled
some socially and behaviorally. After talking with Darrick, Elizabeth made
arrangements to have M.A. assessed. He was diagnosed with “ADHD and low
grade autism,” resulting in an individual education program at school. Although
5
M.A. does well academically, he works with a special education teacher and
participates in occupational therapy outside of school. As the district court noted,
M.A. “has made significant improvements since he received his diagnosis and
began services specialized to meet his needs.” Both parents are involved in M.A.’s
schooling and therapy, though Elizabeth has been more proactive in coordinating
his appointments. They are also involved with scheduling and attending the child’s
various extracurricular activities.
In what the district court characterized as a “refreshing” change of pace,
Elizabeth and Darrick were complimentary of one another as parents. And they
worked together well for M.A.’s benefit. Both wanted to be the type of blended
family where they would all be present “on the sidelines cheering for” their child.
Elizabeth agreed at trial that but for her desire to move to Georgia to be with her
husband, there was “no other reason to break the shared care arrangement.” If
her petition was not granted, Elizabeth testified she would stay in Des Moines and
maintain the status quo. Elizabeth also said that if Darrick was able to move to
Georgia, she would “absolutely” be okay with maintaining their current parenting
arrangement. Darrick explored the possibility of transferring to an airport in the
town where John is stationed, but there were no openings. He also looked at
transferring to the Atlanta airport, but that would be about an hour-and-a-half drive
to Elizabeth and John’s home and require him to work six days a week.
Also weighing on Darrick’s decision to remain in Iowa was that John’s
military orders in Georgia will end in August 2023, although he could be restationed
as early as August 2022. John testified that it’s likely he will have to move again
as soon as he completes his current orders in Georgia. As of the time of trial, John
6
had no idea where his next orders would send him. Wherever it is, his next orders
would be another three-year assignment “that would take [him] to retirement.”
Once he retires, John and Elizabeth testified they would likely return to Iowa if
Darrick was still there because M.B. “needs to have that relationship with his dad
and we are both sincerely committed to that in the long term.”
In its modification ruling, the district court found the focus needed to be on
M.A., stating that while it was “sympathetic to Elizabeth and John’s current
situation. . . . the [c]ourt cannot conclude Elizabeth’s proposed move to Georgia
would be in M.A.’s best interest. This is particularly true, given Elizabeth’s
willingness to remain in Iowa for his benefit.” On the last point, the court
determined that because “Elizabeth’s desire to relocate is a conditional one,” it was
not a “change that is ‘more or less permanent’ and directly tied to M.A.’s welfare.”
In the end, the court concluded:
M.A. is thriving under the joint physical care arrangement that has
been in place since January 2019. Elizabeth and Darrick are
excellent co-parents who, for the most part, have very little conflict in
their relationship with each other. They both have strengths in their
parenting styles that, when combined, facilitate an environment most
likely to bring M.A. to health, both physically and mentally, and to
social maturity. . . . M.A. is happy, is performing well academically,
and has appropriate services in place to address his needs
associated with his autism diagnosis. Continuation of the secure,
stable, and quality home, school, and treatment environments
created by Elizabeth and Darrick is in M.A.’s best interest, such that
Elizabeth’s request to modify physical care must be denied.
II. Standard of Review
An action to modify a decree of dissolution of marriage is an equitable
proceeding, so our review is de novo. Iowa R. App. P. 6.907; In re Marriage of
Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We give weight to the factual findings
7
of the district court, especially when considering the credibility of witnesses, but
are not bound by them. Iowa R. App. P. 6.904(3)(g).
III. Analysis
The first issue before us is whether there has been a material and
substantial change in circumstances since the January 2019 decree that warrants
modifying the joint-physical-care arrangement. See Thorpe v. Hostetler, 949
N.W.2d 1, 5 (Iowa Ct. App. 2020). As the parent seeking the modification,
Elizabeth “face[s] a heavy burden in proving that modification is warranted”
because “once custody of the child[ ] has been fixed it should be disturbed only for
the most cogent reasons.” Id. (citation omitted). “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.” Id. (citation omitted). They
must also “relate to the welfare of the child,” such that the child’s “best interests
make it expedient to make the requested change.” Id. (citation omitted).
The only change in circumstances that Elizabeth raises on appeal is her
role as the primary caretaker since dissolution.2 She argues “the shared care
parenting did not evolve into roughly equal parenting as the parties and district
court envisioned in the decree,” so a substantial change in circumstances has
occurred.
