IN THE COURT OF APPEALS OF IOWA
No. 22-1254 Filed October 11, 2023
IN RE THE MARRIAGE OF BRADLEY LYNN COWGER AND LESLIE ANNE COWGER
Upon the Petition of BRADLEY LYNN COWGER, Petitioner-Appellee,
And Concerning LESLIE ANNE COWGER, n/k/a LESLIE ANNE NELSON, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
Leslie Cowger appeals the ruling modifying the decree dissolving her
marriage to Bradley Cowger. AFFIRMED AS MODIFIED AND REMANDED.
Katie M. Naset of Hope Law Firm & Associates, P.C., West Des Moines, for
appellant.
Bradley Cowger, Indianola, self-represented appellee.
Considered by Greer, P.J., Buller, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023). 2
MULLINS, Senior Judge.
Leslie Cowger appeals a district court ruling modifying the decree dissolving
her marriage to Bradley (Brad) Cowger.1 She argues the court erred by not
modifying Brad’s visitation schedule when it modified the decree to provide her
sole legal custody and physical care; in calculating child support; and by not
ordering Brad to pay her trial attorney fees and the court costs, including guardian
ad litem fees. Leslie also requests an award of appellate attorney fees.
I. Background
The parties married in 2006. The marriage produced four children, born
between 2008 and 2013. The marriage was dissolved by stipulated decree in
January 2016. Pursuant to the parties’ stipulation, they were granted joint legal
custody and joint physical care, with each party having “approximately one-half of
the physical care of the minor children” and the parties determining “a schedule
that works best for the children,” which may be altered “as they both agree.”2 Child
support was waived.
There has been pretty much ongoing litigation between the parties ever
since. Roughly eight months after the decree was entered, Brad filed a petition to
1 Initially, Brad appealed and Leslie cross-appealed. The deputy clerk of the appellate courts later dismissed Brad’s appeal for failure to timely cure a notice of default relating to the filing and service of a combined certificate. In a separate order, the supreme court designated Leslie as the appellant and Brad as the appellee. Later, the supreme court struck Brad’s appellate brief for failure to comply with appellate rules and ordered him to file an amended brief. When he failed to do so, the supreme court entered another order directing the appeal to proceed without Brad’s participation. 2 The stipulation also specifically provided: “At present time, the parties agree to
share custody with each party having care during alternating weeks. It is anticipated, however, that the parties each will have parenting time with the children throughout each week, even when the week is not their assigned week.” 3
modify, requesting “full custody” and apparently asserting Leslie was suicidal and
unsafe and abandoned the children.3 Brad voluntarily dismissed that application
about a month later. In December 2016, Leslie filed a modification petition of her
own. She requested the children be placed in her physical care based on Brad
moving out of the children’s school district and the parties’ demonstrated “inability
to cooperate or communicate in the fashion necessary to support shared physical
care.” Brad counterclaimed for physical care, asserting he “is better able to care
for the children” and placement in his physical care would be in their best interests.
In its August 2017 ruling denying modification, the district court found that,
while Brad moved from Urbandale to Indianola, “the parenting schedule has
continued to function with little apparent problems” and “nothing concrete or
specific was offered” in relation to Leslie’s concern for the children having to get
up too early to make it to school in Urbandale. While the parties’ “mutual dislike
for each other” was clear, the court found “[t]his dynamic appears to have been
firmly in place as the marriage deteriorated and prior to the dissolution.” And while
both parties painted one another as inadequate parents, the court found none of
these complaints “were documented with any hard evidence or reliable
corroboration from independent witnesses.”
In the coming months, the parties filed competing contempt applications.
Both applications accused the other of violating legal-custody requirements of the
decree. Brad additionally alleged Leslie “does not allow contact on her weeks.”
