Denson v. Capps ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0774
Filed July 21, 2021
JED R. DENSON,
Plaintiff-Appellee,
vs.
ALEXANDRIA P. CAPPS,
Defendant-Appellant.,
and
CHILD SUPPORT RECOVERY UNIT,
Interested Party.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Wyatt Peterson,
Judge.
Alexandria Capps appeals from the modification of her custody decree.
AFFIRMED.
Scott E. Schroeder of Clark & Schroeder, PLLC, Burlington, for appellant.
Stephanie L. Kozlowski of Kozlowski Law Group, L.L.C., Burlington, for
appellee.
Considered by Tabor, P.J., May, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
GAMBLE, Senior Judge.
Alexandria Capps appeals from the modification of her custody decree with
Jed Denson. We affirm.
I. Background Facts
Capps and Denson are the never-married parents of S.C., who was born in
December 2012. Roughly eighteen months after S.C.’s birth, Capps and Denson
ended their relationship. At that time the parents had no formal custodial
agreement.
In July 2015, the parents entered into a stipulated custodial decree, which
provided for joint legal and joint physical care of S.C. In April 2017, the parties
modified the custodial decree by stipulation. Under the modified decree, the
parents continued the have joint legal and joint physical care of S.C. but changed
their parenting schedule.
Denson married in 2018. And his wife took on a step-parenting role to S.C.,
with S.C. spending three nights per week in her care while Denson worked.
In August of 2018, Denson filed this action to modify the physical care
provision of the parents’ decree. The district court held a two-day hearing on the
matter in August 2019. The court issued a written ruling in April 2020, which found
material and substantial changes in circumstance since entry of the April 2017
modified decree to warrant a change in physical care. The court gave physical
care to Denson and visitation to Capps.
Capps appeals. We will discuss additional facts as necessary.
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II. Scope and Standard of Review
Iowa Code chapter 600B (2018) governs this proceeding because the
parents never married. However, “[w]e apply the same legal framework to custody
and visitation matters involving unmarried parents as we do to those issues arising
between parents who had been married.” Spaulding v. Glenn, No. 20-0642, 2021
WL 811126, at *3 (Iowa Ct. App. Mar. 3, 2021) (citing Iowa Code § 600B.40).
Custody proceedings between unmarried parties are in equity, and we
review equitable proceedings de novo. See Iowa R. App. P. 6.907; Phillips v.
Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). We review the entire record
and decide the factual and legal issues preserved and presented for review. See
In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). However,
we defer to the district court’s factual findings for reasons both institutional and
pragmatic. See Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). So
we give weight to the district court’s factual findings and will affirm the district court
unless it “failed to do substantial equity.” Id.Of course, our primary concern on our review is the best interest of the child.
Iowa R. App. P. 6.904(3)(o); Phillips, 541 N.W.2d at 847. “Applying the best-
interest standard allows us ‘the flexibility necessary to consider unique custody
issues on a case-by-case basis.’” Spaulding, 2021 WL 811126, at *3 (quoting In
re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015)).
III. Discussion
“Courts are empowered to modify the custodial terms of a paternity decree
only when there has been a substantial change in circumstances since the time of
the decree, not contemplated by the court when the [last modification] was entered,
4
which was more or less permanent, and relates to the welfare of the child.” See
Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002); see also In re
Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995). Here, it is not clear
whether Capps challenges the district court’s determination that there was a
material and substantial change in circumstances since the last modification.
However, on our review of the record, we conclude Capps conceded as much
through her testimony. When asked why she hadn’t “sought a change with the
court,” Capps responded, “[Denson] beat me to it.” So we assume she agreed
there was a material and substantial change in circumstances since the last
modification to warrant a modification, which would serve as the basis for her
would-be petition to modify physical care.
Even if Capps does not agree there was a substantial and material change
in circumstances since the last modification, we conclude such changes occurred.
Those changes include Denson marrying and the parents’ disagreement about
Denson’s wife’s role in S.C.’s life; Capps moving in with her parents and younger
siblings; and the general deterioration of the parents’ co-parenting relationship.
See Melchiori, 644 N.W.2d at 368 (“The shared custody provisions agreed to by
these parties and incorporated into the decree have not evolved as envisioned by
either of the parties or the court. Both parents appear to agree joint physical care
is not working. Discord between parents that has a disruptive effect on children’s
lives has been held to be a substantial change of circumstance that warrants a
modification of the decree to designate a primary physical caregiver if it appears
that the children, by having a primary physical caregiver, will have superior care.”).
