In Re the Marriage of Kyle D. Morrison and Cassie K. Morrison Upon the Petition of Kyle D. Morrison, and Concerning Cassie K. Morrison ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0886
Filed March 8, 2017
IN RE THE MARRIAGE OF KYLE D. MORRISON
AND CASSIE K. MORRISON
Upon the Petition of
KYLE D. MORRISON,
Petitioner-Appellee,
And Concerning
CASSIE K. MORRISON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Keokuk County, Myron L. Gookin,
Judge.
The parties’ each appeal from an order denying relief in a dissolution
modification action. AFFIRMED AND REMANDED.
Catherine C. Dietz-Kilen and Jaclyn M. Zimmerman of Harrison & Dietz-
Kilen, P.L.C., Des Moines, for appellant.
John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for
appellee.
Heard by Danilson, C.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.
This case arises out of a dissolution modification action filed not long after
the parties entered into a stipulated decree dissolving their marriage. Cassie and
Kyle Morrison divorced in January 2014. They stipulated to joint custody of their
two children, A.M. (born 2011) and M.M. (born 2012). Pursuant to the stipulation,
Cassie was awarded physical care of the children, and Kyle was granted liberal
visitation. In December 2014, Cassie filed her petition to modify the decree,
seeking clarification of the parties’ custodial rights, modification of the visitation
schedule, and modification of child support. Kyle filed a counterclaim, seeking
physical care of the parties’ children. The district court denied the requested
relief. Both parties appeal.
I.
We review de novo cases tried in equity. See Iowa R. App. P. 6.907. We
review the entire record and decide anew the factual and legal issues preserved
and presented for review. See In re Marriage of Williams, 589 N.W.2d 759, 761
(Iowa Ct. App. 1998). Prior cases have little precedential value; we apply the
relevant law to the unique facts and circumstances of each case. See In re
Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Marriage of Snowden,
No. 14-1920, 2015 WL 4233449, at *1 (Iowa Ct. App. July 9, 2015) (“All happy
families are alike; each unhappy family is unhappy in its own way.” (quoting Leo
Tolstoy, Anna Karenina 1 (1873))). Although our review is de novo, we afford
deference to the district court. See In re P.C., No. 16-0893, 2016 WL 4379580,
at *2 (Iowa Ct. App. Aug. 17, 2016).
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II.
Cassie and Kyle have a contentious relationship. One incident is
illustrative. The two give vastly different accounts of the incident. According to
Cassie, she went to Kyle’s house to pick up the children. After she arrived, Kyle
charged out of the house and attempted to throw her off the porch, causing her to
fall and hit her knee. She testified Kyle threw the children’s things on the front
lawn. For his part, Kyle states Cassie arrived on the morning in question earlier
than her scheduled pick-up time and attempted to gain entry into the house but
the door was locked. After Kyle unlocked the door, he asked Cassie to wait, and
she slammed the door into him. Later during the same incident, when Kyle was
bringing the children’s belongings outside, Cassie shoved him into the side of the
house. According to Kyle, he suffered lacerations, which were evidenced by
photographs. He stated after Cassie and the children had left, Cassie almost
immediately returned, barged into the home, and demanded one of the children’s
blankets, which Kyle threw at her, and she left. Both contacted the county
sheriff’s office. The sheriff’s deputy’s report noted Cassie changed her story
multiple times. We note Cassie’s testimony is inconsistent with the report she
gave the deputy. No charges were formally filed in the incident. Cassie retained
her attorney in this matter immediately after this incident.
Cassie and Kyle each cite to several other incidents evidencing the
contentiousness of their relationship. We find it unnecessary to discuss them in
any great detail, or even at all. Four broad conclusions can be drawn from the
record. First, Cassie and Kyle have a contentious relationship. Second, Cassie
and Kyle each deny any fault for their contentious relationship while oblivious
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each bears fault. Third, Cassie and Kyle are good parents and care a great deal
about their children. Fourth, Cassie and Kyle’s contentious relationship has the
potential to undermine their individually good parenting.