Leslie additionally alleged Brad speaks negatively about her in front of the children,
3 Brad filed a contempt application along with this petition, which was the third such
application filed by Brad since the decree. 4
he refuses to allow the children to enroll in extracurricular activities, and he denied
Leslie her right to two weeks of uninterrupted parenting time. Those applications
were dismissed by stipulation agreement, which required, among other things,
appointment of a parenting coordinator and any further litigation for modification or
contempt to be preceded by mediation.
In October 2020—after yet another contempt pursuit initiated by Brad was
denied by the district court—Leslie filed the petition for modification precipitating
this appeal, in which she requested modification of the decree to provide her sole
legal custody and physical care, as well as corresponding modifications to child
support and the parenting schedule. Leslie alleged the parties could no longer
effectively co-parent due to Brad’s lack of respect for her, his unwillingness to
reach agreements on important matters, and his refusal to act to foster feelings of
affection and respect between the children and Leslie. As a result of various
competing motions between the parties, the court appointed a custody evaluator,
a parenting therapist, and a guardian ad litem (GAL) for the children.
A court-ordered custody evaluation was conducted and completed in
February 2021. In all, the evaluator found that “[t]he parents’ unhealthy
coparenting relationship makes mutual agreement for the sake of the children
impossible.” She also concluded “[t]here are factors present in this case that would
suggest sole legal custody should be granted to Leslie.” As to physical care, the
evaluator recommend modification of the decree to place the children in Leslie’s
physical care, with Brad exercising parenting time six days out of every fourteen-
day period. 5
The matter proceeded to trial in January 2022. The evidence presented
shows that the conflict between the parties is so intense that it’s almost
unbelievable. We need not detail the contents of the hundreds of pages of written
communications between the parties. In summary, those communications show
Brad has absolutely no respect for Leslie, and he variously places the blame for
any conflict on her. While Brad has pegged Leslie as a dictator, the totality of the
evidence shows Brad has served in that role in pretty much every dispute. To put
it simply, it has been Brad’s way or the highway. And it’s quite clear that Brad will
allow the children’s best interests to fall by the wayside if it means he has to let
Leslie have her way on anything. This extends to matters involving the children’s
education, medical treatment, extracurricular activities, discipline, and pretty much
everything else that affects the children’s day-to-day wellbeing. Leslie testified that
when the children come to her home from Brad’s, they are disrespectful to and
argumentative with her for several days. She also testified that whenever she and
Brad have a disagreement, the children have something to say about its subject
matter the next time she sees them.
Leslie explained the children have been suffering as a result of the discord
between her and Brad. The parties have attempted to improve their issues through
the use of a parenting coordinator and participation in co-parenting counseling.
Their counselor discharged them from therapy because, according to Leslie, “Brad
tried to dictate services and . . . was not willing to put in the work for a co-parenting
relationship.” Brad is distrustful of medical professionals, and he objects to the
children undergoing routine medical and dental care, such as their receipt of
vaccinations or cavity fillings. On one occasion, Brad outright refused to allow one 6
of the children to have two cavities filled. He berated Leslie in text messages about
this treatment and refused to allow it unless he got an “untainted” second opinion.
And when Leslie presented Brad with a medical recommendation about one of the
children’s ongoing problems, Brad refused to participate, claiming it was “insanity.”
He also threatened Leslie with a contempt proceeding if she followed the
recommendation. Brad has also gone well out of his way to make sure Leslie can’t
be involved in the children’s medical care. His reason for doing so is that he
doesn’t want to be around Leslie. On another occasion, Brad complained about
one of the children not being able to read and blamed this alleged deficiency on
Leslie. When Leslie presented Brad with reading assistance for that child and
asked for Brad’s help with paying for it, Brad responded “that’s fucking retarded”
and advised, “I’m not in on this so either u pay in full or take me to court.”
Brad unquestionably talks negatively about Leslie in front of the children.
