Doug Knotek v. Cynthia Mellin ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1600
Filed September 2, 2020
DOUG KNOTEK,
Plaintiff-Appellee/Cross-Appellant,
vs.
CYNTHIA MELLIN,
Defendant-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
The mother appeals the modification of the legal custody and physical care
of the parties’ minor children; the father cross-appeals the child-support obligation.
AFFIRMED AS MODIFIED ON BOTH APPEALS AND REMANDED.
Norman L. Springer, Jr. of McGinn, Springer & Noethe, P.L.C., Council
Bluffs, for appellant.
Joseph J. Hrvol of Joseph J. Hrvol, P.C., Council Bluffs, for appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
2
GREER, Judge.
The war has not yet ended in a case that began with combat over the
children. Hopefully, for their children’s sake, the parents will someday put down
their weapons. Here both parties appeal the modification decision of the district
court. The mother, Cynthia Mellin, appeals the award of sole custody and physical
care to the father of their twins,1 Doug Knotek. She asserts Doug did not prove he
could provide superior care for the children justifying a change in custody and
physical care, the district court afforded too much weight to the findings of the child
custody evaluator and, alternatively, Doug failed to preserve his appellate request
for child support. Doug complains the district court misunderstood his position on
waiving the child-support obligation and requests appellate attorney fees.
A. Procedural Background and Facts.
Procedurally, the current iteration of this case began with Doug’s July 2018
application to modify legal custody and physical care of the parties’ twin daughters.
After a three-day trial, starting in May 2019 and ending on a day in August, the
district court determined that Doug proved a substantial change in circumstances
since the last modification in November 2017. But in reality, this ongoing sparring
arises from frustration involving poor communication and many unfounded child
abuse investigations. At the time of the filing of the initial order for child custody,
visitation, and support in March 2014, Doug resided in Council Bluffs and Cynthia
had moved to Ottumwa. Since then the transfer for visitation occurs in West Des
1The children were born in 2011. Doug and Cynthia never married, and each had
other older children. From their previous marriages, Doug fathered two sons and
Cynthia had four children—all older children still resided with their parents.
3
Moines. Only Cynthia’s mother (Nana) handled the exchanges because Cynthia
claimed fear of Doug. At the beginning of their custody arrangement, the twins
visited Doug every third weekend, plus fourteen extra days in June and in August,
along with the usual holidays.
But four months after the original order, Cynthia applied for a modification
of the custodial and visitation provisions, alleging that one of Doug’s sons from an
earlier marriage had inappropriate contact with one of the twins.2 The stepbrother
was age twelve and the twins were age three. Doug responded by requesting a
change in physical care of the children to him and filed for contempt of court. He
outlined Cynthia’s efforts to deny him contact with the children. Then, Cynthia
withdrew her modification request. In the June 2015 trial on Doug’s application,
the court found Doug failed to establish a substantial change in circumstances, but
it expanded his visitation by adding a July week of visitation and clarified issues
surrounding other forms of access to the children. The district court also found
that Doug proved a prima facie case for contempt against Cynthia, reserved ruling
on the contempt for 180 days and required her to pay $1000 towards Doug’s
attorney fees. At the end of the 180 days, the court fined Cynthia $100 for her
prior contemptuous behavior, noting that minor issues between the parties were
ongoing but the actions supporting contempt—withholding visitation—had ceased.
True to form, the conflict continued. In July 2016, while the twins were at
Doug’s, another DHS investigation into alleged inappropriate touching by the
2 A 2014 Iowa Department of Human Services (DHS) investigation revealed that
at the time of the alleged abuse Doug claimed the stepbrother was out of town.
The DHS concluded the report of abuse was unfounded.
4
stepbrother started. Cynthia applied for immediate return of the children, asserting
Doug refused to return the twins and that he took them to a doctor without notice
to her.3 The court ordered Doug to return the children. But during the 2016 DHS
investigation that involved interviews with a doctor and a forensic evaluation at
Project Harmony, the twins reported their mother told them to lie about the
allegations surrounding their dad and the stepbrother. Again, the DHS report was
unfounded. During this same investigation, the twins reported that Cynthia “hit
them on their privates,” lies all of the time, and tells them to lie about their father.
