In re the Marriage of Dewhurst ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0123
Filed August 19, 2020
IN RE THE MARRIAGE OF LAURA LEIGH DEWHURST
AND BRYAN MATTHEW DEWHURST
Upon the Petition of
LAURA LEIGH DEWHURST, n/k/a LAURA LEIGH IMSLAND,
Petitioner-Appellant,
And Concerning
BRYAN MATTHEW DEWHURST,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Bethany J. Currie,
Judge.
A mother appeals the district court order modifying the custodial provisions
of a dissolution decree and granting the father physical care of the parties’ three
children. AFFIRMED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
Nicole S. Facio of Newbrough Law Firm, LLP, Ames, for appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
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GREER, Judge.
Laura Imsland, formerly Laura Dewhurst, appeals the district court order
modifying the physical-care provisions of the dissolution decree between her and
Bryan Dewhurst. She also asks for an award of appellate attorney fees. We affirm
the district court order and decline to award appellate attorney fees.
I. Background Facts and Proceedings.
A. Background Facts.
Laura and Bryan married in 2006 and divorced in 2015. They are parents
of three children: a daughter, age twelve, and two sons, ages eleven and seven.
In 2015, the district court entered a decree adopting the parties’ settlement
agreement resolving all the issues in their pending divorce. Laura and Bryan
agreed that they would have joint legal custody of the children, Laura would have
physical care of the children, and Bryan would have visitation every other weekend
and once during the week from 4:00 p.m. to 7:00 p.m. Bryan agreed to pay $1687
in child support. His support obligation was reduced by $600 in October 2017.
At the time of the modification trial, both Laura and Bryan were thirty-eight
years old. They had each remarried, and Laura had a two-year-old child with her
new husband. According to Laura, the children all have a very close relationship
with their half-sibling. During the marriage the parties lived in Ames, but after the
divorce Laura and the children relocated to her hometown of Hubbard. Bryan
moved from Ames to Hubbard in August 2018 to be closer to the children, and he
now lives three blocks from Laura.
The parties encountered several issues as they tried to co-parent the
children after the divorce. The overarching concerns were Laura’s dislike and
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mistrust of Bryan, the parties’ communication issues, and allegations of Bryan’s
inappropriate conduct.
Many of Laura’s concerns about Bryan derive from incidents during and
toward the end of the parties’ marriage. The most significant pre-divorce incident
occurred toward the end of the marriage; Bryan tried to hypnotize Laura, who he
thought was sleeping, to persuade her to perform sex acts on him whenever she
heard a particular trigger word. Because Laura was awake and aware of his
actions, Bryan’s attempted hypnosis traumatized her. She views his actions as a
sexual assault. Laura has spoken with family and church members about the
incident but never sought out formal counseling. Laura also claimed, and Bryan
acknowledged, that Bryan had a pornography addiction during the marriage.
Bryan acknowledged the hypnotization attempt and testified at trial that he
regretted his actions. Bryan addressed his pornography addiction through
counseling sessions.
Due in large part to these pre-divorce incidents, Laura sees Bryan’s
attempts to communicate with her and the children as abusive, invasive, and
controlling. Laura feels uncomfortable around Bryan and believes he does not
respect boundaries. Laura will not acknowledge Bryan, his wife, or his family
members in public, and she refuses to speak to Bryan in person. Her caustic
behavior spilled over into how the children react to Bryan and his family when they
are near their mother. At one point in 2018, she blocked his number on her cell
phone. Laura refuses to let Bryan attend the children’s birthday parties, even if
they are in public, and she has refused Bryan’s offers to help pay. Laura refuses
to attend parent-teacher conferences with Bryan. After Bryan’s child support
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obligation was reduced in October 2017, she told the children that she would have
to work more to pay the bills, which led to conflict between the children and Bryan.
Laura often declined Bryan’s requests for more time with the children and testified
that she denied the requests because she views his relationship with them as
unhealthy. She described Bryan as manipulative and controlling.
