IN THE COURT OF APPEALS OF IOWA
No. 14-0671 Filed February 11, 2015
IN RE THE MARRIAGE OF COURTNEY LYNN BUCKINGHAM AND JAMES JOSEPH BUCKINGHAM
Upon the Petition of COURTNEY LYNN BUCKINGHAM, Petitioner-Appellant,
And Concerning JAMES JOSEPH BUCKINGHAM, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Decatur County, Lawrence P.
McLellan, Judge.
A mother appeals the district court’s ruling denying her request to modify
joint physical care. AFFIRMED.
Pamela A. Vandel, Des Moines, for appellant.
Verle W. Norris, Corydon, and Dustria A. Relph of Chambers & Relph Law
Firm, Corydon, for appellee.
Heard by Danilson, C.J., and Potterfield and Bower, JJ. 2
BOWER, J.
Courtney Buckingham appeals the district court decision denying her
application for modification of the joint physical care provision in the decree that
dissolved her marriage to James Buckingham. Courtney also challenges the
court’s ruling excluding the rebuttal testimony of one of the children. Finally,
Courtney contends the district court abused its discretion in declining to award
her trial attorney fees.
After our de novo review, we agree with the district court’s determination
Courtney has not shown a substantial change of circumstances that would justify
modification of the joint physical care provision. We additionally find Courtney
has not met her burden of proving she would provide superior care and find no
abuse of discretion in the court’s exclusion of rebuttal testimony. We affirm the
district court’s denial of an attorney fee award to Courtney and also decline to
award Courtney appellate attorney fees.
I. Background Facts & Proceedings
Courtney and James married in 2003, and have three minor children. 1
Courtney has completed one year of college and works full time at Casey’s
General Store. James has a college degree and has worked for the same
employer for eleven years. Earlier, James’s employer frequently required him to
be out of town during the week to work on location. For the last eighteen
months, James has set his own schedule and not travelled as much.
1 During the marriage, James adopted Courtney’s son, I.B., at age four or five. 3
A stipulated decree for the dissolution of marriage was filed on December
19, 2008. The parties agreed to and were awarded joint legal custody and
shared physical care of their sons. Both parties currently live in the Leon, Iowa
area. James grew up in the area, and Courtney has lived there for about ten
years.
The decree ordered physical care to alternate every four days. Courtney
and James agree they have never followed that schedule. Rather, James took
care of the children every weekend from Friday after school until he dropped
them off at school on Monday morning. Thus, the children spent three nights
with James and four nights with Courtney each week. Courtney testified she did
not think the four night/three night schedule constituted “shared parenting.”
After the dissolution, James paid the mortgage on the prior marital
residence for six months to prevent the children from having the additional
upheaval of moving, to allow Courtney to transfer the house into her name, and
to protect his credit rating. James also voluntarily paid for a new transmission for
Courtney’s car. James has consistently paid child support to Courtney.
Courtney has the children’s medical bills sent to James, and he pays them.
James has numerous relatives in the Leon area. When James has the
boys they go camping, hunting, and swimming with their cousins and extended
family. At the time of the modification trial, James and Courtney’s children were
fourteen—I.B., ten—G.B., and seven—C.B. James’s grandmother lives across
the street from Courtney, and Courtney testified:
The boys go over and visit. I send them over to . . . talk to her and things like that. And then [James’s] parents are over there 4
occasionally . . . so they ask to go over and talk to . . . whoever is over there, which is fine with me.
James is now married to Darci, who has three children, two boys near
G.B.’s age and a kindergarten-age daughter. Darci’s children live with James
and Darci part of the time. James and Darci live in a five-bedroom residence in
the country but close to Leon. I.B. and Darci’s daughter each have their own
bedrooms, while G.B. and C.B. share a bedroom and Darci’s two boys share a
bedroom.
