IN THE COURT OF APPEALS OF IOWA
No. 19-1204 Filed April 15, 2020
IN RE THE MARRIAGE OF JENNIFER LYNN BEHYMER AND BUTCH E. BEHYMER
Upon the Petition of JENNIFER LYNN BEHYMER, n/k/a JENNIFER LYNN SCHUTTINGA, Petitioner-Appellant,
And Concerning BUTCH E. BEHYMER, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Dan Wilson,
Judge.
Jennifer Schuttinga appeals the modification to the decree dissolving her
marriage to Butch Behymer. AFFIRMED.
Cynthia D. Hucks of Box & Box Attorneys at Law, Ottumwa, for appellant.
Heather M. Simplot of Harrison, Moreland, Webber, Simplot & Maxwell,
P.C., Ottumwa, for appellee.
Considered by Bower, C.J., and Greer and Ahlers, JJ. 2
AHLERS, Judge.
At the time the parties’ marriage was dissolved in 2005, the parties were
given joint legal custody of their minor child, B.B. Jennifer Behymer, now known
as Jennifer Schuttinga, was granted physical care of B.B. One year later, the
decree was modified to place physical care of B.B. jointly with the parents. 1 In
2017, Jennifer filed this modification action seeking physical care of B.B. The
father, Butch Behymer, filed a counterclaim asking that he be awarded physical
care. Following trial, the district court modified the original decree to grant Butch
physical care. Jennifer appeals, arguing placing physical care with Butch is not in
B.B.’s best interest. Alternatively, she argues she should receive more visitation
time. Both parents request appellate attorney fees.
We review marriage dissolution proceedings de novo. Iowa R. App. P.
6.907; In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). “On appeal,
we give weight to the fact findings of the trial court but are not bound by them.”
Larsen, 912 N.W.2d 448. Further, “[w]]e recognize that the district court ‘has
reasonable discretion in determining whether modification is warranted and that
discretion will not be disturbed on appeal unless there is a failure to do equity.’” In
re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006) (quoting In re Marriage
of Walters, 575 N.W.2d 739, 740 (Iowa 1998)).
“A party seeking modification of a dissolution decree must prove by a
preponderance of the evidence a substantial change in circumstances occurred
after the decree was entered.” In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa
1 The decree was further modified in 2010, but that modification did not make substantial changes relevant to the issues in this decision. 3
2016). And “[t]he changed circumstances affecting the welfare of children and
justifying modification of a decree ‘must not have been contemplated by the court
when the decree was entered, and they must be more or less permanent, not
temporary.’” Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa
1983)). The party seeking modification of a decree’s custody provisions must also
prove a superior ability to minister to the needs of the child. Id.
Jennifer does not dispute that a substantial change of circumstances
warranted modifying the custody decree. Instead, she argues placing physical
care of B.B. with Butch is not in B.B.’s best interest. Once it has been determined
joint physical care needs to be modified, “[t]he parent who can administer most
effectively to the long-term best interests of the children and place them in an
environment that will foster healthy physical and emotional lives is chosen as
primary physical care giver.” In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa
Ct. App. 1998).
On our de novo review of the record, we reach the same conclusion as the
district court that there has been a substantial change of circumstances warranting
modification and Butch having physical care of B.B. is in her best interest. The
record shows Butch has had a stable residence for B.B. Butch has been married
to another woman, Amanda, since B.B. was young, and B.B. has a close
relationship with both Amanda and B.B.’s half-sibling.2 Butch has been actively
involved in B.B.’s life and activities as well as in the community, serving as a
volunteer firefighter and serving as president of the local little league for several
2 B.B.’s half-sibling is the child of Butch and Amanda 4
years. He deer hunts with B.B. and has helped coach her sports teams over the
years. He has also been consistent in setting and enforcing rules in his home.