Doug told the investigator he was concerned about the twins’ safety because their
mother was the type of person who would “drive off a bridge and drown her
children.” These allegations were also unfounded.
At the end of this same year, Cynthia moved to suspend the parenting time
of Doug because of allegations of inappropriate contact and abuse between one
of the twins and the stepbrother. Asserting that the children were “hysterical”
before a visit to Doug’s home and that Doug was telling them to lie, Cynthia also
added physical abuse by Doug’s son to the allegations. DHS again investigated
the list of concerns. None were confirmed after the investigation. The court denied
Cynthia’s request to suspend Doug’s parenting time. There was also an allegation
of physical abuse and injury to the ear of one of the twins by the stepmother. The
injury had occurred a year earlier and that report was also unfounded. 4 In May
3 Doug alerted the doctor about the abuse allegations. The doctor interviewed the
children alone— although Doug was present at the clinic—and noted in the report
her suspicion that mom was “coaching” the twins. The twins reported no abuse at
this visit that Doug initiated.
4 The medical report describing the ear treatment referenced both ears and did not
discuss any injury caused by any person.
5
2017, another investigation started after a report of sexual abuse by the
stepbrother against one of the twins. Counseling by the parents was
recommended but never accomplished.
In these various filings, both parents accused each other of coaching the
children. Many interviews with the twins revealed inconsistencies and denials.
Investigators from various agencies from various locations interviewed, observed,
and concluded that abuse could not be confirmed—making all allegations
unfounded.5 Then, with some quiet before the next storm, in November 2017, the
parties entered into a Stipulated Order of Modification increasing Doug’s Facetime
contact with the twins.
That calm ended after February 2018, when another claim of sexual abuse
by the stepbrother was investigated by DHS. This investigation closed quickly
when the children denied any abuse. In April 2018 yet another allegation of abuse
by the stepbrother was made. The twins also alleged that they were pushed down
the stairs by Doug, the stepbrothers, and stepmother. None of the physical injuries
were confirmed and, while the children discussed a sexual encounter with the
stepbrother, the allegations were unfounded. During this investigation Doug
alleged that the children were not even living with Cynthia but with their
grandmother. Doug asserted that the Nana and Cynthia coached the children and,
to protect his son, he had placed a video camera near the girls’ bedroom door to
prove no one had entered the room in the evening. Oddly, some physical
symptoms referenced in Cynthia’s allegations of abuse appeared to be the result
5From 2014 forward, Doug relates a history of thirteen or more reported allegations
of abuse, all were unfounded.
6
of treatments she provided the twins. This report was also unfounded. Yet another
report surfaced at the end of May 2018. Then in June 2018, Doug requested an
immediate return of the children after being denied both his Father’s Day weekend
and his three-week summer visitation. Cynthia raised, yet again, allegations about
Doug’s son and one of the twins. DHS commenced an investigation. The district
court ordered the return of the children to the father but restricted contact between
the stepbrother and the twins pending the investigation. To rebut the allegations,
Doug produced surveillance footage of the area outside the twins’ bedroom to
prove no one entered their room during the weekend evenings when the alleged
abuse occurred by the stepbrother and asserted that for most of the weekend he
and the twins attended an out-of-town wedding. That report was unfounded.
During all the years of allegations, these parents placed their hatred of each
other over and above the emotional health of the twins. The children’s therapist of
two years diagnosed the children as having an adjustment disorder based on the
stress experienced between the parents’ homes. Cynthia refused all contact with
Doug, alleging he had been abusive to her. The parents only communicated by
email correspondence. As the years continued, they exchanged moronic emails
about details that typically are easily managed. Cynthia demanded Doug not call
the twins on her phone but get a phone for the children to use. Doug, angry about
Cynthia’s nicknames for the children that had been used for eight years by friends,
family and the school, alerted Cynthia he refused to use those names.6 Cynthia
6 In the depositions of these eight-year-old twins, when asked what name they
preferred, they offered the shorter nicknames.
7
made the twins stay at Nana’s home after visitations with Doug because she
claimed it was too hard for her to hear the twins’ reports of abuse.