Courtney’s house in Leon is within walking distance to both the schools
and the swimming pool, and seven-year-old C.B. walks to school. During the five
years after the dissolution, Courtney has had four friends, including one with
three children, live with her at various times. Also, at one point Courtney had an
intimate partner living with her for one year. Currently, Courtney’s sister lives
with her.
James testified he did not object to Courtney’s live-in visitors because they
were all “good people.” James did express concern, however, “it seems like a lot
of change for the kids to deal with and roommates with children; and for a three-
bedroom house, it seems kind of crowded.”
A. Modification Petition. Courtney filed to modify physical care in
August 2013. She requested physical care be granted to her with James having
visitation on alternating weekends and three weeks in the summer. Courtney’s
petition stated she “intends to move to Des Moines, Iowa, to expand her
employment opportunities and to provide her children with more educational,
sports, and extracurricular activities.” At trial, Courtney testified she was in court 5
“to obtain the court’s permission to move to the Ankeny area of Iowa” as the
move would expand her and the children’s opportunities. Courtney intended to
work at a Casey’s and continue her education at Des Moines Area Community
College (DMACC).
Besides moving, Courtney’s petition listed other material and substantial
changes in circumstances: (1) James’s failure to follow the alternating four-day
visitation periods; (2) Courtney having the children on only one Mother’s Day; (3)
the children are not safe in James’s care; (4) James does not allow the children
to contact her when they are in his care; and (5) James does not take the
children to church on weekends. Courtney requested a corresponding
adjustment in child support.
Prior to trial, Courtney rejected James’s offer to alternate physical care on
a weekly basis so that Courtney also would have time with the children on
alternate weekends.
B. Modification Hearing. In March 2014 the modification hearing
commenced. Every witness indicated both Courtney and James were good
parents with courteous, well-behaved children.
Regarding Courtney’s claim of a lack of time with the children on the
weekends, Courtney admitted James allowed her to take the children out of town
to visit her mother when she asked. She stated these visits occurred, at a
minimum, one weekend every other month to monthly. Courtney also
acknowledged she did have visitation on Mother’s Day one or two additional
times over the one visitation alleged in her petition. Courtney acknowledged her 6
moving-to-Des-Moines proposal would be “significantly diminishing the time
[James] spent with his children.” Further:
A. . . . But I would like to have the weekend time with my children every other weekend, which is not . . . . Q. So, if you switched to an alternating week-to-week schedule . . . that would give you weekends, wouldn’t it. A. Yes. .... Q. And would that be acceptable to you? A. No. Q. Why not? A. . . . . Because it wouldn’t give me the opportunity to provide extra opportunities to my children and myself.
Courtney questioned the education quality and level of activities the
children have in Leon—Central Decatur School District. James presented
contrary evidence from school employees and testified to the children’s activities.
On cross-examination concerning her schooling, Courtney admitted
Graceland University is closer than DMACC—only fifteen miles away—and so is
Southwest Iowa Community College—twenty minutes away—“I could attend I’m
sure.” Courtney admitted she had not looked into financial aid that might be
available to her at either of those schools. At first, Courtney stated those schools
did not have classes in the “skills I would like to acquire,” but upon further
questioning, she testified, “Yes, they do.” Courtney also testified: “Q. So you just
would rather move to Des Moines and remove the children from their dad; right?
A. I would like to have custody changed so that I can move to Des Moines and
be able to attend college and provide opportunities for my children, yes.”
At the time of the hearing, Courtney, age thirty-two, worked at the Casey’s
General Store in Leon. Courtney’s manager testified Courtney was a good
employee and believed Courtney could transfer to a Casey’s in Des Moines if a 7
position was available. However, the manager also testified to several incident
reports filed against Courtney for rude behavior to customers.
