In Re the Marriage of Daren Lee Lauritsen and Dana Marie Lauritsen Upon the Petition of Daren Lee Lauritsen, and Concerning Dana Marie Lauritsen ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1889
Filed July 16, 2014
IN RE THE MARRIAGE OF DAREN LEE LAURITSEN
AND DANA MARIE LAURITSEN
Upon the Petition of
DAREN LEE LAURITSEN,
Petitioner-Appellee,
And Concerning
DANA MARIE LAURITSEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Shelby County, Timothy O'Grady,
Judge.
Dana Lauritsen appeals the district court’s modification of the parties’
dissolution decree. AFFIRMED AS MODIFIED.
Gina C. Badding of Neu, Minnich, Comito & Neu, P.C., Carroll, for
appellant.
J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck, Swain
& Argotsinger, P.C., Harlan, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.
Dana Lauritsen appeals from the district court’s denial of her petition to
modify the custodial provisions of the parties’ dissolution decree to grant her sole
legal custody of the parties’ two daughters. She also challenges the district
court’s grant of Daren’s request for modification of the right-of-first-refusal
provision found in the decree. Finally, she appeals the district court’s order that
she pay $5000 towards Daren’s attorney fees. We affirm as modified, finding the
district court’s findings of fact and the reasoning that justifies its orders are
supported by the evidence.
I. Scope and Standard of Review
As to the matters of legal custody and the right of first refusal, both arise in
a proceeding to modify the terms of a stipulated dissolution decree. These are
equitable proceedings, and we review them de novo. In re Marriage of Johnson,
781 N.W.2d 553, 554 (Iowa 2010). We give weight to but are not bound by the
district court’s factual findings. Iowa R. App. P. 6.904(3)(g).
As to the matter of the attorney fees, the imposition of these fees “rests in
the sound discretion of the trial court and will not be disturbed on appeal in the
absence of an abuse of discretion.” In re Marriage of Romanelli, 570 N.W.2d
761, 765 (1997).
II. Factual and Procedural Background
After a thorough review of the record, we find that the district court’s
statement of facts in its October 25, 2013 order is a balanced, temperate, and
thorough representation of the relevant circumstances of this case. We adopt it
by reference and summarize it here.
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Dana and Daren were married in 2001, had twin daughters in 2006, and
dissolved their marriage in 2012. The daughters are in the joint legal custody of
both parents. One daughter has profound disabilities and is institutionalized.
Both parents may visit her at any time. The second daughter, E.L., is in the
physical care of Dana, while Daren maintains visitation rights. The dissolution
decree provided both parents with a right of first refusal to assume care of E.L. if
the other will be unavailable to do so for forty-eight hours or more.
Daren is currently co-habiting with Samantha. Dana objected to the
children’s association with Samantha, and the parents agreed when they
divorced that Samantha would not be present when Daren exercised his
visitation until Samantha had completed a mental health evaluation and had
been found “fit for contact with the parties’ minor children.” Dana claimed that
Samantha may have exposed the daughters to unsafe situations but cited no
current or recent behaviors or incidents that would justify such a concern.
Tensions mounted between Dana and Daren about E.L.’s care, Daren’s
visitations, and Samantha’s presence during those visitations. The record is
replete with stories of Dana and Daren’s tense interactions and their disputes
over when, how, or if E.L. should go with Daren during the prescribed visitation
periods. Daren and Samantha have undertaken or attempted to undertake
several burdensome measures to appease Dana’s protective sensibilities,
including individual therapy, joint therapy, substance abuse evaluations, and
Parent Child Interaction Therapy (PCIT) classes. Notably, the therapists working
with Daren and Samantha have submitted positive reports about the two of them.
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Ultimately, Dana filed a petition with the district court on April 3, 2013, to
modify the terms of the dissolution decree. She requested sole legal and
physical custody of the children and additional limitations on Daren’s visitation
rights. In response, Daren countered by requesting expanded visitation and a
modification of the right-of-first-refusal provision. The district court denied Dana’s
requests and granted Daren’s, providing Daren with expanded visitation and
decreasing the time when the right of first refusal of care became effective. The
district court also ordered Dana to contribute $5000 to Daren’s attorney fees.
Dana appeals (1) the denial of her request for sole legal custody; (2) the
modification of the right-of-first-refusal provision; and (3) the imposition of
Daren’s attorney fees.
III. Analysis
The first two issues on appeal involve modifications of the dissolution
decree. “Dissolution decrees may be modified upon a substantial change in
circumstances.” In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).
Substantial changes in circumstances must be established by a preponderance
of the evidence. In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992). The
changes shown must satisfy three requirements to rise to a level permitting
modification. In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996). They
must be (1) “material and substantial, not trivial”; (2) “more or less permanent or
continuous, not temporary”; and (3) “such as were not within the knowledge or
contemplation of the court when the decree was entered.” Id.5
A. Legal Custody
The district court ruled Dana had not carried her burden to prove a change
in circumstances sufficient to modify custody. We agree Dana failed to prove a
material change since her complaints against Daren stem from her own behavior,
not his.
