Jessica K. Lagatta v. Brandon B. Kettler ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0418
Filed October 20, 2021
JESSICA K. KETTLER,
Petitioner-Appellee,
vs.
BRANDON B. KETTLER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Thomas P. Murphy,
Judge.
Brandon Kettler appeals from the ruling on his petition to modify provisions
of the decree that dissolved his marriage to Jessica Kettler. AFFIRMED AS
MODIFIED.
Tammy Westhoff Gentry and Natalie Hedberg of Parrish Kruidenier Dunn
Gentry Brown Bergmann & Messamer L.L.P., Des Moines, for appellant.
Anjela A. Shutts and Jennifer B. Chavez-Rivera of Whitfield & Eddy, P.L.C.,
Des Moines, for appellee.
Heard by Mullins, P.J., and Schumacher and Ahlers, JJ.
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AHLERS, Judge.
This case involves a request to modify a Kansas divorce decree that
includes unusual visitation provisions. As the unusual circumstances of this case
justify the unusual visitation provisions, we leave those provisions largely intact.
Brandon Kettler filed this action seeking to modify the Kansas decree that
dissolved his marriage to Jessica Kettler.1 Jessica filed an answer and
counterclaim asking the court to deny Brandon’s request and approve her
requested changes to other terms of the decree. The district court generally
denied Brandon’s request and granted Jessica’s. Brandon appeals, asserting:
(1) his visitation with the parties’ children should increase; (2) he should remain
responsible for the children’s health insurance; (3) his obligations to undergo drug
screens and to provide drug test results and mental-health reports to Jessica
should terminate after a specified time; and (4) Jessica should not be allowed to
suspend his visitation without seeking court approval. Both parties request
appellate attorney fees. Except for one minor modification, we affirm. We deny
the requests for appellate attorney fees.
I. Background Facts and Proceedings
Brandon and Jessica married in 2009. Their marriage produced two
children, born in 2011 and 2015. The parties divorced in Kansas in August 2016.
To resolve their dissolution action, the parties entered into an agreement for the
distribution of marital property and setting terms for the continued parenting of their
1 Brandon’s petition identified Jessica by her maiden name. Uncontroverted
testimony at trial established Jessica has not returned to her maiden name, so her
name remains Jessica K. Kettler.
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children. Their dissolution decree contains no findings of fact, presumably due to
the agreement that settled their case.
Under the parties’ initial joint parenting plan,2 the parties have joint legal
custody of the children with Jessica having physical care. The plan provided for
supervised visitation for Brandon that gradually increased to unsupervised
visitation on the current schedule. The current schedule allows Brandon visitation
on alternating weekends from 10:30 a.m. Saturday until 4:00 p.m. Sunday, with
additional holiday visitation. The plan also required Brandon to maintain health
insurance for the children, and it contained provisions about drug use and testing:
Both Parents are to provide a safe, stable, kind and loving
environment for the children at all times. Other considerations:
Father and/or Mother shall not consume prescription medications
other than those prescribed to them by licensed medical
professionals, in the prescribed dosages.
For the next 5 years (through July 1, 2021), Father agrees to
provide the appropriate releases to any treating psychiatrist and/or
therapist and Father’s pain clinic so that Mother may obtain quarterly
updates about Father’s current prescribed medications, treatment
plan, prognosis and opinions about Father’s ability to interact with
the children.
Father shall submit to up to one random drug test per month
for up to 3 years (through July 1, 2019), if Mother requests, the
purpose of said test to determine that Father is taking only his
prescribed medications in the prescribed dosages. For the time
period beginning July 1, 2019 and ending July 1, 2020, Father shall
submit to one random drug test, if Mother requests. Father shall
report for the test within 12 hours of receiving the request. Father
shall provide to the drug testing facility all of the information
necessary for them to make this evaluation. If the drug test is clean,
Mother shall be responsible for the cost of the test. If Father fails the
drug test, he shall be responsible for the cost of the test.