With yet another investigation pending,7 in July 2018 Doug filed to modify
custody or physical care of the twins asserting these changed circumstances
involving Cynthia’s behavior: (1) she made many false claims of abuse, (2) she
acted to frustrate Doug’s relationship with the twins, (3) she wrongfully denied his
visitation, and (4) she neglected the emotional and psychological needs of the
children. Cynthia countered by agreeing there were changed circumstances but
she requested sole custody of the children with no contact between her and Doug
except through a third party. She also requested several changes to Doug’s
access to the twins, including requesting supervised visitation with a mental-health
professional. Given these issues, the district court appointed a child custody
investigator. During the proceedings, the child custody investigator authored
reports to the court.8
After the May trial days but before the trial ended in August, with the
recommendation of the investigator, the district court removed the twins on a
temporary emergency basis to Doug’s home. The district court also required the
parents to attend counseling to address their communication dysfunction. 9 And
7 Other allegations of abuse followed throughout this proceeding—in October
2018, January 2019, and April 2019—but all were unfounded.
8 The first report was filed May 6, 2019, and after interviewing additional witnesses,
an addendum report was filed May 15, 2019. Because the district court required
a psychological examination of Cynthia, the trial suspended for several months
and the child custody investigator authored yet another addendum report
addressing the twin’s status between June and August 2019.
9 Cynthia arranged counseling with a Des Moines counselor, but after two
meetings the counselor declined to participate and noted that Doug had an
8
the court mandated that Cynthia obtain a psychological evaluation. After the
evaluator concluded that Cynthia was well adjusted, had no psychological
disturbance, but suffered from situational adjustment disorder with depressed
mood, the trial testimony concluded in August.
Following the detailed investigation of the child custody investigator, the
district court awarded Doug sole legal custody and physical care. The district court
limited Cynthia’s visitation to one weekend per month, two summer weeks of
visitation, the normal holiday visitation, video chat time twice each week, and any
other time agreed upon by the parents.
We now address the issues on appeal.
B. Analysis.
We review the district court’s ruling on an application to modify de novo. In
re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). The best interests of the
children is the “controlling consideration.” Id. (citation omitted). “Even though our
review is de novo, we give weight to trial court findings of fact, especially when
considering credibility of witnesses. As difficult as it is to assess credibility of live
testimony, it is more difficult to assess credibility from a cold transcript.” In re
Marriage of Woodward, 228 N.W.2d 74, 75 (Iowa 1975) (quoting Zaerr v. Zaerr,
222 N.W.2d 476, 477 (Iowa 1974)).
alternative plan. Doug failed to follow though by getting the appointments
scheduled. The parents never completed the court-ordered counseling.
9
1. Was it appropriate to change custody and if so, is the award of sole
custody to Doug warranted?
To begin, Cynthia disputes the district court decision in several areas. Both
sides had argued changed circumstances warranted a change in the existing
custody arrangement. Cynthia argues an award of sole legal custody to Doug is
inappropriate and abandons her own request for sole legal custody. On appeal,
Cynthia now argues a return to the status quo of joint custody with physical care
to her. She emphasizes that Doug cannot minister to the children’s needs more
effectively than she, that it is not in the best interests of the twins to modify physical
care to Doug, and, finally, that the district court relied too heavily on the child
custody investigator’s report.
To change the custodial provision of a custody order, the applying party
must establish by a preponderance of the evidence that conditions since the last
order have so materially and substantially changed that the children’s best
interests make it expedient to grant the requested change. In re Marriage of
Frederici, 338 N.W.2d 156, 158 (Iowa 1983); see Montgomery v. Wells, 708
N.W.2d 704, 707 (Iowa Ct. App. 2005) (“[S]ection 600B.40 grants the district court
authority to determine matters of custody and visitation [with unmarried parents]
as it would under Iowa Code section 598.41 [for once-married parents].”); see also
Braunschweig v. Fahrenkrog, 773 N.W.2d 888, 891 n.3 (Iowa 2009). The parties
modified the initial order in 2015—the court added a summer week of visitation—
and in 2017—added additional Facetime contact by agreement. Even before
2017, the parties communicated only through email with accusatory and
unbending positions and several child abuse allegations were lodged against
10
Doug’s son. But the district court found Doug met his burden to show changed
circumstances in 2019. The district court rationale for its substantial change in
circumstance finding was:
The court at the time of the initial decree and subsequent
modifications could not have foreseen the multiple unsubstantiated
reports alleging that Doug, his [older child] and his former wife
sexually and physically abused the children. The allegations have
not abated and have never been confirmed, despite the children’s
years of counseling and despite their ability to communicate much
better at the time of trial than when the initial report was made when
they were three years old.