While Courtney presented evidence of her hourly pay at the Casey’s in
Leon, she produced no evidence of her potential wages at a Casey’s store in Des
Moines, no evidence her pay would be greater than her current wage in Leon,
and no evidence she had actually obtained a new job in Des Moines. She also
did not present any evidence showing the present availability of positions at
Casey’s in Des Moines. Courtney explained she got paid more for working
overnight shifts in Leon. However, she did not work overnight primarily on the
weekend; “I work them during the week.”2 After our de novo review, we agree
with the district court’s finding: “Based on all the evidence, Courtney did not
establish that she would be able to secure better employment in the Des Moines
area that would then allow her to provide superior care for her children.”
Courtney testified James and C.B. have a good relationship. Courtney
stated G.B. is happy as long as there is an activity to do, and he loves sports.
She also testified to an incident with G.B. and Darci’s boys that caused her
concern. After the incident, Courtney took G.B. to counseling with Mary Hilliard,
and those sessions were completed well before trial. James presented evidence
showing G.B. and Darci’s sons are Facebook friends and take the initiative to
communicate with each other when they are not together. Brian Carson, the
juvenile court school liaison for Central Decatur knows all the boys from school
2 We note that although there are additional hours available on the weekend, Courtney elects to work the hours when she has the children. 8
activities and is in the building every day. He testified Darci’s sons are “normal,
typical ten-eleven-year-old boys."
Once James learned about G.B.’s sessions with counselor Hilliard, he was
supportive and also met with the counselor. As to the issues with G.B., Hilliard
testified James’s actions were shortsighted but the incident “was handled
appropriately,” and James “acknowledged that he learned his lesson from that.”
After our de novo review of the record, we agree with the district court’s
conclusion the “incidents that arose to cause this tension [with G.B.] appear to
have resolved.”
Courtney testified to incidents between James and I.B. that caused the
parties’ relationship to deteriorate. Courtney stated that when I.B. was at
James’s house, he was asked to act as the babysitter and he did not like being in
charge. James testified I.B. is no longer acting as a babysitter.
At some point in 2013, I.B. violated James and Darci’s privacy and
inappropriately shared a picture with Courtney. Instead of contacting James and
acting like a mature parent, Courtney admitted she shared the picture with
friends by email. When James found out two weeks later, he was angry.
Counselor Hilliard testified James’s anger was “a natural response” to the
“invasion of privacy and then to share that in a public way is not okay.”
On another occasion James believed I.B. was lying to him and broke I.B.’s
cell phone. I.B. responded by refusing to go to James’s house on the weekends.
Courtney testified James asked for her help to get their relationship back on track
but she and James disagreed on the best way to reestablish James’s visitation 9
with I.B. During the November mediation prior to trial, James suggested I.B.
attend counseling, and counseling with Hilliard then commenced the next month.
James also attended one session with I.B. Courtney testified she “had talked
about getting I.B. counseling. I just hadn’t scheduled anything yet.” Courtney,
James, and Hilliard all testified additional counseling would be helpful to I.B.
Hilliard testified I.B. feels responsible at both houses and does not like the
increased responsibility placed on him at James’s house in the country. As to
the cause of I.B.’s issues, Hilliard explained: “I think it’s caused by increased
anxiety about this whole custody issue, and kids handle it differently. And he’s
sort of caught in this loyalty struggle, and he’s probably not thinking enough . . .
about school and . . . his own business.” Hilliard opined James “cared,” in
contrast to other fathers who have “come in at that point and be sort of bullies,
and he didn’t do that.” Hilliard also stated James “sees himself as more as a
disciplinarian,” however, he has “indicated a willingness to learn” to be less
authoritative and more diplomatic/sensitive.
Hilliard also testified James and Courtney could benefit from counseling to
improve their communication and trust.
C. Modification Ruling. After observing the parties, witnesses, and
hearing the testimony, the district court found: “It was obvious to this court . . .
that Courtney and James love their children and both parents provide quality
care to their children.” The district court found Courtney had not met her burden
to show a material and substantial change of circumstances since entry of the
decree. The court also found “Courtney failed to establish that she could provide 10
superior care to the children.” The court modified the shared-care-parenting
schedule to a weekly rotation “beginning on Friday evenings of each week after
the end of school on that day.” The court ordered the parties attend additional
counseling sessions that Hilliard testified would be helpful to the family. The
court ordered the parties to pay their own attorney fees and to share equally in
the costs. Courtney now appeals.
