In re Marriage of Anderson

• Court: Court of Appeals of Iowa
• Decided: September 21, 2022
• Docket: 22-0062
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0062 Filed September 21, 2022

IN RE THE MARRIAGE OF ELIZABETH KATHRYN ANDERSON AND DARRICK MAURICE ANDERSON

Upon the Petition of ELIZABETH KATHRYN ANDERSON, n/k/a ELIZABETH KATHRYN SHECKELLS, Petitioner-Appellant,

And Concerning DARRICK MAURICE ANDERSON, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Samantha Gronewald,

Judge.

A former spouse appeals the denial of her petition to modify the

physical-care provisions of a dissolution decree. AFFIRMED.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Jaclyn M. Zimmerman of Miller, Zimmerman & Evans, P.L.C., Des Moines,

for appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ. 2

BADDING, Judge.

In a stipulated decree dissolving their marriage, Elizabeth Sheckells and

Darrick Anderson agreed their son should be placed in their joint physical care.

Eighteen months later, Elizabeth petitioned to modify that arrangement so that she

could move to Georgia to be with her new husband who was stationed there on

military orders. The district court denied Elizabeth’s request, finding her planned

move was not a substantial change in circumstances.

Trying a different angle on appeal, Elizabeth now claims “Darrick’s failure

to participate in the responsibilities of [joint] physical care establishes that custodial

arrangement has failed and is a substantial change in circumstances warranting a

modification.” Because we agree with the district court that Elizabeth did not prove

the required change in circumstances, we affirm.

I. Background Facts and Proceedings

Elizabeth and Darrick married in 2012. They had one child together—M.A.,

who was born in 2015. Elizabeth filed a dissolution petition in August 2018.

Around the same time, she started using a dating app on which she met her current

husband, John. They dated very casually at first since Elizabeth was still living

with Darrick until their divorce was finalized in January 2019. Once Darrick moved

out, Elizabeth’s relationship with John became more serious. They got engaged

during Memorial Day weekend in 2020 and married in June. The day before the

wedding, Elizabeth petitioned to modify the divorce decree, citing her “planned

move to the state of Georgia.”

John is an active-duty member of the United States Marine Corps. He was

stationed in Des Moines when he started dating Elizabeth. John is about four 3

years away from retiring with full benefits after twenty years of service. During his

military career, John has been stationed in seven locations and had six overseas

deployments. While he doesn’t expect any further deployments, John is still

subject to being moved to different military bases in the United States. Shortly

after he married Elizabeth, John received orders to report for duty in Georgia. He

moved there in August 2020, while Elizabeth remained behind in Iowa with M.A.

At the time of the trial in November 2021, Elizabeth and John were expecting their

first child together. They both said the situation has been “very tough” on them,

emotionally and financially.

Elizabeth testified that she stayed in Iowa after John moved because of her

caretaking arrangement with Darrick. The parties’ stipulated dissolution decree

placed M.A. in their joint legal custody and physical care. They crafted a parenting

schedule around Darrick’s variable hours as an air traffic controller.1 Unless they

agreed otherwise, Elizabeth was to have parenting time the last full weekend of

each month, with Darrick having every remaining weekend from Friday at 2:00

p.m. to Monday at 12:00 p.m. and every Thursday from 2:00 p.m. until 7:30 p.m.

M.A. was to be in Elizabeth’s care the rest of the time unless Darrick asked to use

what the parties called his “flex time,” which allowed Darrick to exercise “up to six

additional overnights each calendar month if he is able to bid off time or adjust his

schedule to accommodate.” If Darrick did not use the flex time, any unused days

1 Darrick explained that when the stipulation was entered into, he had Saturdays and Sundays off. The rest of the week, he normally worked from 2:00 p.m. until 11:00 p.m. on Monday, noon to 9:00 p.m. on Tuesday, Wednesday from 9:00 a.m. until 5:00 p.m. or 10:00 a.m. until 6:00 p.m., Thursday from 6:00 or 7:00 a.m. until 2:00 or 3:00 p.m., and Friday from 5:30 or 6:00 a.m. until 12:30 or 1:00 p.m. 4

would “‘carry over’ to the summer” to be “added to his two weeks of summer

parenting time . . . up to a maximum of seven additional days of summer parenting

time.”

According to Elizabeth, and a chart she kept, Darrick rarely used his six flex

overnights per month. Darrick disagreed, testifying that he did request more time

with M.A., but it was denied by Elizabeth. Darrick explained that when the

pandemic started in March 2020, all of the air traffic controllers were moved to a

five-day-on, ten-day-off rotation, with their shifts starting at 6:00 a.m. While this

meant Darrick couldn’t care for M.A. overnight when he was working, he had “ten

days off after that so [he] could have had more time” then. But when he requested

that time, Darrick said Elizabeth’s “response was always no.” In any event, Darrick

typically used just one to two nights of his flex time with M.A. each month.