Brad tells Leslie that she is a terrible mother and the children would be better off
without her. The children’s advisement to Leslie that Brad hates her indicates Brad
shares these sentiments with the children. The way Brad treats Leslie, which the
children are obviously privy to, sets an extremely poor example to say the least.
This conduct has started rubbing off on the older child, who mirrors Brad’s
misogynistic mindset toward not only Leslie, but also his female teachers at school.
Brad also canceled a trip to Disney World with the children and told the children
he couldn’t afford it because the money needed to be used to pay for their GAL in
this proceeding. However, Brad still took his wife and other children on that trip.
Brad stated no remorse for any of his conduct in his trial testimony. Instead, he
indicated his actions are entirely acceptable. 7
Along with her request for sole legal custody and physical care, Leslie
requested that Brad’s parenting time be reduced to alternating weekends from
Thursday through Monday when school is in session and then fifty-fifty in the
summer on an alternating weekly basis. The GAL requested that Leslie be
awarded sole legal custody and physical care. As to parenting time, the GAL
proposed that Brad be given visitation with the children six out of every fourteen
nights during the school year, with parenting time alternating on a weekly basis
during the summer. At trial, Brad unequivocally testified that if his time with the
children was reduced by any amount, he would no longer have any involvement
with the children. In other words, he would be “checking out.” After hearing the
evidence at trial, the GAL changed her proposal to encompass Brad only receiving
parenting time with the children four out of every fourteen nights during the school
year.
In its ruling, the district court found the significant deterioration of the parties’
ability to communicate served as a substantial, material, and permanent change
in circumstances warranting modification. The court also determined the change
affected the children’s welfare and Leslie demonstrated a superior ability to
minister to the children’s needs. So the court modified the decree to provide Leslie
sole legal custody and physical care. However, the court ordered the parenting
time would be as the parties agree or, if they are unable to agree, Brad “shall
continue to enjoy parenting time as set forth in the parties’ stipulated decree,”
which essentially provided the parties with equal parenting time. The court also
recalculated child support, ordered each party to pay for their own attorney fees,
and assessed court costs equally between the parties. 8
Leslie appeals.
II. Standard of Review
An action to modify a decree of dissolution of marriage is an equitable
proceeding, which we review de novo. Iowa R. App. P. 6.907; In re Marriage of
Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). The best interest of the children is our
primary consideration. Iowa R. App. P. 6.904(3)(o); Hoffman, 867 N.W.2d at 32.
III. Discussion
A. Parenting Time
Leslie argues the court erred in declining to accompany its modification of
physical care and legal custody in her favor with a corresponding modification of
the parenting-time schedule. As noted, the district court did not modify the
parenting schedule provided in the original decree, which provided the parties with
equal parenting time. Leslie submits sole legal custody and physical care with one
parent “is legally and factually irreconcilable with an award of equal parenting time
or the actual exercise of joint physical care.”
Joint physical care “is only authorized when coupled with joint legal
custody.” In re Marriage of Beasley, No. 21-1986, 2022 WL 16985437, at *8 (Iowa
Ct. App. Nov. 17, 2022); accord Iowa Code § 598.41(5)(a) (2020) (premising the
court’s discretion to award joint physical care upon an award of joint legal custody).
Because Leslie was awarded sole legal custody, a joint-physical-care arrangement
is not an option. Although the court awarded Leslie physical care, the ruling had
the effect of ordering that the parties equally share parenting time, the substance
of which is no change from the previously ordered joint physical care. 9
Physical care and joint physical care are two different things. The former
provides one parent with a superior “right and responsibility to maintain a home for
the minor child[ren] and provide for the routine care of the child[ren].” Iowa Code
§ 598.1(7); see In re Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007) (“The
parent awarded physical care maintains the primary residence and has the right to
determine the myriad of details associated with routine living, including such things
as what clothes the children wear, when they go to bed, with whom they associate
or date, etc.”); In re Marriage of Rhykoek, 525 N.W.2d 1, 3 (Iowa Ct. App. 1994)
(“The parent who is granted primary physical care has the right and responsibility
to maintain the principal home of the minor child and provide for the routine care
of the child. The parent having physical care must, as between the parties, have
the final say concerning where the children’s home will be.” (internal citations
omitted)). Under joint physical care, however, “neither parent has physical care
rights superior to those of the other parent.” Iowa Code § 598.1(4). Instead, both
parents have equal parental rights and responsibilities, “including but not limited to
shared parenting time with the child[ren], maintaining homes for the child[ren],
[and] providing routine care for the child[ren].” Id.