III.
A.
We first address Kyle’s cross-appeal. Kyle argues the district court erred
in failing to grant his petition to modify the dissolution decree and grant Kyle
physical care of the children. “The general principles guiding our adjudication of
petitions for modification of dissolution decrees are well-established.” In re
Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).
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 from the other must prove an ability
to minister more effectively to the children’s well being. The heavy
burden upon a party seeking to modify custody stems from the
principle that once custody of children has been fixed it should be
disturbed only for the most cogent reasons.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983) (citation omitted).
In sum, the party seeking to change physical care must establish a permanent
and material change in circumstances and the ability to provide superior care.
See Moellers v. Sindelar, No. 14-1361, 2015 WL 1546464, at *1 (Iowa Ct. App.
Apr. 8, 2015). The burden on the party seeking modification is a heavy one.
Kyle argues modification of the decree is warranted here because Cassie
has demonstrated she will not honor Kyle’s rights as joint legal custodian of the
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children. Specifically, Cassie arranged counseling for A.M. without first
consulting Kyle and continued the counseling sessions without subsequently
informing Kyle. Kyle became aware of the counseling only when it was disclosed
during discovery in the modification proceeding. Cassie contends secrecy was
necessary here because of the nature of the counseling. Cassie testified A.M.
stated on two separate occasions that Kyle made a threatening statement about
Cassie and that Kyle stated he hated Cassie’s boyfriend. Cassie sought
counseling for A.M. because of these statements and because Cassie perceived
A.M. was suffering separation anxiety during visitation.
We cannot conclude Cassie’s conduct justifies a change in physical care
of the children. When parents are awarded joint legal custody, both parents have
“legal custodial rights and responsibilities toward the child” and “neither parent
has legal custodial rights superior to those of the other parent.” Iowa
Code § 598.1(3) (2013). It is clear Cassie’s conduct violated Kyle’s rights as joint
legal custodian of A.M. Cassie testified she knew her conduct was in violation of
the decree, but she believed secrecy was in A.M.’s best interest because of the
threat Kyle allegedly made. Kyle’s remedy for Cassie’s conduct, however, is to
initiate contempt proceedings, which is not an issue in this appeal. The remedy,
on the present record, is not to change physical care of the children.
In addition, to change physical care of the children, Kyle must establish he
could provide superior care for the children. See In re Marriage of Thielges, 623
N.W.2d 232, 238 (Iowa Ct. App. 2000) (finding the father failed to prove he could
provide superior care because, “[a]t most, the record shows [the father] and [the
mother] are both fallible human beings who can provide the same level of care
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for their children”). While it is possible that repeated or continuous violation of
Kyle’s custody rights might establish he could provide superior care to the
children, this record does not yet establish the fact. “The importance of stability
in [the children’s lives] . . . cannot be overemphasized.” In re Marriage of
Coulter, 502 N.W.2d 168, 173 (Iowa Ct. App. 1993).
B.
In the event he is not awarded physical care of the children, Kyle contends
he should be granted joint physical care of the children. “If joint physical care is
awarded, ‘both parents have rights to and responsibilities toward the child
including, but not limited to, shared parenting time with the child, maintaining
homes for the child, [and] providing routine care for the child.’” In re Marriage of
Hansen, 733 N.W.2d 683, 691 (Iowa 2007) (quoting Iowa Code § 598.1(4)).
Four helpful, but not exclusive, factors for the court to consider when deciding
whether joint physical care is in the best interests of the child are: (1) historical
contributions to the physical care of the children by both parents; (2) “the ability
of [the parents] to communicate and show mutual respect”; (3) the history and
“the degree of conflict between the parents”; and (4) “particularly when there is a
turbulent past relationship, . . . the degree to which the parents are in general
agreement about their approach to daily matters.” Id. at 697–99.
