IN THE COURT OF APPEALS OF IOWA
No. 23-0049
Filed January 10, 2024
IN RE THE MARRIAGE OF JUSTIN MICHAEL ASCHE
AND DACIA RENEE ASCHE
Upon the Petition of
JUSTIN MICHAEL ASCHE,
Petitioner-Appellant,
And Concerning
DACIA RENEE ASCHE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Hancock County, Rustin Davenport,
Judge.
A father appeals a custody-modification order. AFFIRMED.
Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, LLP, Charles City,
for appellant.
Michael J. Moeller of Laird Law Firm, P.L.C., Clear Lake, for appellee.
Considered by Tabor, P.J., and Buller and Langholz, JJ.
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BULLER, Judge.
Justin Asche appeals the modification of physical care concerning his
children with Dacia Asche. Justin contests the district court’s finding of a
substantial change in circumstances and its physical-care decision. We find Justin
waived his substantial-change argument and affirm the district court’s modification
placing the children in Dacia’s physical care.
I. Background Facts and Proceedings
Dacia and Justin had been friends for most of their lives. They moved in
together in late 2010 and married in 2012. When they married, Dacia had three
minor children: K.H., K.H., and T.H. Justin adopted T.H. in 2012. The parties also
had a child together, T.A., in 2012.
The marriage ended in January 2020. At the time, both parties lived in
Garner. In a stipulation accepted by the court in its dissolution decree, Justin and
Dacia both agreed to joint legal custody and shared physical care of T.H. and T.A.
And while that stipulation had an alternate-weeks arrangement, each party
generally had the children for half of each week. That September, Dacia began
working in Minnesota with alternate weeks of remote and on-site work. Based on
her work schedule, the parties switched to the stipulation’s arrangement of
alternate weeks of care for the children. By that December, Justin petitioned to
modify the decree, asserting a substantial change in circumstances and seeking
physical care of T.H. and T.A. Dacia, who intended to move to Minnesota and live
there full time, agreed there was a substantial change in circumstances and sought
physical care. In addition to the move, Justin and Dacia had very contentious
communications and struggled with coparenting.
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T.H. has a long-term medical condition relating to gastrointestinal issues.
And while Justin did a lot of research and was proactive about the diagnosis, his
approach was to set strict food and behavior requirements for T.H. When things
didn’t always go according to plan, Justin got angry with the child, frequently
complained, and suggested humiliating solutions when T.H. did not meet his
expectations. Dacia followed through with Justin’s suggested treatment, but
generally opted for “positive reinforcements” like a small treat on good days. Dacia
said Justin’s approach “was only fueling the fear” and making T.H.’s condition
worse.
By the time of the modification hearing, Justin and Dacia both had new
significant others. Justin’s fiancée provided care for the children; the couple were
“both very structured, very routine people.” Justin’s household had “a very strict
schedule,” “clear outlines, clear rules,” and his parenting style was “very much on
accountability.” According to Dacia, Justin “had to have complete control over
everything. Every decision was his.” Dacia said that Justin “has a very short fuse
and can be irrational instead of being calm and thinking his way through a situation,
especially when it comes to discipline of the children.” Justin admitted a history of
self-medication, testifying he had been sober for more than two years. He also
admitted to multiple occasions on which he destroyed some of the children’s toys
or used physical discipline; his apparent reaction to the children fighting was to
destroy what they fought over. Justin’s household also did weekly food prep with
controlled snack options for the children, reportedly to deal with T.H.’s medical
condition and to regulate T.A.’s weight.
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Meanwhile, Dacia alternated weeks between her home in Garner and her
shared residence in a Minneapolis suburb with her significant other. Dacia’s
approach to parenting was distinct from Justin’s, and she testified her approach
emphasized listening to the children’s problems and supporting them. Dacia’s
significant other was a strict Baptist, expecting “respect” in the home, and limiting
the holidays celebrated in the residence—though the children were allowed to
celebrate elsewhere. One of Dacia’s older children chafed under the strict rules
and instead stayed at the Garner home with limited supervision during the weeks
Dacia was in Minnesota.
Justin believed Dacia had a “friendship” rather than parental relationship
with T.H. He criticized her for placing adult worries on the child and influencing the
child about the physical-care modification. Dacia explained T.H. had been going
through the messages and emails on Dacia’s phone and learned about the
modification action that way. Dacia also got T.H. a phone without consulting
Justin—apparently in response to an iPad Justin provided T.A.—and Dacia asked
T.H. to delete messages so Justin couldn’t see them.
The district court observed: “Neither party has demonstrated exemplary
parenting.” However, considering all the testimony and its own observations, the
court ruled “Dacia’s nurturing approach with the children is better for the children
than Justin’s harsh method of parenting.” The court found her flexibility a positive,
and expressed concern that giving Justin physical care would be “detrimental to
[Justin and T.H.’s] relationship, and the better hope is to allow Justin and [T.H.] to
repair their relationship through less frequent time together.” With some
reservation, the court placed physical care with Dacia. Justin appeals
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II. Standard of Review
“Petitions to modify the physical care provisions of a divorce decree lie in
equity,” and our review is de novo. In re Marriage of Hoffman, 867 N.W.2d 26, 32
(Iowa 2015). We give weight to the district court’s factual findings, particularly
regarding the credibility of witnesses, but we are not bound by them. Id. “The
children’s best interest is the ‘controlling consideration.’” Id. (citation omitted).
