In re the Marriage of Gunson

• Court: Court of Appeals of Iowa
• Decided: May 7, 2025
• Docket: 24-1597
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1597 Filed May 7, 2025

IN RE THE MARRIAGE OF HEATHER R. GUNSON AND NATHAN T. GUNSON

Upon the Petition of HEATHER R. GUNSON, Petitioner-Appellee,

And Concerning NATHAN T. GUNSON, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

Nathan Gunson appeals the district court’s denial of his petition to modify

the divorce decree dissolving his marriage with Heather Gunson. REVERSED

AND REMANDED WITH INSTRUCTIONS.

Stephen Babe of Cordell Law, LLP, Des Moines, for appellant.

Ande Skinner and Kelly Ramsey of Ramsey Law, P.L.C., West Des Moines,

for appellee.

Considered without oral argument by Greer, P.J., and Langholz and Sandy,

JJ. 2

SANDY, Judge.

Nathan Gunson appeals the district court’s denial of his petition to modify

the August 2023 divorce decree dissolving his marriage with Heather Gunson. He

argues the district court erred in (1) failing to sever shared physical care and award

Nathan physical care, (2) failing to set child support and uncovered medical costs

in accordance with Nathan’s physical care status, (3) awarding Heather trial

attorney fees, and (4) failing to award Nathan trial attorney fees. Nathan also

requests appellate attorney fees.

Finding a substantial change in circumstances, we reverse the district

court’s denial of Nathan’s petition, modify the custody order to award him physical

care of the children, and remand to the district court for recalculation of child

support and uncovered medical costs, determination of visitation schedule, and

entry of an order consistent with this opinion. We reverse the district court’s award

of trial attorney fees to Heather and award neither party appellate attorney fees.

I. Background Facts and Proceedings

Heather and Nathan divorced in August 2023, with the district court wholly

adopting their stipulated agreement. The decree provided that Heather and

Nathan would enjoy joint legal custody and shared physical care of their two

children, aged nine years old and seven years old at the time of the modification

trial in July 2024. The stipulation recognized that Heather and Nathan both lived

in Polk County and did not dictate that the children enroll in any specific schools

or school district. Following a twenty-four-month property-equalization offset, the

parties stipulated that Nathan would pay $233.26 per month in child support. It

was also stipulated that Nathan would maintain health insurance for the children 3

through his employer. Any uncovered health expenses would be split 60/40

between Nathan and Heather, respectively.

The children have attended an elementary school in the Saydel Community

School District since the entry of the decree. Nathan’s home is about three miles

away from the school. At the time of the decree, Heather owned a home in Des

Moines. She later sold her Des Moines home on March 5, 2024. Heather testified

that she was having issues paying her mortgage on time, was at risk of foreclosure,

and suggested that moving was necessary to maintain a stable home for her and

the children. Less than a month before the sale of her Des Moines home, Heather

contacted Nathan for the purpose of having him sign the deed for the sale. Later

that month Heather moved to Webster City to live with her romantic partner, Derek

Rice. The deed to that home listed Rice, Becky Rice, and Trevor Rice as the

owners. Heather is not on the mortgage, due to her poor credit score, or deed, for

unknown reasons, but testified she is in the process of getting her name added to

the deed.

In April, Nathan filed a petition for modification of the divorce decree,

alleging a substantial and material change in circumstance, largely due to

Heather’s move. Nathan requested he be awarded physical care subject to

Heather’s reasonable parenting time, as well as that he be awarded child support,

unpaid medical costs, and attorney fees.

Following a trial on Nathan’s petition, the district court denied Nathan’s

petition and awarded Heather $3000 in trial attorney fees. Nathan now appeals. 4

II. Standard of Review

“Petitions to modify the physical care provisions of a divorce decree lie in

equity,” and we review de novo. In re Marriage of Hoffman, 867 N.W.2d 26, 32

(Iowa 2015). “We give weight to the findings of the district court, particularly

concerning the credibility of witnesses; however, those findings are not binding

upon us.” In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016) (citation

omitted).