5
Since we have found a material and substantial change in circumstances,
we must consider whether either parent can provide superior care. Because the
parents had joint physical care of S.C. under the modified decree, we begin by
acknowledging that both parents are suitable caregivers and begin on equal
footing. Id. at 369. And because Denson seeks to move the child out of joint
physical care and into his physical care, he must prove a superior “ability to
minister more effectively to [S.C.]’s well-being.” See In re Marriage of Frederici,
338 N.W.2d 156, 158 (Iowa 1983).
Capps highlights placing physical care with Denson would reduce S.C.’s
time with Capps’s two other children. See In re Marriage of Orte, 389 N.W.2d 373,
374 (Iowa 1986) (noting the court’s “interest in keeping children of broken homes
together” and recognizing that general principle also applies to half-siblings). But
we are cognizant that S.C. also has a half-sibling on Denson’s side. So she is
necessarily missing out on sibling time no matter which home she is in. So this
factor is not determinative.
The parents run their homes in diametrically opposing fashions. Denson’s
home relies on a more rigid structure while Capps’s home runs in a more organic
and fluid manner. Neither approach is inherently superior to the other. However,
other differences favor Denson. Denson presented evidence that S.C. is ill-kept
at times while in Capps’s care.1 Moreover, Capps has moved several times in the
1 Denson testified to finding a panty liner in S.C.’s underwear after she was in
Capps’s care. He claimed S.C. told him her underwear was dirty so Capps put a
panty liner in the underwear to avoid infection. The district court paid particular
attention to this detail in its order stating, “The court can think of no legitimate
reason that a seven-year-old girl should have a panty liner in her underwear.”
6
time between modification actions. This inherently adds a certain level of instability
to S.C.’s life. Currently, Capps lives in her parents’ home with S.C., her two
younger children, her parents, and four siblings.2 And Capps testified she is
planning on moving again soon. So we do not believe her somewhat nomadic
lifestyle is at an end.3 Conversely, Denson has stayed in the same home, which
he shares with S.C., his wife, and second child.
But most significant to us in this case is the parties’ ability to get S.C. to
school consistently. During her kindergarten year, S.C. missed a significant
number of school days.4 S.C. missed only two days of school while in Denson’s
care. So the remaining absences occurred while in Capps’s care. Consistency is
crucial for young children. That need for consistency extends to a child’s
education. S.C. must consistently be in school to reap its benefits, which serve as
the building blocks for her future. Denson has demonstrated an ability and
willingness to ensure S.C. regularly attends school, which contrasts with the many
absences S.C. incurred under Capps’s care.
However, we believe there could be any number of plausible explanations and do
not consider this fact in favor or against either parent.
2 Ten people live in Capps’s parents’ five-bedroom house. Capps and her
youngest child sleep in the living room while S.C. and Capps’s middle child share
a bed in a converted room.
3 The mother testified she is waiting to be admitted to subsidized housing. But she
previously lived there and moved out because she did not like the terms of living
there, which include monthly inspections, prohibitions against people not listed on
the lease living there, and increasing rent when a tenant’s income increases. So
even if Capps secures a spot in the subsidized housing, we think it is likely she will
not stay for long.
4 During the school year, records show S.C. missed the first of four daily periods a
total of thirty-four times (twelve unexcused), the second of four daily periods
twenty-eight times (six unexcused), the third of four daily periods twenty-six times
(three unexcused), and the fourth of four daily periods twenty-five times (one
unexcused).
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In short, Denson provides S.C. with stability and consistency that Capps
cannot match. So we conclude Denson has met his burden to demonstrate he can
minister more effectively to S.C.’s wellbeing.5
Capps requests appellate attorney fees. However, because she is not the
prevailing party on appeal, we do not have authority to award her attorney fees.
See 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.”).
AFFIRMED.
5 The district court gave considerable weight to Capps’s inability to name the
fathers of her other children and her use of an online chat application for
compensation. However, we note there is no evidence of any misconduct
occurring in the presence of S.C. or that Capp’s relationships or use of the chat
application affected her ability to care for the child. Accordingly, we give this little
weight in our custody determination. See In re Vanous, No. 99-900, 2000 WL
504597, at *1 (Iowa Ct. App. Apr. 28, 2000) (“Moral misconduct is also a factor to
be accorded weight in a child custody determination; however, it has been weighed
most heavily only in those cases where the misconduct occurred in the presence
of the child.”); see also Diers v. Coffman, No. 15-1282, 2016 WL 1697069, at *6
(Iowa Ct. App. Apr. 27, 2016) (recognizing “moral misconduct” can be a factor
when determining custody but our “determinations are not made to reward one
parent or punish the other”).