In re Marriage of Wedemeyer

• Court: Court of Appeals of Iowa
• Decided: September 27, 2023
• Docket: 23-0597
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0597 Filed September 27, 2023

IN RE THE MARRIAGE OF ALICIA ELAINE WEDEMEYER AND TIMOTHY JOHN WEDEMEYER

Upon the Petition of ALICIA ELAINE WEDEMEYER, Petitioner-Appellee,

And Concerning TIMOTHY JOHN WEDEMEYER, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Guthrie County, Thomas P. Murphy,

Judge.

Timothy Wedemeyer appeals the physical custody and child support

modification of the decree dissolving the parties’ marriage. AFFIRMED.

Katie M. Naset of Hope Law Firm & Associates, P.C., West Des Moines, for

appellant.

Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellee.

Considered by Bower, C.J., and Ahlers and Chicchelly, JJ. 2

CHICCHELLY, Judge.

Timothy Wedemeyer appeals the order modifying his divorce decree, which

grants physical care and a modified child support award to Alicia Wedemeyer.

Upon review, we affirm the district court’s ruling.

I. Background Facts and Proceedings.

Timothy and Alicia divorced in early 2019. The dissolution decree adopted

the parties’ stipulated agreement, which granted joint legal custody and joint

physical care of their two children. The court also ordered Timothy to pay child

support to Alicia based on the guidelines and her carrying the children on her

medical insurance.

Since the divorce, Timothy and Alicia’s relationship grew increasingly

contentious and could generously be described as tumultuous. While the two had

been able to compromise on some educational and medical decisions, this

cooperation was short-lived. Instead, the parents fought regularly, often through

text messages, about nearly everything—the children, their respective parenting

styles, their romantic relationships, and child support, as examples. And the

parents and children themselves were not the only ones affected. The conflict

extended further to the children’s grandparents and stepparents, who were also

frequent parties to altercations.

In March 2022, Alicia petitioned for modification, requesting physical care

and an adjustment in child support to reflect that change. Litigation sparked even

more animosity. Prior to trial, Timothy and Alicia began using their middle-school-

aged son against each other. This included showing him legal documents, sharing

aggressive text messages, and speaking to him openly about the case. Ultimately, 3

the court granted Alicia physical care and increased the amount of Timothy’s child

support payments as calculated by the guidelines. Timothy now appeals that

decision, arguing Alicia did not establish the necessary burden to justify the

modification.

II. Scope and Standard of Review.

We review modifications of dissolution decrees de novo. In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). While we give deferential weight to the

district court’s fact findings and determinations of witness credibility, we are not

bound by them. In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014).

III. Modification of Physical Care.

Timothy contends that Alicia was unable to demonstrate the required

elements for modifying the custody provisions of the decree. The parent seeking

modification of the physical care arrangement bears the burden of proving (1) the

circumstances have materially and substantially changed since the decree’s entry

and (2) the “ability to minister more effectively to the child’s wellbeing.”

Hoffman, 867 N.W.2d at 32 (quoting In re Marriage of Frederici, 338

N.W.2d 156, 158 (Iowa 1983)). We consider this a heavy burden because physical

care “should be disturbed only for the most cogent reasons.” Id. (quoting Frederici,

338 N.W.2d at 158). As the parent seeking to modify the order, Alicia must prove

both elements to justify a change of physical care.

First, Timothy argues Alicia did not sufficiently show a substantial change

in circumstances which would warrant a modification. Alicia, meanwhile, cites their

breakdown in communications and inability to effectively co-parent as the

motivation behind the change in custody. The changed circumstances must not 4

be a temporary hiatus but relatively permanent. In re Marriage of Harris, 877

N.W.2d 434, 440 (Iowa 2016). The circumstances also must not have been

contemplated at the time the decree was entered. Id.

The parties’ relationship has clearly been fraught with bitterness. The

district court described their interactions best: “Tim’s and Alicia’s hostility to each

other is palpable. The tension in the courtroom radiated like electricity.” The entire

record is filled with evidence of their strain. According to the court’s findings, the

catalyst for this deterioration was the start of Timothy’s relationship with his current

wife. At times, Alicia initiated “spats” with both Timothy and his wife. Timothy and

Alicia fought constantly, but their disagreements covered more than just their

partners. Timothy, in particular, pointed to his recurrent requests to Alicia to

respect his boundaries and stop texting him. His preference was to limit their

communication only to those matters involving their children. But Timothy

recurrently refused contact with Alicia even when she reached out with concerns

regarding the children. He also showed clear, obvious disdain for Alicia, using foul

and horrific language that we decline to repeat. The district court similarly

disapproved of Alicia’s behavior, stating it was “certain that she goaded [Timothy],

but she is smart enough not to often engage in arguments via text message.” The

two have been plainly unable to communicate effectively.

Based on these facts, it is clear the relationship deteriorated substantially,

and well past the point of occasional argument or disagreement. While Timothy

alleges the relationship was always hostile (while simultaneously arguing it had

moderately improved before trial), evidence showed a distinct, growing animosity.