III. Discussion

A. Physical Care

Nathan first argues “the district court erred when it entered its order

dismissing [his] petition for modification that failed to sever shared physical care

and to award primary physical care to Nathan.”

Nathan must first prove there has been a substantial change in

circumstances. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App.

1998). As the parent seeking modification, Nathan bears a “heavy burden” of

proving “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 Frederici, 338 N.W.2d 156, 158 (Iowa

1983). The new “circumstances must not have been contemplated by the court

when the decree was entered, and they must be more or less permanent, not

temporary.” Id.

Iowa Code section 598.21D (2024) gives the district court discretion to

decide whether a move exceeding 150 miles qualifies as a substantial change in

circumstances: 5

If a parent awarded joint legal custody and physical care or sole legal custody is relocating the residence of the minor child to a location which is one hundred fifty miles or more from the residence of the minor child at the time that custody was awarded, the court may consider the relocation a substantial change in circumstances.

But “section 598.21D is permissive” and our court has found a substantial change

triggered by moves of much fewer than 150 miles, particularly in cases with

existing shared-physical-care arrangements. In re Marriage of Lydolph, No. 20-

0679, 2021 WL 2453050, at *3 (Iowa Ct. App. June 16, 2021). We have previously

held that a shared-care “arrangement is not sustainable if the parents live nearly

one and one-half hours apart.” In re Marriage of Vesey, No. 18-1707, 2019

WL 3317910, at *3 (Iowa Ct. App. July 24, 2019).

Even if a change in circumstances is material and substantial, a modification

of physical care must be in the children’s best interests. Id. The parent requesting

physical care must show they are “better able to minister effectively to the well-

being of the children.” Id. “The objective of a physical care determination 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). When assessing which parent will provide superior

care, “we look not only at [the petitioner’s] parenting ability, but also at the fact that

the current joint physical care arrangement is not in [the child]’s interest.” Melchiori

v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct. App. 2002).

We find little question here that there has been a material and substantial

change in circumstances triggered by Heather’s move to Webster City. Iowa Code

section 598.21D is inapplicable as it contemplates relocation by the physical care

parent as grounds to modify a child custody order. The statute expressly excludes 6

shared physical care parent relocation from the conditions precedent for the court’s

application of the statute. See id. Since Nathan and Heather enjoy shared

physical care, a move of much fewer than 150 miles could materially and

substantially change the children’s lives. With the children spending around two

and a half hours on the road every school day when they are in Heather’s care, we

find this to be disruptive to the children’s lives in a way that will only increase as

they become older and more active in extracurriculars and other activities outside

school. Currently the children, conservatively, may be required to wake up as early

as 6:00 a.m. and go to sleep well after 8:30 p.m. to accommodate their daily travel

schedule with Heather.

And while inclement weather is always a risk when commuting through rural

Iowa roadways, that risk will increase exponentially due to the large distance

between Heather and the children’s school district and the frequency which her

and the children will be required traverse that route. Weather that would not

warrant cancelling or delaying school for residents of the district could place a

much greater risk on travelers arriving from over seventy miles away. Additionally,

the slinky effect resulting from preparing for school in the mornings before a nearly

one-and-a-half-hour drive will make morning planning difficult and unpredictable at

times. So we must find that Heather’s move created a material and substantial

change in circumstances.

We must next determine which parent will provide superior care. We begin

by noting the district court’s factual findings in which it “[did] not find Nathan’s

testimony about Heather encouraging the children to be secretive around their

father credible” and that “the ‘evidence’ concerning” the “alleged incident of sexual 7

abuse” by a ten-year-old cousin was not “probative or outcome determinative.”

The available record supports the district court’s fact findings in these respects.