Other examples of co-parenting issues include Laura buying the oldest child
a cell phone without telling Bryan. Laura did not provide Bryan with the passcode
for the phone until after a mediation in February 2019. Laura believed it was okay
for her to monitor the child’s text messages with Bryan, but she believed it violated
the child’s privacy for Bryan to do the same because he took screenshots. Bryan
tried to come up with ground rules for the child’s cell phone with Laura, but Laura
refused to engage. She also did not consult with Bryan before allowing the child
to create an Instagram account. The child has three Instagram accounts, one of
which uses her stepfather’s last name. For a time, the child blocked Bryan from
her accounts so he could not see her posts.
Bryan claims his relationship with Laura deteriorated even more after he
moved to Hubbard in August 2018. Laura and her family members have told
people in the community—including the children’s friends’ parents—that Bryan is
“a creep,” a “pervert,” “not a good guy,” and “a sexual deviant.” The month after
Bryan relocated to Hubbard, Laura posted a Facebook status stating in part, “A
creep has moved into our community and anyone telling me ‘they seem nice’ will
be corrected.” Laura acknowledged at trial that this post was about Bryan. Bryan
feels Laura’s actions have caused issues with Bryan and his wife fitting into the
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community and has caused concerns with the children’s friends’ parents allowing
their children to spend time at Bryan’s house.
Additionally, Laura resisted informing Bryan of the children’s appointments
and activities, would change their medical providers without telling him, would not
provide Bryan with the copies of the children’s birth certificates or social security
cards, and expected Bryan to get all the information on his own. Bryan asserts he
repeatedly requested that Laura keep him informed.
Laura also did not tell Bryan about the children’s extracurricular activities.
Bryan learned his daughter was participating in basketball from a social media
post. In another incident, Bryan offered to purchase tickets to a father-daughter
dance for himself, his daughter, and Laura’s husband and to plan a dinner
beforehand. Bryan later learned that his daughter and her stepfather went to a
dinner with other fathers and daughters without him. Bryan was also not informed
of a father-daughter bowling night, but his daughter attended the event with her
stepfather, her stepfather’s father, and Laura’s stepfather. In 2018, the children
participated in a Christmas program at church. The children downplayed their
involvement in the program, and Laura did not tell Bryan about it. Bryan got the
date and time from other church members, and it turned out that the children had
major roles in the program.
Laura testified she was not fully aware of her responsibilities as a joint
custodian and primary care parent until the parties participated in mediation in
February 2019. She also testified that she did not believe she had an obligation
to keep Bryan informed and that he could find out all the information himself. Bryan
and his wife suggested using an online calendar, but Laura was resistant to it and
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saw it as an invasion into her privacy. After the February 2019 mediation, however,
the parties began using an online calendar, which helped alleviate most of the
communication issues about events. Yet when met with these information hurdles,
Bryan continued pressing respectfully, but firmly, for meaningful involvement in the
children’s lives. Witnesses confirmed Bryan’s strong ability to parent and his good
relationships with each child.
Several post-dissolution incidents became a focus during the modification
trial. In August 2018, Bryan arrived at Laura’s house to pick up the children. Bryan
got out of his car to talk to his youngest child who was in the yard playing soccer
while he was waiting for the other children to exit the home. Bryan claims he
stayed on the sidewalk, about twenty feet from the house; Laura claims he was
standing in the flower bed close to the home. When the other two children exited
the home, Bryan looked over at them. Laura later accused Bryan of peeping into
her home. After that, Laura refused Bryan access on the property for a time,
requiring him to stay in his car during pickups.
In a September 2018 incident, which led to Laura’s filing of the modification
petition, Bryan had the children for weekend visitation and he and the children went
to a relative’s house in Nebraska. According to the oldest child, she and one of
her younger brothers were watching television on an air mattress in the basement
when Bryan came downstairs and tried to wrestle with her, which she resisted.
