In re the Marriage of Deutmeyer ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1108
Filed July 3, 2019
IN RE THE MARRIAGE OF KENT J. DEUTMEYER
AND KORTNEY L. DEUTMEYER
Upon the Petition of
KENT J. DEUTMEYER,
Petitioner-Appellant,
And Concerning
KORTNEY L. DEUTMEYER, n/k/a KORTNEY L. BURD,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,
Judge.
A petitioner appeals the denial of his petition to modify the custodial
provisions of a dissolution decree. AFFIRMED.
Victoria D. Noel of The Noel Law Firm, Clinton, for appellant.
Dustin A. Baker of Henkels & Baker, PC, Dubuque, for appellee.
Considered by Potterfield, P.J., and Doyle and May, JJ.
2
MAY, Judge.
Kent and Kourtney Deutmeyer were married in 2011. They have one child,
H.D., who was born in 2011. In March 2016, the district court entered a decree
dissolving their marriage. Kourtney was granted sole legal custody and physical
care. Kent was granted supervised visitation.
In August 2016, Kent filed the present modification action. Kent’s petition
asks the court to “modify[] custody of the minor child to [Kent] and grant[] him
Primary Physical Care of the minor child.”
On May 23, 2018, the district court ordered that Kourtney “shall continue to
exercise sole legal custody.” Kent appeals. Our review is de novo. Iowa R. App.
P. 6.907.
On appeal, Kent asserts this court should reverse and remand for entry of
an order awarding him sole legal custody as well as physical care. “A party seeking
modification of the legal or physical custodial provisions of a dissolution decree
must meet a high standard.” In re Marriage of Sawyer, No. 09-0558, 2009 WL
2514176, at *4 (Iowa Ct. App. Aug. 19, 2009).
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.
Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).
3
In his brief, Kent discusses certain alleged changes in circumstances. But
Kent also acknowledges that, to prevail, he must also carry the “heavy burden of
showing that he has the ability to provide superior care” for the child. Nevertheless,
Kent does not discuss his caregiving at all. Although he has several criticisms of
Kourtney and her parenting, he offers no explanation as to why his caregiving
would be superior to Kourtney’s. Cf. L.N.S. v. S.W.S., 854 N.W.2d 699, 703 (Iowa
Ct. App. 2013) (“Where a party has failed to present any substantive analysis or
argument on an issue, the issue has been waived.”). Moreover, a review of the
record reveals scant evidence of Kent’s caregiving abilities to compare against
Kourtney’s. See In re Marriage of Hoffman, 867 N.W.2d 26, 37 (Iowa 2015)
(reviewing record and concluding the father failed to establish that he had the
superior “ability to minister to the needs of the children”).
We conclude, therefore, Kent has failed to “prove an ability to minister more
effectively to the [child]’s well being.” Frederici, 338 N.W.2d at 158; see also
Hoffman, 867 N.W.2d at 37 (noting if one parent cannot establish a superior ability
to care for the child, then “custody should not be changed” (quoting In re Marriage
of Rosenfield, 524 N.W.2d 212, 213 (Iowa Ct. App. 1994)). As a result, we also
conclude Kent has failed to carry the “heavy burden” of showing that the child’s
best interest requires a change in custodial arrangements. We affirm.
AFFIRMED.