Both parents’ arguments relating to those points are solely supported by their

respective self-serving testimonies. Nathan criticizes Heather’s response to the

reported sexual abuse incident, wherein the younger child reported to Heather that

the cousin had “kissed her on her privates.” Heather testified that she immediately

informed Nathan, spoke with the child about what occurred, and has since kept the

child away from that cousin. Nathan argues that Heather failed to do “any

investigative work or try to find out what exactly transpired” and that he was the

one that contacted the Iowa Department of Health and Human Services and the

Clive Police Department to report the alleged conduct. But the results of the

investigation, if any, are unknown, and we are loath to penalize Heather for her

response to an unfounded incident of abuse—especially when it appears that she

promptly informed Nathan and indicated support for the younger child and any

further investigation.

Likewise, the evidence supporting Nathan’s allegations of Heather’s

secrecy is his own testimony. During trial he testified that the children have told

him that Heather instructed them to not inform him of her move. And even if true,

this isolated incident does not suggest that Heather has a tendency to sabotage

Nathan’s parental role. In our view, these claims do not move the needle in his

direction.

Yet the trial record leaves a hazy and unclear picture of Heather’s long-term

housing situation. Nathan points out that Heather’s name is not on the deed of the

new home in which she lives, and she testified that she is not “on the mortgage of 8

the home” either. The deed shows ownership being in the name of Rice and two

people Nathan believed to be “related to [Rice] in some way.” There is no evidence

outside of Heather’s testimony of her attempts to “have a deed prepared to include

[her] on the deed to that property.” There is no evidence of a lease agreement.

Based on the record, Heather’s only interest in the home appears to be through

her romantic relationship to Rice. Awarding physical care to Heather would require

removing the children from their current school district to place them in the Webster

City school district. We are hesitant to uproot the children from their stable living

conditions in Des Moines when it is unclear the extent to which Heather intends to

root herself in Webster City. And we are not encouraged by Heather’s total silence

on this issue in her brief.

Lastly, the children are by all accounts well-adjusted and performing well in

Saydel Community School District. The district court found that “[b]oth children do

well in school,” and the older child is actively involved in extracurricular sports.

Nathan lives less than ten minutes away from the children’s school, and the

children’s paternal grandmother also lives in the district. The recommendation

provided by the child and family reporter at the time of the dissolution advised that

the children “should remain in their home school in the Saydel District,” and that

they “should not move to Sioux Center,” which was where Heather lived prior to

moving to Des Moines.

Considering all the above circumstances, we believe placing the children in

Nathan’s physical care will be in their best interests and put them in the best

position for the future. To be clear, Heather and Nathan are both good parents

and their coparenting post-divorce has been generally amicable. But the 9

geographic distance between the parties is too large for the current custody plan

to work in the children’s benefit. Thus, we are forced to select a single parent for

physical care.

Accordingly, we remand to the district court for entry of an order consistent

with this opinion, including a visitation schedule and reallocation of child support

and uncovered medical costs.

B. Attorney Fees

The district court awarded Heather $3000 in attorney fees. Nathan requests

reversal of that award and that he be awarded $7500 in trial attorney fees and

reasonable appellate attorney fees. “An award of appellate attorney fees is not a

matter of right but rests within our discretion.” Lydolph, 2021 WL 2453050, at *5.

When considering appellate attorney fees, “we consider the needs of the party

making the request, the ability of the other party to pay, and whether the party

making the request was obligated to defend the decision.” Id. Considering the

above factors, including the disparity in the parties’ incomes and Nathan’s success

on appeal, we reverse the district court’s award of trial attorney fees to Heather

pursuant to Iowa Code section 598.36. We decline to award either party appellate

attorney fees.

IV. Conclusion

In summary, we find that Heather’s move caused a material and substantial

change in circumstances. We accordingly reverse the district court’s denial of

Nathan’s petition, modify the custody order to award him physical care of the

children, and remand to the district court for a determination of Heather’s visitation 10

schedule, recalculation of child support and uncovered medical costs, and entry of

an order consistent with this opinion.

We reverse the district court’s award of trial attorney fees to Heather and

award neither party appellate attorney fees.

REVERSED AND REMANDED WITH INSTRUCTIONS.