Arthur L. Day v. Misty L. Anderson , 922 N.W.2d 105 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1808
Filed July 5, 2018
ARTHUR L. DAY,
Petition-Appellant/Cross-Appellee,
vs.
MISTY L. ANDERSON,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, Richard D.
Stochl, Judge.
Arthur Day appeals and Misty Anderson cross-appeals from the order
modifying the terms of the decree respecting the custody of their child. AFFIRMED
IN PART, REVERSED IN PART.
Nicholas T. Larson of Larson Law Office, PLLC, Osage, for appellant.
Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,
Decorah, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
2
DANILSON, Chief Judge.
Arthur Day appeals and Misty Anderson cross-appeals from the order
modifying the terms of the decree1 respecting the custody of their child, G.D. Day
maintains G.D. should be placed in his physical care, or, in the alternative, the
district court should have denied Anderson’s request to modify the shared-care
schedule. Day also asserts the court improperly modified other provisions of the
decree. Day contends the court abused its discretion in refusing to admit exhibits
at trial depicting text messages Day obtained from Anderson’s iPad. Day also
challenges both the district court’s determination that Anderson was not in
contempt and the order that Day pay $600 toward Anderson’s attorney fees due
to his unsuccessful contempt action. On cross-appeal, Anderson asserts the court
should have granted her request to modify the decree respecting G.D.’s schooling
and requests appellate attorney fees.
Finding no error in the district court’s evidentiary rulings; determination to
maintain shared care; and modification of the provisions of the decree respecting
the shared-care schedule, the right of first refusal, and G.D.’s schooling, we affirm.
We reverse the district court’s modification of the decree’s tax provisions. We also
reverse the court’s award of attorney fees to Anderson based on her successful
defense to the contempt action. We deny Anderson’s request for appellate
attorney fees.
1
Because this is an equity action, we use the term decree throughout this opinion to refer
to the order approving stipulation filed July 7, 2014.
3
I. Background Facts & Proceedings.
Day and Anderson are the parents of G.D., who was born in 2008 and was
eight years old at the time of the modification trial. After the parties ended their
relationship, Day filed a petition for custody in 2013.2 A decree approving the
parties’ stipulated custody agreement was entered on July 7, 2014. Under the
decree, the parties had joint legal custody and shared physical care of G.D. They
divided time with G.D. on a two-day, two-day, three-day schedule.
As was the case before the decree, Day remained living in Postville at the
time of the modification trial. Day works in Osage and commutes approximately
seventy-five miles each way to work. Day stated the current shared-care schedule
allows him to stay late in Osage to meet with clients on the days he does not have
G.D. Day’s mother lives in Postville and picks G.D. up from school and provides
after-school care for G.D. on the days when G.D. is with Day.
At the time of the modification trial, Anderson was living in Decorah. She
explained that although she still owned a home in Postville, she had moved to live
with her fiancé full-time in Decorah. Anderson also works in Decorah, having
changed jobs since the time of the decree.
Anderson filed a petition for modification on April 27, 2016, requesting the
court to change the shared-care schedule to an alternating weekly schedule and
seeking modification of the provision requiring G.D. to remain living and attending
school in the Postville School District. Day requested physical care in an amended
2
Day and Anderson were never married.
4
answer and counterclaim filed June 29, 2017. The modification trial was held on
July 26, 2017.
After trial but before the district court’s order on modification was filed,
Anderson enrolled G.D. in the Decorah School District. Day filed an application
for rule to show cause, alleging Anderson was in contempt for enrolling G.D. in a
school district other than Postville.
In its September 19, 2017 ruling, the district court modified the decree to
provide for an alternating weekly shared-care schedule, eliminated the decree’s
right-of-first-refusal provision, and modified the provision respecting tax
exemptions. The court also modified the decree by lifting the requirement that
Anderson and G.D. reside within the Postville School District, but did not modify
the requirement that G.D. attend school in Postville. The court denied Day’s
request for physical care. The court also dismissed Day’s application for rule to
show cause, and awarded Anderson $600 in attorney fees for having to defend the
contempt action. Day appeals and Anderson cross-appeals.
II. Evidentiary Rulings.
Day asserts the district court improperly refused to admit proposed Exhibits
15, 16, and 17 at the modification trial. These exhibits included text messages
Day obtained from Anderson’s iPad, which G.D. was allowed to use and,
unbeknownst to Anderson, had brought to Day’s home.
We review the district court’s evidentiary rulings for an abuse of discretion.
Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002). “An abuse of discretion exists
when the court exercises its discretion ‘on grounds or for reasons clearly untenable
or to an extent clearly unreasonable.’” Id. (citation omitted).
5
Exhibit 15 is a text exchange between Anderson and a friend discussing
Anderson’s relationship with her fiancé. In one of the messages, Anderson’s friend
referred to a time when Anderson’s fiancé “got drunk and was abusive.” Exhibit
16 is also a text exchange between Anderson and a friend discussing Anderson’s
difficulties agreeing with Day on swim lessons for G.D. Exhibit 17 appears to be a
text exchange between Anderson and a romantic partner.
Day stated he happened to see the text messages on Anderson’s iPad,
which was left open after G.D. went to bed. However, Anderson credibly testified
the iPad was programmed to lock after five minutes and was not set to synch with
the text messages from her phone. Thus, Anderson explained someone would
need to enter a password to gain access to the iPad and would have had to change
the setting to be able to access her personal text messages.3
Day argues the court abused its discretion in refusing to admit Exhibits 15,
16, and 17 at trial. We recognize in equitable proceedings all evidence offered
must ordinarily be received, subject to any objection made, in order to preserve
the evidence for the record. Leo v. Leo, 213 N.W.2d 495, 497–98 (Iowa 1973). In
this fashion, the record is complete on appeal in order for the appellate court to
conduct a de novo review, and it permits the appellate courts to decide the case
on the record without the need for a remand. Id. at 498. However, here we have
been provided the exhibits, and on our review of the exhibits, we find they have
3
At trial, the court determined:
I don’t find [Day]’s description of how he found these on the iPad to
be credible. I find that he searched through an iPad that belonged to
[Anderson] and obtained documents for use in this litigation that he should
not have obtained. They are not admitted and there will be no testimony
about their content.
6
very little relevance.4 More importantly, Day cannot show he was prejudiced by
the failure to admit the exhibits at trial. See Iowa R. Evid. 5.103(a) (“A party may
claim error in a ruling to admit or exclude evidence only if the error affects a
substantial right of the party . . . .”). As to the exhibits, the district court stated, “I
have read all three of them. . . . Even if admitted, I do not find that they carry any
relevant information that would merit any consideration of a modification of
custody.” The allegations Day seeks to show by admission of these exhibits—
violence in Anderson’s relationship and alcohol use—are unsupported by any
other evidence in the record. We do not find the court’s refusal to admit Exhibits
15, 16, and 17 was an abuse of its discretion.
III. Modification.
Day also challenges the district court’s determination that placing physical
care of G.D. with Day was not appropriate, and the court’s modification of the
decree respecting the shared-care schedule, the right of first refusal, and the
allocation of G.D.’s tax exemption.
We review proceedings to modify custodial provisions de novo. Melchiori
v. Kooi, 644 N.W.2d 365, 368 (Iowa 2002). “Prior cases have little precedential
value, and we must base our decision primarily on the particular circumstances of
the parties presently before us.” Id.Courts are empowered to modify the custodial terms of a paternity
decree only when there has been a substantial change in
circumstances since the time of the decree, not contemplated by the
court when the decree was entered, which was more or less
permanent, and relates to the welfare of the child.
4
“Evidence is relevant if: (a) It has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) The fact is of consequence in determining
the action.” Iowa R. Evid. 5.401.
7
Id. Where a parent seeks to modify physical care of the child, “the petitioning
parent has a heavy burden and must show the ability to offer superior care.” Id.“[A]s in all cases involving the question of custody, our first consideration in
proceedings to modify custody is the best interest of the child[ ].” Dale v. Pearson,
555 N.W.2d 243, 245 (Iowa 1996). The objective is to “place the child[ ] in the
environment most likely to bring them to health, both physically and mentally, and
to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
First, we find the district court properly denied Day’s request for physical
care. On our review of the record, it cannot be shown that Day is the superior
parent. Day has not provided any evidence to support his contention Anderson
cannot provide a safe environment for G.D. other than the allegations discussed
briefly in the text-message proposed exhibits, which were not admitted at trial. It
is clear both parents greatly care for G.D. and have provided more than adequate
nurturing of G.D., both physically and mentally. We find no circumstances
warranting placement of physical care with Day.
