Chad H. Vogt v. Katelyn Jane Hermanson ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0303
Filed July 6, 2017
CHAD H. VOGT,
Plaintiff-Appellant,
vs.
KATELYN JANE HERMANSON,
Defendant-Appellee.
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Appeal from the Iowa District Court for Benton County, Sean W.
McPartland, Judge.
The father appeals from an order denying his petition to modify the parties’
custody decree. AFFIRMED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
Christine L. Crilley of Crilley Law Offices, P.L.L.C., Hiawatha, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.
Chad Vogt and Katelyn Hermanson are the parents of E.F.V., born 2011.
In March 2014, the district court entered a custody decree granting the parties
joint legal custody and joint care of the child. The custody decree provided the
child “shall attend primary and secondary school in the Cedar Rapids School
District unless otherwise agreed to by the parties.” In December 2015, Vogt filed
a petition to modify the custody decree, seeking to have the child attend school in
the Center Point-Urbana School District, approximately twenty-five miles from
Cedar Rapids. The district court denied the petition for modification, and Vogt
timely filed this appeal.
Our review is de novo. See Iowa R. App. P. 6.907; In re Marriage of
Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct. App. 1994). We examine the entire
record and adjudicate anew issues properly preserved and presented. See In re
Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct. App. 1999). We give weight to
the district court’s findings of fact, particularly on witness credibility, but we are
not bound by those findings. See id.Once custody of a child is fixed, it should be disturbed for only the most
cogent reasons. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa
1983). We therefore require a party requesting a modification of the custodial
arrangement to demonstrate “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.”
Id. Here, Vogt does not seek to modify the custodial arrangement; he seeks only
to change the school district the child will attend. We have previously treated this
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request more akin to a change in the parenting or visitation schedule. See
Hemesath v. Bricker, No. 09-1064, 2010 WL 446990, at *3 (Iowa Ct. App. Feb.
10, 2010); In re Marriage of Spears, 529 N.W.2d 299, 302 (Iowa Ct. App. 1994).
The showing required for modification of this provision is less significant than the
showing required to modify the custody and care provisions of a decree. See
Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct. App. 1994). The appellate
courts of this state have consistently held that to justify a modification of visitation
rights—or, as here, the child’s school district—the petitioner must only show
there has been a material change of circumstances since the filing of the decree
and the change is in the child’s best interests. See, e.g., In re Marriage of
Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994).
The original decree contained the following findings and conclusions
regarding the child’s education:
Additionally, at the heart of the instant dispute is in what
school district [E.F.V.] will receive her education. Chad wants
[E.F.V.] to attend school in the Center Point School District and
Katelyn wants [E.F.V.] to attend school in the Cedar Rapids School
District. Both districts will provide [E.F.V.] with quality education
and each has benefits and drawbacks the other does not. The
decision on where [E.F.V.] should attend school is one that is
normally vested to the legal custodian. See Iowa Code § 598.1(5)
[2011]. However, in a situation like this where the parties are joint
legal custodians and cannot agree as to a decision affecting a
child’s legal status, the Court must step in and make a decision in
the child’s best interest. See Harder v. Anderson, 764 N.W.2d 534,
538 (Iowa 2009) (“When joint legal custodians have a genuine
disagreement [regarding a child’s legal status], the court must step
in . . . and decide the dispute by considering what is in the best
interest of the child.”). Therefore, after weighing all the facts and
circumstances, the Court finds it is in [E.F.V.’s] best interest to
attend school in the Cedar Rapids School District. In reaching this
decision, the Court finds that the totality of the parties’ connections
to Cedar Rapids tips the balance in favor of sending [E.F.V.] to
school there. Although Chad lives in Urbana, he works in Cedar
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Rapids and conducts at least some of his non-work activities there,
including shopping and medical care. On the contrary, Katelyn has
no present connection to Center Point or Urbana other than Chad.
All this makes the Cedar Rapids School District the better choice, in
[E.F.V.’s] best interest.
Since the time of the decree, neither party has moved, changed jobs, or made
any significant changes to their lives. The parties’ jobs both remain in Cedar
Rapids. The child’s medical providers remain in Cedar Rapids.
At trial, Vogt contended there had been a material change in
circumstances since the time of the decree. Specifically, the parents enrolled the
child in preschool in Center Point. Vogt argued the child built relationships during
preschool and should thus continue all of her remaining schooling in Center
Point. He also argued the total travel time for both parties was minimized by
enrolling the child in the Center Point-Urbana School District. The district court
found and concluded as follows:
Although the basis for the Court’s “tip of the balance” at the
time of the decree (namely, the totality of the parties’ connections to
Cedar Rapids) may have changed some since the entry of the
decree, the Court finds and concludes that any change in the
tipping of the balance does not rise to the level of material change
in circumstances triggering modification of the explicit terms of the
decree. Indeed, that balance may tip one way or the other many
times over [the] course of the child’s period of minority. Each such
tip does not justify a change in the terms of the decree.
Moreover, granting the relief requested by Chad would not
solve the issues presented by the parties. Having the child attend
school in the Center Point-Urbana School District, away from the
residences of both parties and away from the city in which both of
the parties work, would lead to its own logistical issues. Such an
arrangement . . . inevitably could lead to evidence and argument by
each of the parties related to the relative merits of school in a
smaller city versus school in a larger city. Such evidence,
arguments and facts, however, already were considered by the
Court at the time of the entry of the decree.
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“[W]e recognize the reasonable discretion of the trial court to modify
[educational provisions] and will not disturb its decision unless the record fairly
shows it has failed to do equity.” Salmon, 519 N.W.2d at 95. We see no reason
to disturb the judgment of the district court. Like the district court, we conclude
Vogt failed to prove a material change in circumstances. Little has changed
since the time of the decree. The factors the district court considered in making
its original determination—where the parties live, their support networks,
transportation, the relative merits of each school district, the parents’ and child’s
connections to the different communities—all remain the same as at the time of
the decree.
Vogt also failed to show removing the child from the Cedar Rapids district
is in the child’s best interests. After Vogt filed his petition, he sought expedited
relief to prevent Hermanson from enrolling the child in kindergarten in Cedar
Rapids. He was not able to obtain the relief prior to the start of the school year,
and Hermanson enrolled the child in kindergarten in Cedar Rapids pursuant to
the terms of the decree. Testimony at the modification trial showed the child has
settled into the district, has made friends, and is doing well in school. There is no
evidence the child would obtain a material benefit in changing school districts.
We do not find Hermanson’s decision to enroll the child in preschool in Center
Point a concession that enrollment in the Center Point-Urbana School District is
in the best interests of the child.
Hermanson requests $3500 in appellate attorney fees. “In a proceeding to
determine custody or visitation, or to modify a paternity, custody, or visitation
order under this chapter, the court may award the prevailing party reasonable
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attorney fees.” Iowa Code § 600B.26. “An award of appellate attorney fees is
not a matter of right but rests within our discretion.” In re Marriage of Kurtt, 561
N.W.2d 385, 389 (Iowa 1997). In making our determination, “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. Upon consideration of Hermanson’s request, we find
equity warrants the award of $3500 in appellate attorney fees.
AFFIRMED.