Bryan started to wrestle her anyway, and eventually the child kicked Bryan in the
throat. Bryan grabbed the child’s upper thighs, and the child claimed this caused
bruising. Laura testified she saw the bruising. According to Bryan, he was trying
to get the children to come upstairs for dinner, so tickled his daughter’s feet to get
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her out of bed and she kicked him. After she kicked him, she began to fall off the
bed, so he grabbed her thighs to prevent the fall.
The child reported the incident to Laura and the child’s therapist, and both
Laura and the therapist reported the incident to the Iowa Department of Human
Services (DHS). DHS investigated the incident. During the investigation, Laura
told the investigator that Bryan had “a history of ‘sexual perversion,’” was a “sex
and porn addict,” and recounted the hypnotization incident. The investigator met
with the child the next day. The child explained what happened and told the
investigator that Bryan had never been aggressive with her before that incident.
The investigator met with the middle child who confirmed his sister’s story but
added that he was comfortable with Bryan and the way he treats him and others.
The DHS investigator concluded the allegation of abuse was not confirmed.
Due in large part to the September 2018 incident, Bryan’s relationship with
his daughter concerned both parties. The child started to see a new therapist in
February 2019. The therapist determined a goal of therapy would be to build a
better relationship between Bryan and the child. The therapist described the child
as not being “comfortable” with Bryan, but the counselor found no evidence of
sexual abuse, trauma, or posttraumatic stress. She did not see any evidence that
Bryan’s behavior was sexually motivated and saw no lingering fear or trauma from
the September 2018 incident. The therapist worked with the child and Bryan on
navigating physical affection, which the therapist described as common with a child
and the opposite-sex parent. The therapist found Bryan “very receptive” and
someone who “wanted to have a good relationship with [his daughter] and so he
was willing to accept those boundaries or limitations in order to earn her trust and
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be in a good relationship with her.” The therapist testified that Bryan seemed like
“a man who was willing to hear his daughter’s issues, limitations, boundaries, and
try to meet her halfway.” Another issue the therapist noted was that the child’s
loyalty to her mother was possibly preventing the child from having a positive
relationship with her father. The child had reported feeling concerned that talking
to her dad in public would upset her mother.
B. Procedural History. In September 2018, Laura petitioned to modify the
decree and change Bryan’s visitation, alleging that Bryan physically and
emotionally abused the oldest child. At the same time, Laura applied to have
Bryan’s visitation rights immediately suspended. Also in September, in a separate
action, Laura petitioned for relief from domestic abuse, naming Bryan as the
perpetrator, and citing events that happened during and after the marriage as
evidence of abuse. She withdrew the request for immediate suspension and
dismissed her protective order petition in October; she dismissed her request to
modify the decree at trial.
Bryan denied Laura’s allegations in the modification petition and counter-
claimed to modify the dissolution decree to grant him physical care of the children.
He alleged that Laura’s failure to support his relationship with the children, her
failure to communicate with him before making decisions, and his move from Ames
to Hubbard all required a change in physical care. At trial he alternatively argued
for shared physical care.
After the three-day bench trial, the district court entered a detailed written
ruling, modifying the decree to grant Bryan physical care of the children and
establishing Laura’s visitation rights and child-support obligation. The district court
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determined, “Laura’s pattern of flagrant behaviors and interference over the past
several years have not only hampered Bryan’s relationship with the children, but
her actions have negatively impacted the children and reflect a total disregard for
their emotional well-being.” The court ordered Laura to have visitation every
Tuesday and Thursday from after school until 8:00 p.m. and every other weekend,
along with more visitation in the summer. The court found her support obligation
should be $302.61 monthly.
Laura appeals.