Without question, everyone agreed the both parents’ acrimony created tension for
these young children. Describing the central conflict, the court offered:
The court is firmly convinced that the children think their mother
wants them to report that [stepbrother] and Doug have physically and
sexually abused them. The court is firmly convinced that the children
think their father wants them to report that [stepbrother] and Doug
have never been inappropriate.
The twins’ therapist of two years contended that the twins’ behavioral issues result
from the conflict about co-parenting and stress between both homes. Continued
acrimony, over and beyond the general tension found in custody matters, can
serve as a basis to modify custody. Tension between the parents is a factor in
determining if a custody modification is appropriate. In re Marriage of Stanley, 411
N.W.2d 698, 701 (Iowa Ct. App.1987) (citing In re Marriage of Krebsbach, 395
N.W.2d 189, 191 (Iowa Ct. App.1986)). We agree that Doug met the burden to
show a substantial change in circumstances.
But there is another hurdle to clear before custody is modified. Doug must
show a superior ability to minister to the twins’ care over Cynthia’s ability. See
Frederici, 338 N.W.2d at 158. “The party seeking to modify a [custody order] thus
11
faces a heavy burden, because once custody of [children] has been fixed, ‘it should
be disturbed only for the most cogent reasons.’” In re Marriage of Harris, 877
N.W.2d 434, 440 (Iowa 2016) (quoting Frederici, 338 N.W.2d at 158). “In
determining which parent serves the child[ren]’s best interests, the objective is to
place the child[ren] in an environment most likely to bring the[m] to healthy
physical, mental, and social maturity.” In re Marriage of Courtade, 560 N.W.2d 36,
38 (Iowa Ct. App. 1996).
Here we have the benefit of a child custody investigation, hundreds of pages
of exhibits, testimony from many witnesses. But on a key concern of the case the
district court noted “[w]e may never know the truth about whether there was ever
an inappropriate touch by [the stepbrother].” Then the reasons discussed by the
district court for changing Cynthia’s physical care status were:
“[t]he court acknowledges that many of the allegations of abuse were
reported by people other than Cynthia. However, Cynthia’s admitted
unwillingness to hear the children’s reports of abuse first-hand, her
refusal to read DHS and law enforcement investigations because it
was too hard for her, and her blindness to helping the children to
protect themselves from abuse mean she is not fit to be their sole
legal and physical care parent.”
The “catch-22”10 is apparent. As part of its rationale for change in custody, the
court faulted Cynthia for her role in the reporting of abuse yet condemned for her
inaction. This discussion complicated our review of the case.
With no direct confirmation of abuse, the district court returned to problems
with the “multiple unsubstantiated reports” of both sexual and physical abuse that
“have not abated” as the reason for the change in circumstances proved by Doug.
10The paradoxical rule in the novel Catch-22 by Joseph Heller for which the only
solution to a problem is denied by a circumstance inherent in the problem.
12
The district court confirmed that Doug was not the abuser and that he made certain
the stepson had limited contact with the twins. And many times the twins retracted
their reports, suggesting that their mother and grandmother coached them to lie
about their father and stepbrother or just that the abuse never happened.11 In our
de novo review, we also combed through the detailed exhibits offered as evidence
to arrive at a decision as to which parent can more effectively minister to the twins’
needs.
