in-re-the-marriage-of-kristopher-daniel-fix-and-mallory-bucher-fix-upon-the ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1134
Filed May 29, 2014
IN RE THE MARRIAGE OF KRISTOPHER DANIEL FIX
AND MALLORY BUCHER FIX
Upon the Petition of
KRISTOPHER DANIEL FIX,
Petitioner-Appellant,
And Concerning
MALLORY BUCHER FIX,
n/k/a MALLORY BUCHER ROTH,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Richard D.
Stochl, Judge.
Petitioner appeals the district court order modifying the visitation
provisions of the parties’ dissolution decree. AFFIRMED.
Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro,
P.L.C., Cedar Falls, for appellant.
James T. Peters, Independence, for appellee.
Considered by Danilson, C.J., Potterfield, J., and Eisenhauer, S.J.*
Bower, J., takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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EISENHAUER, S.J.
Kristopher Fix appeals the district court order modifying the visitation
provisions in the parties’ dissolution decree. We conclude the court properly
made its own determination of the child’s best interests instead of relying on
recommendations made by the guardian ad litem (GAL). It is equitable for the
parties to share transportation for visitation. We agree Mallory Roth (formerly
known as Mallory Fix) should have eight weeks of visitation in the summer
because it is not practical for her to continue to have mid-week visits. We affirm
the decision of the district court.
I. Background Facts & Proceedings
Kristopher and Mallory were previously married. They have one child,
born in 2001. A dissolution decree entered December 17, 2003, granted the
parties joint legal custody of the child, with Kristopher having physical care.
Mallory was granted visitation on alternating weekends, one weekday evening,
alternating holidays, and six weeks in the summer.
At the time of the dissolution, both parties lived in the Waterloo area.
Mallory subsequently remarried and moved to Independence, Iowa. The parties
entered into a stipulation in October 2010, and the decree was modified as to the
pick-up and drop off times for visits and clarifying the holiday visitation provisions.
Kristopher filed a petition for modification on June 28, 2012, asking to
have the visitation provisions modified because Mallory was planning to move to
Humboldt, Iowa, which is about two hours away from Waterloo. He also stated
the parties were unable to communicate and were having difficulty following the
visitation schedule. Kristopher asked for the appointment of a GAL for the child.
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The court appointed an attorney, Mark Milder, as the GAL, and he filed a written
report.
A modification hearing was held on February 14, 2013. The main point of
contention was whether the child’s sporting activities should take precedence
over visitation with Mallory. Kristopher asked to have Mallory responsible for all
of the transportation, or have Mallory meet him earlier at a drop-off location at the
end of visitation. He also asked to have Mallory’s summer visitation reduced to
four weeks. He stated he would like the child’s extracurricular activities, such as
softball and soccer, to take precedence over Mallory’s visitation. Kristopher
stated the parties were unable to communicate, therefore, the visitation schedule
needed to be “basically black and white, nothing else.” Mallory testified she
moved to Humboldt due to her husband’s employment. She proposed each
party be responsible for half of the transportation.
The district court entered a decision on May 6, 2013. The court found
there had been a substantial change in circumstances. The visitation schedule
was modified to provide Mallory visitation on alternating weekends, alternating
holidays, and eight weeks in the summer. For these visits, Mallory is responsible
for transportation to pick up the child, and Kristopher is responsible for
transportation to return the child. Mallory may exercise a mid-week evening visit,
but she is responsible for all transportation for that visit. The court ordered if
there was a conflict between the child’s extracurricular activities and visitation,
the visitation has priority.
Kristopher filed a motion pursuant to Iowa Rule of Civil Procedure
1.904(2). He noted the court had not referred to the GAL’s report. The court
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denied the motion, except for specifying Kristopher’s time with the child on
Father’s Day. Kristopher now appeals.
II. Standard of Review
In this equity action our review is de novo. Iowa R. App. P. 6.907. In
equity cases, we give weight to the fact findings of the district court, especially on
credibility issues, but we are not bound by the court’s findings. Iowa R. App. P.
