IN THE COURT OF APPEALS OF IOWA
No. 23-0443
Filed November 21, 2023
IN RE THE MARRIAGE OF TAMMY J. DAUGHERTY
AND JEFFREY A. DAUGHERTY
Upon the Petition of
TAMMY J. DAUGHERTY, n/k/a TAMMY J. RYAN-ZUNIGA,
Petitioner-Appellee,
And Concerning
JEFFREY A. DAUGHERTY,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Michael
Hooper, Judge.
Jeffrey Daugherty appeals the order denying his request to modify the
physical care provisions of the decree dissolving his marriage to Tammy
Daugherty. AFFIRMED.
P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs,
for appellant.
Patricia Scheinost, Council Bluffs, for appellee.
Heard by Schumacher, P.J., Langholz, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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DOYLE, Senior Judge.
Jeffrey A. Daugherty appeals the order denying his request to modify the
physical care provisions of the decree dissolving his marriage to Tammy J.
Daugherty, now known as Tammy J. Ryan-Zuniga. He contends a substantial
change in circumstances warrants modifying joint physical care of the parties’ two
youngest children to grant him physical care. Because we agree that continuing
joint physical care serves the children’s best interests, we affirm.
I. Background Facts and Proceedings.
Jeff and Tammy are the parents of five children born between 2002 and
2015. When they divorced in 2019, they stipulated to joint legal custody and joint
physical care of four1 children, with physical care alternating on a weekly basis.
The district court adopted the stipulation in the decree dissolving their marriage.
Because Jeff was incarcerated at the time, the joint-physical-care arrangement did
not begin until Jeff was released in January 2020.
Tammy remarried in 2020. The seeds of this modification action were sown
in May 2021 after an incident between her spouse, Sean, and the youngest child.
One of the older children recorded audio of Sean spanking and yelling at that child.
In response, Jeff initiated proceedings in Nebraska to modify the dissolution
decree. The action was dismissed for lack of jurisdiction, and the parties reached
an agreement that neither parent or their significant others would yell at the
children or use corporal punishment.
1 Although the oldest child was still a minor, he was under a legal guardianship,
which the parties’ agreed would continue. That child has since reached the age of
majority and was never a subject of the modification action.
3
In the months after the agreement, Tammy became concerned that Jeff was
alienating her from the children. So, in September 2021, she moved to modify the
decree, asking for physical care of the four minor children. Jeff counterclaimed for
sole legal custody and physical care. The parties agreed there had been a
substantial change of circumstances warranting modification and asked the court
to determine custody. Trial began in July 2022 but was continued after two days
to give the parties an opportunity to reach an agreement.
With no agreement in place by November 2022, the court entered a
temporary order granting Jeff physical care of the two older children subject to
visitation with Tammy when Sean was not present. For the two younger children,
the order directed the parties to resume the joint-physical-care arrangement set
forth in the decree under the condition that Sean was not in the residence during
the weeks that Tammy had physical care. Finally, the order prohibited Sean from
contact with the younger children and required that he attend counseling.
In February 2023, the parties agreed to make the provisions of the
temporary order permanent as to the two older children.2 But they remained in
disagreement as to physical care of the two younger children. Tammy withdrew
her request for physical care, asking the court to continue the joint-physical-care
arrangement for the two younger children. Jeff continued to seek physical care of
the two younger children and asked the court to prohibit Sean’s presence during
their visits with Tammy.
2 The eldest of the two older children has since reached the age of majority.
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After the final day of trial, the court entered its order. The court found that
joint physical care was in the best interests of the two younger children and denied
Jeff’s request to modify physical care. Jeff appeals.
II. Scope and Standard of Review.
We review the modification order de novo. See In re Marriage of McKenzie,
709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give weight to the district court’s
fact-findings, especially those concerning witness credibility, though we are not
bound by them. See id. “We recognize that the district court ‘has reasonable
discretion in determining whether modification is warranted and that discretion will
not be disturbed on appeal unless there is a failure to do equity.’” See id. (quoting
In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998)). We afford the district
court “considerable latitude” in its determination “and will disturb the ruling only
when there has been a failure to do equity.” In re Marriage of Okland, 699 N.W.2d
260, 263 (Iowa 2005) (citation omitted).
III. Modification.
Jeff challenges the denial of his request to modify the physical care
provisions of the decree to grant him physical care of the two younger children.
He alleges that Sean has anger management issues and is abusive toward Tammy
and the children, which Tammy has allowed. He also complains that the joint-
physical-care arrangement separates the four minor children. On these bases,
Jeff contends the best interests of the two younger children are served by placing
them in his physical care.