Despite the accountability of each party for the conflict, the court found that
further counseling between the parents would not solve their rift even though they
attended only two appointments. Given the serious acrimony and the continuous
stress of investigations over five years of the twins’ lives, the district court ordered
that Doug should have sole legal custody and physical care to monitor the health
11 Finding the truth here is gut-wrenching. As noted, many times the one or both
of the twins reported stories that seem inconsistent, contained words that were not
age appropriate, and suggested the reported behaviors were made up. Yet some
retractions about the abuse occurred close to visitations with Doug. Once, after a
report of abuse, DHS interviewed the children in Doug’s home, which may have
not yielded an accurate account. One twin reported a worry that her dad would
get mad if the investigator disclosed what was said. Another time, the twin
expressed fear if told about the report that Doug would hurt the cat and that they
had seen the stepbrother kill the guinea pig. The DHS investigator also allowed
Doug to interview the twins about the abuse without letting the children know the
investigator was listening but did not use that same investigation format with
Cynthia and the twins to hear what they might say to her. The twins’ therapist
advised DHS she believed the allegations and the DHS interview techniques would
not promote disclosure. This same therapist observed the twins “shaking” as they
discussed their father in therapy after visits. While there are no founded reports
by DHS, the school principal, who had a three-year relationship with the twins,
testified she believed the child’s description of abuse. And, interestingly, while
being deposed for this case, both twins denied that the mother had ever told her
to tell people that the stepbrother “did something” to the other twin. When asked
in the deposition where the twin wanted to live, she said, “I want to keep it the
same.”
13
and welfare of the twins. On his side of the parent ledger, the court cited his
devotion to the children and their lack of anxiety around him supporting his bond
with the twins. Witnesses reported the twins appeared excited and comfortable
being with Doug. We learned the twins enjoyed the visitation activities at Doug’s
home. Yet the district court determined that Doug was not a perfect parent either.12
And hints of Doug’s “my way or the highway” mindset in the parents’ email
exchanges, the use of the children’s formal names, and his abrupt and demanding
expectations with both Cynthia and DHS give us pause. Along that same line, we
know little about Doug’s parenting skills with the children in his home other than
Doug has not had success meeting the educational and medical needs of his older
child.
On the flip-side, all of Cynthia’s witnesses described her as a wonderful
mother with a strong bond with these twins and her other children. To her credit,
the four older children were doing exceptionally well under her care. She
encouraged extracurricular activities for the twins, and everyone reported they did
well educationally. The twins’ therapist noted they were well-balanced as they
transferred care at the end of 2018. And Cynthia had “riding time”13 as the physical
12 In Doug’s sole care provider role over the short time frame between trial dates,
he was unable to have the twins complete their Ottumwa school homework by
year-end and he refused to allow the twins to participate in the final national dance
competition they started in Ottumwa because the twins’ “safety” was his primary
concern. He denied a request by Cynthia to adjust her visitation so she could
retrieve the twins in Council Bluffs on her way to Colorado to visit the oldest half-
sibling at an honor’s camp, saying, “[w]e need to stick with the court ordered
visitation schedule for now.”
13 “Riding time” is a time advantage in wrestling resulting in extra points for the
wrestler in control.
14
care provider over the past eight years. During a 2018 abuse investigation with
one twin through the University of Iowa, the doctor related:14
I asked her which home she liked best, she identified her mom’s
house. At her father’s house, the most favorite person is her
twin . . . . She stated she played with [her twin] at her father’s house
since nobody else played with them there. At her mother’s house on
the other hand, she didn’t have a favorite person since she liked them
all. However, at some point, she stated her mother was her most
favorite person.
During this same time frame, in a DHS interview, one twin reported that both
parents want the twins to live with them, yet when at the father’s house, she
“misses her momma and that makes her sad . . . but she knows she will go back
to her momma’s house.” In one of the investigative interviews, the young twins
offered their preference for interacting with their mom and her older children. We
presume that siblings should not be separated. See In re Marriage of Pundt, 547
N.W.2d 243, 245 (Iowa Ct. App. 1996). Keeping the half-siblings together weighs
in Cynthia’s favor. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480
(Iowa 1993) (noting that siblings, including half-siblings, should be separated only
for the most compelling reasons). But there are half-siblings at Doug’s house to
consider as well. And there is support in the record that the twins had positive
feelings about their half-brothers.
But even the twins’ therapist noted that something had to be done to relieve
the twins’ stress. So, since both parents contribute to the acrimony, the critical
14The doctor also noted that the twin may get “great attention and feel for me” after
reporting abuse, but “no affirmation of non-sexual events at dad’s.” Yet the
University of Iowa doctor found the twin to be credible for the most part. Other
DHS notes suggest both parents feed into the children’s needs for attention and
approval.
