In re the Marriage of Karas ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1424
Filed June 30, 2021
IN RE THE MARRIAGE OF CLINTON JEREMIAH KARAS
AND NATALIE ELISHA KARAS
Upon the Petition of
CLINTON JEREMIAH KARAS,
Petitioner-Appellee,
And Concerning
NATALIE ELISHA KARAS, n/k/a NATALIE ELISHA ERDAHL,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Amy
Zacharias, Judge.
In this dissolution of marriage modification proceeding, the mother appeals
from the district court’s modification of the physical care provisions relating to the
parties’ children. AFFIRMED.
Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.
Kyle Focht, Council Bluffs, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
2
AHLERS, Judge.
In this dissolution of marriage modification action, Natalie Erdahl appeals
from the district court’s order modifying the terms of the parties’ modified decree
related to physical care of their children. Natalie challenges the court’s findings
that there were material and substantial changes in circumstances justifying
modification. She further argues that any changes were not permanent and the
district court recalled facts incorrectly in reaching its decision. Natalie requests
reversal of the district court’s order changing physical care of the children from her
to the children’s father and requests appellate attorney fees.
I. Background Facts and Proceedings
Natalie and Clinton Karas divorced in 2017. At that time, the parties
stipulated that Natalie would have physical care of their son and daughter (born in
2011 and 2008, respectively) with extraordinary visitation to Clint. Pursuant to their
agreement, Natalie was given final decision-making authority over the children’s
medical decisions. In 2018, Natalie applied to modify the parties’ divorce decree
due to her impending move to Ashland, Nebraska. The parties resolved the
modification action by stipulation, resulting in reduction of Clint’s mid-week
visitation and Natalie retaining final decision-making authority regarding the
children’s medical care. The district court approved the parties’ modification
stipulation in early 2019.1
Approximately ten months later, Clint filed this modification action seeking
to change the physical care provisions pertaining to the children. He claimed a
1We will refer to the decree approving the parties’ stipulated modification as “the
2019 modification decree.”
3
change of circumstances since entry of the 2019 modification decree warranted
his requested modification.
The evidence presented at trial shows that, consistent with her stated
intentions when the 2019 modification decree was entered, Natalie and the
children moved to Ashland, Nebraska, where they reside in a two-bedroom
apartment. Natalie and Clint’s son has had significant behavioral challenges for
several years. More recently, their daughter began exhibiting behaviors indicative
of immaturity and aggression toward others. Both children have begun seeing
mental health and occupational therapists.
In terms of other significant circumstances affecting the children, the
evidence established that Natalie has been engaged in a three-year long
relationship with a man named Matt, who lives in the same apartment complex,
though in a separate apartment. In the fall of 2019, Matt began having physical
care of his teenage son. Matt’s son has significant behavioral challenges. With
Natalie’s efforts to blend their families, Natalie and Clint’s children had frequent
interactions with Matt’s son. Most notably, there was an incident in April of 2020,
during the pendency of this action, in which Matt’s son became violent with Matt
while Natalie and the children were present. Natalie was forced to keep the
children in a back room of the apartment where the incident was occurring because
it was not safe to exit. While remaining in hiding, she called the police while the
children called and spoke to Clint on the phone. The children’s interactions with
Matt’s son are typically characterized by outbursts, some physical contact, and
frequent verbal disputes. Matt’s son has also reportedly kicked Natalie and Clint’s
son in the chest and has held a BB gun to his head. Matt’s son is reported be a
4
trigger for the parties’ son’s behavioral problems, and also triggers anxiety in their
daughter, as reported by the children’s therapist.
Turning our attention to Clint’s petition for modification that initiated this
action, Clint cited several changed circumstances he believed warranted a
modification. Those circumstances included the children’s escalating behavioral
problems, aggravating environmental conditions while in Natalie’s care, and
Natalie’s inability to manage the escalating behaviors. After the aforementioned
incident in April, Clint filed a motion requesting temporary custody of the children
until trial could be held in this modification action. Based on the circumstances,
which included Matt’s child being placed in treatment away from the parties’
children and the children being on their summer break from school, the district
court ordered the parties to follow a schedule whereby the parties would alternate
time with the children on a weekly basis until the modification trial.
The case proceeded to trial. The district court found sufficiently substantial
changes in circumstances warranting a modification of the physical care
arrangement, and also found Clint to be better suited to parent in the children’s
best interests. Accordingly, the district court modified the decree to grant Clint
physical care of both children and granted Natalie visitation every other weekend
along with one full week in June, July, and August. Natalie now appeals, asserting
there was not a substantial change in circumstances of a permanent nature
warranting modification of the physical care provisions of the decree. Further, she
contends the district court mistakenly misconstrued the evidence in reaching its
decision.