Any failed drug test will result in the immediate suspension of
Father’s parenting time, until such time that Father is in compliance
for a period of two months, at which time parenting time will be
reinstated within the following two weeks.
2 Both parties were represented by counsel in reaching their settlement, which
included agreeing to the joint parenting plan.
4
Jessica and the children moved from Kansas to Waukee, Iowa, in 2017.
Brandon and his new wife moved from Kansas to Urbandale, Iowa, in 2018.
Shortly after moving to Iowa, Brandon registered the Kansas dissolution decree in
Iowa and then petitioned to modify the decree, seeking to increase his visitation
and modify other provisions.
Evidence submitted at the modification trial established that Brandon has
several mental-health disorders as well as ongoing pain management issues.
Brandon takes multiple prescription medications as a result. As mentioned, the
parties’ stipulated decree provided for drug testing. The evidence established
Brandon undergoes urinalysis drug testing during random appointments with his
pain management doctor. Brandon has taken two more urinalysis tests at
Jessica’s request since the entry of the Kansas decree. Jessica twice requested
Brandon to undergo a hair follicle test because it examines a longer usage window
than urinalysis, but Brandon refused both times. All tests to which Brandon
submitted were negative for all substances other than prescribed medications.3
Fifteen months into the modification proceeding, Jessica filed a motion for
emergency suspension of Brandon’s parenting time, pointing to recent police
reports documenting police response to domestic disturbances between Brandon
and his new wife at their home. The court initially granted the motion and
suspended Brandon’s visitation, which was the first suspension of his visitation
3Brandon provided results from drug tests collected: January 14, 2016; February
18, 2016; April 12, 2016; September 15, 2016; December 29, 2017; May 3, 2018;
December 12, 2018; November 13, 2019; June 5, 2020; and November 20, 2020.
The four most recent tests did not screen for marijuana or related substances.
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since the dissolution. After a hearing, the court rescinded its initial order, denied
the motion for emergency suspension, and ordered Brandon to submit to a hair
follicle drug test. Brandon provided a hair sample as ordered, although he failed
to provide it within the ten-day deadline imposed by the court. The test was
positive for cannabinoids. Based on the positive test, Jessica suspended
Brandon’s visitation. Brandon later filed an application for contempt, and the court
reinstated Brandon’s visitation but declined to find Jessica in contempt for
suspending visitation.
The matter proceeded to trial over three days in early 2021. The first day
and one-half of trial was held in the courtroom, where Brandon, Jessica, and
Brandon’s new wife testified in person. The rest of the trial was conducted via
videoconference due to COVID-19 pandemic precautions. During the courtroom
portion of trial, the judge warned Brandon multiple times about his behavior
disrupting the proceedings. Following trial, the court issued a ruling denying
Brandon’s request to increase his visitation. The ruling switched responsibility for
providing health insurance for the children, obligating Jessica to provide it. The
ruling also modified provisions for monitoring Brandon’s mental health and
substance use. As for monitoring Brandon’s mental health and substance use, the
ruling stated:
Brandon shall . . . [quarterly] provide Jessica with a statement from
a licensed health care provider regarding Brandon’s fitness to have
unsupervised visits with the children.[4]
. . . Brandon shall submit to one random hair follicle drug test
(also referred to as hair stat) per month at Jessica’s request for the
4A later ruling on the parties’ motions filed pursuant to Iowa Rule of Civil Procedure
1.904(2) specified this statement must come “from a licensed mental health care
provider.”
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purpose of determining Brandon’s substance use. Said hair follicle
drug test shall be completed within twelve hours of Jessica’s written
request. Jessica shall insure the request is made so that Brandon
may timely comply. Brandon shall provide Jessica an ongoing
waiver so that she can obtain the test results from the testing facility
immediately upon the results’ availability. If the tests come back
positive, Brandon shall pay all test costs. If the tests come back
negative, Jessica shall pay for the negative test costs, except that
Brandon shall pay for test costs for three months following a positive
test. A positive test is one which demonstrates that Brandon is
misusing prescription drugs or using illegal drugs or substances.
