IN THE COURT OF APPEALS OF IOWA
No. 22-1206 Filed February 22, 2023
IN RE THE MARRIAGE OF MORGAN AUDRA BORCHERDING AND TY DANIEL BORCHERDING
Upon the Petition of MORGAN AUDRA BORCHERDING n/k/a MORGAN AUDRA SYMENS, Petitioner-Appellee,
And Concerning TY DANIEL BORCHERDING, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Franklin County, DeDra Schroeder,
Judge.
Ty Borcherding appeals the visitation provisions of a dissolution
modification order. AFFIRMED.
Brian D. Miller of Miller & Miller, P.C., Hampton, for appellant.
Terry D. Parsons of Olsen & Parsons Law Firm, Cedar Falls, for appellee.
Considered by Bower, C.J., and Badding and Buller, JJ. 2
BOWER, Chief Judge.
Ty Borcherding appeals the district court’s modification order denying his
request for overnight visitation with his children. Borcherding has not established
a material change in circumstances warranting modification, and we affirm.
I. Background Facts & Proceedings.
On January 4, 2018, the district court approved a dissolution order ending
the marriage between Ty Borcherding and Morgan Borcherding (now Symens),
the parents of two children born in 2013 and 2014. The parties both represented
themselves during the dissolution and utilized court-approved forms, which
Symens filled out and Borcherding reviewed, agreed to, and signed. They filed a
settlement agreement and parenting plan, which the court approved. In the
parenting plan, Borcherding and Symens agreed to joint legal custody, physical
care with Symens, and “reasonable visitation as the parents agree” for
Borcherding. The plan set Borcherding’s visitation as every Sunday from 8 a.m.
to 6 p.m., Wednesday evenings from 3 p.m. to 7 p.m., and specified holidays.
Further, a parent could call the children at reasonable hours when not in the
parent’s care. No provision was made for summer or school holidays.
In August 2021, Borcherding filed an application for rule to show cause,
alleging Symens claimed both children as dependents on her 2019 tax returns in
violation of the dissolution decree, which adversely affected Borcherding’s tax
returns and anticipated stimulus payments. The court dismissed the application,
noting Borcherding owed Symens a significant amount in back child support and
the parties needed to calculate and negotiate from there. 3
In January 2022, Borcherding filed a petition for modification of the
dissolution decree.1 Borcherding alleged Symens had denied him longer and
additional visitation with the children and was not fostering his relationship with the
children. He asserted Symens was attempting to alienate the children from him
and refusing reasonable visitation, creating a material change in circumstance to
merit modification. He requested “reasonable and liberal visitation rights,”
including overnights, additional holidays, and time during school breaks and
summer.
Symens filed her answer and a counterclaim. She noted Borcherding had
agreed to the original parenting plan and did not exercise the visitation he already
had, rarely if ever exercising his Wednesday visitation. She requested the court
remove the Wednesday visits from the parenting plan and recalculate child
support.
At trial, Borcherding stated he had asked in the past many times for
overnights, summer visitation, and to take the children on vacation, with Symens
telling him no.2 He agreed he had not exercised his Wednesday visitation because
he usually worked until six or seven in the evening.
Symens testified Borcherding missed about half of his Sunday visits,
primarily in the first two years after the divorce, and all Wednesday visits. She
testified Borcherding had never requested overnights with the children.
1 In count II of the modification petition, Borcherding raised the same tax issue the court had dismissed in his show-cause application. 2 Borcherding did not present any evidence showing he had requested and been
denied visitation, though he had presented text message evidence on other topics. 4
The district court found, “Nothing has changed since the parties’ dissolution
that would warrant expanded visitation.” The court also found Borcherding had
ceased Wednesday visits on his own volition, not due to any action by Symens.
The court modified the visitation schedule to eliminate Borcherding’s Wednesday
evening visits, resolved the tax issue, and modified Borcherding’s child-support
obligation.
Borcherding appeals the visitation portion of the ruling.
II. Standard of Review.
“Actions for the modification of a dissolution decree are tried in equity.” In
re Marriage of Roberts, 954 N.W.2d 757, 760 (Iowa Ct. App. 2020). Therefore,
our scope of review is de novo. Iowa R. App. P. 6.907. “Though we make our
own findings of fact, we give weight to the district court’s findings.” In re Marriage
of Harris, 877 N.W.2d 434, 440 (Iowa 2016). “[W]e 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.” In re Marriage of
Salmon, 519 N.W.2d 94, 95 (Iowa Ct. App. 1994).