6.904(3)(g). There is a less demanding burden of proof for modifications of
visitation than required for modifications of physical care. In re Marriage of
Brown, 778 N.W.2d 47, 52 (Iowa Ct. App. 2009).
III. GAL Report
Kristopher contends the district court failed to consider the report of the
GAL. In particular, he asserts the court should have given weight to the GAL’s
recommendations concerning transportation and summer visitation, which
supported his own views. In his petition for modification, Kristopher requested
the appointment of a GAL, and in her answer Mallory agreed the appointment of
a GAL would be helpful. The GAL filed a written report, which both parties
referred to during the modification hearing.
The court may consider the report of a GAL if it is properly before the court
by agreement or stipulation. In re Marriage of Williams, 303 N.W.2d 160, 163
(Iowa 1981). While the court may consider the recommendations of a therapist
or GAL, “[t]he legislature has granted to the court the responsibility to make an
impartial and independent determination as to what is in the best interests of the
child.” In re Marriage of Stephens, 810 N.W.2d 523, 530-31 (Iowa Ct. App.
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2012). We conclude the court properly made its own determination of the child’s
best interests.
IV. Transportation
Kristopher claims the court should not have required him to provide half of
the transportation for visitation.1 He points out Mallory had been picking the child
up in Waterloo. On returning the child from visitation, the parties had been
meeting in Iowa Falls, which is between Waterloo and Humboldt. He notes the
GAL recommended the parties continue to follow this arrangement. Kristopher
states the child gets home too late if he is responsible to pick her up. He blames
Mallory’s decision to move to Humboldt for causing the need for the modification
of visitation.
We note the parties’ dissolution decree provided transportation for the
child would be equally divided. In the October 2010 stipulation, the parties
agreed Mallory would provide transportation at the beginning of the visitation
periods and Kristopher would provide transportation at the end of visitation. At
the time of the modification hearing, however, Kristopher was only providing
about one-fourth of the transportation. On examining the record, we conclude
the most equitable solution is the one given by the district court, “[T]he parties
shall share all transportation for visitation with Mallory picking up [the child] to
start the visit and Kristopher picking her up at the conclusion of the visit.” See In
1
Kristopher’s claims do not refer to the mid-week evening visitation in which Mallory is
solely responsible for transportation. During the school year, these visits begin after
school and end at 7:00 p.m. When school is not in session, the visits begin at 1:00 p.m.
and end at 7:00 p.m. Mallory agreed she would be responsible for transportation for
these visits, but testified she would not be able to exercise the visits.
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re Marriage of Scott, 457 N.W.2d 29, 33 (Iowa Ct. App. 1990) (dividing
transportation costs equally).
V. Summer Visitation
Kristopher asserts the district court should have reduced Mallory’s
summer visitation to four weeks. The four-week period was recommended by
the GAL. Kristopher believed he was not getting enough time with the child over
the summer. He stated if the child spent more time in Waterloo in the summer it
would facilitate her ability to play softball.
Mallory was awarded six weeks of summer visitation in the dissolution
decree. In the parties’ stipulation of October 2010 the parties agreed Mallory
would continue to have six weeks of visitation in the summer. At the modification
hearing Mallory asked for eight weeks of visitation in the summer because she
would no longer be able to exercise mid-week visits. Mallory testified the child
could participate in a softball team in Humboldt.
A visitation schedule must be in the best interests of a child and “assure
the child the opportunity for the maximum continuing physical and emotional
contact with both parents.” Iowa Code § 598.41(1)(a) (2011). There is a “well-
established principle that the best interests of children are ordinarily fostered by a
continuing association with both parents.” Brown, 778 N.W.2d at 52. We agree
with the district court Mallory should have eight weeks of visitation in the summer
because it is not practical for her to continue to have mid-week visits. As noted
by the court, the child’s time with her mother takes precedence over the child’s
extracurricular activities.
AFFIRMED.