In re the Marriage of Anderson

• Court: Court of Appeals of Iowa
• Decided: July 22, 2020
• Docket: 19-1687
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1687 Filed July 22, 2020

IN RE THE MARRIAGE OF MIKE ANDERSON AND ABBY ANDERSON

Upon the Petition of MIKE ANDERSON, Petitioner-Appellee,

And Concerning ABBY ANDERSON, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Story County, Kurt L. Wilke, Judge.

Abby Anderson appeals the district court’s denial of her petition to modify

the decree dissolving her marriage to Michael Anderson. AFFIRMED.

Ryan Babich and Amy K. Davis of Babich Goldman, P.C., Des Moines, for

appellant.

Michael Anderson, Ames, self-represented appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

VAITHESWARAN, Presiding Judge.

Abby and Michael Anderson married in 2004 and divorced in 2017. Abby

appealed, contending the court should have granted her physical care of the

children. This court affirmed “the district court’s thorough and well-reasoned

decree in its entirety.” See In re Marriage of Anderson, No. 17-2002, 2018 WL

3655096, at *4 (Iowa Ct. App. Aug. 1, 2018). Procedendo issued on

September 10, 2018.

Approximately two months later, Abby filed an application to modify the

physical care provision of the decree. The district court denied the application,

and Abby filed a second appeal.

Abby contends the district court (1) should have modified the dissolution

decree to grant her physical care of the children; (2) “showed a bias against [her]

when questioning her”; (3) should have increased Michael’s child support

obligation; and (4) should have modified the holiday visitation schedule.

I. Physical Care

A person seeking modification of a dissolution decree bears a heavy

burden. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The person

“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 make it expedient to make the requested change.” In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (quoting Frederici, 338 N.W.2d at 158).

Abby contends she satisfied her burden by establishing a deterioration in

communication with Michael after the divorce. The district court thoroughly

addressed the issue, including several hundred text messages submitted by Abby. 3

The court acknowledged that “[c]ommunication problems” could constitute a

substantial change of circumstances but questioned “whether Abby . . . acted in

good faith to promote better communication with Michael.” The court also

considered the oldest child’s preference to live with Abby. After noting that the

preference was entitled to less weight in a modification proceeding than in an

original proceeding, the court stated, “[w]hat needs to be modified are the parents’

dealings with each other,” rather than the physical care arrangement. See id. at

35 (examining child’s preference in a modification proceeding). The court

concluded Abby failed to establish a substantial change of circumstances

warranting modification of the decree. On our de novo review of the record, we

agree with the district court’s conclusion.

II. Court Bias

Abby next contends the trial judge’s questioning of her reflected a bias

against her. She did not object to the questions or move for recusal of the judge,

raising doubts about whether she preserved error. See State v. Cuevas, 288

N.W.2d 525, 532 (Iowa 1980). Bypassing that concern, we are not persuaded the

court exhibited bias. First, the judge’s questions were focused on the evidence

presented by Abby. For that reason, the questions could not have served as a

basis for recusal of the judge. See State v. Millsap, 704 N.W.2d 426, 432 (Iowa

2005) (“Only personal bias or prejudice stemming from an extrajudicial source

constitutes a disqualifying factor.”). Second, the claimed bias of the judge was

simply an effort to weigh the evidence and assess witness credibility—functions

the judge was particularly equipped to perform. See In re Marriage of Vrban, 359

N.W.2d 420, 423 (Iowa 1984) (“There is good reason for us to pay very close 4

attention to the trial court’s assessment of the credibility of witnesses. A trial court

deciding dissolution cases ‘is greatly helped in making a wise decision about the

parties by listening to them and watching them in person.’” (citation omitted)). On

our de novo review of the record, we are persuaded that the court appropriately

weighed the evidence in reaching its decision.

III. Child Support

In the dissolution decree, the district court made findings concerning each

parent’s earnings and ordered Michael to pay Abby child support of $337.92 per

month. On appeal, Abby contends “in the event the shared care arrangement is

not modified, Michael’s child support obligation should still be modified to $406.91.”

In her view, the original sum varies by ten percent or more from the amount that

would be due under the current guidelines, mandating modification. See Iowa

Code § 598.21C(2)(a) (2018). Michael responds that the issue is “a moot point”

because Abby testified her income was slated to increase. We agree with Michael.

At the modification hearing, Abby used a higher income figure for herself

than the figure used by the dissolution court in calculating Michael’s original child

support obligation. Although she also used a higher income figure for Michael, he

provided a pay stub documenting that his current annual salary was the same as

it was when the court calculated his child support obligation. He also testified that

a second part-time job he had as a cook was “very sporadic” and he had not

“worked there” over the previous “two months.” Given Abby’s concession that her

income would increase and her failure to document the basis for a finding of a ten-

percent deviation, we decline to modify the child support award. 5

IV. Visitation

Abby contends, “If the district court’s custody determination is affirmed, the

holiday schedule should be amended in the best interest of the minor children.”

The parent seeking to modify child visitation provisions of a dissolution decree must establish by a preponderance of evidence that there has been a material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children. This standard follows the criteria used in actions to modify child custody, except a much less extensive change in circumstances is generally required in visitation cases. The rationale for this lower standard is found in the prevailing principle that the best interests of children are ordinarily fostered by a continuing association with the noncustodial parent.

In re Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994) (citations

omitted).

Abby sought a modification of the holiday schedule because she stated she

did not see the children for “three weeks nonstop” over spring break. But she

acknowledged she received a similar three-week period with the children in

another year. And, there is evidence that the parents previously resolved concerns

without court intervention. On our de novo review, we decline to modify the holiday

visitation schedule.

V. Appellate Attorney Fees

Abby seeks an award of $13,097.50 in appellate attorney fees. An award

of appellate attorney fees is not a matter of right but rests within this court’s

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

We decline her request.

AFFIRMED.