Alexis Ficek v. Ronald Morgan, III ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0217
Filed September 21, 2022
ALEXIS FICEK,
Petitioner-Appellee,
vs.
RONALD MORGAN, III,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.
A father appeals the district court’s disposition of his petition to modify
visitation, custody, and child support. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED WITH INSTRUCTIONS.
Alexis Ficek, Pleasant Hill, self-represented appellee.
Kate Simon of Cordell Law, L.L.P., Des Moines, and Ronald Rieper, Des
Moines, for appellant.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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CHICCHELLY, Judge.
Ronald (Ronnie) Morgan appeals the district court’s disposition of his
petition to modify visitation, custody, and child support for two minor children, A.M.
and E.M. The court declined to modify the most recent order between Ronnie and
the children’s mother, Alexis Ficek, except that it removed the supervision
requirement for Ronnie’s visitation. Upon our de novo review, we affirm the district
court’s ruling as to legal custody and child support, but reverse and remand with
instructions relative to the issue of visitation.
I. Background Facts and Proceedings.
Ronnie and Alexis were never married but have two minor children together,
A.M., born in 2011, and E.M., born in 2013. In 2015, the court entered a decree
establishing paternity, child custody, visitation, and support. Ronnie and Alexis
were awarded joint legal custody. Alexis was awarded physical care subject to
Ronnie’s scheduled visitation, which included alternating weekends and
overnights during the week. The court ordered Ronnie to pay $667.92 per month
in child support and provide health insurance for the children.
Ronnie began using opiates in approximately 2017 and later developed an
addiction to heroin. He entered an in-patient treatment facility in early 2019, but
upon his departure, Ronnie relapsed and overdosed while the children were in his
care. The children found him unresponsive and called a grandparent for
assistance. Ronnie re-entered in-patient treatment in July and eventually
transitioned to a sober living house from August into October. Ronnie relapsed
upon his release but maintains he has remained sober since October 27, 2019 and
no longer requires any form of treatment.
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After Ronnie’s overdose in the children’s presence, Alexis filed an
application for modification of the court’s 2015 decree. Ronnie did not participate
in the modification case, and the court entered a default judgment in November
2019. The court awarded sole legal custody to Alexis and left Ronnie’s visitation
rights up to Alexis’s discretion—with visitation to occur as deemed to be in the best
interests of the children and under the supervision of Alexis, a professional
supervisor, or a third party chosen by Alexis.
Since then, Alexis and Ronnie’s co-parenting relationship has remained
rocky. As the district court noted, “they bicker inappropriately when discussing the
children” and “clearly do not agree on many issues.” Ronnie faults Alexis for,
among other things, not being more liberal with his visitation, limiting his phone
communication with the children, and over-enrolling the children in extracurricular
activities—particularly during the time they have agreed to set aside for his
visitation.1 Alexis likewise faults Ronnie for a number of issues, including
inconsistent and cancelled visits, lack of attendance at therapy sessions, and
“hostile” communication.
At the same time, Ronnie has started down a better path in many ways. He
provided five clean drug tests in the two years between the default modification
order and the modification trial presently under review. Although Ronnie struggled
to work and fell behind in child support during the height of his addiction, he has
maintained steady employment since April 2021. He is married, and his wife’s
1 The parties have engaged in mediation on at least two occasions. Most recently,
they agreed in May 2021 that Ronnie shall have parenting time with the children
every Saturday from 10:00 A.M. until 7:00 P.M.
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three children reside in their home part-time. Ronnie is afforded regular,
unsupervised, and overnight visitation with his eldest child, R.M., born out of a
different relationship in 2008.
In December 2020, Ronnie filed a petition for modification, alleging a
substantial change in circumstances since the default order. After a bench trial in
November 2021, the court ordered the modified paternity order from 2019 to
remain in full force and effect, except that the provision requiring supervision of
Ronnie’s visitation be deleted. Ronnie filed a timely appeal.
II. Review.
Our review of custody proceedings for a child born out of wedlock is de
novo. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). We give weight to the
district court’s factual findings and credibility determinations, though we are not
bound by them. Id.; Iowa R. App. P. 6.907. “Prior cases have little precedential
value, except to provide a framework for analysis, and we must base our decision
on the particular facts and circumstances before us.” In re Marriage of Will, 489
N.W.2d 394, 397 (Iowa 1992).
III. Discussion.
A. Change in Circumstances and Best Interests of the Children.
Ronnie alleges the district court erred in finding that he did not establish a
substantial change in circumstances. He also maintains the court’s disposition
was not in the children’s best interests. As the party seeking modification, Ronnie
“must establish by a preponderance of evidence that there has been a material
change in circumstances since the decree and that the requested change in
visitation is in the best interests of the children.” Christy v. Lenz, 878 N.W.2d 461,
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464 (Iowa Ct. App. 2016) (citation omitted). “‘[A] much less extensive change in
circumstances is generally required in visitation cases’ than the change necessary
to modify child custody.’”2 Id. (alteration in original) (citation omitted). “The
rationale for this lower standard is found in the prevailing principle that the best
interests of children are ordinarily fostered by a continuing association with the
noncustodial parent.” Id. (citation omitted).
