In re the Marriage of Liening ( 2019 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 18-1694
    Filed August 7, 2019
    IN RE THE MARRIAGE OF ELAINE MARIE LIENING
    AND STEVEN RAY LIENING
    Upon the Petition of
    ELAINE MARIE LIENING,
    Petitioner-Appellee,
    And Concerning
    STEVEN RAY LIENING,
    Respondent-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
    Judge.
    Steven Liening appeals the district court order denying his petition to modify
    the physical-care provisions of a dissolution-of-marriage decree. AFFIRMED.
    Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des
    Moines, for appellant.
    Anjela A. Shutts and Tyler L. Coe of Whitfield & Eddy, P.L.C., Des Moines,
    for appellee.
    Cole Mayer of Kids First Law Center, Des Moines, attorney for minor
    children.
    Considered by Mullins, P.J., Bower, J., and Vogel, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
    2
    MULLINS, Presiding Judge.
    Steven Liening appeals the district court order denying his petition to modify
    the physical-care provisions of a dissolution-of-marriage decree. Steven argues
    the district court erred in failing to find a substantial and material change in
    circumstance to justify the modification of the physical-care provisions of the
    dissolution decree. He contends Elaine Liening’s hostility toward him, efforts to
    inhibit his parenting time, failure to support his relationship with the children, and
    unresolved mental-health issues provide sufficient evidence of a substantial and
    material change in circumstance and that he is the parent with the superior ability
    to care for the children. Both parties request appellate attorney fees.
    I.      Background Facts and Proceedings
    Elaine and Steven were married in 2005. They are the parents of I.K.L.,
    born in 2006, and G.J.L., born in 2008. Elaine is also the mother of a child, born
    in 2017, from another relationship. Elaine and Steven’s marriage was dissolved in
    2010 in Tennessee. The dissolution decree incorporated a stipulated parenting
    plan which granted the parties joint legal custody and granted Elaine physical care
    of the children because of Steven’s active military service. The parenting plan
    allowed Steven visitation when on leave. Before the court filed the dissolution
    decree, Elaine and the children moved to Iowa. After Steven’s discharge from the
    military, Steven remained in Tennessee, where he continued to reside at the time
    of trial.
    In June 2013, Elaine registered the dissolution decree and parenting plan
    in Iowa. In December, Tennessee transferred jurisdiction of the case to Iowa. In
    December 2014, the court modified the visitation and transportation provisions of
    3
    the dissolution decree given the parties’ geographical distance. In December
    2016, Elaine was the victim of a domestic assault by her then paramour. One or
    both children witnessed the incident. Steven was not notified about the incident
    until February 2017, when law enforcement interviewed one of the children.
    In May, Steven filed an application for rule to show cause alleging multiple
    counts of contempt against Elaine related to Elaine’s interference with his visitation
    and refusal to consult about joint-legal-custody issues. After a contested hearing,
    the court found Elaine guilty of one count of contempt and in default on other
    allegations.1 The court modified Steven’s visitation to compensate him for lost time
    and ordered Elaine pay $1000 of Steven’s attorney fees.
    In March 2018, Steven petitioned to modify the dissolution decree’s
    physical-care provisions, alleging Elaine’s continued interference with his visitation
    and his relationship with the children amounted to substantial changes in
    circumstances which justify modification of the children’s physical care. Steven
    requested physical care or, in the alternative, additional visitation. In April, Steven
    moved for an emergency transfer of physical care of the children because of
    Elaine’s alleged suicidal thoughts, including thoughts of harming the children,
    which she shared with her therapist and an Iowa Department of Human Services
    (DHS) worker.      Steven requested Elaine undergo a complete psychological
    evaluation. He claimed Elaine had a history of mental illness, suicide attempts,
    1
    Steven makes references in his appellate brief to statements made by the court during
    the contempt hearing. However, no transcript of the contempt hearing appears in the
    record. Therefore, we are limited to the court’s written ruling. The ruling notes that the
    court made findings on the record during the hearing but provides no details about those
    findings.
    4
    and involuntary committals. Elaine consented to the psychological evaluation,
    asserting she had nothing to hide. In May, the court found an evaluation Elaine
    underwent before the hearing lacked credibility and ordered her to undergo a full
    and independent psychological evaluation before the modification trial. The court
    granted Steven’s request for emergency transfer of custody and ordered the
    transfer of the children’s care to Elaine’s parents to allow the children to finish the
    remainder of the school year. At the end of the school year, Steven took over the
    children’s care.
    In July, during a pretrial conference, the court found the testimony of Elaine
    and the DHS worker who conducted the initial investigation, along with a letter from
    the physician who conducted Elaine’s psychological evaluation, alleviated its
    concerns about Elaine’s mental health and any potential danger to herself and the
    children. Based upon these findings, the court dissolved the order awarding
    Steven emergency physical care and ordered the children returned to Elaine’s
    care.
    In August, after a contested hearing, the court determined Steven failed to
    meet his burden to show a material and substantial change in circumstance to
    justify the modification of the physical-care arrangement of the children. It further
    found that Steven failed to prove a superior ability to parent the children. Based
    upon these findings, it denied his request for modification. Steven appeals.
    II.     Standard of Review
    We review petitions to modify the physical-care provisions of a dissolution
    decree de novo. In re Marriage of Harris, 
    877 N.W.2d 434
    , 440 (Iowa 2016). While
    “we make our own findings of fact, we give weight to the district court’s findings.”
    5
    
    Id.
     Our controlling consideration is the best interests of the children. Iowa R. App.
