In re the Marriage of Paulsen , 919 N.W.2d 767 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1595
Filed June 6, 2018
IN RE THE MARRIAGE OF HEATH PAULSEN
AND KATI PAULSEN
Upon the Petition of
HEATH PAULSEN,
Petitioner-Appellee,
And Concerning
KATI PAULSEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Kossuth County, Nancy L.
Whittenburg, Judge.
Kati Paulsen appeals the district court decision to modify a dissolution
decree to grant Heath Paulsen physical care of their two children. AFFIRMED
AND REMANDED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
Kristy B. Arzberger of Arzberger Law Office, Mason City, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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TABOR, Judge.
Their February 2015 divorce decree awarded Kati and Heath Paulsen joint
physical care of their preschool-aged twins. In August 2016, Kati asked the court
to modify the decree to grant her physical care because she planned to move to a
new residence two and one-half hours away. Heath responded by asking to
maintain shared care or, alternatively, to be the physical custodian. The court
granted Heath physical care. Kati appeals. On our de novo review, we reach the
same conclusion as the district court—circumstances have changed substantially,
and the parents’ conduct since the divorce shows Heath can provide superior care.
I. Facts and Prior Proceedings
Kati and Heath were married 2009; their twin son and daughter were born
in 2012. In December 2014, the couple signed a stipulated dissolution decree
establishing joint legal custody and joint physical care of their children. The district
court approved the stipulation and filed the decree in February 2015.
Following the dissolution, Heath stayed in the marital home in Lakota, and
Kati lived nearby in Bancroft. But in October 2016, Kati moved to Cedar Falls.
There, she attends Hawkeye Community College taking mostly online classes and
works part-time, remotely, as an office manager for a Bancroft business. Kati lives
with her boyfriend, Mark. Heath continues to farm part-time and works in a
landscaping business. Also in October 2016, Heath married Brittany, who has an
eight-year-old son.
Based on her move, Kati filed a petition to modify the shared care
arrangement. Heath filed a counter petition. The district court entered a ruling to
modify, granting Heath physical care. Kati challenges the ruling on appeal.
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II. Standard of Review
“Petitions to modify the physical care provisions of a divorce decree lie in
equity.” In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016) (quoting In re
Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015)). “Thus, we review the
district court’s decision de novo.” Id. (citing In re Marriage of Sisson, 843 N.W.2d
866, 870 (Iowa 2014)). We make our own findings of fact but “give weight to the
district court’s findings” particularly relating to witness credibility. Id. (citing In re
Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013)).
III. Analysis
To modify physical care, the petitioning party must “prove by a
preponderance of the evidence a substantial change in circumstances occurred
after the decree was entered.” Id. The party seeking change must prove “a
superior ability to minister to the needs of the children.” Id. (citing In re Marriage
of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). “The changed circumstances
affecting the welfare of children and justifying modification of the decree ‘must not
have been contemplated by the court when the decree was entered, and they must
be more or less permanent, not temporary.’” Id. (citing Frederici, 338 N.W.2d at
158). “The party seeking to modify a dissolution decree thus faces a heavy burden,
because once custody of a child has been fixed, ‘it should be disturbed only for the
most cogent reasons.’” Id. (citing Frederici, 338 N.W.2d at 158).
A. Burden of Proof
Kati contends the district court applied the wrong burden of proof in its
modification decision. She argues, under our case law, on a petition for
modification where the original decree provides for joint physical care, “the ‘heavy
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burden’ of proving ‘superior care’ is lessened,” and she only needed to prove she
would be the “better” parent. See Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa
Ct. App. 2002). Kati contends the district court held her to a heavier burden in
finding she could not offer “superior care” compared to Heath.
We agree that under Melchiori “where the applying party has proved a
material and substantial change in circumstances, the parties are on equal footing
and bear the same burden as the parties in an initial custody determination; the
question is which parent can render ‘better’ care.” In re Marriage of Kreager, No.
10-0945, 2011 WL 1584293, at *2 (Iowa Ct. App. 2011) (citing Melchiori, 644
N.W.2d at 369). But we disagree with Kati’s contention that the modification order
misapplies the burden. The district court balanced the strengths shown by both
parents and ultimately determined Heath was more stable and had “the ability to
minister more effectively” to the wellbeing of the children.
B. Merits
Having sought modification, Kati agrees the parties experienced a
substantial change in circumstances justifying a new physical care arrangement.
The change was Kati’s relocation to Cedar Falls to live with her boyfriend, Mark,
when he received a job offer there. Her testimony suggested the move was
permanent. The distance of 144 miles from Heath’s home made it impractical to
continue the shared-care arrangement. Several other provisions in the decree
were upended by Kati’s move. For instance, the decree recognized Heath’s
mother—who lives just two miles from Heath—would provide daycare for the
children and after-care once they attended preschool. The parties also stipulated
the twins would attend North Iowa Community Schools through high school
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graduation. And the parties agreed to give each other the first refusal of care,
outside of biological family members, during their parenting time.