III. Analysis.
As the parent seeking to modify the visitation schedule, Borcherding “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.” See id. at 95–96.
First, we examine the threshold issue of change in circumstances.
Borcherding suggests the parties’ disagreement about what “reasonable visitation”
means is sufficient to constitute a material change in circumstances. Borcherding 5
does not assert Symens deprived him of the visitation ordered, just that she does
not allow him additional overnight visitation.3 That Borcherding may have changed
his mind since the time of the decree on what “reasonable visitation” should be is
not sufficient to establish a material change in circumstances. Borcherding has
not proven by a preponderance of evidence Symens has denied him the visitation
he is entitled to. He has not met his burden to establish a material change in
circumstance.
The court did find a material change in circumstances supporting Symens’s
counterclaim for a change to the visitation schedule. In particular, Borcherding’s
failure to exercise his weekday visitation, maintain contact with the children outside
his Sunday visits, or be involved in the children’s schooling or medical care was
sufficient change in circumstance to support eliminating the unused weekday
visitation from the decree. The court’s ruling does not affect the visitation
Borcherding actively exercises and does not fail to do equity between the parties.
Because Borcherding failed to establish a material change in
circumstances, we do not address his argument about what constitutes reasonable
and liberal visitation under Iowa law.4 We affirm.
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IN THE COURT OF APPEALS OF IOWA
No. 22-1206 Filed February 22, 2023
IN RE THE MARRIAGE OF MORGAN AUDRA BORCHERDING AND TY DANIEL BORCHERDING
Upon the Petition of MORGAN AUDRA BORCHERDING n/k/a MORGAN AUDRA SYMENS, Petitioner-Appellee,
And Concerning TY DANIEL BORCHERDING, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Franklin County, DeDra Schroeder,
Judge.
Ty Borcherding appeals the visitation provisions of a dissolution
modification order. AFFIRMED.
Brian D. Miller of Miller & Miller, P.C., Hampton, for appellant.
Terry D. Parsons of Olsen & Parsons Law Firm, Cedar Falls, for appellee.
Considered by Bower, C.J., and Badding and Buller, JJ. 2
BOWER, Chief Judge.
Ty Borcherding appeals the district court’s modification order denying his
request for overnight visitation with his children. Borcherding has not established
a material change in circumstances warranting modification, and we affirm.
I. Background Facts & Proceedings.
On January 4, 2018, the district court approved a dissolution order ending
the marriage between Ty Borcherding and Morgan Borcherding (now Symens),
the parents of two children born in 2013 and 2014. The parties both represented
themselves during the dissolution and utilized court-approved forms, which
Symens filled out and Borcherding reviewed, agreed to, and signed. They filed a
settlement agreement and parenting plan, which the court approved. In the
parenting plan, Borcherding and Symens agreed to joint legal custody, physical
care with Symens, and “reasonable visitation as the parents agree” for
Borcherding. The plan set Borcherding’s visitation as every Sunday from 8 a.m.
to 6 p.m., Wednesday evenings from 3 p.m. to 7 p.m., and specified holidays.
Further, a parent could call the children at reasonable hours when not in the
parent’s care. No provision was made for summer or school holidays.
In August 2021, Borcherding filed an application for rule to show cause,
alleging Symens claimed both children as dependents on her 2019 tax returns in
violation of the dissolution decree, which adversely affected Borcherding’s tax
returns and anticipated stimulus payments. The court dismissed the application,
noting Borcherding owed Symens a significant amount in back child support and
the parties needed to calculate and negotiate from there. 3
In January 2022, Borcherding filed a petition for modification of the
dissolution decree.1 Borcherding alleged Symens had denied him longer and
additional visitation with the children and was not fostering his relationship with the
children. He asserted Symens was attempting to alienate the children from him
and refusing reasonable visitation, creating a material change in circumstance to
merit modification. He requested “reasonable and liberal visitation rights,”
including overnights, additional holidays, and time during school breaks and
summer.