Because Darrick did not use all of his flex time, M.A. was primarily in

Elizabeth’s care during the week, which meant she attended to most of his routine

daily needs like “packing the snacks, washing the masks, making sure that

everything is ready to go, the homework is done, the appointments are made, [and]

the prescriptions are refilled.” Her flexible schedule as a market research manager

was conducive to this. During the pandemic, Elizabeth was able to work remotely

from home full-time and care for M.A. And when he returned to school on a hybrid

schedule, Elizabeth was “able to rearrange [her] work around his schedule.”

Once M.A. went back to school full time, the couple noticed he struggled

some socially and behaviorally. After talking with Darrick, Elizabeth made

arrangements to have M.A. assessed. He was diagnosed with “ADHD and low

grade autism,” resulting in an individual education program at school. Although 5

M.A. does well academically, he works with a special education teacher and

participates in occupational therapy outside of school. As the district court noted,

M.A. “has made significant improvements since he received his diagnosis and

began services specialized to meet his needs.” Both parents are involved in M.A.’s

schooling and therapy, though Elizabeth has been more proactive in coordinating

his appointments. They are also involved with scheduling and attending the child’s

various extracurricular activities.

In what the district court characterized as a “refreshing” change of pace,

Elizabeth and Darrick were complimentary of one another as parents. And they

worked together well for M.A.’s benefit. Both wanted to be the type of blended

family where they would all be present “on the sidelines cheering for” their child.

Elizabeth agreed at trial that but for her desire to move to Georgia to be with her

husband, there was “no other reason to break the shared care arrangement.” If

her petition was not granted, Elizabeth testified she would stay in Des Moines and

maintain the status quo. Elizabeth also said that if Darrick was able to move to

Georgia, she would “absolutely” be okay with maintaining their current parenting

arrangement. Darrick explored the possibility of transferring to an airport in the

town where John is stationed, but there were no openings. He also looked at

transferring to the Atlanta airport, but that would be about an hour-and-a-half drive

to Elizabeth and John’s home and require him to work six days a week.

Also weighing on Darrick’s decision to remain in Iowa was that John’s

military orders in Georgia will end in August 2023, although he could be restationed

as early as August 2022. John testified that it’s likely he will have to move again

as soon as he completes his current orders in Georgia. As of the time of trial, John 6

had no idea where his next orders would send him. Wherever it is, his next orders

would be another three-year assignment “that would take [him] to retirement.”

Once he retires, John and Elizabeth testified they would likely return to Iowa if

Darrick was still there because M.B. “needs to have that relationship with his dad

and we are both sincerely committed to that in the long term.”

In its modification ruling, the district court found the focus needed to be on

M.A., stating that while it was “sympathetic to Elizabeth and John’s current

situation. . . . the [c]ourt cannot conclude Elizabeth’s proposed move to Georgia

would be in M.A.’s best interest. This is particularly true, given Elizabeth’s

willingness to remain in Iowa for his benefit.” On the last point, the court

determined that because “Elizabeth’s desire to relocate is a conditional one,” it was

not a “change that is ‘more or less permanent’ and directly tied to M.A.’s welfare.”

In the end, the court concluded:

M.A. is thriving under the joint physical care arrangement that has been in place since January 2019. Elizabeth and Darrick are excellent co-parents who, for the most part, have very little conflict in their relationship with each other. They both have strengths in their parenting styles that, when combined, facilitate an environment most likely to bring M.A. to health, both physically and mentally, and to social maturity. . . . M.A. is happy, is performing well academically, and has appropriate services in place to address his needs associated with his autism diagnosis. Continuation of the secure, stable, and quality home, school, and treatment environments created by Elizabeth and Darrick is in M.A.’s best interest, such that Elizabeth’s request to modify physical care must be denied.

II. Standard of Review

An action to modify a decree of dissolution of marriage is an equitable

proceeding, so our review is de novo. Iowa R. App. P. 6.907; In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We give weight to the factual findings 7

of the district court, especially when considering the credibility of witnesses, but

are not bound by them. Iowa R. App. P. 6.904(3)(g).

III. Analysis

The first issue before us is whether there has been a material and

substantial change in circumstances since the January 2019 decree that warrants

modifying the joint-physical-care arrangement. See Thorpe v. Hostetler, 949

N.W.2d 1, 5 (Iowa Ct. App. 2020). As the parent seeking the modification,

Elizabeth “face[s] a heavy burden in proving that modification is warranted”

because “once custody of the child[ ] has been fixed it should be disturbed only for

the most cogent reasons.” Id. (citation omitted). “The changed 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. (citation omitted). They

must also “relate to the welfare of the child,” such that the child’s “best interests

make it expedient to make the requested change.” Id. (citation omitted).