While the two were able to at least make basic decisions concerning the children 5

in the past, the ensuing aggression developed over time. Further, it is apparent

their communication is now an irreparable issue. Most importantly, the impact of

these developments on their oldest child is noticeable. The record shows the

parties’ decision to involve him in their litigation was detrimental to both children’s

well-being. See id. at 441 (noting children’s inevitable awareness of parents’

disharmony). The district court admonished the parents that “[the children] need

their parents to keep them in the dark about adult issues. Both Tim and Alicia

dragged [their older child] into their conflict. That behavior will stop, or the court

will address it again.”

We have modified custody in circumstances where parents are unable to

co-parent. See id. (granting physical care to one legal custodian “when the parents

simply cannot cooperate or communicate in dealing with their children”) (citation

omitted). When a “disruptive effect” on the children results as a consequence of a

breakdown in communication, this is a substantial change in circumstances. Id.

(quoting Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002)). Based on

their dreadful relationship and the negative effect it has had on their children, it is

abundantly clear in this case that there is sufficient evidence of a substantial

change. It is also unlikely based on their long history that this aggression will be

temporary. See id. at 440. Therefore, we find Alicia met her burden by establishing

a material and substantial change in circumstances occurred.

Timothy further contends that Alicia failed to establish she was the superior

parent. To prevail, Alicia “must prove an ability to minister more effectively to the

children’s well being.” Frederici, 338 N.W.2d at 158. This is “an essential predicate

to an award of physical care” and that “significance . . . should not be minimized.” 6

Id. at 160–61. While joint physical care has historically been favored in Iowa, we

now focus our review on the facts of each individual case. In re Marriage of

Hansen, 733 N.W.2d 683, 691, 695 (Iowa 2007). As always, we base this review

on the best interests of the children. Id. at 696. Relevant factors include whether

the parents can meet the children’s needs, the parties’ communication, and the

current caregiving relationship. Id. (citing Iowa Code § 598.41(3) (2022)). The

Iowa Code also requires the parent awarded primary physical care to “support the

other parent’s relationship with the [children].” Iowa Code § 598.41(5)(b).

The district court found Alicia was better able to foster a positive relationship

between the children and Timothy. At the best of times, Timothy has

communicated with Alicia through hostile, vulgar responses; at his worst, he

refuses to communicate at all. At times when Timothy and his wife have struggled

in their relationship, his communications with Alicia would become slightly more

amicable. But upon their reconciliation, the tension between Alicia and him would

typically increase again. A significant factor in determining physical care is

whether parents are able to “show mutual respect.” Hansen, 733 N.W.2d at 698.

Similarly, the sheer “degree of conflict” prevents parents from being able to have

consistent, meaningful interactions. Id. While in this case both parties are guilty

of placing contempt for each other over their children’s needs, as evidenced by

their dealings with their son, Alicia has proven to be more capable of appropriate

communication. Timothy almost certainly will not support a relationship between

Alicia and the children based on his previous actions and hostile communications.

Meanwhile, the record is full of Alicia reaching out to Timothy to resolve issues

regarding their children. Despite a consistent barrage of insults and profanities, 7

Alicia has consistently continued to involve Timothy in decision-making. She has

also attempted to foster a relationship between Timothy’s mother and the children.

Based on these facts, Alicia has shown more capability to foster that level of

communication.

Further, the district court also concluded that “Alicia is more attuned to the

children’s educational, health, and disciplinary needs.” Alicia has been the parent

primarily responsible for healthcare and educational decisions. We give particular

weight to the district court’s credibility findings. See Sisson, 843 N.W.2d at 870.

While the district court found both parties to lack credibility on some levels, it found

Alicia the more superior parent for physical care. The court noted her as the

children’s primary caretaker and acknowledged her substantial role in important

decision-making for their needs. Giving proper weight to that finding, we find Alicia

ultimately did meet her burden in establishing she is the superior parent.

Therefore, we affirm the district court’s modification of the divorce decree.

IV. Modification of Child Support Award.

Next, Timothy argues modification of the child support increase is warranted

if we were to reverse the district court’s modification of physical care. Because we

affirm the modification, the calculation of child support remains unchanged and we

affirm the increase in child support.

V. Alternative Extraordinary Parenting Time.

Timothy has alternatively requested, should we leave the district court’s

modification of physical care in place, that he be allowed to exercise a modified

parenting schedule. We note, however, that the parenting schedule he

recommends is similar to that of joint physical care with frequent exchanges 8

between the parties. Because his proposed schedule would require substantial

communication between the parties, we find that it does not serve the best

interests of the children for the same reasons stated previously. We therefore

decline to adopt Timothy’s proposed parenting schedule.

VI. Appellate Attorney Fees.

Finally, both parties request appellate attorney fees. The decision to award

attorney fees is purely discretionary. In re Marriage of Rosenfeld, 668

N.W.2d 840, 849 (Iowa 2003) (citing Iowa Code § 598.36). We find the parties

should be responsible for their own fees.

VII. Conclusion.

Because we hold that joint physical care is not in the best interests of the

children, we affirm the modification of the dissolution decree.

AFFIRMED.