Symens filed her answer and a counterclaim. She noted Borcherding had
agreed to the original parenting plan and did not exercise the visitation he already
had, rarely if ever exercising his Wednesday visitation. She requested the court
remove the Wednesday visits from the parenting plan and recalculate child
support.
At trial, Borcherding stated he had asked in the past many times for
overnights, summer visitation, and to take the children on vacation, with Symens
telling him no.2 He agreed he had not exercised his Wednesday visitation because
he usually worked until six or seven in the evening.
Symens testified Borcherding missed about half of his Sunday visits,
primarily in the first two years after the divorce, and all Wednesday visits. She
testified Borcherding had never requested overnights with the children.
1 In count II of the modification petition, Borcherding raised the same tax issue the court had dismissed in his show-cause application. 2 Borcherding did not present any evidence showing he had requested and been
denied visitation, though he had presented text message evidence on other topics. 4
The district court found, “Nothing has changed since the parties’ dissolution
that would warrant expanded visitation.” The court also found Borcherding had
ceased Wednesday visits on his own volition, not due to any action by Symens.
The court modified the visitation schedule to eliminate Borcherding’s Wednesday
evening visits, resolved the tax issue, and modified Borcherding’s child-support
obligation.
Borcherding appeals the visitation portion of the ruling.
II. Standard of Review.
“Actions for the modification of a dissolution decree are tried in equity.” In
re Marriage of Roberts, 954 N.W.2d 757, 760 (Iowa Ct. App. 2020). Therefore,
our scope of review is de novo. Iowa R. App. P. 6.907. “Though we make our
own findings of fact, we give weight to the district court’s findings.” In re Marriage
of Harris, 877 N.W.2d 434, 440 (Iowa 2016). “[W]e 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.” In re Marriage of
Salmon, 519 N.W.2d 94, 95 (Iowa Ct. App. 1994).
III. Analysis.
As the parent seeking to modify the visitation schedule, Borcherding “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.” See id. at 95–96.
First, we examine the threshold issue of change in circumstances.
Borcherding suggests the parties’ disagreement about what “reasonable visitation”
means is sufficient to constitute a material change in circumstances. Borcherding 5
does not assert Symens deprived him of the visitation ordered, just that she does
not allow him additional overnight visitation.3 That Borcherding may have changed
his mind since the time of the decree on what “reasonable visitation” should be is
not sufficient to establish a material change in circumstances. Borcherding has
not proven by a preponderance of evidence Symens has denied him the visitation
he is entitled to. He has not met his burden to establish a material change in
circumstance.
The court did find a material change in circumstances supporting Symens’s
counterclaim for a change to the visitation schedule. In particular, Borcherding’s
failure to exercise his weekday visitation, maintain contact with the children outside
his Sunday visits, or be involved in the children’s schooling or medical care was
sufficient change in circumstance to support eliminating the unused weekday
visitation from the decree. The court’s ruling does not affect the visitation
Borcherding actively exercises and does not fail to do equity between the parties.
Because Borcherding failed to establish a material change in
circumstances, we do not address his argument about what constitutes reasonable
and liberal visitation under Iowa law.4 We affirm.
3 Even for this contention, Borcherding offered no evidence beyond his and his girlfriend’s testimony. The district court specifically found Symens’s testimony that Borcherding never requested overnight visitations more credible, and we give weight to the court’s witness credibility determinations. See Salmon, 519 N.W.2d at 95. 4 Symens correctly notes that Borcherding’s brief did not include the required error-
preservation statement. See Iowa R. App. P. 6.903(2)(g)(1). The substantial- circumstances issue was clearly raised and decided by the district court and error preserved. See In re Marriage of Dauterive, No. 20-0382, 2021 WL 1017121, at *1 (Iowa Ct. App. Mar. 17, 2021) (collecting cases on error preservation in dissolution cases). Because we do not reach his additional claim, we need not address whether error was preserved. 6
IV. Attorney Fees.
Symens seeks an award of appellate attorney fees. “Appellate attorney
fees are not a matter of right, but rather rest in this court's discretion.” In re
Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (citation omitted). “In
determining whether to award appellate attorney fees, 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.” Id. (internal quotation marks and citation omitted). In light
of Borcherding’s lack of success on the merits of his appeal, he shall pay $3000
toward Symens’s appellate attorney fees. Costs are assessed to Borcherding.
AFFIRMED.