In re the Marriage of Budden ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1165
Filed April 14, 2021
IN RE THE MARRIAGE OF LADY JOANA BUDDEN
AND TOBIAH RICHARD BUDDEN
Upon the Petition of
LADY JOANA BUDDEN,
Petitioner-Appellee,
And Concerning
TOBIAH RICHARD BUDDEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi
Wittig, Judge.
A former husband appeals an order modifying the physical care of his
daughter. AFFIRMED.
Myia E. Steines of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,
Dubuque, for appellant.
Darin S. Harmon and Jeremy N. Gallagher of Kintzinger, Harmon, Konrardy,
P.L.C., Dubuque, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
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TABOR, Judge.
This case stems from a custody dispute between former spouses Tobiah
Budden and Lady Joana Budden. In a modification order, the district court
awarded physical care of their six-year-old daughter, C.J.B., to Lady. Tobiah
appeals that award, asserting he should be the primary caregiver. Short of that,
he seeks a new trial to consider Lady’s move with C.J.B. from Louisiana to Arizona.
He also challenges the passport and child-support provisions in the decree. Both
parties ask for appellate attorney fees.
Recognizing the strong interest in maintaining sibling relationships, we
affirm the award of physical care to Lady, who also provides a home for C.J.B.’s
two half-sisters. We find no abuse of discretion in the district court’s denial of
Tobiah’s motion for new trial. Further, we uphold the modifications of the passport
and child-support provisions. Lastly, we hold that both parties shall pay their own
appellate attorney fees.
I. Facts and Prior Proceedings
Lady is originally from Colombia, and Tobiah is from Greeley, Iowa. They
met while vacationing in the Dominican Republic. In 2011, Lady moved to Iowa to
marry Tobiah. Lady has permanent residency in the United States until 2024.
Tobiah and Lady have one child together, C.J.B., who was born in 2013. Lady
also has an older daughter, M.F.M., and a younger daughter, L.S.Q. Lady and
Tobiah separated in 2015 and divorced in 2016. The divorce decree awarded the
parties joint legal custody and shared physical care of C.J.B.1
1The decree also included a transportation clause. The clause held that the
parties agreed to reside within fifty miles of Petersburg, Iowa. Further, the
3
At the time of the divorce, Lady was working at Dyersville Die Cast making
“like $400, $475 a week.” In 2015, Lady met Jesus Quinonez, who helped her
secure a new job as an electrician’s apprentice. From her new job, Lady enjoyed
a significant pay increase, though she had to move to the Burlington-Fort Madison
area to be closer to work. When she moved, Lady allowed both C.J.B. and M.F.M.
to stay with Tobiah to finish the school year.2 At that time, Lady would see the
children almost every other weekend.
Eventually, Lady and Jesus began a romantic relationship and became
engaged. They also worked for the same company. In 2017, that company
transferred them to Lake Charles, Louisiana, which is a twenty-hour drive from
Tobiah’s home in Iowa. The next year, Lady and Jesus had a child together, L.S.Q.
When Lady moved to Louisiana, M.F.M. and C.J.B. stayed with Tobiah.
Lady made efforts to see her daughters in Iowa but given the distance and her
pregnancy with L.S.Q., her visits were limited. Tobiah refused to help defray travel
costs beyond agreeing to transport the children the last sixty miles from his home.
But Tobiah did continue to make child support payments to Lady while he was
caring for M.F.M. and C.J.B.
In July 2018, Lady petitioned to modify physical care of C.J.B. Lady argued
that she can better address C.J.B.’s long-term needs and emphasized the close
transportation costs would be divided “50/50” as long as they both resided within
the fifty-mile limit. The clause also held that if a party moved more than fifty miles
away, then that party shall bear 100% of the transportation costs.
2 The sisters enjoy a close relationship with each other and Tobiah has been a
father figure to M.F.M.
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bond among the sisters. Lady also asserted that Lake Charles, as a larger
community, had more to opportunities for C.J.B.