On de novo review, we conclude the decree should not be modified to
grant the parties joint physical care of the children. First, there has not been a
change in circumstances warranting modification of the decree. The parties’
contentious relationship is merely a continuation of what came before. Second,
“a stormy marriage and divorce presents a significant risk factor that must be
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considered in determining whether joint physical care is in the best interest of the
child.” Id. at 698. The award of joint physical care where the parties already
have a contentious relationship poses a great risk of increasing the hostility
between the parents and negatively impacting the children. See id. Third,
beyond their general hostility toward each other, Cassie and Kyle have great
difficulty communicating information regarding the children and coordinating
routines for the children. For example, the parties are unable to complete the
simple task of exchanging the children for visitation without hostility flaring up and
have now involved their parents in the exchanges. While it is unrealistic to
believe former spouses will be in agreement on all issues, “the parents must
generally be operating from the same page on a wide variety of routine matters.”
Id. at 699. As always, the guiding star of any custody dispute is the best
interests of the child. See Hoffman, 867 N.W.2d at 32. There is no indication
that modification of the parties’ stipulated decree to award the parties shared
care of the children would be feasible, let alone in the best interests of the
children.
IV.
A.
We next address Cassie’s appeal. Cassie contends the district court
erred in denying her petition to clarify the legal custody provisions of the decree.
To be clear, Cassie does not seek to modify the legal custody provisions of the
decree. Instead, she seeks to have the decree define “joint legal custody” to
mean she has the “sole right to make decisions concerning the routine care of
the children,” which would include the right to: (1) make decisions on the
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children’s routine and non-emergency health care; (2) make all doctor’s
appointments for the children; (3) make decisions regarding the children’s
daycare and extracurricular activities; (4) manage and make decisions regarding
the children’s education; and (5) be the only parent who is allowed to
communicate with the children’s doctors, providers, and caretakers. In Cassie’s
view, Kyle would either have no rights with respect to these issues or only the
right to be consulted. Cassie contends “clarification” of joint custodial rights is
necessary because Kyle has “interfered” with the children by requesting
information directly from the children’s doctors and teachers.
Cassie misunderstands the meaning of joint legal custody. Quite simply, a
parent’s request for information regarding the parent’s children is not an
“interference” with the other parent’s care of the children. Joint legal custody
means “both parents have legal custodial rights and responsibilities toward the
children” and “neither parent has legal custodial rights superior to those of the
other parent.” Iowa Code § 598.1(3). These rights include, “equal participation
in decisions affecting the child’s legal status, medical care, education,
extracurricular activities, and religious instruction.” Id. “A parent who is awarded
legal custody has the ability to participate in fundamental decisions about the
child’s life.” Hansen, 733 N.W.2d at 690. The stipulated decree correctly sets
forth the parties’ respective rights and responsibilities as joint legal custodians of
the children. Information regarding the children should be equally available to
both parents and, ideally, freely exchanged between them.
As the physical custodian of the children, Cassie does have the authority
to make decisions regarding the children’s routine care. However, Cassie’s
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proposed definitions of “routine care” go far beyond “the myriad of details
associated with routine living” and redefine legal custodial rights. Id. at 691.
What Cassie seeks is de facto sole legal custody of the children to the detriment
of Kyle’s custodial rights. To modify an award of joint legal custody to sole
custody, the applying party must prove by a preponderance of evidence that
there has been a material and substantial change in circumstances that it would
be in the child’s best interest to grant the parent sole custody, including sole
decision-making power. See In re Marriage of Leyda, 355 N.W.2d 862, 865
(Iowa 1984). Cassie has not proved or attempted to prove the grounds
authorizing modification of Kyle’s legal custodial rights. We conclude the district
court was correct to deny Cassie’s request for de facto modification of the award
of joint legal custody.
B.