On appeal, Kati contests the district court’s conclusion Heath showed a
superior ability to minister to the twins’ needs. When deciding the merits of Kati’s
position we look to non-exclusive lists of factors for determining what physical care
arrangement is in the children’s best interests. The lists appear in Iowa Code
section 598.41(3) (2017)1 and In re Marriage of Winter, 223 N.W.2d 165, 166–67
(Iowa 1974).2 Kati argues she can offer the children superior care in Cedar Falls
because she has been the more hands-on parent—scheduling doctor’s
appointments and handling the day-to-day tasks of raising preschoolers. Kati
asserts Heath does not communicate effectively with her and delegates most of
his parenting duties to his mother.
For his part, Heath defends the modification order—arguing he is “the
parent who will best raise the children and place the children in a safe, stable and
loving environment with a strong support system less than two miles away.” In his
view, the twins should remain close to his extended family, as well as Brittany’s
1
These include, in relevant part:
 whether the parent is a suitable custodian;
 whether the parents can communicate with each other regarding the children;
 whether the parent has actively cared for the child before and since separation;
 whether each parent can support the other parent’s relationship with the child;
 the geographical proximity of the parents; and
 whether the safety of the child will be jeopardized.
See Iowa Code § 598.41(3).
2
These include, in relevant part:
 the emotional, social, moral, material, and education needs of the child;
 the effect on the child of continuing or disrupting an existing custodial status;
and
 any other relevant matter the evidence in a particular case may disclose.
See Winter, 223 N.W.2d at 166-67.
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extended family, being cared for by their grandmother, and attending the local
school district specified in the decree. Heath further asserts Kati’s alcohol
consumption negatively affects her parenting, a problem she does not adequately
recognize or address. He contends Kati has left the children with inappropriate
babysitters, and points to her decision to move to Cedar Falls to be with a boyfriend
of five months as evidence of her impulsivity and “an elevation of her desires over
the best interests of the children to benefit from shared care.”
Kati testified her move to Cedar Falls related partially to her efforts to pursue
a degree in accounting and be closer to her family. But a friend testified Kati has
not enjoyed a close relationship with her own family, who live in the Quad Cities,
more than two hours farther than Cedar Falls. Kati’s mother has only seen the
twins a few times. Plus, most of Kati’s classes are online; she must be present in
a classroom in Cedar Falls just once a week. The record shows Kati was primarily
motivated to move to Cedar Falls by her desire to live with her boyfriend, who found
work there.
Further testimony in the record shows Kati’s drinking habits negatively affect
her parenting. In January 2015, one month before the dissolution, she had been
drinking at a bar and drove her car into a ditch. That same month, she was
drinking, hit a utility pole, and did not remember what happened until the next
morning when she saw the damage to her car. On another occasion in March
2016, Kati started drinking at home, then went to a local bar to drink more, leaving
the twins home alone. She was so intoxicated she did not remember what she
had done until several days later. Yet Kati minimizes the risk posed by her
drinking, claiming she learned from her mistakes.
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A parent’s alcohol abuse may be grounds for transferring care of children
to the other parent. See In re Marriage of LeGrand, 495 N.W.2d 118, 120 (Iowa
Ct. App. 1992). The district court found, “The history of Kati’s abuse of alcohol and
the dangerous circumstances she has placed both herself and the children in while
under the influence presents too great a risk to the children to entrust her with
primary physical care.” After reviewing the record, we share the district court’s
concerns about Kati’s instability.
Heath has been the more stable parent since their divorce. He has
maintained a home in the same community where the twins have lived since birth.
He and Brittany focus on the needs of the twins and their stepbrother. Heath profits
from the support of his extended family—particularly his mother, Joyce. Kati’s
allegation that Heath leaves most of the parenting to Joyce was not borne out by
the record. The district court found Joyce credible in her testimony that Heath
stepped up to provide day-to-day care for the twins. We give weight to the court’s
assessment and agree Heath does not abdicate his parenting responsibilities to
Joyce. The district court also rejected Kati’s contention Heath was solely to blame
for their poor communication since the divorce. After combing through seventy-
one pages of text messages submitted into evidence, the district court concluded
the parents were capable of exchanging information about the children.
Overall, the district court had more confidence in Heath’s ability to provide
a safe and stable environment for the children. His conduct since the divorce
instilled greater trust in his ability to minister to their needs. Accordingly, the court
concluded the twins’ best interests were served by placing them in their father’s
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physical care, with visitation for Kati. We reach the same conclusion after
reviewing the full record.
C. Attorney Fees
Both Heath and Kati request appellate attorney fees. In a proceeding to
modify a dissolution decree, “the court may award attorney fees to the prevailing
party in an amount deemed reasonable by the court.” Iowa Code § 598.36. An
award of appellate attorney fees is not a matter of right, but rests in our discretion
based on the parties’ relative abilities to pay and the merits of the appeal. See In
re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Both parties work at
least part-time. Heath prevailed on appeal. Kati should contribute toward his cost
in defending the district court’s decision. Heath asserts Kati should be responsible
for his attorney fees in the amount of $5000, but his attorney did not file a
supporting affidavit. Accordingly, we remand for the district court to determine the
amount of appellate attorney fees to be paid by Kati and to enter judgment against
her in a reasonable amount. See Markey v. Carney, 705 N.W.2d 13, 26 (Iowa
2005) (noting amount of appellate attorney fees is frequently decided first in the
district court because of the need for a record). Costs of the appeal are taxed to
Kati.
AFFIRMED AND REMANDED.