15
question is whether Cynthia manipulated the twins to report abuse to interfere with
the relationship between them and Doug. And can Doug minister more effectively
to the health and well-being of these children? We believe the answer to both
questions is yes. While witnesses for Cynthia relate that she and the father of her
older children co-parent without stress and those children are healthy and happy,
Cynthia cannot even be in the same room as Doug. The investigators were less
supportive of Cynthia’s parental skills. For example, the child custody investigator
testified:
Cynthia has either purposely or not purposely manipulated certain
circumstances and continuing to subject these kids to all of these
forensic interviews, and rape kits, and asking for the—wanting the
school to put cream on their privates when they don’t need to. I
mean, I don’t believe that the kids should be subjected to this stuff
any longer. I think that they have been through enough with—it’s
common hand for them to talk to investigators. I don’t think that that’s
healthy for a small child to think it’s normal to be going in for forensic
interviews and for physical examinations of their private parts.
Under the description about Doug, the custody investigator commented that the
twins seemed happy at Doug’s home. She interviewed their stepbrother and found
him credible with no issues. Interviews included the various DHS workers, a law
enforcement investigator, and the children’s long-term counselor. All reported the
children told them either their mother or their Nana told them to lie about their dad
and half-brother. Likewise, it also made no sense that Cynthia read none of the
investigation reports, would not attend any of the forensic interviews of the children
(especially when Doug was going), and often would not have the children in her
home when these allegations arose. That behavior could reveal she did not
believe that the reports were real. And according to Doug, his son was not in the
home when some of the allegations occurred. Doug also suggested to the twins
16
that the stepbrother’s bedroom had been painted orange when it had not, to show
that when the twins reported the room was orange their reports were fabricated.
Finally, Cynthia tended to overstate details that were later shown to be untrue,
such as her allegation that one of the twins was the bleeding from her ear when
the actual medical record of treatment did not support that condition.
Arguing the district court relied too heavily on the investigator’s testimony
and reports, Cynthia postures the investigator failed to remain impartial and was
unfair in the investigation by allowing Doug more opportunities in the process. And
the district court confirmed it “relied on the child custody investigator’s observations
of the children with their parents.” To support her viewpoint, Cynthia cites the
failure to interview the children in her home and the chance to ask the children
about their changing stories with her present as Doug was allowed to do. Although
the investigation report addresses negative behaviors related to coaching by the
maternal grandmother, the investigator never interviewed her. Finally Cynthia was
surprised the twins’ teachers were not questioned. Calling out the reliance on the
“flawed” investigation, Cynthia urges us to overlook the findings and conclusions.
But we note the district court disagreed with the investigator’s call for supervised
visitations and so did not rely only on the report. See Bowlin v. Swim, No. 19-
1021, 2020 WL 2988537 (Iowa Ct. App. June 3, 2020) (affirming the ruling of the
district court where, after the father objected to the admission of the report, the
district court noted the child custody evaluation was helpful but not outcome
determinative and placed only limited weight on the report). And on our de novo
review, we give less deference to the investigator’s findings as well. All interviews
with the children occurred in Doug’s home city with no visit to Ottumwa to meet
17
those half-siblings or view that home with the twins. With all the interviews in
Council Bluffs, in the eyes of such young children, torn between loyalties, the
impression that the father controls the proceedings could exist.
Here, the acrimony between these parents creates a situation in which joint
custody cannot succeed. See In re Marriage of Gensley, 777 N.W.2d 705, 714
(Iowa Ct. App. 2009) (finding the parents’ utter inability to communicate with each
other because of a toxic relationship was an overriding factor weighing against joint
legal custody). We agree with the district court that consideration of the statutory
factors weighs against joint legal custody. There is compelling evidence that
Cynthia, while she might not have directly reported abuse, attempted to deny
Doug’s participation in the twins’ lives. See In re Marriage of McCord, No. 03–
0497, 2003 WL 23219961, at *6 (Iowa Ct. App. Nov. 26, 2003) (stating mother
correctly believed initial allegation of daughter but mother's credibility was
adversely affected by child’s later inconsistent statements and the admission the
mother told her the child to say the father was the perpetrator). The continuous
investigations set up barriers to visitation for Doug, and the forensic interviews are
stressful for the twins. And since the last modification in 2017, the abuse reports
intensified. See In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct. App.