In addition to the three requirements discussed above, Dana has an
additional burden when requesting sole custody. “A parent seeking to take
custody 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). This is a heavy burden on the requesting party. Id. “The legislature and
judiciary of this State have adopted a strong policy in favor of joint custody from
which courts should deviate only under the most compelling circumstances.” In
re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992); see In re
Marriage of Bolin, 336 N.W.2d 441, 445-47 (Iowa 1983) (applying this principle to
modification cases). Once joint custody has been established, “it should be
disturbed only for the most cogent reasons.” Frederici, 338 N.W.2d at 158.
The facts of this case present no such cogent reasons or compelling
circumstances. Dana has not provided sufficient evidence for us to find any
substantial change in circumstances that bear upon legal custody or that “joint
custody is unreasonable and not in the best interests of the child.” Iowa
Code § 598.41(2)(b) (2013). Her request for sole custody is in fact predicated on
her “hope[] the award would ease the tension” between herself and Daren rather
than on any specific change in factual circumstances. However, “tension
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between the parents is not alone sufficient to demonstrate that [joint custody] will
not work.” Bolin, 336 N.W.2d at 446.
Further, any change in circumstance since the dissolution decree is at
least in part the result of Dana’s own behavior. The district court noted—and we
agree—that the difficulties arise due to the parties’ mutual disrespect. The court
noted in particular that “Dana has impeded Daren’s visitation with [E.L.] on many
occasions without good reason.” We will not permit a party seeking sole custody
to rely on her own bad behavior to satisfy her evidentiary burden of a substantial
change in circumstances.
Additionally, we note that Dana has not appealed the expanded visitation
rights granted to Daren, and we are therefore not persuaded by her continued
assertion that Daren’s (and Samantha’s by extension) involvement in E.L.’s life
causes Dana real concern about the child’s safety. Rather, it appears that—in
the words of the district court—Dana would hold sole legal custody of her
daughters as yet another “sword against Daren instead of as a shield for [E.L.].”
We affirm the district court’s denial of sole legal custody to Dana.
B. Right of First Refusal
The district court provided sufficient reasoning for its modification of the
right-of-first-refusal provision. The court found Daren proved a substantial
change of circumstances: Dana’s pattern of denials of Daren’s visitation rights.
We agree with the court’s characterization of these denials.
Even though Dana’s refusal of Daren’s visitation does not satisfy the
heavy burden attendant a modification of legal custody, “a much less extensive
change of circumstances need be shown in visitation right cases.” Donovan v.
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Donovan, 212 N.W.2d 451, 453 (Iowa 1973); In re Marriage of Jerome, 378
N.W.2d 302, 305 (Iowa Ct. App. 1985).
The district court found that Dana’s behaviors denying Daren’s visitation
rights are “without good reason,” “frustrating to Daren,” and “emotionally
upsetting to [E.L.].” We agree, and these findings are a sufficient showing of a
change in circumstance to support Daren’s requested modifications.
The court noted that to serve their best interests, the children should have
the most continuous physical and emotional contact possible with both parents.
See Iowa Code § 598.1(1). The court modified the decree to address this
concern by expanding Daren’s visitation rights in addition to modifying the right-
of-first-refusal provision. Dana only appeals the right-of-first-refusal modification.
Though we agree that modification of this provision is supported by the facts, we
do not endorse the district court’s specific modified provision.
Daren requested that the right-of-first-refusal provision be modified to
require he have the option of assuming care if Dana will be away from E.L. for
twelve consecutive hours or more. The district court modified the provision even
beyond what Daren requested, requiring Dana to give Daren that option if she
will be away from E.L. for only eight hours. Such a modification would make it
impossible for Dana to maintain employment without contacting Daren every day
to allow him the option (which he may refuse) to take E.L. for the day. This result
is unreasonable. There is nothing in the record to support the necessity of this
particular modification term. We therefore affirm that the modification of this
provision was proper, but we adjust its terms to match Daren’s request.
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Daren shall have the right of first refusal to provide child care for E.L. if the
need for child care exceeds twelve hours.
C. Attorney Fees
Dana contests the court’s order that she pay $5000 toward Daren’s
attorney fees. As noted above, an award of attorney fees rests in the sound
discretion of the trial court and will not be disturbed on appeal in the absence of
an abuse of discretion. Romanelli, 570 N.W.2d at 765. The controlling factor in
the award of attorney fees is the ability to pay the fees. In re Marriage of
Muelhaupt, 439 N.W.2d 656, 663 (Iowa 1989). The court can also award
attorney fees to the prevailing party in a modification proceeding. Iowa
Code § 598.36. Daren was the prevailing party in this modification action, and
Dana is able to pay the fees awarded. We find no abuse of discretion and affirm
the attorney fee award.
Dana’s request for an award of appellate attorney fees is denied. Costs
are assessed to the appellant.
AFFIRMED AS MODIFIED.