In her modification petition, Cassie also sought to modify the parties’
visitation schedule. Cassie primarily sought to limit Kyle’s midweek visitation and
make some additional changes regarding birthday visitations and holidays.
Cassie contends the modification of Kyle’s visitation would reduce potential
friction points between the former spouses and bring clarity to the visitation
schedule.
As with most family law matters, our primary concern is the best interests
of the children. The court is obligated to order visitation that
assure[s] the child the opportunity for the maximum continuing
physical and emotional contact with both parents after the parents
have separated or dissolved the marriage, and which will
encourage parents to share the rights and responsibilities of raising
the child unless direct physical harm or significant emotional harm
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to the child, other children, or a parent is likely to result from such
contact with one parent.
Iowa Code § 598.41(1)(a). “Liberal visitation is generally in the best interests of
children.” Snowden, 2015 WL 4233449, at *4. “A parent seeking to modify
visitation must only establish ‘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.’” In re Marriage of Brown, 778 N.W.2d 47, 51–
52 (Iowa Ct. App. 2009) (citation omitted). Generally, the degree of change that
must be demonstrated to modify visitation is less than what is required to modify
physical care. See, e.g., In re Marriage of Yazigi, No. 13-1553, 2015 WL
1046129, at *2 (Iowa Ct. App. Mar. 11, 2015); In re Marriage of Rees, No. 04-
1380, 2005 WL 975653, at *2 (Iowa Ct. App. Apr. 28, 2005).
Cassie has not established the proposed modification is in the best
interests of the children. See In re Marriage of Salmon, 519 N.W.2d 94, 95–96
(Iowa Ct. App. 1994) (“However, a parent seeking modification of a visitation
order bears an additional burden to prove ‘that the requested change in visitation
is in the best interests of the child.”). First, and foremost, the proposed
modification does little to decrease the number of exchanges between the
parties. Instead, the proposed modification only decreases Kyle’s total time
spent with the children. For example, the proposed change to have the
exchange occur on Sunday evening rather than Monday morning only limits
Kyle’s opportunity to spend an evening with the children and read to the children
before they go to sleep, something they often do together, without reducing the
total number of exchanges. Likewise, the proposal to eliminate an overnight
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visitation midweek only serves to shorten Kyle’s time with the children from a day
to several hours without actually reducing the number of exchanges. Second, it
appears the proposed modification was advanced to further Cassie’s goal of
preventing Kyle from having contact with the children’s school and daycare while
the children are in his care. We have discussed this issue above with respect to
Cassie’s request for de facto legal custody and need not repeat the same
analysis here.
The record reflects Kyle loves his children. The children love their father
and enjoy the various activities they do together. Cassie’s proposed modification
would only work to deprive the children of maximum physical and emotional
contact with Kyle and Kyle’s extended family. In the end, Cassie’s proposed
modifications as a solution to minimize the conflict between the parents would be
inequitable. Both are at fault for the communication problems between them, but
Cassie’s proposed modifications would essentially result in a penalty for Kyle and
boon for Cassie. That is not in the children’s best interests. Stability in the
current visitation schedule would be in the best interests of both children. See
Coulter, 502 N.W.2d at 171.
C.
Cassie next contends the district court erred in failing to modify the child
support payments Kyle makes. “We review orders on applications to modify child
support provisions de novo.” In re Marriage of Vetternack, 334 N.W.2d 761, 762
(Iowa 1983). But “the trial court has reasonable discretion in determining
whether modification is warranted and that discretion will not be disturbed on
appeal unless there is a failure to do equity.” Id. To modify child support, there
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must be a substantial change in circumstances. See Iowa Code § 598.21C(1).
“[A] substantial change in circumstances exists when the court order for child
support varies by ten percent or more from the amount which would be due
pursuant to the most current child support guidelines.” Iowa Code § 598.21C(2).
In the original stipulated decree, child support was set at $600 per month.