II. Standards of Review
This modification action was tried in equity, and our review is de novo. 3
Iowa R. App. P. 6.907. We give weight to the factual findings of the district court,
especially when considering the credibility of witnesses, but are not bound by
those findings. Iowa R. App. P. 6.904(3)(g). This standard of review recognizes
the fact the district court has an opportunity to view, firsthand, the demeanor of
the parties. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998).
We review evidentiary rulings for an abuse of the court’s broad discretion.
Horak v. Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002). Reversal is
warranted only if the court clearly abused its discretion to the complainant’s
prejudice. Id.
III. Modification of Physical Care
Preliminarily, we address Courtney’s claim the parties’ four night/three
night schedule was not shared care and in actuality, she already had physical
care of the boys. Although that schedule did not provide James “with exactly
equal residential time, joint physical care ‘does not require that the residential
3 We find no merit to Courtney’s claim our review should also be at law. 11
arrangements be determined with mathematical precision.’” In re Marriage of
Brown, 778 N.W.2d 47, 51 (Iowa Ct. App. 2009) (quoting In re Seay, 746 N.W.2d
833, 836 (Iowa 2008)); see In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa
2007) (“Joint physical care anticipates that parents will have equal, or roughly
equal, residential time with the child.”). Here, James shared parenting time with
Courtney, maintained a home for the children, and provided routine daily care for
them. See Brown, 778 N.W.2d at 51. Thus, the care schedule shows the parties
have, in fact, shared physical care of the children over the past five years.
Courtney contends the district court should have modified the parties’
dissolution decree to grant her physical care of their three children. Specifically,
“sufficient evidence was presented to the court regarding James’s inappropriate
care or supervision while the children were in his custody, I.B. and G.B.’s fear
regarding James, James’s alienation of I.B., [and the] recent strain in
communication and co-parenting between Courtney and James.”
The objective of physical care “is to place the children in the environment
most likely to bring them to health, both physically and mentally, and to social
maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
Changing physical care of children is one of the most significant modifications
that can be undertaken. See In re Marriage of Thielges, 623 N.W.2d 232, 236
(Iowa Ct. App. 2000). The parent seeking to modify the physical care provision
of a dissolution decree must prove “there has been a substantial change in
circumstances since the time of the decree not contemplated by the court when
the decree was entered, which is more or less permanent and relates to the 12
welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.
App. 2004). In addition, the parent seeking to modify physical care has a “heavy
burden” and “must show the ability to offer superior care.” Id.; see In re Marriage
of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once custody of
the children has been fixed, it should be disturbed only for the most cogent
reasons”). The controlling consideration is the children’s best interests. In re
Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).
Upon our de novo review of the record, we agree with the district court
that Courtney has not met these standards. Courtney has the opportunity to
continue her college education at either of two nearby colleges. We note,
generally, the children have done well in their current school system, the only
system they have known, and are involved in activities. We also note continuing
the shared-care arrangement will allow the children to develop relationships with
their step-siblings. In the shared-care arrangement, the children benefit from
extended-family activities—including walking across the street to visit their
grandparents and great-grandmother. A further consideration weighing against
modification is the fact Courtney’s proposal would significantly diminish James’s
parenting time, to the children’s detriment. See In re Marriage of Zabecki, 389
N.W.2d 396, 398 (Iowa 1986) (stating the best interests of children include
“opportunity for a continuous relationship with both parents”). We adopt the
district court’s analysis:
Courtney failed to establish that the best interests of the children would be served if they were moved from Leon to the Des Moines area. See, e.g., In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993) (“We do not award custody by 13
determining whether a rural or urban Iowa upbringing is more advantageous to a child.”). While there may be more job opportunities for Courtney in Des Moines, although she failed to present any evidence of jobs she sought, the court’s role is not to decide custody issues based upon the best interests of the parents. York v. York, 67 N.W.2d 28, 31 (Iowa 1954) (“[T]he welfare of the children is the controlling consideration and its superior to the claim or convenience of either parent.”). The court’s role is to make custody decisions based upon what is in the best interests of the children. In this regard, Courtney failed to establish a move to Des Moines at this time was in the best interests of the children.