. . . [I]f Brandon takes a hair follicle drug test that is positive,
immediate suspension of his parenting time shall occur until such
time that Brandon is complying with no drug use for a period of three
months. Brandon’s compliance shall be demonstrated by
consecutive monthly hair follicle testing. His parenting time shall be
reinstated within two weeks of the third consecutive monthly negative
test.
Both parties filed motions under Iowa Rule of Civil Procedure 1.904(2), and the
court’s subsequent order added the following language about drug testing:
Jessica shall be entitled to choose the type of hair follicle drug test
and substances tested to ensure that the test indicates any excess
prescription medications and any illegal drug use.
If Brandon does not submit to the test within the required time,
the results will be deemed positive and Brandon’s visitation will be
suspended in the same manner as if he failed a test.
Brandon appeals the court’s orders.
II. Standard of Review
Proceedings to modify a dissolution decree are heard in equity. In re
Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). “Thus, we review the district
court’s decision de novo.” Id. “Though we make our own findings of fact, we give
weight to the district court’s findings.” Id.III. Analysis
Brandon raises four issues with the modification ruling on appeal. Before
addressing each issue individually, we will discuss whether a sufficient change in
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circumstances occurred to permit modification of the dissolution decree. To modify
custodial terms of a dissolution decree, a substantial change in circumstances
must be established. In re Marriage of Brown, 778 N.W.2d 47, 51 (Iowa Ct. App.
2009). A much less extensive change in circumstances is generally required to
modify visitation. Id. “The parent seeking to modify child visitation provisions of a
dissolution decree 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.” In re Marriage of
Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994). “A substantial change is not
necessary” to modify visitation. Nicolou v. Clements, 516 N.W.2d 905, 909 (Iowa
Ct. App. 1994).
While the original decree does not describe the circumstances at the time
of dissolution, Jessica’s testimony and the stipulated decree’s drug-testing
provisions establish that Brandon’s substance abuse was a major concern. The
extent of Brandon’s mental-health issues at the time of dissolution are less clear,
though he acknowledges being depressed at the time.
The record shows Brandon’s mental state continues to be a major concern,
no matter if substance abuse or mental illness—or possibly both—caused his
mental state. Jessica introduced multiple written communications from Brandon
that display unreasonable aggression and hostility. Rather than acknowledge the
inappropriateness of his words, he testified the communications lack a “context”
that would somehow justify his hostility. Jessica also introduced body camera
videos from the police response to the domestic disturbances at Brandon’s home.
These disturbing videos show Brandon’s erratic and hostile interactions with
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police, including his claims he is the victim in the disturbances despite evidence to
the contrary. Moreover, the district court observed Brandon’s behavior firsthand
and noted his behavior in the modification ruling:
[A]t trial, Brandon’s behavior was erratic. He was disruptive as he
sat with his counsel. Brandon was speaking so loudly to his counsel
that it interrupted proceedings. Brandon was rocking back in forth in
his chair, rolling his eyes, [waving] his arms, raising his hand, and
making audible sounds of exasperation. The court warned Brandon
about his behavior twice, and came down hard on him a third time.
Brandon’s interruptive behavior lessened, but it did not stop.
....
It appears to the court that Brandon is suffering from
substance abuse or mental illness; perhaps both.
(Footnotes omitted.) We place weight on the court’s observations at trial. In re
Marriage of Heiar, 954 N.W2d 464, 469 (Iowa Ct. App. 2020) (“The trial court has
the advantage of listening to and observing the parties and witnesses and is in a
better position to weigh the credibility of witnesses than the appellate court, which
is limited to a written record.”).
We see little evidence to support Brandon’s claim that he “is in a much
healthier place mentally and in regard to his substance abuse issues now than
when the dissolution of marriage was entered.” If anything, Brandon’s mental-
health and substance-abuse issues have increased over the past one or two years.