Cassie argued this number should be recalculated to $927.98 per month based
on Kyle’s annual income for 2015 in the amount of $56,606.45, her annual
daycare expenses of $5921.00, and Cassie’s annual salary in the amount of
$32,532.34. The district court found Kyle’s annual income for child support
purposes to be $30,000 and Cassie’s to be $32,500. The district court calculated
Kyle’s child support obligation to be $570.38 per month, which was not a change
exceeding ten percent, and therefore determined the child support payments
should not be modified.
The fighting issue is whether the district court erred in using the $30,000
figure for Kyle’s annual income. “In calculating child support, the first step is to
determine the parents’ current monthly net income from the most reliable
evidence presented.” In re Marriage of Knickerbocker, 601 N.W.2d 48, 51 (Iowa
1999). Net income is calculated through taking gross monthly income less
allowable expenses. See id. Cassie contends the district court should have
calculated child support based on Kyle’s gross income for 2015 in the amount of
$56,606.45 as reflected in his form 1099s from three different revenue sources:
(1) his chemical and seed sales; (2) his construction work; and (3) his family’s
farm. Cassie does not contend that Kyle would not have allowable expenses.
Instead, she contends Kyle did not submit sufficient evidence of his allowable
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expenses for 2015. We disagree. Kyle testified he had not yet prepared his tax
returns for 2015 and had thus not yet calculated his exact expenses. He testified
his allowable expenses would be similar to those in 2014 as evidenced in his
2014 tax return. Kyle testified his net income would be approximately $30,000
per year as reflected in his 2014 tax returns. The district court credited Kyle’s
testimony. Although our review is de novo, we do provide the district court
“deference because the district court had an opportunity to view, firsthand, the
demeanor of the witnesses when testifying.” In re Marriage of Brown, 487
N.W.2d 331, 332 (Iowa 1992). Further, it would be inequitable to calculate child
support using Kyle’s gross income when he had significantly less net income.
See Vetternack, 334 N.W.2d at 762–63.
Cassie also contends she was entitled to cash medical support. Medical
support by the noncustodial parent is required under statute. See Iowa Code
§ 252E.1A(1) (“An order or judgment that provides for temporary or permanent
support for a child shall include a provision for medical support for the child as
provided in this section.”); Ryan v. Wright, No. 15-0413, 2015 WL 6508703, at
*5–7 (Iowa Ct. App. Oct. 28, 2015); see also Iowa Code § 252E.1(9) (“[T]he
payment to the obligee of a monetary amount in lieu of a health benefit plan . . .
is an obligation separate from any monetary amount of child support ordered to
be paid.”). According to the Code:
If a health benefit plan is not available at the time of the entry
of the order, the court shall order a reasonable monetary amount in
lieu of a health benefit plan, which amount shall be stated in the
order. For purposes of this subsection, a reasonable amount
means five percent of the gross income of the parent ordered to
provide the monetary amount for medical support or, if the child
support guidelines established pursuant to section 598.21B
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specifically provide an alternative income-based numeric standard
for determining the reasonable amount, a reasonable amount
means the amount as determined by the standard specified by the
child support guidelines.
Iowa Code § 252E.1A(3). “Cash medical support is authorized under this
statutory and rule scheme.” Ryan, 2015 WL 6508703, at *7. The district court
failed to determine Kyle’s cash medical support. We thus remand this matter to
determine cash medical support based on the existing record. See id. at *2, *7
(remanding the case for determination of cash medical obligation where the court
initially failed to do so).
V.
The parties request appellate attorney’s fees. Appellate attorney fees are
not a matter of right, but rest within the court’s discretion. See In re Marriage of
Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). “In determining whether to
award appellate attorney fees, 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.Under the circumstances, we do not award any appellate attorney fees.
VI.
For the foregoing reasons, we affirm the judgment of the district court. We
remand this matter for the determination of cash medical support based on the
existing record. We do not retain jurisdiction.
AFFIRMED AND REMANDED.