While the district court found Ronnie did not satisfy the higher standard
necessary to modify custody, we note the court implicitly found there was at least
a material change in circumstances in relation to Ronnie’s abstinence from illegal
drugs, which was sufficient to support removing the supervision requirement from
his visitation. However, the court concluded that a structured visitation schedule
was not yet in the children’s best interests because Ronnie “does not appreciate
the gravity of his addiction” and “also does not appreciate the destructive impact
of his addictions on his children and Alexis.” The children’s therapist noted that
“Dad’s lack of consistency of involvement in their lives” has provided the children
with additional trauma. Ronnie does not accept any fault for this harm despite
numerous cancelled visits with the children. He admits his lack of attendance at
some visits and therapy sessions occurred because he lost his license after a 2019
conviction for operating while intoxicated and also because he was between jobs.
He also admits to still consuming alcohol.
2To modify child custody, the party seeking modification must establish a material
and substantial change in circumstances that is relatively permanent and was not
originally contemplated by the court. Thorpe v. Hostetler, 949 N.W.2d 1, 5 (Iowa
Ct. App. 2020).
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In light of the trauma the children have experienced in their relationship with
Ronnie, the district court found a slow and unstructured approach to increased
visitation to be consistent with their best interests, leaving decisions concerning
the progression of visitation in the hands of Alexis. While we agree that a slow
approach to increased visitation is consistent with the children’s best interests
here, our cases do not support
the right of visitation [to be] contingent upon an invitation from the
party having custody of the child, or require the consent of one parent
for the other to visit the child, . . . thereby leaving the privilege of
visitation entirely to the discretion of the party having the child in
custody.
Smith v. Smith, 142 N.W.2d 421, 425 (Iowa 1966) (alteration in original) (citation
omitted); see also In re Marriage of Retterath, No. 14–1701, 2015 WL 6509105, at
*4 (Iowa Ct. App. Oct. 28, 2015); Thompson v. Fowler, No. 17-0284, 2017 WL
6513973, at *3 (Iowa Ct. App. Dec. 20, 2017); In re Marriage of Kanetomo, No. 19-
2008, 2020 WL 5650593, at *4 (Iowa Ct. App. Sept. 23, 2020). As such, we cannot
concur in the district court’s approach. While we do find the court acted equitably
in modifying visitation to remove the supervision requirement, we remand to the
district court to set a gradual visitation schedule for Ronnie that progresses, over
a period of no more than six months, to every other weekend from Friday at 5:00
P.M. until Sunday at 5:00 P.M., as well as additional visitation on a weekday or
worknight, the details of which shall be set by the district court upon consideration
of the children’s best interests.
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B. Legal Custody.
Ronnie alleges the district court erred in denying his request to modify legal
custody. This determination requires a higher standard than that necessary to
modify visitation. See Christy, 878 N.W.2d at 464. To modify a custodial provision,
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.
Thorpe, 949 N.W.2d at 5. As explained above, the district court found Ronnie
failed to demonstrate a substantial, permanent change in circumstances. The
court’s ruling stated:
Although the court is hopeful that Ronnie has gotten past the worst
of his addiction, it does not bode well when he minimizes the
struggles he faces with substance abuse. . . . It will take time and
patience for Ronnie to rebuild trust with his children and Alexis,
neither of which he has demonstrated. He thinks of himself first and
the best interests of his children second.
We agree with the district court’s concerns regarding the substantial and lasting
nature of Ronnie’s progress. Therefore, we affirm the court’s refusal to modify
legal custody.
C. Modification of Child Support.
Ronnie does not dispute the district court’s calculation of child support,
which arrived at a figure within ten percent of the amount originally ordered in
2015.3 Rather, he argues the district court should have considered deviating from
3 Modification of child support orders is permitted “when there is a substantial
change in circumstances,” which exists when the result varies by ten percent or
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the child support guidelines to do justice between the parties. He claims his
obligation is not sustainable and leaves him vulnerable to non-compliance because
he is unable to cover monthly expenses or catch up on his arrears to Alexis, which
total over $17,000. However, we find it was not an abuse of discretion for the court
to refuse to vary from the child support guidelines in this instance. See In re
Marriage of Hoksbergen, 587 N.W.2d 490, 492 (Iowa Ct. App. 1998) (setting forth
the standard of review). Iowa Court Rule 9.11 permits variance from the guidelines
when the court makes a written finding that their application “would be unjust or
inappropriate.” We do not find such an injustice based upon our review of the
record. Ronnie’s child support obligations will continue in the amount originally
ordered.
IV. Disposition.
We find the district court acted equitably and consistently with the children’s
best interests by refusing to confer legal custody or decrease child support for
Ronnie. On those issues we affirm. However, we remand to the district court to
set a visitation schedule consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS.
more. See Iowa Code § 598.21C(1), (2)(a). Therefore, the court did not disturb
Ronnie’s monthly obligation.