Next, we conclude a substantial change of circumstances exists to support
the district court’s modification of the shared-care schedule. Anderson argued
modification was necessary because the parties’ difficulty communicating
constituted a substantial change in circumstances and could only be remedied by
changing the shared-care schedule to a week-on-week-off arrangement. The
district court held:
The parties have had some difficulty communicating as it relates to
their current arrangement. The court finds most of their
disagreements have been over small, petty issues. The difficulties
have revolved around picking the child up from day care and use of
8
the other parent as a care provider when the custodial parent is not
available. . . . There does appear to be a level of inflexibility in [Day]
that makes the current arrangement difficult. . . . Communication
only appears to fail when there is a request to change the terms of
the stipulation. [Day] believes [Anderson] is trying to demonstrate
that the stipulation does not work. The court finds otherwise. Co-
parenting requires cooperation and flexibility. A written stipulation
cannot anticipate and control every situation. [Day]’s demands of
strict compliance have caused communication problems and discord
between the parties. Switching multiple times per week has not been
in the best interests of G.D.
The evidence indicates the parties have had disagreements and confusion
revolving around the two-day, two-day, three-day shared-care schedule. This type
of schedule requires parents to communicate often and presents more
opportunities for dispute when there are so many exchanges of custody during
each one-week period. Anderson did not anticipate that Day would demand such
rigid adherence to the shared-care schedule, at times requesting an exchange of
G.D. for only a matter of hours where the regular shared-care schedule did not
seamlessly overlap with special holiday hours. At trial, Anderson explained she
desired a weekly shared-care schedule because she had “conversations with
[G.D.] and [he said] that he feels like he goes—in his words, goes back and forth
so much. I just feel like weeks at a time would provide him the opportunity to get
settled in one place before he has to go back.”
We agree a weekly shared-care schedule is in G.D.’s best interests. It
provides G.D. more stability and creates fewer opportunities for dispute and
confusion between the parents during exchanges.
We also find the parents’ difficulties communicating constitute a substantial
change of circumstances warranting elimination of the right-of-first-refusal
9
provision5 of the decree. The parties often had arguments arising from failure to
provide the other the option to care for G.D. when the custodial parent was unable
to do so. This was especially confusing under the circumstances of this case
because Day’s mother plays such a large part in helping to care for G.D. when
G.D. is in Day’s care. Although in many cases the right of first refusal is beneficial
to the child and preferred by the parents, here it has been a source of confusion
and stress. We do not find the court’s elimination of the provision to help relieve
the stress between the parties was improper.
Last, we find the district court’s modification of the tax provision based on
Anderson’s possible upcoming marriage was improper. Anderson was engaged
but not yet married at the time of the modification trial. See In re Marriage of
Schlenker, 300 N.W.2d 164, 165 (Iowa 1981) (“[T]rial courts should make final
disposition of cases on the circumstances then existing.”). Additionally, inasmuch
as individual tax exemptions no longer exist under the new federal tax code, the
allocation of the dependent exemption may be a non-issue going forward. See 26
U.S.C. § 151. We reverse on this issue.
IV. Cross-Appeal.
On cross-appeal, Anderson challenges the district court’s order, arguing the
decree should have been modified to allow G.D. to attend school in Decorah.
Although Anderson has moved to Decorah, Day remains living in Postville. Day
stated it is very important to him that G.D. attend school in Postville. Although the
5
As explained by the district court, the right-of-first-refusal is a provision in the decree
requiring “the parties to use the other parent as a first provider for care of G.D. when they
are unavailable due to work or other commitments.”
10
district court modified the decree to allow Anderson and G.D. to reside outside of
the Postville School District, Anderson’s move does not require transferring G.D.
to Decorah schools. Anderson has not shown how attending Decorah will benefit
G.D.’s best interests over attending Postville. Either way, G.D. will be required to
commute the distance from Decorah to Postville, or vice versa, on the weeks
where he is living with the custodial parent outside of the school district. G.D. has
excelled in school and has friends in Postville. There is no evidence showing G.D.
must attend school in Decorah to further his best interests.
V. Contempt.
After the modification trial, but prior to the district court’s ruling on
modification, Anderson registered G.D. for school in Decorah. Day contends
Anderson was in contempt of the decree because she registered G.D. for school
in Decorah despite the provision of the decree requiring G.D. to attend school in
Postville. However, Anderson explained at the contempt hearing that she was
simply registering G.D. in the Decorah school system to be prepared in the event
the court ruled G.D. could attend school in Decorah. Anderson’s registration of
G.D. for school in Decorah caused confusion, but did not prevent G.D. from being
registered to attend school in Postville. G.D. began attending school in Postville
at the start of the school year as planned. Anderson stated she understood G.D.
was to attend school in Postville at the start of the school year if the court’s
modification order was not yet entered.
