In Re the Marriage of Mitchell S. Mundorf and Patricia D. Mundorf Upon the Petition of Mitchell S. Mundorf, and Concerning Patricia D. Mundorf ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1528
Filed May 25, 2016
IN RE THE MARRIAGE OF MITCHELL S. MUNDORF
AND PATRICIA D. MUNDORF
Upon the Petition of
MITCHELL S. MUNDORF,
Petitioner-Appellant,
And Concerning
PATRICIA D. MUNDORF,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cass County, Gregory W.
Steensland, Judge.
A father appeals from the denial of his application to modify the child
custody, visitation, and support provisions of the parties’ dissolution decree.
AFFIRMED.
Te’ya T. O’Bannon of O’Bannon Law, P.C., Council Bluffs, for appellant.
Stephen A. Rubes of the Law Office of Stephen A. Rubes, Council Bluffs,
for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.
A father appeals from the denial of his application to modify the child
custody, visitation, and support provisions of the parties’ dissolution decree. He
contends that the district court should have changed physical care from being
with the mother to shared care. In the alternative, he asks for additional
visitation. He also asserts a recalculation of child support is warranted, and that
the trial court erred in awarding the mother trial attorney fees.
Our supreme court has recently summarized the scope of our review and
principles related to our decision:
“Petitions to modify the physical care provisions of a divorce
decree lie in equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32
(Iowa 2015). Thus, we review the district court’s decision de novo.
In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014).
Though we make our own findings of fact, we give weight to the
district court’s findings. See In re Marriage of McDermott, 827
N.W.2d 671, 676 (Iowa 2013) (“We give weight to the findings of
the district court, particularly concerning the credibility of witnesses;
however, those findings are not binding upon us.”).
A party seeking modification of a dissolution decree must
prove by a preponderance of the evidence a substantial change in
circumstances occurred after the decree was entered. In re
Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995). The party
seeking modification of a decree’s custody provisions must also
prove a superior ability to minister to the needs of the children. See
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
The changed circumstances affecting the welfare of children
and justifying modification of a decree “must not have been
contemplated by the court when the decree was entered, and they
must be more or less permanent, not temporary.” Id. The party
seeking to modify a dissolution decree thus faces a heavy burden,
because once custody of a child has been fixed, “it should be
disturbed only for the most cogent reasons.” Id.; see also Hoffman,
867 N.W.2d at 32; In re Marriage of Weidner, 338 N.W.2d 351, 360
(Iowa 1983).
In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). “The objective of
physical care is to place the [child] in the environment most likely to bring them to
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health, both physically and mentally, and to social maturity.” In re Marriage of
Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
The father failed to meet his heavy burden here. Clearly, both parties
have communication issues, and the district court attempted to address them by
its ruling. Patricia Mundorf should also be more respectful of Mitch Mundorf’s
visitation rights. Notwithstanding, while the trial court made some revision of the
decree to aid the parties,1 Mitch did not prove a material change of
circumstances had occurred since the filing of the dissolution decree in
September 2013 that would justify a change of the physical care or visitation.2
With respect to Mitch’s contention that his child support obligation should
be recalculated, he presented recent tax returns that he asserts show his
1
The court granted each party “a right of first refusal when it comes to the children”;
specified that “[e]ach party shall make their best efforts to provide the other party timely
notice of doctor’s appointments so that both parents can have the option of attending”;
and noted, “By way of clarification, summer visitation for Mitch shall not include three
consecutive weekends. That would be contrary to the intent of this Court’s original
order.”
The court also ordered:
7. Mitch will follow the doctor’s orders, including giving the children
their medication pursuant to those doctor’s orders.
8. If the parties attend doctor’s appointments together, they will
conduct themselves in an appropriate manner and focus on the children,
not on themselves. If a doctor determines that the continued presence of
either of them is detrimental to the appointment, the doctor may remove
that parent from the appointment.
9. Both Mitch and Trish shall retake The Children in the Middle
Class within the next 60 days and file proof with this Court that they have
done so.
2
The father’s request for a modification to expand his visitation was not specifically
addressed by the district court except to grant the parties the right of first refusal to
provide care for the children and to clarify the summer visitation. We believe error was
not preserved on this issue. See In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa
2005) (noting the need to seek a ruling by the district court to preserve error). And even
if preserved, Mitch failed to meet the lesser burden to modify visitation. See In re
Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998). We also note the
father had filed two applications for rule to show cause, asserting the mother was in
violation of the dissolution decree. The trial court found no willful violation had been
shown. The father does not appeal those rulings.
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earnings from contract labor with a body shop. Mitch testified his gross earnings
listed on his child support worksheet was a “realistic number.” The district court
was unconvinced. As stated by the trial court,
While this court does not believe there is any fraud necessarily
involved, this court is unimpressed with the massive costs of goods
sold without any justification for it. The numbers seem to match
very closely with what this court had in its original decree, and this
court will still abide by those numbers.
On our de novo review, we find no change of circumstances warranting an
adjustment of child support based upon the evidence presented here.
Giving deference to the district court’s findings, especially those
concerning the credibility of the witnesses and their proffered exhibits, we find no
reason to interfere with the district court’s rulings.
Nor do we find an abuse of the trial court’s discretion in its award of trial
attorney fees. See In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa
1997).
Patricia seeks an award of appellate attorney fees. “Appellate attorney
fees are not a matter of right, but rather rest in this court’s
discretion.” Okland, 699 N.W.2d at 270. 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 district court’s decision on
appeal. McDermott, 827 N.W.2d at 687. In light of Mitchell’s ability to pay and
Patricia’s success in defending the district court’s decision, we award Patricia
$1000 in appellate attorney fees.
Costs on appeal are taxed to Mitch.
AFFIRMED.