Tobiah agreed physical care should be modified but argued that he could
better minister to C.J.B.’s long-term needs because he offered a more stable and
consistent environment. Tobiah also expressed concern that Lady would not
inform him about matters related to C.J.B.’s well-being. Further, Tobiah pointed to
the quality care he has provided both C.J.B. and M.F.M., allowing them to thrive
socially and academically.
Following an early August 2019 modification hearing, the district court
awarded physical care to Lady. In support of its decision, the court offered several
reasons—foremost the importance of keeping the siblings together. The court
believed that Lady was “more flexible to the rigors of co-parenting.” The court was
troubled by Tobiah’s “rigidness” and suggested that his expectations for C.J.B.
may be “unattainable.” The court found that Tobiah “denied [C.J.B.’s] opportunity
for maximum continuing contact with her mother.”
The court also found that Tobiah threatened Lady with kidnapping
allegations and deportation if she took C.J.B. outside of the United States. Tobiah
denied threatening Lady with deportation. Yet the court found Lady to be more
credible on this fact.
The court modified the decree of dissolution of marriage as follows: (1) The
court awarded Lady physical care of C.J.B.; (2) The court ordered Tobiah to pay
$937.00 per month in child support, an increase from the $450 that he had been
paying;(3) The court decided Lady would retain possession of C.J.B.’s passport
and required her to inform Tobiah of the location and name of the lodging once
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she solidified any plans for international travel. This provision replaced a thirty-day
notice requirement for international travel; and (4) The court ordered the parties to
pay their own attorney fees and one-half of any unpaid court costs;.
After the court issued its modification decision, Tobiah and Lady planned to
meet at the airport on August 18 so C.J.B. could return to Louisiana with Lady.
The exchange occurred without any issues. Two days later, Lady informed Tobiah
that she and the girls were moving to Arizona for her work, and she planned to be
there by August 22. Tobiah was aware that Jesus has family in Arizona.
A few days later, Tobiah discovered that Lady had not enrolled C.J.B. in the
Lake Charles school for 2019. Suspicious, Tobiah hired a private investigator to
help shed light on the situation. The investigation revealed that Lady had
purchased land in Arizona, registered M.F.M. for school there, and been working
there before the modification trial.
Because Lady had not been forthcoming at the modification hearing about
her plans to move, Tobiah asked the court to reconsider its ruling under Iowa Rule
of Civil Procedure 1.904 and sought a new trial under Iowa Rule of Civil
Procedure 1.1004. The court rejected both motions. The court did revise the
transportation provision of the decree and awarded Tobiah more visitation. But
otherwise, the court left the modification decision undisturbed.
Tobiah now appeals.
II. Scope of Review
We review an order modifying a dissolution decree de novo. In re Marriage
of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). Although our review is de novo, we
give deference to the district court’s findings on witness credibility “because the
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district court had an opportunity to view, firsthand, the demeanor of the witnesses
when testifying.” In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).
This case is one where the credibility determinations loom large. For
instance, the district court found that Tobiah “manipulated” Lady into leaving C.J.B.
with him after the divorce. The court determined that he “intimidated” Lady into
“believing she would be held criminally accountable if she tried to take the child out
of Iowa without his permission.” Tobiah denied making such threats. But he
acknowledged that he “could understand” why Lady may have thought that he
would accuse her of kidnapping because they “were not allowed to leave the state”
during their separation. The district court found Lady more believable on this point.
We defer to the district court on credibility as we consider Tobiah’s claims.
III. Analysis
A. Physical Care
The first issue is whether the district court erred in awarding Lady physical
care of C.J.B. We consider whether there has been a substantial change of
circumstances that necessitates modifying the custody provisions of a dissolution
decree. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). 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. In re Marriage of Frederici, 338 N.W.2d
156, 158 (Iowa 1983). The new circumstances “must not have been contemplated
by the court when the decree was entered.” Id. “[A]nd they must be more or less
permanent . . . .” Id. In addition, they must impact on the child’s welfare. Id.7
As a threshold, the parties agree that given the new distance between their
homes, a substantial change of circumstances requires modification of the
physical-care provision. Hence, this element is undisputed. Modifying the current
shared-care arrangement is the only practical solution.