The only change in circumstances that Elizabeth raises on appeal is her

role as the primary caretaker since dissolution.2 She argues “the shared care

parenting did not evolve into roughly equal parenting as the parties and district

court envisioned in the decree,” so a substantial change in circumstances has

occurred.

2 Elizabeth did not raise this claim in district court, focusing instead on her marriage and desire to relocate as changes sufficient to warrant modification. As a result, the court did not address it. Yet the parties agree error was preserved. Cf. Est.of Cawiezell v. Coronelli, 958 N.W.2d 842, 848 (Iowa 2021) (“In order for error to be preserved, the issue must be both raised and decided by the district court.” (citation omitted)). We elect to bypass any error preservation concerns and proceed to the merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999). 8

It is true that if Darrick exercised all of the flex time provided for in the

decree, the parties would have roughly equal time with M.A. But the decree

contemplated the possibility that Darrick would be unable to use all of that time,

providing that he “may exercise up to six additional overnights each calendar

month if he is able to bid off time or adjust his schedule to accommodate.”

(Emphasis added.) The schedule developed by the parties anticipated that M.A.

would typically be in Elizabeth’s care during the week, which is when most of the

parenting duties Elizabeth says she performs would normally occur. But it is not

as if Darrick does not undertake those same duties. Elizabeth acknowledged that

when M.A. is with Darrick, he does all of the same things that she does. Contrary

to her assertions otherwise on appeal, Elizabeth agreed at trial that Darrick was

an active and engaged father, attending the child’s school conferences,

extracurricular activities, medical appointments, and therapy sessions.

Given these facts, it is difficult to “see how the shared-care agreement[ ]

ha[s] not evolved as envisioned by the parties.” See In re Marriage of Malloy,

No. 16-0274, 2016 WL 7404611, at *5 (Iowa Ct. App. Dec. 21, 2016) (denying

mother’s request to modify physical care where she claimed the father “has not

actively tried to enforce” the joint-physical-care schedule). Also, “nothing has

occurred that has made their agreement unworkable.” Id. To the contrary, the

parties are model co-parents—they communicate about the child effectively,

respect one another’s role in the child’s life, and made the schedule work

seamlessly for themselves and the child.

Modification from joint physical care is normally only appropriate “when

‘shared custody provisions . . . incorporated into the decree have not evolved as 9

envisioned by either of the parties or the court” or when the parents simply “cannot

cooperate or communicate in dealing with their children.’” In re Marriage of Harris,

877 N.W.2d 434, 441 (Iowa 2016) (quoting In re Marriage of Walton, 577 N.W.2d

869, 870 (Iowa Ct. App. 1998)). Neither circumstance is present here. What’s

more, the alleged change in circumstances does not affect the child’s welfare. See

Thorpe, 949 N.W.2d at 5. Rather, M.A. has thrived under the joint-physical-care

arrangement that Elizabeth said she would continue were it not for her planned

move to Georgia.

On that issue, while Elizabeth does not re-up her claim in district court that

her planned move to Georgia is a substantial change in circumstances warranting

modification, even if she had, we agree with the district court that it was not a

permanent change or that modification would be in M.A.’s best interests. John

testified that his orders in Georgia would not go beyond August 2023, at which

point he would be subject to a move somewhere else for another three years,

before another move at his retirement. Elizabeth and John hoped that final move

would be to Iowa if Darrick were still living there. With those practical realities, as

well as “Elizabeth’s willingness to remain in Iowa for [M.A.’s] benefit,” Elizabeth’s

proposed move would not be in M.A.’s best interests.

Like the district court, we are “sympathetic to Elizabeth and John’s

situation,” but “[p]hysical care issues are not resolved based upon perceived

fairness to the spouses, but primarily upon what is best for the child.” In re

Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). We agree that continuing

the “secure, stable, and quality home, school, and treatment environments”

created by these commendable parents is what is best for this child. See Ruden 10

v. Peach, 904 N.W.2d 410, 414 (Iowa Ct. App. 2017) (“Our first and governing

consideration in child custody cases is the best interests of the child.”).

IV. Appellate Attorney Fees

Darrick passively requests an unspecified amount of appellate attorney

fees. An award of appellate attorney fees is not a matter of right but rests within

our discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).

We consider “the needs of the party seeking the award, the ability of the other party

to pay, and the relative merits of the appeal.” In re Marriage of Okland, 699 N.W.2d

260, 270 (Iowa 2005). Darrick earns a six-figure income, making his need for an

award negligible. While Elizabeth also makes a good living from her job, she was

incurring a significant amount of expenses maintaining two homes and traveling to

see John in Georgia, plus the added cost of her soon-to-be-born child. We

accordingly deny Darrick’s request.

V. Conclusion

We affirm, concluding Elizabeth did not show a substantial change in

circumstances warranting modification and the result of modification would be

contrary to the child’s best interests. Darrick’s request for an award of appellate

attorney fees is denied.

AFFIRMED.