In addition, we conclude the record does not establish Courtney met her
burden to show she can render superior care. Our review of the record shows
both parents to be loving and caring. James has maintained steady employment
for eleven years with the same employer. The children have many relatives
living in the area. Courtney’s living arrangements have changed several times
since the dissolution with different people moving in and out of her three-
bedroom home.
The incident causing tension between James and G.B. has resolved. It
was James, not Courtney, who sought out counseling for I.B., and the district
court ordered James to pay for additional, post-ruling counseling. We recognize
parents have some difficulties while their children navigate through their teenage
years. We agree with the district court’s statement that “the issue with I.B. may
be resolved with additional counseling.”
Finally, while Courtney and James have strained lines of communication,
developed only recently, the record does not cause us to conclude their
“relationship is so volatile that shared physical care should be modified.” Thus, 14
we affirm the decision of the district court denying Courtney’s request to modify
the physical care provision of the parties’ dissolution decree.
IV. Rebuttal Witness
Courtney claims the district court abused its discretion when it denied
Courtney’s request to have I.B. testify as a rebuttal witness.
At trial, James resisted Courtney’s effort to have I.B. testify, stating he had
applied “for a guardian ad litem to be appointed to these children to be an
objective person to . . . present their view to the court.” Courtney had then
resisted, claiming Hilliard “would be a far more appropriate person to testify on
behalf of the children.” As a result, no guardian was appointed, and Hilliard
testified.
In denying Courtney’s request to have I.B. testify, the court noted her
resistance to and the resolution of the guardian-ad-litem issue. The court also
found Hilliard had already testified about many of the subjects Courtney listed as
the reasons necessitating I.B.’s testimony. The court concluded: “I don’t feel it’s
in [I.B.’s] best interest to have to testify in these proceedings in a dispute that
essentially is between his parents.”
We find no abuse of discretion and agree with the district court’s analysis.
Hilliard testified I.B.’s issues are “caused by increased anxiety about this whole
custody issue.” Further, the district court has the inherent power to protect
children in custody proceedings and not allow them to testify. In re Marriage of
Abkes, 460 N.W.2d 184, 186 (Iowa Ct. App. 1990). 15
V. Attorney Fees
Courtney first challenges the district court’s order requiring each party to
pay their own attorney fees.
Iowa Code section 598.36 (2013) states, in a modification proceeding, the
court “may award attorney fees to the prevailing party.” We review the district
court’s denial of attorney fees for abuse of discretion. In re Marriage of Sullins,
715 N.W.2d 242, 255 (Iowa 2006). This means we only reverse if the court’s
ruling rests on grounds that are clearly unreasonable or untenable. C & J
Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 73 (Iowa 2011). Courtney was
not the prevailing party at trial. Accordingly, we find no abuse of discretion.
Second, Courtney requests an award of appellate attorney fees,
emphasizing James’s superior ability to pay. James responds he was forced to
defend the district court’s decision on appeal.
An award of appellate attorney fees is not a matter of right, but rests within
our sound discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa
2005). “We consider the needs of the party making the request, the ability of the
other party to pay,” and the relative merits of the appeal. In re Marriage of
Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). Courtney has not prevailed on
appeal. Considering the foregoing factors, we decline to award Courtney
appellate attorney fees. Costs of this appeal are assessed one-half to each
party.
AFFIRMED.