In Re the Marriage of Alicia D. Day and Christopher L. Day Upon the Petition of Alicia A. Day, N/K/A Alicia D. O'dell, and Concerning Christopher L. Day

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0110 Filed October 28, 2015

IN RE THE MARRIAGE OF ALICIA D. DAY AND CHRISTOPHER L. DAY

Upon the Petition of ALICIA A. DAY, n/k/a ALICIA D. O’DELL, Petitioner-Appellant,

And Concerning CHRISTOPHER L. DAY, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Wapello County, Annette J.

Scieszinski, Judge.

Alicia O’Dell appeals the district court’s modification of visitation rights

granted to her former husband, Christopher Day. AFFIRMED.

Heather M. Simplot of Harrison, Moreland, Webber & Simplot, P.C.,

Ottumwa, for appellant.

James E. Brick of Brick Gentry, P.C., West Des Moines, for appellee.

Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2

VOGEL, Judge.

Alicia O’Dell appeals the district court’s modification of visitation rights

granted to her former husband, Christopher Day, asserting expanded visitation

was not warranted due to the lack of material change of circumstances. Noting

Alicia’s increased control over visitation opportunities, the district court found

additional visitation with Christopher would benefit the minor children. We agree

and affirm.

I. Background Facts and Procedure

Alicia and Christopher’s marriage was dissolved in 2009, by a decree

incorporating the parties’ stipulation. This appeal involves four specific points of

visitations as initially provided in the 2009 decree: (1) Christopher shall have

alternate weekends from 7:00 p.m. on Friday to 7:00 p.m. Sunday; (2) each party

shall have the children one-half of the Easter holiday each year; (3) Christopher

shall have the children Christmas Eve Day each year from 5:00 p.m. until 10:00

p.m. and Christmas Day each year from 2:00 p.m., and overnight until 10:00 a.m.

on December 26; and (4) summer visitation of three weeks to be exercised in no

more than one-week periods during the summer months that the children are not

in school.

The modification court made the following adjustments, which Alicia

contests: (1) the parties shall share alternate weekends from 3:30 p.m. on Friday

until 8:00 p.m. on Sunday; (2) Easter Day, the children shall be with Alicia from

8:00 a.m. to 11:00 a.m., and with Christopher from 11:00 a.m. until 8:00 p.m.;

(3) with regard to Christmas, in even years, Christopher shall have visitation from

10:00 p.m. December 24th until 2:00 p.m. on December 25th, and in odd years, 3

he shall have visitation from 4:00 p.m. until 10:00 p.m. on December 24th and

from 2:00 p.m. December 25th until 12:00 noon on December 26th; and (4) with

regard to summer vacation, Christopher shall have visitation during alternate

weeks, from Monday at 8:00 a.m. until Monday at 8:00 a.m. beginning the first

full week that school is in recess, through the last full week of recess before

school starts in late summer. Alicia appeals.

II. Scope of Review

Our review of modification decisions is de novo. In re Marriage of Salmon,

519 N.W.2d 94, 95 (Iowa Ct. App. 1994). We recognize the reasonable

discretion of the trial court to modify visitation rights and will not disturb its

decision unless the record fairly shows it has failed to do equity. Id.

To justify a change of visitation rights, the petitioner must show there has

been a change of circumstances since the divorce decree. Nicolou v. Clements,

516 N.W.2d 905, 906 (Iowa Ct. App. 1994). However, as compared to changes

in the child custody arrangements, the general rule is that a much less extensive

change of circumstances need be shown when visitation is at issue. Id. The

rationale of the above rule is that the best interest of a child ordinarily requires

continuing association with the noncustodial parent unless the contrary is clearly

shown. Donovan v. Donovan, 212 N.W.2d 451, 453 (Iowa 1973). Therefore, the

parent seeking to modify child visitation provisions of a dissolution decree must

establish by a preponderance of the evidence there has been a material change

in circumstances since the decree and the requested change in visitation is in the

best interests of the children. Salmon, 519 N.W.2d at 95–96. 4

Additionally, because the district court has the advantage of hearing the

evidence first hand and observing the demeanor of the witnesses, its decision-

making process is greatly enhanced and not forgotten on appeal. In re Marriage

of Brainard, 523 N.W.2d 611, 614 (Iowa Ct. App. 1994).

III. Material Change of Circumstances

Alicia asserts Christopher has failed to show a material change of

circumstances since 2009, such that it would justify the court’s visitation

modifications. She posits that, if the court concludes this minimal change of

circumstances warrants modification, the number of people relitigating visitation

issues would create a backlog in the court system. Hence, her position is the

court has failed to do equity. Christopher responds he was forced to seek judicial

intervention as he was frequently being denied time with his children, which

leaves him at Alicia’s mercy in sharing parental guidance.

The modification court detailed the declining dynamics between Alicia and

Christopher. It noted a growing “communication deficit” fueled by Alicia wielding

tighter and tighter control as the children’s caregiver. Far from following the spirit

of the 2009 stipulation encouraging “such other and further visitations as the

parties may from time to time agree and that are in the best interest of the minor

children,” the modification court found Alicia exerted “arbitrary control” and was

“willing to shut Chris out of mainstream involvement as a parent figure.”

On our review of the record, and with deference to the district court, we

agree. While Alicia is correct that the court cannot be asked to solve every

dispute that arises between divorced parties, there comes a point in some

relationships that require judicial intervention to serve the best interests of the 5

children. In this case, all of the court’s observations and findings were geared

not to punish nor reward either parent but to ensure the minor children receive

the companionship and guidance of both parents. When faced with the behavior

of one parent attempting to thwart the involvement of the other, the court wisely

found a material change of circumstances and expanded the non-custodial

parent’s visitation rights. See Salmon, 519 N.W.2d at 95–96 (noting the visitation

schedule must be in the children’s best interests). We therefore affirm.

IV. Trial and Appellate Attorney Fees

Finally, Alicia claims the district court should have awarded her attorney

fees. We review for an abuse of discretion. In re Marriage of Sullins, 715

N.W.2d 242, 255 (Iowa 2006). The district court set forth the legal fees each

party had accrued to date, considered each party’s income, and noted both had

been well and efficiently represented. We agree with the court’s decision in this

regard, and consequently, we find no abuse of discretion. See id.

Alicia also seeks appellate attorney fees.

Appellate attorney fees are not a matter of right, but rather rest in this court’s discretion. Factors to be considered in determining whether to award attorney fees include: “the needs of the party seeking the award, the ability of the other party to pay, and the relative merits of the appeal.”

Id. (citation omitted). Given these considerations, we decline to award Alicia

appellate attorney fees.

For these reasons, we affirm the order of the district court modifying the

visitation schedule for the parties’ two minor children.

AFFIRMED.