On the other hand, Jennifer has not been as stable. She has moved
multiple times in the years leading up to the modification action. Most recently,
Jennifer moved out of the school district B.B. has always attended, requiring B.B.
to drive thirty to forty minutes each way to attend school and extracurricular
activities,3 often resulting in traveling late at night and cutting down on B.B.’s ability
to get enough sleep. If Jennifer received physical care, it would require B.B. to
change schools. Jennifer has also had multiple boyfriends over that same period.
Some of the boyfriends have had criminal records and/or had a volatile relationship
with Jennifer. She has obtained a no-contact order against one of her former
boyfriends. Moving into and out of the homes of those boyfriends has been part
of the cause of her frequent moves. Since Jennifer had shared physical care of
B.B., Jennifer’s frequent moves resulted in frequent moves for B.B. The most
recent move to a different school district was so Jennifer could move in with her
boyfriend, now fiancé.
In addition, Jennifer has struggled with depression and drug use. She has
adequately addressed her depression issues, but still continues to be
overwhelmed by day-to-day life. She also has issues with marijuana usage, which
she continues to minimize. While the modification proceedings were pending,
Jennifer’s previous employer fired her for using her coworker’s credit card at a gas
station without the coworker’s permission. She pled guilty to and received a
3 At the time of trial, B.B. was fifteen years old and had a school permit. 5
deferred judgment for a misdemeanor criminal charge as a result. She also
received a deferred judgment for operating while intoxicated in 2010.
In support of her arguments at trial and on appeal, Jennifer relies heavily on
B.B.’s testimony that B.B. would like Jennifer to have physical care of her. In
determining the weight to be given to a child’s wishes, we consider the following
factors: (1) the child’s age and educational level; (2) the strength of the child’s
preference; (3) the child’s relationship with family members; and (4) the reasons
the child gives for the child’s decision. McKee v. Dicus, 785 N.W.2d 733, 738
(Iowa Ct. App. 2010). The child’s preference is entitled to less weight in a
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 19-1204 Filed April 15, 2020
IN RE THE MARRIAGE OF JENNIFER LYNN BEHYMER AND BUTCH E. BEHYMER
Upon the Petition of JENNIFER LYNN BEHYMER, n/k/a JENNIFER LYNN SCHUTTINGA, Petitioner-Appellant,
And Concerning BUTCH E. BEHYMER, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Dan Wilson,
Judge.
Jennifer Schuttinga appeals the modification to the decree dissolving her
marriage to Butch Behymer. AFFIRMED.
Cynthia D. Hucks of Box & Box Attorneys at Law, Ottumwa, for appellant.
Heather M. Simplot of Harrison, Moreland, Webber, Simplot & Maxwell,
P.C., Ottumwa, for appellee.
Considered by Bower, C.J., and Greer and Ahlers, JJ. 2
AHLERS, Judge.
At the time the parties’ marriage was dissolved in 2005, the parties were
given joint legal custody of their minor child, B.B. Jennifer Behymer, now known
as Jennifer Schuttinga, was granted physical care of B.B. One year later, the
decree was modified to place physical care of B.B. jointly with the parents. 1 In
2017, Jennifer filed this modification action seeking physical care of B.B. The
father, Butch Behymer, filed a counterclaim asking that he be awarded physical
care. Following trial, the district court modified the original decree to grant Butch
physical care. Jennifer appeals, arguing placing physical care with Butch is not in
B.B.’s best interest. Alternatively, she argues she should receive more visitation
time. Both parents request appellate attorney fees.
We review marriage dissolution proceedings de novo. Iowa R. App. P.
6.907; In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). “On appeal,
we give weight to the fact findings of the trial court but are not bound by them.”
Larsen, 912 N.W.2d 448. Further, “[w]]e recognize that the district court ‘has
reasonable discretion in determining whether modification is warranted and that
discretion will not be disturbed on appeal unless there is a failure to do equity.’” In
re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006) (quoting In re Marriage
of Walters, 575 N.W.2d 739, 740 (Iowa 1998)).