While the district court granted Leslie physical care, we agree with Leslie
that the court’s decision to not disturb the parenting schedule providing the parties
with equal parenting time is the functional equivalent of not disturbing the joint-
physical-care arrangement.4 See In re Marriage of Brown, 778 N.W.2d 47, 50–51
(Iowa Ct. App. 2009) (rejecting argument that a decree “established a ‘primary
4 With equal parenting time remaining intact, the only real difference arises in
relation to calculation of child support. See Iowa Ct. R. 9.14(3). 10
physical care’ arrangement” when it contained “[a] ‘Shared Parenting Time’
schedule” that provided the parents with essentially equal parenting time); see also
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.”).
It does not appear that either of Iowa’s appellate courts have addressed
whether an award of physical care to one parent in a contested case is legally
incompatible with an equal-parenting-time schedule, as Leslie argues it is.
However, we find that question need not be answered in this case. Assuming
without deciding that physical care with one parent could co-exist with equal
parenting time between the parties in a contested setting, we conclude this is not
the case for it because equal parenting time is contrary to the children’s best
interests. See Hansen, 733 N.W.2d at 695 (noting decisions relating to physical
care must “be based on Iowa’s traditional and statutorily required child custody
standard—the best interest of the child”); In re Marriage of Stepp, 485
N.W.2d 846, 849 (Iowa Ct. App. 1992) (“In establishing visitation rights, our
governing consideration is, once again, the best interest of the children.”).
Arrangements involving equal parenting time require “good communication
between the parents as well as mutual respect.” Hynick, 727 N.W.2d at 579. We
unquestionably do not have that here. As described above, the conflict between
the parties is on a totally different level than the acrimony common between
divorced parents. The evidence presented shows this is driven by Brad’s
relentless desire for control. Brad has absolutely no respect for Leslie. He talks
negatively about Leslie in front of the children. He makes the children privy to 11
disputes between the parties. It’s clear that Brad’s pursuit for control takes
precedence over the children’s basic needs. It’s also clear that Brad has
absolutely no understanding of the long-term damage he is causing to his children
by continuing to fuel the fire. Perhaps most problematic, Brad appears to believe
his behavior is perfectly acceptable. The district court’s conclusion that the
foregoing problems have begun to negatively affect the children is not disputed in
this appeal. So we conclude that continuing the equal-parenting-time schedule is
not in the children’s best interests.
Having concluded equal parenting time should not continue, we are left with
determining Brad’s visitation. “Liberal visitation rights are in the best interests of
the children” and children “should be assured the opportunity for the maximum
continuing physical and emotional contact with both parents.” In re Marriage of
Ruden, 509 N.W.2d 494, 496 (Iowa Ct. App. 1993); accord Iowa Code
§ 598.41(1)(a). “Although liberal visitation is the benchmark, our governing
consideration in defining visitation rights is the best interests of the children, not
those of the parent seeking visitation.” In re Marriage of Brainard, 523 N.W.2d 611,
615 (Iowa Ct. App. 1994).