1992) (finding a mother’s commitment to pursuing unfounded allegations of sexual
abuse employed self-help tactics to keep the child from the father).
On our de novo review of this record, we agree that the continuous
unfounded abuse reports operates a significant emotional harm to these children.
Cynthia’s past performance signifies her desire to interfere with Doug’s relationship
with the children. “In family law matters, past performance is a strong indicator of
18
what is yet to come.” Hensch v. Mysak, 902 N.W.2d 822, 825 (Iowa Ct. App. 2017).
We defer to the district court’s assessment of the parties and conclude the district
court's factual findings were fully supported by the record. See Gensley, 777
N.W.2d at 715; see also In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992)
(providing that the denial by one parent of the child's opportunity to have
meaningful contact with the other parent is a significant factor in determining
custody or physical care (citing what is renumbered as Iowa Code § 598.41(1)(c)
(2018)). Cynthia’s behavior in seeking to place Doug in an unfavorable light is
serious and should not be tolerated. See In re Marriage of Rosenfeld, 524 N.W.2d
212, 215–16 (Iowa Ct. App. 1994) (noting false allegations of abuse as relevant in
establishing a change in circumstances); In re Marriage of Winnike, 497 N.W.2d
170, 174 (Iowa Ct. App. 1992) (discussing significance of false sexual abuse
allegations made by the mother).
Here, “[d]etermining what custodial arrangement will best serve the long-
range interest[s] of [the children] frequently becomes a matter of choosing the least
detrimental available alternative for safeguarding the child[ren]’s growth and
development.” In re Marriage of Winter, 223 N.W.2d 165, 167 (Iowa 1974). So
left with a quandary, we find Doug has the slight edge over Cynthia, but we warn
each parent that the responsibility for this toxic behavior rests on both of them. We
affirm the award of sole legal custody and physical care to Doug. Yet we consider
whether there is a solution to the stress the twins face. We are left with the
impression that the toxic relationship between the parents will continue to impact
these children even under Doug’s care. Along with other professionals, the child
custody investigator noted:
19
I believe that they—yes, they need counseling with a neutral
therapist or counselor that will include both parents, and will listen
to everybody, and will work with these kids so that these kids will tell
the truth to everyone and stand up for what’s right and we can put
some of this behind us. And hopefully they can grow up in a normal
environment with two healthy relationships with their parents.
Noting that a previous court order that was never fulfilled required the parents to
attend counseling, we modify the order to again require the parents to attend
counseling to address their toxic relationship in parenting these children. We also
note that this counseling was recommended on various occasions throughout the
investigations of the alleged abuse. The counseling should continue until the
counselor considers it is no longer necessary and should occur at least monthly.
We also consider the close bond between the twins, their mother, and the
Mellin half-siblings. We modify the district court order to allow visitation every other
weekend and another week in the summer, just as Doug exercised, with the same
meeting point.
Finally, we afford these parents this sage advice that transcends the test of
time:
Even though the parents are not required to be friends, they owe it
to the child 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. Problems are likely to develop under
any custodial arrangement. The adults must have the maturity to put
their personal antagonisms aside and attempt to resolve the
problems.
In re Marriage of Bolin, 336 N.W.2d 441, 447 (Iowa 1983).
2. After informing the district court he would not seek child support if
awarded custody, can Doug now, for the first time on appeal, request entry of an
order for child support?
20
Doug argues he preserved error on the issue of child support by argument
to the court, through the order on the modifications, and by appealing. See Lee v.
State, 815 N.W.2d 731, 739 (Iowa 2012) (commenting that the purpose of our
error-preservation rule is to give “opposing counsel notice and an opportunity to
be heard on the issue and a chance to take proper corrective measures or pursue
alternatives in the event of an adverse ruling.”). A notice of appeal does not
preserve error on an issue. See Thomas A. Mayes & Anuradha Vaitheswaran,
Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55
Drake L. Rev. 39, 48 (Fall 2006) (“However error is preserved, it is not preserved
by filing a notice of appeal.”). Nor did he move to reconsider, enlarge, or amend
to lodge the claim he now raises on appeal following the court’s order. See Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). But there was evidence at trial
about Doug’s rationale for waiving child support, and the court did rule on that
issue. See Lamasters v. State, 821 N.W.2d 856, 863 (Iowa 2012). So we address
his child-support claim. But even if error had not been preserved, Doug’s effort to
wager the parent’s duty to pay child support against his request for sole custody is
not a game the district court should sanction.