In order to modify the custody provisions of a dissolution decree, the parties’
circumstances must have substantially changed in a way that was not within the
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parties’ contemplation at the time the decree’s entry. See In re Marriage of Walton,
577 N.W.2d 869, 870 (Iowa Ct. App. 1998). If a substantial change in
circumstances is shown, the parent seeking modification “has a heavy burden and
must show the ability to offer superior care.” In re Marriage of Malloy, 687 N.W.2d
110, 113 (Iowa Ct. App. 2004); accord In re Marriage of Spears, 529 N.W.2d 299,
301 (Iowa Ct. App. 1994) (stating “once custody of a child has been fixed, it should
be disturbed only for the most cogent reasons”). The controlling consideration in
determining child custody is the children’s best interests. See In re Marriage of
Fennelly & Breckenfelder, 737 N.W.2d 97, 101 (Iowa 2007).
In ruling on the modification action, the district court stated that even setting
aside the parties’ July 2022 stipulation that circumstances have changed since
entry of the dissolution decree, it “could . . . find a change in circumstances based
on either parent’s conduct.” But the court found that both Jeff and Tammy love
their children and can provide for their emotional, social, moral, material, and
educational needs. It also noted that both Jeff and Tammy “have demonstrated
that they can successfully co-parent when they put their animosity behind them.”
Because “neither parent has convinced the court that they are superior to the
other,” it determined that the parties should continue to share joint physical care of
the two younger children as set out in the original decree.
In arguing for physical care, Jeff focuses largely on the allegations against
Sean. In its ruling, the district court noted that Sean was its biggest concern
throughout the modification proceedings:
It was clearly disturbing to hear the audio recordings of Exhibits 8
and 9, and there is no excuse for Sean’s behavior. “Spanking” is not
illegal nor is it child abuse. However, striking a child in anger is never
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appropriate and verbal abuse has detrimental effects that last a
lifetime. To Sean’s credit, he does not make excuses for his behavior
and has accepted full responsibility for his actions and has taken
appropriate steps to address his issues. Sean has completed anger
management and a parenting class and the court agrees with the
child and family reporter that Sean should be allowed back in the
children’s lives.
Because the district court was in a better position to make these findings, we defer
to them. See In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989)
(noting that determining witness credibility depends “not so much on what was said
and done, as upon the implications of the words and actions of the parties” and
thus “a trial court, as first-hand observer of witnesses, holds a distinct advantage
over an appellate court, which necessarily must rely on a cold transcript”); In re
Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (“There is good reason for
us to pay very close attention to the trial court's assessment of the credibility of
witnesses. A trial court deciding dissolution cases ‘is greatly helped in making a
wise decision about the parties by listening to them and watching them in person.’
In contrast, appellate courts must rely on the printed record in evaluating the
evidence. We are denied the impression created by the demeanor of each and
every witness as the testimony is presented.” (internal citation omitted)). “A
witness’s facial expressions, vocal intonation, eye movement, gestures, posture,
body language, and courtroom conduct, both on and off the stand, are not reflected
in the transcript. Hidden attitudes, feelings, and opinions may be detected from
this ‘nonverbal leakage.’” Thomas Sannito & Peter J. McGovern, Courtroom
Psychology for Trial Lawyers 1 (1985)). Thus, “the trial judge is in the best position
to assess witnesses’ interest in the trial, their motive, candor, bias and prejudice.”
Albert v. Conger, 886 N.W.2d 877, 880 (Iowa Ct. App. 2016).
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Jeff notes that placing the two older children in his physical care and
continuing the joint-physical-care arrangement for the two younger children will
separate the siblings. Our past decisions have noted the general preference for
keeping siblings together. See, e.g., In re Marriage of Courtade, 560 N.W.2d 36,
38 (Iowa Ct. App. 1996). But we also recognize that splitting custody of siblings
“is warranted if good and compelling reasons exist. . . . Specifically, separation of
children is justified when it is found to better promote their long-range best
interests.” In re Marriage of Harris, 530 N.W.2d 473, 474 (Iowa Ct. App. 1995)
(internal citation omitted). Because the parties stipulated that Jeff should have
physical care of the two older children, anything short of granting him physical care
of the two younger children would cause a split. But unlike those cases in which
physical care is split by granting each parent physical care of one or more children,
the older and younger siblings will share the same household every other week.
Because the long-range best interests of the two younger children are served by
allowing maximum contact with both parents, the decision to split custody is
warranted.
Because we agree that continuing the joint-physical-care arrangement set
forth in the modification order serves the best interests of the two younger children,
we affirm.
AFFIRMED.