On our review, we find the following visitation schedule for Brad to be in the
best interests of the children and modify the district court’s ruling to reflect the
same. Brad’s visitation, year round, shall be every other weekend from Thursday
at the time when school lets out until Monday at the time when school begins. If
there is no school on a day when visitation begins or ends—due to holidays or
seasonal breaks from school, including summer—then Brad’s visitation begins
when school would normally let out on Thursday and ends when school would 12
normally begin on Monday. Brad is responsible for transporting the children in
relation to beginning and ending his regular visitation. He shall also ensure the
children attend the extracurricular activities during his time and provide
transportation to and from the same. The provisions of the decree concerning two
weeks of exclusive parenting time, holidays, birthdays, family events, and spring
break are left intact and take precedence over Brad’s regular visitation schedule.
In addition, Brad shall be allowed a ten-day summer vacation visitation, subject to
him providing notice of the dates to Leslie by April 15 prior to each such visitation.
This schedule allows the children to live in a stable environment with Leslie while
allowing them to continue their relationship with Brad. See In re Marriage of Curtis,
No. 18-1535, 2019 WL 3729275, at *7 (Iowa Ct. App. Aug. 7, 2019). This visitation
schedule may be altered if Leslie and Brad agree. We modify the district court’s
ruling to reflect all of the foregoing.
We find it important to note our acknowledgement of Brad’s testimony that
he would be “checking out” as these children’s father if his parenting time was
reduced. Our decision, guided by statutory and case law, requires custody
determinations that are in the best interests of the children. We decline to let
Brad’s stated position dictate continuing a parenting-time arrangement that is not
in the children’s best interests. We are hopeful Brad reconsiders and decides to
be a present father consistent with his children’s best interests.
B. Child Support
Leslie challenges the district court’s child-support calculation, submitting the
court’s guidelines worksheet contains various errors. We agree the errors she
highlights were made. Plugging the proper figures and factors into the current 13
guidelines5 and removing Brad’s extraordinary visitation credit, his monthly
obligation is $1821.48 so long as all four children remain eligible, $1621.54 when
three children remain eligible, $1379.75 when two children remain eligible, and
$928.42 when only one child remains eligible.6 We modify the district court’s ruling
to impose these obligations. This modification is retroactive to the time of the entry
of the district court’s modification ruling.
C. Trial Attorney Fees
Leslie requested that Brad be ordered to pay the totality of her attorney fees,
which amounted to $22,605. Without explanation, the district court denied this
request and ordered each party to pay for their own attorney fees, although Brad
represented himself. On appeal, Leslie argues the district court erred by not
ordering Brad to pay her trial attorney fees.
We review the denial of an award of trial attorney fees for an abuse of
discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). “Trial
courts have considerable discretion in awarding attorney fees.” In re Marriage of
5 See Iowa Ct. R. 9.1 (“The child support guidelines contained in this chapter are
hereby adopted, effective January 1, 2022. The guidelines shall apply to cases pending January 1, 2022.”); In re Marriage of Roberts, 545 N.W.2d 340, 343 n.2 (Iowa Ct. App. 1996) (noting pending cases for purposes of child support guidelines include those pending on appeal). 6 Like the district court, we use self-employment income of $115,000 with a
qualified-business-income deduction for Brad and wage income of $40,500 for Leslie. Then Brad is given three qualified additional dependents for his other three biological children he does not share with Leslie. Brad’s filing status is married filing separately while Leslie’s is head of household, with each party claiming two children as dependents (at first) and the children’s health coverage being through hawk-i. For the step downs, we have also done recalculations and averaging to reach the amounts for when only certain children can be claimed as dependents and the greater number of exemptions shifts between the parties in alternating years. 14
Witten, 672 N.W.2d 768, 784 (Iowa 2003) (quoting In re Marriage of Guyer, 522
N.W.2d 818, 822 (Iowa 1994)). “An award of attorney’s fees is based on the parties
respective needs and ability to pay.” In re Marriage of O’Rourke, 547 N.W.2d 864,
867 (Iowa Ct. App. 1996).