During the trial, Doug testified that if granted physical care, he would forgo
child support.15 To complicate the issue, Doug offered no exhibits alerting the court
15The following exchange took place during Doug’s testimony at trial:
Q. Because of that are you suggesting to the Court that—as
you did earlier that there’s no child support obligation; is that right?
A. Yes, if that’s what's, you know, going to happen, that I would—
Q. Because she’ll have to do transportation and stuff which
will be expensive. A. There will be a burden on her that I would like
to lessen.
21
to the amount of Cynthia’s income or reflecting his earnings so that a child-support
obligation could be calculated. While there may be reasons to avoid the child-
support obligation, we start with the requirement of every parent to support their
children unless compelling circumstances warrant a deviation from the child
support guidelines. Iowa Code §598.21B(2)(d). That statutory directive confirms
that “[a] variation from the guidelines shall not be considered by a court without a
record or written finding, based on stated reasons, that the guidelines would be
unjust or inappropriate as determined under the criteria prescribed by the supreme
court.” Id. However the court may consider statutory factors when the guidelines
require judicial discretion or the guidelines award would be unjustified or
inappropriate. Criteria used to consider a deviation from the guidelines are
whether “substantial injustice would result to the payor, payee or child or if
adjustments are necessary to provide for the needs of the child and to do justice
between the parties.” See 2 Marlin M. Volz Jr., 2 Iowa Practice Series: Methods
of Practice § 31:26 (Aug. 2020 Update) (providing factors considered in setting
child support).
Here, the district court identified no rationale or finding to support a deviation
from the child support guidelines.16 And under this record, we find none. “The
purpose of the guidelines is to provide for the best interests of the children by
recognizing the duty of both parents to provide adequate support for their children
16 The only reference to the child support obligation in the modification order is:
Doug testified that if the court awarded him primary physical care, he
would not seek any child support from Cynthia and would continue
to provide the children with health insurance. The court agrees. To
the extent that this is a deviation from the child support guidelines,
the court approves the deviation.
22
in proportion to their respective incomes.” Iowa Ct. R. 9.3(1). After all, child
support provides for the children’s needs and under the best interests for the child
standard, we are not inclined to allow parents to “bargain away [the] child’s right to
support.” See Webb v. Iowa Dist. Ct., 416 N.W.2d 95, 98 (Iowa Ct. App. 1987)
(noting that waiving child support may constitute an agreement injurious to the best
interests of the child, making it invalid for any purpose.). Thus, we remand the
case for a determination of Cynthia’s child-support obligation under the child-
support guidelines at the time of that hearing. See In re Marriage of Hoffman, 867
N.W.2d 26, 37 (Iowa 205) (remanding for “modification of the [parent’s] child
support obligation based on the present financial circumstances of the parties and
the child support guidelines).
3. Is Doug entitled to appellate attorney fees?
Doug requests an award of appellate attorney fees. When considering
whether we should exercise our discretion to award appellate attorney fees, we
examine “the needs of the party seeking the award, the ability of the other party to
pay, and whether the party making the request was obligated to defend the trial
court’s decision on appeal.” Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005);
see also Iowa Code § 600B.26 (“In a proceeding to determine custody or visitation,
or to modify a paternity, custody, or visitation order under this chapter, the court
may award the prevailing party reasonable attorney fees.”). Because the record
contains no information about the earnings of either party, we decline to speculate
about the ability to pay and award no appellate attorney fees.
23
C. Conclusion.
We affirm the district court determination finding a change in circumstances
warranting the grant of sole legal custody and physical care to Doug. We modify
the order to add more time to Cynthia’s visitation and to require counseling. We
remand for a hearing and determination of Cynthia’s child-support obligation. We
decline to award appellate attorney fees.
AFFIRMED AS MODIFIED ON BOTH APPEALS AND REMANDED.