IN THE COURT OF APPEALS OF IOWA
No. 16-0455
Filed November 9, 2016
VERNE DAVID MILLER JR.,
Petitioner-Appellant,
vs.
LISA MAE MEYER,
Respondent-Appellee.
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Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
A father appeals the court’s denial of his application to modify the custody
arrangement established in a stipulated decree. AFFIRMED.
Matthew L. Noel of Mayer, Lonergan & Rolfes, Clinton, for appellant.
Colista K. Anglese of Hammer Law Firm, P.L.C., Dubuque, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VOGEL, Presiding Judge.
Verne Miller appeals from the order denying his application to modify the
custody decree between him and Lisa Meyer involving their seven-year-old child.
He claims the evidence showed the current joint physical care arrangement was
not functional and, if he were granted physical care, he would provide superior
care. Lisa defends the district court’s modification decision and asks for an
award of appellate attorney fees.
The custody of this child has a long and storied history, which is not
necessarily pertinent to this appeal. What is essential is that, following the
termination of a guardianship, a stipulated joint physical care decree was entered
in December 2014. Verne was incarcerated in February 2015, and Lisa
petitioned to modify the custody arrangement two months later. Upon his release
from jail, Verne filed a cross-claim also seeking a modification of custody. Lisa
eventually dismissed her application, leaving only Verne’s cross-claim for trial in
February 2016.
The district court denied Verne’s modification request, finding the request
to modify was made less than four months after the entry of the stipulated decree
and approximately one-half of the time between the decree and the application to
modify Verne was in jail. The court noted much of Verne’s complaints predate
the entry of the decree, and those matters cannot be considered when
determining whether there is a material and substantial change in circumstances.
See In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004) (“Courts
are empowered to modify the custodial terms of a dissolution decree only when
there has been a substantial change in circumstances since the time of the
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decree not contemplated by the court when the decree was entered, which is
more or less permanent and relates to the welfare of the child.” (emphasis
added)).
The main change Verne asserted justified the modification was an
allegation the child made against the child’s maternal grandmother’s boyfriend in
April 2015. Those allegations were investigated, and the department of human
services (DHS) determined the report was not founded and not confirmed. The
DHS worker testified at the modification hearing that she had no concerns from
an abuse stand point if Lisa wanted to have the maternal grandmother and her
boyfriend care for the child in the future.
Ultimately, the district court found “Verne essentially wants a ‘re-do’ on the
decree that he, along with Lisa, asked the Court to enter at the end of 2014.”
The court concluded Verne had not shown a material and substantial change in
circumstances, nor had he proven he would have been a superior caregiver, as
is required to modify custody. See id. (noting the parent seeking to modify the
physical care arrangement “has a heavy burden and must show the ability to
offer superior care”).
Upon our de novo review of the record in this case, we agree with the
district court’s decision to deny Verne’s application to modify the physical care
arrangement. See id. (noting our standard of review is de novo).
Lisa requests an award of appellate attorney fees. Such an award rests in
our discretion, and “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.” See In re Marriage
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of Applegate, 567 N.W.2d 671, 675 (Iowa Ct. App. 1997). Upon reflection on
these factors, we award Lisa $1500 in appellate attorney fees.
AFFIRMED.