III. Discussion
A party seeking modification of a dissolution decree must
prove by a preponderance of the evidence a substantial change in
circumstances occurred after the decree was entered. The party
seeking modification of a decree’s custody provisions must also
prove a superior ability to minister to the needs of the children.
In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016) (internal citation
omitted). The changed circumstances “must be more or less permanent” and
“relate to the welfare of the children.” Hoffman, 867 N.W.2d at 32.
On appeal, Justin argues neither party met the burden to establish a
substantial change of circumstances to justify a modification from joint physical
care. Justin hangs this argument on a comment by Dacia’s counsel at the close
of trial, when counsel indicated that, if the court found no substantial change in
circumstances, Dacia would keep a residence in Iowa so she could maintain the
current joint physical-care arrangement.
Dacia challenges Justin’s preservation of error on this issue, noting he did
not raise the issue below. On the merits, Dacia responds there was a substantial
change in circumstances because she has better employment and a relationship
in Minnesota and intends to move there. She also asserts the breakdown in
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communication between her and Justin is sufficient to sustain a finding of
substantial change in circumstances.
Justin further contends that, should we find a substantial change in
circumstances exists, he should have been given physical care of T.H. and T.A.
A. Substantial Change in Circumstances
We first address the substantial-change-in-circumstances question. Dacia
asserts the issue was not preserved because both parties claimed a change in the
complaint and answer. From the start, the parties agreed there was a substantial
change of circumstances, and both fought for physical care of the children. At the
end of trial, the court sought to clarify the parties’ positions, and both attorneys
agreed the parties had effectively conceded or stipulated to a substantial change
in circumstances. The only differing statement in the record was Dacia’s testimony
that, if the court found no change in circumstances, she would maintain an Iowa
residence—but that was framed as an “if-then” statement, rather than any
concession on whether a substantial change had occurred.
“Nothing is more basic in the law of appeal and error than the axiom that a
party cannot sing a song to us that was not first sung in trial court.” State v.
Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). In his petition to modify, Justin
alleged a substantial change of circumstances and he consistently argued that
position through trial. And he submitted two proposed parenting plans to the court,
neither of which contemplated continuing shared care. Dacia also agreed there
was a change in circumstances warranting modification of physical care. Because
Justin affirmatively alleged a substantial change in circumstances at trial and never
claimed otherwise below, we do not consider his contrary claim on appeal. See
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McCracken v. Edward D. Jones & Co., 445 N.W.2d 375, 378–79 (Iowa Ct. App.
1989) (“[I]t is elementary a litigant cannot complain of error which he has invited or
to which he has assented.”).
B. Physical Care
“‘Physical care’ means the right and responsibility to maintain a home for
the minor child and provide for routine care of the child.” Iowa Code
§ 598.1(7) (2022). The awarded parent’s right and responsibilities include
maintaining the primary residence of the child and the “right to determine the
myriad of details associated with routine living, including such things as what
clothes the children wear, when they go to bed, with whom they associate or date,
etc.” In re Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007). “The criteria
for determining child custody are applied in modification proceedings,” including
the factors found in Iowa Code section 598.41 and other modification cases. In re
Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996).
Justin urges several arguments on this issue. He contends the behaviors
the court found concerning regarding physical discipline have been mitigated by
his recent sobriety and that he has made great strides in counseling. Justin further
claims the court’s characterization of his approach to T.H.’s condition was “unfair”
and he argues Dacia used the same approach as he did. He maintains he and
T.H. have “regular and positive communication,” and Dacia pressured T.H. into
expressing a preference to be with her. He also criticizes Dacia’s parenting of her
other children, insists “she tries to poison her children against” him, and faults her
approach to school and homework for the children. In other words, he tries to
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make himself appear the superior parent by highlighting Dacia’s deficiencies,
rather than focusing on his own strengths.
Dacia argues her “warm and nurturing nature” fosters the children’s
emotional well-being. She discusses the importance of maintaining the strong
sibling bond T.H. and T.A. have with their older half-siblings. She also addresses
Justin’s behavior, calling it “questionable, ill considered, and reactionary.”
The district court made critical factual findings as to both parents,
acknowledging problems with the care provided by each. The court found “Dacia
has undermined Justin’s relationship with [T.H.]” and retaliated against Justin by
revealing information about T.H.’s genetic father. And after hearing all the
testimony, the court observed “Justin has a much more rigid parenting philosophy
than does Dacia. Justin is controlling and seems to expect everything to be nice
and tidy. He has strong opinions that his solutions are the best solutions.” The
district court expressed concerns over Justin’s “history of unnecessary physical
contact with the children resulting in injury” and decisions to break toys over less
violent options. And the court also acknowledged that Dacia’s “interference with
the relationship between Justin and [T.H.] is tragic.” The court concluded “[t]he
parties have not acted well towards each other.”
We agree with the district court. Neither party was blameless in the failure
of communication and rancor leading to this modification, and neither has been
particularly supportive of the other parent’s relationship with the children. While
Justin may have made some progress, T.H. still expressed fear of Justin’s violent
outbursts. And Justin’s strict approach to T.H.’s medical condition did not appear
to work as desired and caused the child shame. Meanwhile, Dacia addressed
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issues when T.H. pressed for answers about her biological father and provided a
supportive environment. The children are also close to the older siblings who live
with Dacia, and Dacia appears better prepared to adapt to the children’s needs.
We affirm the district court’s modification placing the children in Dacia’s
physical care.
AFFIRMED.