“A party seeking modification of a dissolution decree must prove by a
preponderance of the evidence a substantial change in circumstances occurred
after the decree was entered.” In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa
1 The decree was further modified in 2010, but that modification did not make substantial changes relevant to the issues in this decision. 3
2016). And “[t]he changed circumstances affecting the welfare of children and
justifying modification of a decree ‘must not have been contemplated by the court
when the decree was entered, and they must be more or less permanent, not
temporary.’” Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa
1983)). The party seeking modification of a decree’s custody provisions must also
prove a superior ability to minister to the needs of the child. Id.
Jennifer does not dispute that a substantial change of circumstances
warranted modifying the custody decree. Instead, she argues placing physical
care of B.B. with Butch is not in B.B.’s best interest. Once it has been determined
joint physical care needs to be modified, “[t]he parent who can administer most
effectively to the long-term best interests of the children and place them in an
environment that will foster healthy physical and emotional lives is chosen as
primary physical care giver.” In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa
Ct. App. 1998).
On our de novo review of the record, we reach the same conclusion as the
district court that there has been a substantial change of circumstances warranting
modification and Butch having physical care of B.B. is in her best interest. The
record shows Butch has had a stable residence for B.B. Butch has been married
to another woman, Amanda, since B.B. was young, and B.B. has a close
relationship with both Amanda and B.B.’s half-sibling.2 Butch has been actively
involved in B.B.’s life and activities as well as in the community, serving as a
volunteer firefighter and serving as president of the local little league for several
2 B.B.’s half-sibling is the child of Butch and Amanda 4
years. He deer hunts with B.B. and has helped coach her sports teams over the
years. He has also been consistent in setting and enforcing rules in his home.
On the other hand, Jennifer has not been as stable. She has moved
multiple times in the years leading up to the modification action. Most recently,
Jennifer moved out of the school district B.B. has always attended, requiring B.B.
to drive thirty to forty minutes each way to attend school and extracurricular
activities,3 often resulting in traveling late at night and cutting down on B.B.’s ability
to get enough sleep. If Jennifer received physical care, it would require B.B. to
change schools. Jennifer has also had multiple boyfriends over that same period.
Some of the boyfriends have had criminal records and/or had a volatile relationship
with Jennifer. She has obtained a no-contact order against one of her former
boyfriends. Moving into and out of the homes of those boyfriends has been part
of the cause of her frequent moves. Since Jennifer had shared physical care of
B.B., Jennifer’s frequent moves resulted in frequent moves for B.B. The most
recent move to a different school district was so Jennifer could move in with her
boyfriend, now fiancé.
In addition, Jennifer has struggled with depression and drug use. She has
adequately addressed her depression issues, but still continues to be
overwhelmed by day-to-day life. She also has issues with marijuana usage, which
she continues to minimize. While the modification proceedings were pending,
Jennifer’s previous employer fired her for using her coworker’s credit card at a gas
station without the coworker’s permission. She pled guilty to and received a
3 At the time of trial, B.B. was fifteen years old and had a school permit. 5
deferred judgment for a misdemeanor criminal charge as a result. She also
received a deferred judgment for operating while intoxicated in 2010.
In support of her arguments at trial and on appeal, Jennifer relies heavily on
B.B.’s testimony that B.B. would like Jennifer to have physical care of her. In
determining the weight to be given to a child’s wishes, we consider the following
factors: (1) the child’s age and educational level; (2) the strength of the child’s
preference; (3) the child’s relationship with family members; and (4) the reasons
the child gives for the child’s decision. McKee v. Dicus, 785 N.W.2d 733, 738
(Iowa Ct. App. 2010). The child’s preference is entitled to less weight in a
modification action than would be given in an original custody proceeding. In re
Marriage of Thielges, 623 N.W.2d 232, 239 (Iowa Ct. App. 2000).
At trial, Butch and Amanda maintained the decision to change homes, and
then schools, stemmed from B.B.’s desire to be near her current boyfriend. The
district court had the benefit of observing the parties while they testified, including
B.B. Referencing B.B’s “reasonably high maturity level,” the court gave weight to
her preference and the reasons identified for her choice. Yet even after
considering the “sincere” concerns raised by her, her current preference failed to
trump the district court’s reservations about the proven instability of Jennifer.