A trial court has “broad discretion” in deciding on whether to impose
punishment for contempt in a particular case and “unless this discretion is grossly
abused, the [trial court’s] decision must stand.” In re Marriage of Swan, 526
11
N.W.2d 320, 327 (Iowa 1995) (alteration in original) (citation omitted). “‘Illegal
resistance to any order’ of the court is a contemptuous act.” Den Hartog v. City of
Waterloo, 891 N.W.2d 430, 436 (Iowa 2017) (citation omitted). “However,
‘[r]esistance to or violation of an order cannot be considered contempt of court
unless it is willful.’” Id. (alteration in original) (citation omitted). “The party alleging
contempt bears the initial burden of proving ‘a duty to obey a court order’ and a
‘willful[ ] fail[ure] to perform that duty.’” Id. (alteration in original) (citation omitted).
Anderson’s registration of G.D. in Decorah schools did not constitute willful
contempt. The decree required G.D. to attend school in Postville, and he did.
Anderson offered a reasonable explanation for registering G.D. for school in
Decorah. She credibly explained she enrolled G.D. in Decorah schools in the
event she was successful in this litigation, and she did not intend to take G.D. to
school in Decorah unless the court permitted such a result. G.D. has attended
school in Postville just as the decree required. We find the district court properly
dismissed the contempt action as the evidence did not rise to the level of proof
beyond a reasonable doubt.
VI. Attorney Fees.
Day contends the district court did not have discretion to award Anderson
attorney fees for successfully defending Day’s contempt action. We review the
district court’s attorney-fee award for an abuse of discretion. In re Marriage of
Sullins, 715 N.W.2d 242, 255 (Iowa 2006).
Section 600B.37A provides:
If an action is brought on the grounds that a party to an order
made pursuant to this chapter is in default or contempt of the order,
and the court determines that the party is in default or contempt of
12
the order, the costs of the proceeding, including reasonable attorney
fees, may be taxed against that party.
Section 598.23—the similar code section in dissolution cases—provides:
When an action for . . . order to show cause . . . is brought on
the grounds that a party to the decree is in default or contempt of the
decree, and the court determines that the party is in default or
contempt of the decree, the costs of the proceeding, including
reasonable attorney’s fees, may be taxed against that party.
We have previously held, “the district court did not have discretion to award
attorney fees to [a party] for successfully defending the contempt action brought
against him.” In re Marriage of Nicola, No. 15-1210, 2016 WL 902655, at *6 (Iowa
Ct. App. Mar. 9, 2016). This is because, “[t]hough the district court has
considerable discretion in awarding attorney fees, the power to do so ‘must come
clearly within the terms of [a] statute or agreement.’” In re Marriage of Shaman,
No. 14-0410, 2014 WL 7343748, at *2 (Iowa Ct. App. Dec. 24, 2014) (quoting Van
Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 182 (Iowa 2010)). In Shaman, we
similarly held “section 597.24 does not permit courts to award attorney fees to a
party defending against a contempt action.” 2014 WL 7343748, at *2.
Because section 600B.37A provides only for an award of attorney fees
where an applicant has successfully shown the other party to be in contempt, the
district court did not have discretion to award attorney fees to Anderson for
successfully defending the contempt action. We therefore reverse the attorney-
fee award.
VII. Appellate Attorney Fees.
On cross-appeal, Anderson requests appellate attorney fees. “An award of
appellate attorney fees is not a matter of right but rests within our discretion.” In
13
re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct. App. 1997). “In
determining whether to award appellate attorney fees, 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.” Id. Given the circumstances of this case and Anderson’s lack of success
on cross-appeal, we do not find an award of appellate attorney fees is appropriate.
VIII. Conclusion.
We find the district court did not abuse its discretion in not admitting exhibits
15, 16, and 17 at trial. We also conclude the district court properly denied Day’s
request to modify physical care, properly modified the shared-care schedule, and
properly modified the decree by eliminating the first right of refusal. We reverse
the district court’s decision to modify the tax-exemption provision. We also
conclude the district court did not have discretion to award attorney fees to
Anderson for successfully defending the contempt action, and reverse the award
of attorney fees. We do not award attorney fees to Anderson on appeal.
AFFIRMED IN PART, REVERSED IN PART.