Next, to determine who should be awarded physical care of C.J.B., we
consider which parent can provide better care to the child. Melchiori, 644 N.W.2d
at 368–69. Generally, the parent seeking to modify custody has a “heavy burden”
to show the ability to render superior care. Id. But when the petitioning parent has
proved a substantial change and the parents have shared care, then both parents
bear the same burden as in an initial custody dispute. In re Marriage of Kreager,
No. 10-0945, 2011 WL 1584293, at *2 (Iowa Ct. App. Apr. 27, 2011). “[T]he
question is which parent can render ‘better’ care.” Id. (citing Melchiori, 644 N.W.2d
at 369). “[W]e seek to place children in the environment most likely to advance
their mental and physical health and social maturity.” Id. (citing In re Marriage of
Hansen, 733 N.W.2d 683, 695 (Iowa 2007)).
That “better” care determination includes attention to sibling relationships.
Our case law exudes a strong concern for keeping siblings together to preserve
those bonds. See In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). For
a court to depart from this norm, a party must show that separating siblings “may
better promote the long-range interests of [the] child.” In re Marriage of Jones, 309
N.W.2d 457, 461 (Iowa 1981). That principle also applies to half siblings. Orte,
389 N.W.2d at 374.
At the heart of this case is the close relationship between C.J.B. and M.F.M.
The sisters have a tight bond and enjoy doing nearly everything together. Both
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sisters are bilingual, and they like speaking Spanish to each other. If Lady has
physical care, C.J.B., she will be able to participate with her sister in extracurricular
activities, such as ballet classes. Lady testified that when she moved with M.F.M.,
the older daughter had a tough time being away from C.J.B. Recognizing the
sisters’ connection, Tobiah testified that in mediation he offered to keep M.F.M.
during his visitation time with C.J.B. But Lady pointed out that as M.F.M. gets
older, she will be taking summer vacations with her biological father. So, if Tobiah
were granted physical care of C.J.B., the sisters would have limited time together.
While the interest in maintaining sibling relationships is not insurmountable,
it remains a guiding principle in custody determinations. This record shows that
not only does C.J.B. have a strong bond with her older sister, but she is developing
a close relationship with her younger sister, L.S.Q. Tobiah is unable to show that
separating C.J.B. from her siblings would be in her best interests.
Beyond the sibling relationships, the district court also considered the
willingness of Lady and Tobiah to promote C.J.B.’s relationship with the other
parent. See Iowa Code section 598.41(5)(b) (2019). The district court found that
Tobiah denied C.J.B.’s opportunity for maximum continuing contact with Lady. So
Lady was the parent better able to support the other parent’s relationship with
C.J.B. To that end, Tobiah’s concerns that Lady would not support his relationship
with C.J.B. are unfounded. In her testimony, Lady expressed her desire that all
her children maintain strong ties with their biological fathers.
When considering the parents’ ability to cooperate, the district court
criticized Tobiah’s rigidity, explaining “if terms are not specifically spelled out in the
order”, then “he is unwilling or unable to conform to a situation, even if it is for
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[C.J.B.’s] benefit.” We agree with that assessment. Co-parenting, undeniably, is
littered with unpredictability and difficult situations. So a willingness to be flexible
and adjust is a strong virtue to possess. To her credit, Lady has demonstrated
flexibility as a co-parent. For example, she let C.J.B. and M.F.M. finish the school
year in Tobiah’s care to keep the children together. The record supports the district
court’s conclusion that Lady will strive to facilitate C.J.B.’s time with Tobiah.
Tobiah further argues that he is better suited to be the physical-care parent
based on caretaking patterns and his ability to provide “stability and consistency.”
It is true that Tobiah has more recent experience caring for C.J.B. and M.F.M. on
his own. And he has done so effectively. But as the district court found, Tobiah
“forced this circumstance” on Lady by controlling the custody situation through
threats and intimidation. Like the district court, we decline to award physical care
based on the “false advantage” obtained through Tobiah’s manipulative conduct.