Brandon has undergone no substance-abuse treatment. While he passed the
occasional drug tests required by his pain management doctor, his refusal to
submit to hair follicle testing raises suspicions. Those suspicions were confirmed
when the district court ordered Brandon to undergo a hair follicle test with a longer
window of detection, and the test was positive for cannabinoids. Brandon claims
his pain management doctor recommended cannabinoids, but he does not have a
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prescription for such and an individual’s use or possession of cannabinoids without
a prescription remains illegal in Iowa. See Iowa Code § 124E.12 (2019).
Furthermore, Brandon has not seen a mental-health therapist and has only treated
his mental health through visits with a psychiatrist to manage his medications.
Due to the fact Brandon’s mental health and substance abuse continue to
be major concerns, and because Brandon has done little to treat these concerns,
we do not find a change in circumstances that warrants modifying the dissolution
decree to increase Brandon’s visitation.5 However, we do find by a preponderance
of the evidence a material change in circumstances—specifically, Brandon’s
failure to improve his mental health as expected in the decree—to justify the district
court’s modifications to the terms of the decree regarding drug testing, disclosure
of health records, and potential suspension of visitation. These modifications of
current provisions of the decree—which include clarifications and extensions of the
current provisions—are necessary to ensure the safety of the children. As
explained below, we also find a substantial change in circumstances justifying
modification of the health insurance provisions.
A. Brandon’s Visitation
Brandon argues the district court should have granted him more visitation
time. The modification ruling continued the visitation schedule from the decree,
with Brandon having visitation on alternate weekends.
We agree with the district court that circumstances have not changed such
that it is in the children’s best interests to increase Brandon’s visitation. The
5 If Brandon successfully addresses his mental-health and substance-abuse
issues in the future, he may seek modification then.
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children are thriving in Jessica’s care, and testimony from the older child’s
therapists suggest more visitation with Brandon would be detrimental to the child.
As to Brandon’s claim that, because he gets one overnight of visitation on
alternating weekends, there is no reason he should not get a second night on those
weekends, we make two observations. First, there is no standard visitation
schedule, as each case is unique and visitation is set accordingly. See Lamansky
v. Lamansky, 207 N.W.2d 768, 771 (Iowa 1973) (“There is no hard and fast rule
by which matters of visitation may be arbitrarily settled. Each case involves
different parental personalities as well as the individual characteristics of the child.
Obviously, the interplay of these factors is never the same, and precedent is of
little value in determining what is right in a particular case.”); In re Marriage of
Sperry, No. 03-1375, 2004 WL 793196, at *3 (Iowa Ct. App. Apr. 14, 2004) (“Each
family situation is unique, so that we evaluate the visitation provisions on a case-
by-case basis.”). Here, the parties agreed to the original visitation schedule to
account for their unique circumstances—the uniqueness of which is created by
Brandon’s unmitigated issues. The evidence established those unique
circumstances continue to exist, so no change is warranted.
The second observation is related. In modification-of-visitation
proceedings, the modification court does not retry the issue of visitation and set a
visitation schedule of its liking. Instead, it must stick with the original schedule
unless a change in circumstances warranting modification is established. See
Nicolou, 516 N.W.2d at 909 (“The [c]ourt cannot retry the issue of visitation but
must find that there has been a . . . change in circumstances since the entry of the
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original order to justify a change in visitation.”). The evidence does not establish
a need for a change.
For these reasons, we reject Brandon’s request to increase his visitation
from that ordered in the decree.
B. Children’s Health Insurance
The original decree designated Brandon as responsible for providing the
children’s health insurance. Brandon argues the district court should not have
modified this provision to make Jessica responsible for providing the children’s
health insurance.
Provisions for children’s health insurance are modifiable, as they are part of
the award of child support. See In re Marriage of Goodman, 690 N.W.2d 279, 285
(Iowa 2004). Child support is modifiable upon a showing of a substantial change
in circumstances. In re Marriage of Mihm, 842 N.W.2d 378, 381 (Iowa 2014) (citing
Iowa Code section 598.21C). Both parties have changed jobs since entry of the
decree. These job changes were not contemplated in the decree, and they present
a change in circumstances sufficient to permit modification on the issue of the
children’s health insurance.