    P. 6.904(3)(o); In re Marriage of Hoffman, 
    867 N.W.2d 26
    , 32 (Iowa 2015).
    III.   Analysis
    In order to modify the physical-care provisions of the dissolution decree,
    Steven, as the parent making the request, “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” require the modification.
    Hoffman, 867 N.W.2d at 32 (citation omitted). Those “circumstances must not
    have been contemplated by the court when the decree was entered, and they must
    be more or less permanent, not temporary.” Id. “[O]nce custody of children has
    been fixed it should be disturbed only for the most cogent reasons.” In re Marriage
    of Frederici, 
    338 N.W.2d 156
    , 158 (Iowa 1983). “The objective of a physical care
    determination is to place the children in the environment most likely to bring them
    to health, both physically and mentally, and to social maturity,” In re Marriage of
    Hansen, 
    733 N.W.2d 683
    , 695 (Iowa 2007), though “[d]etermining what custodial
    arrangement will best serve the long-range interest of a child frequently becomes
    a matter of choosing the least detrimental available alternative for safeguarding
    the child’s growth and development.” In re Marriage of Winter, 
    223 N.W.2d 165
    ,
    167 (Iowa 1974).
    In determining the physical-care arrangement, the district court observed:
    In urging the change, [Steven] has focused on what he
    believes is [Elaine’s] lack of stability, her inability to nurture the
    children, her poor choice in relationships and her failure to respect
    his position as a co-parent. In doing so, [Steven] is primarily
    attempting to rehash the issues raised in his prior contempt action
    and his request for an emergency transfer of physical care, along
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    with a generalized dissatisfaction with the communication from
    [Elaine] when it comes to the children.
    The claimed instability in [Elaine’s] life was short-lived and the
    result of her efforts to extricate herself and the children from an
    incident of domestic abuse.
    ....
    It is clear that [the district court] ultimately concluded that the
    accusations made against [Elaine] by [Steven] were less than
    convincing when used to justify multiple citations of contempt and an
    interim transfer of physical care of the children, and this court is
    equally unpersuaded as to the vitality of those circumstances in
    analyzing a modification of the physical care arrangement.
    [Steven’s] reliance on these episodic examples as proof of some
    long-standing change in circumstances justifying his requested relief
    is simply not borne out on this record. While some of [Elaine’s]
    behavior has not been ideal, it is not indicative of the substantial
    change in circumstances required to modify physical care. Likewise,
    the purported failure of [Elaine] to properly involve [Steven] in
    decisions as a joint legal custodian has not been established to such
    an extent to mandate a change in care.
    ....
    Even if the events relied upon by [Steven] were viewed as a
    substantial change in circumstances, he has not established that he
    is in a position to provide superior care for the children. In this regard,
    the court is primarily persuaded by how well the children have done
    while under [Elaine’s] care. By all accounts, they have thrived in
    terms of their education and their exposure to a multitude of
    activities. Everyone on both sides of this dispute testified that the
    children are intelligent, well-adjusted and affectionate. Whatever
    disruption brought about by the domestic incident and the temporary
    relocation . . . was tempered by [Elaine’s] focus on maintaining
    continuity in the children’s lives. To the contrary, [Steven] has
    offered nothing as to how he would be able to be a better parent if
    the children were transferred to his care, beyond the fact that [Elaine]
    would no longer be caring for them.
    On our de novo review of the record, we agree that Steven failed to meet
    his burden to prove a material and substantial change of circumstances to warrant
    the modification of the children’s physical care. Both parties agreed the children
    were excelling academically and engaged in multiple extracurricular activities.
    While Steven contends both children have behavioral issues which have worsened
    lately, he failed to provide sufficient evidence these alleged behavioral issues
    7
    resulted from Elaine or her actions. Any alleged behavioral changes could be
    attributed, at least in part, to the relationship between Elaine and Steven. Their
    relationship is contentious and both parties have acted in ways that put the
    animosity they have toward each other ahead of the children. Both parents have
    placed the children in the middle of their acrimony and their “animosity toward each
    other is not lost on the children.” See Harris, 877 N.W.2d at 441. We also agree
    with the district court that even if Steven had proven a substantial change in
    circumstance, Steven has not provided sufficient evidence that he can provide
    superior care. For these reasons, we affirm the district court’s denial of Steven’s
    modification petition.
    We remind and caution both parents that as joint legal custodians, they
    have “equal participation in decisions affecting the child[ren’s] legal status, medical
    care, education, extracurricular activities, and religious instruction,” but also have
    the “mutual responsibility to cooperate in the best interests of the children” and
    must “achieve more mature parental communication.” See id. at 444. We also
    caution Elaine that “[f]ostering the long-term relationship with the parent who does
    not have physical care is an important role of the physical-care parent.” In re
    Marriage of Williams, No. 16-1527, 
    2017 WL 2875392
    , at *3 (Iowa Ct. App. July 6,
    2017).     She is tasked with “effectively assur[ing] the child[ren] [have] the
    opportunity for maximum continuing physical and emotional contact” with Steven.
    
    Id.
    Both parties request an award of appellate attorney fees.         Awards of
    appellate attorney fees is “not a matter of right, but rather rest in this court’s
    discretion.” In re Marriage of Sullins, 
    715 N.W.2d 242
    , 255 (Iowa 2006). We
    8
    consider “the needs of the [parties], the ability of the other party to pay, and the
    relative merits of the appeal.” 
    Id.
     We decline to award appellate attorney fees.
    Costs on appeal are taxed one-half to each party.
    AFFIRMED.