Leslie was the prevailing party in the district court, which entitles to her an
award of attorney fees. See In re Marriage of McCurnin, 681 N.W.2d 322, 332
(Iowa 2004) (“Because Jennifer was successful as to her application to modify the
dissolution decree . . . , she is entitled to trial and appellate attorney fees.”);
Beasley, 2022 WL 16985437, at *8 (noting status of requester as prevailing party
is a “major factor” supporting an award of attorney fees).
That brings us to Leslie’s need and Brad’s ability to pay. At the time of trial,
Leslie did not have full-time employment and had limited income. Brad, on the
other hand, has a much higher income. Even ignoring his non-liquid, income-
producing business assets, Brad still has access to liquid assets well in excess of
$1,000,000. The need and ability-to-pay factors clearly weigh in favor of an award
of attorney fees to Leslie, so we agree the district court abused its discretion in
denying the request. See In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa
1995) (concluding award was proper where factors weighed in favor of an award
and no reason for refusing the request appeared in the record).
On our review of Leslie’s attorney fee affidavit and itemization submitted in
the district court, we determine Brad should pay for $12,000 of her attorney fees,
and we modify the district court’s ruling to reflect the same. In reaching this
determination, we have considered reasonableness and to what extent the 15
itemizations relate to matters ancillary to modification.7 We remand to the district
court to enter judgment against Brad accordingly.
D. Court Costs
Leslie also requested that the court tax court costs, including GAL fees,
against Brad. The court divided them equally between the parties. “The rule is
well established that in an equity action the trial court has a large discretion in the
matter of taxing costs and we will not ordinarily interfere therewith.” Wymer v.
Dagnillo, 162 N.W.2d 514, 519 (Iowa 1968). But “[w]hile we are slow to interfere
with a district court’s discretionary call, we do so when” the factors weigh against
the court’s decision. In re Marriage of Conrad, No. 03-0079, 2003 WL 22345577,
at *2 (Iowa Ct. App. Oct. 15, 2003).
Given the disparity in the parties’ income and assets and Leslie’s status as
the prevailing party, we conclude Brad should have been responsible for the court
costs. See id. Because Brad is not indigent, he is also responsible for the entirety
of the GAL fees. See Iowa Code § 598.12(3). We modify the district court’s ruling
to reflect our determination on court costs, and we remand for entry of judgment
against Brad for the same.
E. Appellate Attorney Fees
Leslie also requests an award of appellate attorney fees, although she does
not provide a specific amount for her request or a fee affidavit or itemization on
appeal. An award of appellate attorney fees is not a matter of right but rests within
7 We have also factored in that counsel estimated trial would take nearly two full
days, but it only ended up taking one full day plus a little more than one hour the second day. 16
the appellate court’s discretion. In re Marriage of Berning, 745 N.W.2d 90, 94
(Iowa Ct. App. 2007). The court considers “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). In consideration of
these factors, we conclude Leslie is entitled to an award of appellate attorney fees.
But because she did not submit an affidavit or fee itemization to support her
request, we remand the issue of appellate attorney fees to the district court to
determine a reasonable award. See In re Marriage of Heiar, 954 N.W.2d 464,
473–74 (Iowa Ct. App. 2020) (“[W]e are unable to determine a reasonable award
without more specific details of how the fees were incurred for this appeal.”).
IV. Conclusion
We modify the district court’s parenting-time schedule as detailed above.
We also modify Brad’s child-support obligation to reflect errors assigned by Leslie
and removal of Brad’s extraordinary-visitation credit. We conclude Leslie was
entitled to an award of trial attorney fees in the amount of $12,000 and court costs,
including GAL fees, should have been taxed against Brad, so we modify the court’s
ruling accordingly and remand to the district court to enter judgment against Brad
for these amounts. Lastly, we find Leslie is entitled to an award of appellate
attorney fees, and we remand to the district court to determine a reasonable award.
Costs on appeal are taxed to Brad.
AFFIRMED AS MODIFIED AND REMANDED.