Both parties can obtain health insurance for the children through their
current employers. Regardless of whose insurance is “better,” Jessica’s insurance
is at least adequate. The evidence established Jessica’s insurance is less
expensive, even after considering a higher deductible. The evidence also
established that Brandon uses his procurement of the health insurance to
manipulate and control health care decisions for the children, one time delaying a
needed surgery for one of the children. In designating Jessica as responsible for
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the children’s health insurance, the court noted “insurance is a source of conflict
between the parties.” We agree with the court that conflict is a major issue
between the parties, exacerbated by the provision allowing Brandon to control the
children’s health insurance. This also presents a substantial change in the
circumstances, and we agree “conflict will be lessened if Jessica provides
insurance for the children.” Therefore, we affirm the provision designating Jessica
as responsible for providing the children’s health insurance.
C. Drug Testing and Mental-Health Reports
The district court required Brandon to submit to monthly drug testing at
Jessica’s request and to allow Jessica to access those test results. The court also
ordered Brandon to provide Jessica with quarterly reports from a mental-health
care provider. Brandon argues the court should have terminated both
requirements after he successfully provided one year of positive mental-health
reports and negative drug tests.
Both the original decree and the modification ruling require Brandon to
submit to drug testing once per month at Jessica’s request, although the decree
only permitted monthly drug testing for the three years following dissolution plus
one more test during the fourth year. Both the decree and modification ruling
require Brandon to allow Jessica to monitor his mental-health treatment. However,
the decree allowed Jessica expansive access to Brandon’s mental-health records
for five years after dissolution. The modification ruling tightens this language to
protect Brandon’s privacy by only requiring Brandon to provide Jessica with limited
access to Brandon’s medical records and a quarterly conclusive report from a
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mental-health professional.6 Presumably, the decree provided a time limit for
these requirements because it was expected Brandon would improve. Time has
shown he has not. Therefore, it was appropriate to extend the time for these
requirements, and the court’s tweaks to the provisions were reasonable, in some
respects benefiting Brandon.
Brandon contends the testing and reporting provisions are “punitive,” but
we see them as being in the children’s best interests as they will help ensure the
children are safe while Brandon exercises his visitation. Brandon now has a post-
dissolution track record of ongoing mental-health and substance-abuse issues.
We see no indication Brandon will improve so significantly over the next several
years such that ongoing mental-health and substance-abuse reporting will no
6 At oral arguments, Brandon’s attorney questioned whether the district court
tightened Jessica’s access to his medical records. We think it did. The original
decree required Brandon “to provide the appropriate releases to any treating
psychiatrist and/or therapist and [Brandon’s] pain clinic so that [Jessica] may
obtain quarterly updates about [Brandon’s] current prescribed medications,
treatment plan, prognosis and opinions about [Brandon’s] ability to interact with the
children.” The district court opined “Brandon should have some therapist patient
confidentiality” to allow him to “seek help without Jessica having access to certain
mental and substance abuse counselor-oriented professional records.” To that
end, the ruling required Brandon to provide quarterly mental-health reports
regarding his fitness for visitation and:
releases/waivers to Jessica for any treating psychiatrist, physician,
or other licensed medical provider who provides Brandon
prescriptions for medication, or monitors Brandon’s use of
medication. The releases/waivers shall be broad enough so that
Jessica can obtain from such medical providers information about
medications prescribed to Brandon, and his compliance with the
medical providers’ directives regarding doses of that medication.
We read the court’s ruling as allowing Jessica to access Brandon’s medical
records only to the extent necessary for Jessica to identify Brandon’s medications
and his compliance with taking the medications as prescribed. This in combination
with the quarterly mental-health reports grants Brandon more privacy than the
original decree, which also allowed Jessica to access Brandon’s treatment plan
and prognosis.