II. Standard of Review.
Actions to modify the physical-care provisions of a dissolution decree are
tried in equity. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). For
that reason, our review is de novo. Iowa R. App. P. 6.907. We must “examine the
entire record and adjudicate anew rights on the issues properly presented.” In re
Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct. App. 1999). We give weight to,
but are not bound by, the district court’s fact findings, especially with regard to the
credibility of witnesses. Iowa R. App. P. 6.904.
III. Analysis.
A. Modification Decision. The law for custody modifications is well
settled:
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
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from the other must prove an ability to minister more effectively to
the children’s well being.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The parent
requesting the modification has a “heavy burden” to prove that a modification is
warranted because “once the custody of children has been fixed it should be
disturbed only for the most cogent reasons.” Id. The paramount consideration is
the best interests of the child. In re Marriage of Leyda, 355 N.W.2d 862, 865 (Iowa
1984).
At the outset, we acknowledge that these children have two parents who
love them and two stepparents who want to be actively involved in the children’s
lives. That said, after considering the evidence and testimony, we agree with the
district court that Bryan has shown by a preponderance of the evidence that
Laura’s actions constitute a material and substantial change in circumstances.
Bryan has also shown that he can minister more effectively to the children’s needs.
The district court, in a detailed opinion, listed pages of examples showing
how Laura failed to support Bryan’s relationship with the children. Then, the court
concluded that Laura’s actions harmed Bryan’s relationship with the children,
constituting a material and substantial change in circumstances. See In re
Marriage of Downing, 432 N.W.2d 692, 694 (Iowa Ct. App. 1988) (noting that our
court has previously “held the custodial parent[’s] lack of cooperation with the
noncustodial parent’s efforts to maintain satisfactory visitation and communication
with the children evidenced a substantial change in circumstances warranting
modification of the dissolution decree”). The court found these changed
circumstances were not contemplated at the time of the decree and are more or
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less permanent. See id. (“When entering the original decree, the court no doubt
understood certain natural animosities exist during a divorce, however it strains
credulity to believe the trial court did not contemplate the parties, mature adults,
overcoming these feelings to concentrate on the best interests of their [children].”).
While the parties’ communication about scheduling improved once they began
using the online calendar, Laura made no efforts to improve her co-parenting
relationship with Bryan, and we agree with the district court that “Laura appears
oblivious of any harm her public campaign against Bryan may have on her
children.”
The court found that while the children are physically healthy and doing well
in school, Bryan offered superior care to the children because he is better able to
facilitate a relationship between the children and both parents and he is willing to
co-parent with Laura and set aside any negative feelings he has about her to focus
on the children’s wellbeing. See In re Marriage of Grantham, 698 N.W.2d 140,
146 (Iowa 2005) (“Even though the parents are not required to be friends, they
owe it to the child[ren] to maintain an attitude of civility, act decently toward one
another, and communicate openly with each other. One might well question the
suitability as custodian of any parent unable to meet these minimum
requirements.” (citation omitted)). Bryan has shown a willingness to work through
conflict and improve his relationships with his children, and he remains open to
improving his co-parenting relationship with Laura.
With extensive evidence of Laura’s disdain for Bryan and her efforts to
undermine his relationship with the children on one hand and Bryan’s mature and
sensitive responses to stay engaged with the children on the other, we agree with
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the district court’s detailed analysis. For these reasons, we affirm the trial court’s
detailed and well-reasoned modification order.
B. Appellate Attorney Fees. An award of appellate attorney fees is not a
matter of right but rests within the court’s discretion. See In re Marriage of Benson,
495 N.W.2d 777, 779 (Iowa Ct. App. 1992); see also Iowa Code § 598.36 (2018)
(“In a proceeding for a modification of an order or decree under this chapter the
court may award attorney fees to the prevailing party in an amount deemed
reasonable by the court.”). We will “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 district court’s decision on appeal.” Ales, 592
N.W.2d at 704. After considering the relevant factors and noting Laura has not
prevailed on appeal we decline to award Laura appellate attorney fees.
IV. Disposition.
We affirm the district court modification order.
AFFIRMED.