Remaining in Butch’s care allows B.B. to maintain her good relationship with her
stepmother and half-sibling as well as staying in the same school system she has
attended her entire life where her long-time best friends go to school and where
she excels. Under these circumstances, B.B.’s preference does not overcome the
other factors weighing in favor of placing physical care with Butch 6
Jennifer’s remaining arguments point to specific incidents she claims show
Butch having physical care of B.B. is not in B.B.’s best interest. Jennifer claims
the following as a basis for granting physical care to her: (1) Butch refused to
provide health insurance cards to her; (2) Butch and/or Amanda changed certain
medical and school forms, or allowed others to change them, so as to exclude
Jennifer from the records; (3) Butch befriended Jennifer’s ex-boyfriends and others
in order to gain information about Jennifer; and (4) Butch allowed a man who had
acted inappropriately toward B.B. to be at Butch’s house after learning of the
incident.
As for the health insurance card issue, the evidence established that health
insurance is provided for B.B. through Amanda’s employment. The evidence also
established Butch sent Jennifer photos of the insurance cards “[s]everal times.”
We find no significant merit to this criticism.
In terms of the medical and school records issue, there was no credible
evidence supporting Jennifer’s claim. While there may have been confusion within
the school offices stemming from Butch and Amanda enrolling their child in the
same school as B.B., the evidence established that problems, if any, of Jennifer
not showing in the records as B.B.’s mother was a mistake made by the school
staff and not caused by any action or inaction of Butch or Amanda.
With regard to the claim Butch befriended others in order to gather
information on Jennifer, Jennifer articulates no compelling reason why this
allegation, even if true, should result in her being awarded physical care over
Butch. Given Butch’s claim Jennifer repeatedly threatened to take him to court
regarding custody, it is not all that surprising that he may contact people that had 7
contact with Jennifer, as those people would be potential witnesses in the event
further proceedings were initiated, which they were.
Finally, regarding the claim Butch allowed a man who had acted
inappropriately toward B.B. to return to Butch’s home, both Butch and Amanda
testified when B.B. reported the event to them, they refused to allow the man back
into their home. When the man recently appeared at their home uninvited, Butch
did not forcefully demand he leave, but he “shooed him out” soon after he arrived.
Under these circumstances, we cannot criticize Butch’s behavior to the extent it
warrants placing physical care with Jennifer rather than Butch.
With regard to the above-referenced complaints lodged by Jennifer, besides
the unsubstantiated or embellished nature of them as described, we note they are
generally episodic and isolated events. In contrast, Jennifer’s issues of being
overwhelmed by day-to-day life, lack of stability in housing, and moving herself and
B.B. in and out of her boyfriend’s homes are more long-term systemic issues.
While Jennifer appears to have stabilized to some degree in her current
relationship, the fact remains that the shared physical care arrangement is no
longer viable and placing physical care with Butch is appropriate, given that he has
a long history of stability and remaining with Butch will permit B.B. to remain in the
school where she has been her entire school career and where she has done well.
In the district court’s order, Jennifer was granted visitation every other
weekend, on alternating holidays, and for extended time in the summer. Jennifer’s
request to modify the visitation provisions is denied. The distance between the
parents has already caused disruption to B.B. and is one of the contributing factors
to the modification. Due to that distance, mid-week or other visitation beyond the 8
visitation ordered is not warranted. With that said, we, like the district court,
encourage the parties to work together to find a mutually-agreeable visitation
schedule, especially in light of the fact B.B. is now of driving age. An agreed-upon
schedule may exceed or differ from that set forth in the district court’s order.
Finally, both parties request an award of 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.”
In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005) (quoting In re Marriage
of Geil, 509 N.W.2d 738, 743 (Iowa 1993)). Under the circumstances, we decline
to award appellate attorney fees. Costs are assessed to Jennifer.
AFFIRMED.