5
II. Standard of Review
We review an order modifying a decree of dissolution de novo. In re
Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). The district court’s findings
are not binding. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).
However, particular weight is given as to the district court’s witness credibility
findings. Id. Even though our review of a modification action is de novo, there is
deference to the district court in that we will affirm unless the court failed to do
substantial equity. See Ryan v. Wright, No. 17-1375, 2018 WL 2246882, at *2
(Iowa Ct. App. May 16, 2018) (citing In re Marriage of Mauer, 874 N.W.2d 103,
106 (Iowa 2016)). The child’s best interest is the “controlling consideration.” In re
Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).
III. Modification of Physical Care
Natalie contends there was not a substantial change in circumstances not
in the court’s contemplation at the time of entry of the 2019 modification decree
that warrants modification of the physical care arrangement. As the party seeking
the modification, the heavy burden is on Clint to prove there was a substantial
change in circumstances. See In re Marriage of Mikelson, 299 N.W.2d 670, 671
(Iowa 1980). The principles governing a physical care modification are well-
established:
To change a custodial provision of a dissolution decree, the applying
party must establish by a preponderance of evidence that conditions
since the decree was entered have so materially and substantially
changed that the children’s best interests make it expedient to make
the requested change. 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. They must
relate to the welfare of the children. A parent seeking to take custody
6
from the other must prove an ability to minister more effectively to
the children’s well being.
Hoffman, 867 N.W.2d at 32 (quoting In re Marriage of Frederici, 338 N.W.2d 156,
158 (Iowa 1983)). The primary focus in light of these principles is the best interests
of the children. In re Marriage of Fennelly, 737 N.W.2d 97, 191 (Iowa 2007). The
district court agreed with Clint that there has been a substantial change in
circumstances, and we agree.
Natalie focuses on the principle that the substantial and material change in
circumstances must have occurred since the last decree–in this case the 2019
modification decree. We agree with Natalie that Clint had the burden to show the
requisite change of circumstances since entry of the 2019 modification decree.
See Hoffman, 867 N.W.2d at 32. However, we disagree with Natalie’s contention
that the district court impermissibly considered circumstances dating to before the
original dissolution decree in determining there were changed circumstances. In
its opinion, the court did note Natalie’s relocations prior to the 2019 modification
decree and the children’s school changes. However, in its opinion, the court
primarily focused on events occurring since the 2019 modification decree. Those
events include escalation of behavioral problems, including the son’s escalation of
destructive behavior evidenced in the summer and fall of 2019, when he destroyed
property in Natalie’s apartment and property at his schools. The court also
considered an incident that occurred during one of the son’s telehealth
occupational therapy appointments when Matt’s son was present. The boys’
interactions in the apartment prompted the therapist to contact child protective
services due to safety concerns related to their interactions. The district court
7
categorized these incidents occurring since entry of the 2019 modification decree
as escalations in behavior constituting changed circumstances, and, on our de
novo review, we agree.
At the time of entry of the 2019 modification decree, it was in the parties’
contemplation that their son had certain diagnoses that manifested themselves in
challenging behavior. It was not, however, in the parties’ nor the court’s
contemplation that their son would begin exhibiting escalations in behavior or that
their daughter would begin to exhibit concerning behaviors while in her mother’s
care. Natalie herself testified that in October 2019 their son really began “going
off the rails.”
The court also cited environmental factors as a change in circumstance as
well. The daughter’s occupational therapist testified that she believes the
daughter’s concerning behaviors are a result of her environment living with Natalie,
and there is no evidence of exhibiting these behaviors when she is spending time
with Clint. Such behaviors include being unhygienic and unkempt when arriving
for appointments while in Natalie’s care, having a generally poor demeanor when
coming from Natalie’s care, and exhibiting a lack of emotional connection with
Natalie. The therapist testified to the daughter being clean, well presented, and
energetic when coming from Clint’s care. Clint and his wife Laura testified to both
children exhibiting significantly less concerning behaviors while in their care as
well. In fact, they saw almost no need for their daughter to be in occupational
therapy, as the issues Natalie points to are not present at their home. The son’s
therapists also testified to similar presentations when he arrives for appointments,
8
noting significant differences in his attitude when coming from Clint’s care versus
coming from Natalie’s care.