That said, we recognize Lady and Tobiah are both worthy parents who truly
love and want the best for C.J.B. If there is a tie breaker, it goes to the primacy of
the sibling relationships. Tobiah is unable to present evidence to show that
separating C.J.B. from her sisters would be in the child’s best interests. Thus, we
affirm the awarding of C.J.B.’s physical care to Lady.
B. New Trial
As a fallback, Tobiah contends he is entitled to a new trial. See Iowa R.
Civ. P. 1.1004(7). As newly discovered evidence, Tobiah claimed Lady lied to the
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court about her impending move to Arizona. The district court downplayed Lady’s
misrepresentation and rejected Tobiah’s motion for a new trial.
Trial courts have unusually broad discretion in ruling on motions for new
trials. Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995). We will not
disturb the ruling unless the evidence clearly shows the court abused its discretion.
Id. An abuse occurs when the court exercises its discretion on untenable grounds
or acts unreasonably. Id.What is the test? A party seeking a new trial must prove four things: (1) the
evidence is newly discovered; (2) the evidence could not have been discovered
before trial’s end even with due diligence; (3) the evidence is material and not
merely cumulative or impeaching; and (4) the new evidence will probably change
the result if a new trial is granted. Id.On element one, Lady does not seriously dispute that her planned move to
Arizona was newly discovered. See Mulkins v. Bd. of Supervisors of Page Cnty.,
330 N.W.2d 258, 261 (Iowa 1983) (defining “newly discovered evidence” as proof
“which existed at the time of trial but which, for excusable cause, the party was
unable to produce at that time”).
On element two, she argues that Tobiah knew that “relocation was always
a possibility.” But Lady’s argument overlooks the fact that Tobiah researched and
contacted schools in Louisiana to find the best one for C.J.B. He did so because
he believed she would be living there. Tobiah was unaware of Lady’s intent to
move to Arizona with C.J.B. because Lady withheld that information from him.
Thus, Tobiah has satisfied the second element.
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Turning to elements three and four, the district court held that Tobiah could
not show the new evidence was material or would have probably resulted in a
different outcome of the modification trial. We agree. Lady’s move from Louisiana
to Arizona did not bear on the key modification question—which parent could
provide the better care for C.J.B. As the district court explained, it was not called
to decide whether C.J.B. should live in Arizona, Louisiana, or Iowa. Instead, the
court’s objective was to determine which parent could better minister to the long-
term interests of the child. Knowing about Lady’s anticipated move from Louisiana
to Arizona would not have likely changed the physical-care determination. Both
locations were more than one-thousand miles from Iowa. And in both locations,
C.J.B. would still be living with her sisters. We find no abuse of discretion in the
denial of the motion for new trial.
At the same time, it is regrettable that Lady misrepresented her intentions
about where she was going to live. We do not dismiss the significance of providing
misleading testimony.3 Lady insists her plans were not finalized at the time of the
trial in early August. But it is obvious the wheels were in motion and the better
approach would have been to notify Tobiah and the court about the prospect that
the family would relocate. Going forward, we are hopeful that Lady will be more
forthcoming with Tobiah about decisions that impact C.J.B. and live up to the
court’s confidence that she will be the better physical-care parent.
3 The district court was not convinced that Lady presented “perjured” testimony at
trial.
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C. Passport
The original decree did not state which parent would hold C.J.B.’s passport.
But it did require that the parties give each other a thirty-day written notice for
international travel. As part of the modification, the court granted possession of
C.J.B.’s passport to Lady. The new passport provision dispensed with the thirty-
day notice, instead requiring Lady to provide Tobiah with the location and name of
the lodging once any plans for international travel were solidified.
Contesting that provision, Tobiah contends that he should hold C.J.B.’s
passport. In support of his request, Tobiah points to a situation when Lady traveled
to the Dominican Republic with C.J.B. when their original destination was Mexico.