2 Elizabeth did not raise this claim in district court, focusing instead on her marriage
and desire to relocate as changes sufficient to warrant modification. As a result,
the court did not address it. Yet the parties agree error was preserved. Cf. Est.of
Cawiezell v. Coronelli, 958 N.W.2d 842, 848 (Iowa 2021) (“In order for error to be
preserved, the issue must be both raised and decided by the district court.” (citation
omitted)). We elect to bypass any error preservation concerns and proceed to the
merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
8
It is true that if Darrick exercised all of the flex time provided for in the
decree, the parties would have roughly equal time with M.A. But the decree
contemplated the possibility that Darrick would be unable to use all of that time,
providing that he “may exercise up to six additional overnights each calendar
month if he is able to bid off time or adjust his schedule to accommodate.”
(Emphasis added.) The schedule developed by the parties anticipated that M.A.
would typically be in Elizabeth’s care during the week, which is when most of the
parenting duties Elizabeth says she performs would normally occur. But it is not
as if Darrick does not undertake those same duties. Elizabeth acknowledged that
when M.A. is with Darrick, he does all of the same things that she does. Contrary
to her assertions otherwise on appeal, Elizabeth agreed at trial that Darrick was
an active and engaged father, attending the child’s school conferences,
extracurricular activities, medical appointments, and therapy sessions.
Given these facts, it is difficult to “see how the shared-care agreement[ ]
ha[s] not evolved as envisioned by the parties.” See In re Marriage of Malloy,
No. 16-0274, 2016 WL 7404611, at *5 (Iowa Ct. App. Dec. 21, 2016) (denying
mother’s request to modify physical care where she claimed the father “has not
actively tried to enforce” the joint-physical-care schedule). Also, “nothing has
occurred that has made their agreement unworkable.” Id. To the contrary, the
parties are model co-parents—they communicate about the child effectively,
respect one another’s role in the child’s life, and made the schedule work
seamlessly for themselves and the child.
Modification from joint physical care is normally only appropriate “when
‘shared custody provisions . . . incorporated into the decree have not evolved as
9
envisioned by either of the parties or the court” or when the parents simply “cannot
cooperate or communicate in dealing with their children.’” In re Marriage of Harris,
877 N.W.2d 434, 441 (Iowa 2016) (quoting In re Marriage of Walton, 577 N.W.2d
869, 870 (Iowa Ct. App. 1998)). Neither circumstance is present here. What’s
more, the alleged change in circumstances does not affect the child’s welfare. See
Thorpe, 949 N.W.2d at 5. Rather, M.A. has thrived under the joint-physical-care
arrangement that Elizabeth said she would continue were it not for her planned
move to Georgia.
On that issue, while Elizabeth does not re-up her claim in district court that
her planned move to Georgia is a substantial change in circumstances warranting
modification, even if she had, we agree with the district court that it was not a
permanent change or that modification would be in M.A.’s best interests. John
testified that his orders in Georgia would not go beyond August 2023, at which
point he would be subject to a move somewhere else for another three years,
before another move at his retirement. Elizabeth and John hoped that final move
would be to Iowa if Darrick were still living there. With those practical realities, as
well as “Elizabeth’s willingness to remain in Iowa for [M.A.’s] benefit,” Elizabeth’s
proposed move would not be in M.A.’s best interests.
Like the district court, we are “sympathetic to Elizabeth and John’s
situation,” but “[p]hysical care issues are not resolved based upon perceived
fairness to the spouses, but primarily upon what is best for the child.” In re
Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). We agree that continuing
the “secure, stable, and quality home, school, and treatment environments”
created by these commendable parents is what is best for this child. See Ruden
10
v. Peach, 904 N.W.2d 410, 414 (Iowa Ct. App. 2017) (“Our first and governing
consideration in child custody cases is the best interests of the child.”).
IV. Appellate Attorney Fees
Darrick passively requests an unspecified amount of appellate attorney
fees. An award of appellate attorney fees is not a matter of right but rests within
our discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).
We consider “the needs of the party seeking the award, the ability of the other party
to pay, and the relative merits of the appeal.” In re Marriage of Okland, 699 N.W.2d
260, 270 (Iowa 2005). Darrick earns a six-figure income, making his need for an
award negligible. While Elizabeth also makes a good living from her job, she was
incurring a significant amount of expenses maintaining two homes and traveling to
see John in Georgia, plus the added cost of her soon-to-be-born child. We
accordingly deny Darrick’s request.
V. Conclusion
We affirm, concluding Elizabeth did not show a substantial change in
circumstances warranting modification and the result of modification would be
contrary to the child’s best interests. Darrick’s request for an award of appellate
attorney fees is denied.
AFFIRMED.