Natalie has also encountered increased difficulties when attempting to
control her son’s behavior and outbursts, often relying on Clint to calm him down
over the phone or relying on Matt to physically restrain him. These restraints have
reportedly caused the son physical pain, yet Clint and Laura report rarely needing
to resort to physical restraint to control the son’s outbursts.
Natalie contends these circumstances are not permanent so as to justify a
modification to the custody arrangement. We agree with Natalie that the changed
circumstances must be “more or less permanent, not temporary” to support
modification. See id. However, we disagree with Natalie’s contention that Clint
has not made such a showing. In making her argument, Natalie points to the
district court’s discussion of two incidents in April of 2020. During those incidents,
Matt and his son were in a physical altercation in the presence of Natalie and her
children. Natalie removed the children to a separate room and called the police.
In the days following, Matt’s son physically harmed Natalie’s son by kicking him in
the chest. Natalie points to these instances as temporary and resulting from
transitioning to at-home working and schooling due to the COVID-19 pandemic. It
is clear, however, that these incidents are only two specific examples of the
escalating behaviors and unsafe environment that have been occurring since the
previous modification. Natalie and Matt have been in a relationship for several
years, and as noted by the district court, it does not appear there will be any change
in that going forward. They both testified to a desire to have all three children
together again in the future. While the district court considered these two events
9
in its determination, as it should have, it also considered the additional changed
circumstances as set out above. Accordingly, the argument that the district court
relied only on temporary considerations is unpersuasive. The escalating behaviors
and Natalie’s increased inability to control those behaviors existed prior to the
pandemic and have continued largely unabated since, persuading us the
circumstances are more than a temporary event. The changed circumstances
identified by the district court and by us on our de novo review have occurred
through much of 2019 and 2020. Our standard is “more or less permanent,” and
this continued escalation and unsafe environment qualifies. See Simpkins v.
Simpkins, 137 N.W.2d 621, 623 (Iowa 1965) (recognizing the changed
circumstances warranting modification “must be ‘more or less’ permanent or
continuous”). We find no reason to disagree with the district court’s determinations
and accordingly agree that Clint has met his burden of showing a change in
circumstance not within the court’s contemplation at the time of entry of the 2019
modification decree and such change is more or less permanent.
Though not addressed in Natalie’s brief, we consider the fact the party
seeking modification must also show that he or she is the parent who is better
equipped to parent in the children’s best interests. Frederici, 338 N.W.2d at 158.
The children’s therapists testified to their beliefs that many of the children’s
concerning behaviors, especially the daughter’s, are environmentally triggered. It
appears there is little follow-through with therapist-recommended exercises and
home policies in Natalie’s home, leaving the children deprived of the structure they
require. Further, Natalie’s relationship with Matt has put her children in repeated
dangerous situations due to the proximity of and interactions with Matt’s son. As
10
the district court noted in its ruling, “to continue contact between [Matt’s son] and
either of her children, is absolutely unacceptable.” The district court also noted,
“Natalie’s own testimony convinces the court that she is not putting her children’s
interests first.” Due to Natalie’s inability to provide a safe, structured, and
consistent household for her children, we agree that Clint is better suited to parent
in the children’s best interests.
IV. District Court’s Mistaken Factual Findings
Natalie contends the district court’s decision was based on mistaken
recollection and misapplied facts. In the court’s ruling, it stated a safety plan for
Matt’s son was implemented before the incident during which Matt’s son kicked
the parties’ son in the chest. Upon review of the record, it is clear the safety plan
was implemented after that incident occurred, not before. However, this does not
change the outcome of the case. The district court’s decision makes it clear it
considered circumstances well beyond just the timing of the safety plan
implemented to address Matt’s son’s physical attacks on others. Even if we
assumed the district court placed too much weight on this factual mistake, we do
not do so on our de novo review. For the reasons explained throughout this
opinion, we find the facts warrant modification to place physical care of the children
with Clint.
V. Appellate Attorney Fees and Costs
Natalie requests that we order Clint to pay her appellate attorney fees.
Appellate attorney fees in a dissolution of marriage modification proceeding “are
not a matter of right, but rather rest in this court’s discretion.” In re Marriage of
Okland, 699 N.W.2d 260, 270 (Iowa 2005). The factors we consider include “the
11
needs of the party seeking the award, the ability of the other party to pay, and
relative merits of the appeal.” Id. Natalie was not successful on appeal, and any
imbalance between Clint’s ability to pay and Natalie’s need does not rise to a level
to warrant an award of appellate attorney fees. Therefore, we deny Natalie’s
request for appellate attorney fees. Each party shall be responsible for his or her
own attorney fees. Costs of this appeal are assessed to Natalie.
AFFIRMED.