Tobiah recalls being unable to contact C.J.B. for nearly a week. Lady contradicts
his version, asserting that she called Tobiah the night they landed. Regardless of
whose recollection is more accurate, the passport provision is reasonable.
Neither party cites case law addressing the passport issue. But we assume
that our result must be in the best interests of the child. See Nagle v. Nagle, 871
A.2d 832, 837 n.6 (Pa. Super. 2005) (noting court may modify passport provision
in decree to satisfy the best-interest standard); see also In re D.L.N., 609 S.W.3d
237, 247 (Tex. App. 2020) (finding no abuse of discretion in trial court’s finding that
mother should have right to maintain children’s passports). We find it is in C.J.B.’s
best interests for Lady, as the physical-care parent, to hold the child’s passport.
This result is more practical because Lady travels internationally with C.J.B. more
frequently than Tobiah does. Expanding C.J.B.’s opportunities for travel with her
mother is in the child’s best interests.
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We also decline to reinstate the stricter notice requirements from the original
decree. The new provision provides more flexibility for the child’s international
travel, while ensuring that Tobiah receives the itinerary in a timely manner.
D. Child Support
Iowa courts calculate child support using the uniform guidelines. Iowa Code
§ 598.21B; Iowa Ct. R. 9.2; In re Marriage of Heiar, 954 N.W.2d 464, 473 (Iowa
Ct. App. 2020). We review an interpretation of those guidelines for errors at law.
In re Marriage of McCurnin, 681 N.W.2d 322, 327 (Iowa 2004). In the modification
order, the district court calculated Tobiah’s support obligation at $937 per month.
To reach that calculation, the court identified Tobiah’s annual income as
$119,351.00 and used Lady’s base salary of $56,000.
Tobiah contends the district court overstated his income and understated
Lady’s earnings. On his side of the ledger, he argues the court inflated his income
by considering one-time investment proceeds. On her side, he argues the court
ignored overtime pay.
Starting with Lady’s paycheck, we recognize that overtime wages are not
excluded from a parent’s income when calculating child support. See In re
Marriage of Kupferschmidt, 705 N.W.2d 327, 333 (Iowa Ct. App. 2005). But when
“overtime pay appears to be an anomaly or is uncertain or speculative,” the court
may deviate from the guidelines. Id. The district court appropriately deviated here.
Lady testified that overtime is not always available to her. The amount of overtime
offered depends on the job site and type of work performed. In fact, sometimes
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she works less than forty hours a week.4 Given the speculative nature of Lady’s
overtime opportunities, the court acted properly in excluding those amounts when
calculating her income for child-support purposes.5
The district court also relied on proper methods for calculating Tobiah’s
income. True, Tobiah received a one-time investment return of $18,000 in 2017.
But the court also found that “his income has historically been in excess of
$110,000 per annum.” So it was not unreasonable for the court to average his
earnings from 2017 and 2018 to calculate his income.
We decline to disturb the child-support provision.
E. Attorney Fees
Both parties request appellate attorney fees. An award of appellate attorney
fees is not a matter of right but rests within our discretion. In re Marriage of Kurtt,
561 N.W.2d 385, 389 (Iowa Ct. App. 1997). In determining whether to award
appellate attorney fees, we consider the needs of the party making the request,
the ability of the other party to pay, and whether the party making the request was
obligated to defend the decision. Id. After considering all relevant factors, we find
that the parties should pay their own attorney fees on appeal. As the unsuccessful
litigant, Tobiah shall pay other appellate costs. See In re Marriage of Hoffman,
891 N.W.2d 849, 852 (Iowa Ct. App. 2016).
AFFIRMED.
4 The district court mentioned that, going forward, Lady may not be able to accept
overtime when offered, because now she’ll be caring for “two school aged children”
in addition to L.S.Q. This might be true, but given that Lady was able to accumulate
overtime while caring for M.F.M. and L.S.Q., this concern may be overstated.
5 The district court noted that $67 was the difference between Tobiah’s monthly
child support payments depending on whether Lady’s overtime was included. The
district court found this was “not an injustice.” We agree.