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longer be appropriate. Therefore, we affirm the language indefinitely requiring
Brandon to submit to drug testing and provide mental-health reports. As
mentioned, if Brandon shows ongoing improvement in the future, he can seek
modification at that time.
D. Suspension of Brandon’s Visitation
Brandon argues the district court should have required Jessica to seek court
approval before she may suspend his visitation for a failed drug test. The original
decree incorporating the parties’ agreement stated, “Any failed drug test will result
in the immediate suspension of [Brandon’s] parenting time until such time that
[Brandon] is in compliance for a period of two months, at which time parenting time
will be reinstated within the following two weeks.” Similarly, the modification ruling
states, “[I]f Brandon takes a hair follicle drug test that is positive, immediate
suspension of his parenting time shall occur until such time that Brandon is
complying with no drug use for a period of three months.” The modification order
largely extends and clarifies Jessica’s ability to suspend Brandon’s visitation as a
result of a failed drug test. We disagree with Brandon characterizing this language
as providing Jessica “the authority to unilaterally suspend Brandon’s visitation.”
The modification order sets an objective, defined standard for when Jessica can
suspend Brandon’s visitation: “if Brandon takes a hair follicle drug test that is
positive.” Should Jessica suspend Brandon’s visitation in the future, Jessica will
merely be following the court’s order to do so only for the prescribed period
following a failed drug test. Jessica has no discretion to suspend Brandon’s
visitation upon a mere suspicion of drug use or other conduct without first obtaining
court approval. This lack of discretion distinguishes the cases relied on by
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Brandon. See Lamansky, 207 N.W.2d at 771–72 (requiring the district court to set
terms of visitation rather than leaving it to the parties); Willey v. Willey, 115 N.W.2d
833, 838 (Iowa 1962) (prohibiting decree provision that gives one parent the
discretion whether to allow visitation).
We note that since dissolution, Jessica has responsibly exercised the power
to request drug testing and to suspend Brandon’s visitation. She has not abused
this power. Jessica only suspended Brandon’s visitation without seeking court
approval once, when Brandon failed the court-ordered drug test during this
modification action. While Jessica arguably allowed this suspension to continue
too long, the modification order now clearly explains when Brandon’s visitation
resumes after a failed drug test. We trust Jessica will keep acting responsibly and
follow the modification ruling should Brandon fail a drug test in the future.
That said, the modification ruling increased the time of Brandon’s
suspended visitation upon a failed drug test from two months to three months. We
see no justifiable reason to increase the suspension time following a positive drug
test.
Based on these considerations, we affirm the language allowing Jessica to
suspend Brandon’s parenting time following a failed drug test without seeking court
approval. However, we modify such language as follows: If Brandon takes a hair
follicle drug test that is positive, immediate suspension of his parenting time shall
occur until such time that Brandon is complying with no drug use for a period of
two months. His parenting time shall be reinstated within two weeks of the second
consecutive monthly negative test. Brandon remains responsible to pay for test
costs for three months following a positive test.
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E. Appellate Attorney Fees
Both parties seek appellate attorney fees. Appellate attorney fees in a
dissolution of marriage modification proceeding “are not a matter of right, but rather
rest in this court’s discretion.” In re Marriage of Okland, 699 N.W.2d 260, 270
(Iowa 2005). The factors we consider include “the needs of the party seeking the
award, the ability of the other party to pay, and relative merits of the appeal.” Id.Brandon’s income is such that his need for an award of appellate attorney
fees is not great. Brandon has also been largely unsuccessful on appeal. As a
result, we decline to award him appellate attorney fees.
We also decline Jessica’s request for appellate attorney fees. Although she
largely succeeded on appeal, her need for a fee award is not great.
IV. Conclusion
We modify the modification ruling to suspend Brandon’s parenting time for
two months following a positive drug test, as spelled out in more detail in this
opinion. We otherwise affirm the modification ruling and deny the requests for
appellate attorney fees.
AFFIRMED AS MODIFIED.