In re the Marriage of Imsland and Dewhurst

• Court: Court of Appeals of Iowa
• Decided: February 5, 2025
• Docket: 24-1090
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1090 Filed February 5, 2025

IN RE THE MARRIAGE OF LAURA LEIGH DEWHURST AND BRYAN MATTHEW DEWHURST

Upon the Petition of LAURA LEIGH DEWHURST n/k/a LAURA LEIGH IMSLAND, Petitioner-Appellee,

And Concerning BRYAN MATTHEW DEWHURST, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Story County, Ashley Sparks, Judge.

A father appeals the district court’s order modifying his parenting time

provided in the divorce decree between him and his former wife, arguing the

modification is not in the children’s best interests. AFFIRMED.

Nicole S. Facio of New Point Law Firm, PLC, Ames, for appellant.

J. Michael Boomershine of Sullivan & Ward, P.C., West Des Moines, for

appellee.

Considered by Tabor, C.J., and Ahlers and Sandy, JJ. 2

SANDY, Judge.

Bryan Dewhurst and Laura Imsland have joint legal custody of their three

children. Bryan is the physical care parent and sought a modification of parenting

schedule in the parties’ divorce decree due to his planned move from Hubbard to

Forest City. The district court issued an order modifying the parenting schedule,

and the parties moved to reconsider, enlarge, or amend. The district court granted

both motions in part and denied both motions in part. Bryan now appeals, arguing

the modified parenting schedule is not in the children’s best interests. Laura

requests reasonable appellate attorney fees.

I. Background Facts and Proceedings

In 2015, Bryan and Laura were divorced and agreed to joint legal custody

with Laura having primary physical care of the parties’ three children: M.G.D., born

in 2006; M.W.D., born in 2008; and H.D.D., born in 2012. Since that time, the

parties have been very litigious towards each other. On January 14, 2020, an

order modifying the divorce decree was entered which granted Bryan primary

physical care of the children. We affirmed that order on Laura’s appeal. See In re

Marriage of Dewhurst (Dewhurst I), No. 20-0123, 2020 WL 4814159, at *1

(Aug. 19, 2020). Another order modifying the divorce decree was entered in 2021,

which adopted the stipulation of the parties modifying some visitation provisions

for Laura.

In February 2023, Bryan initiated an application for rule to show cause

against Laura due in part to the oldest child’s refusal to live with Bryan. The district

court granted that application in part and denied in part, finding Laura had

undermined Bryan’s disciplinary actions against one of the children but not holding 3

her liable for the oldest child’s actions. We affirmed that order on Bryan’s appeal.

See In re Marriage of Dewhurst (Dewhurst II), No. 23-1804, 2024 WL 3688741

(Aug. 7, 2024).

Laura followed that contempt action by filing a petition to modify the divorce

decree in March. Bryan counterclaimed, asserting a significant change in

circumstances in anticipation of a move from Hubbard to Forest City. Agreeing the

move created a substantial change in circumstances, the district court modified the

divorce decree accordingly, which we now review on appeal.

Bryan owns a wealth management company and has lived with his current

wife in Hubbard since 2018. Laura, a caterer, lives in Hubbard with her current

husband, and they have one child together, who was six years old at the time of

trial. The parties’ children are academically successful and heavily involved in the

Hubbard community and religious activities with their parents. The parties do not

co-parent well, which the district court stated is “well documented,” citing their

history of court filings and divorce decree modifications.

In its 2020 modification order, the district court characterized Laura’s

“pattern of flagrant behaviors and interference” as negatively impacting Bryan’s

ability to parent the children. To this day, the parties continue to “bicker over

almost everything.”

In November 2023, Bryan decided to plan a move from Hubbard to Forest

City, which prompted this modification action. Forest City is roughly 100 miles

away from Hubbard. Because Laura enjoyed some parenting time on school

nights, the district court adopted a parenting schedule that involved less travel 4

during the week. Laura was given more parenting time on weekends, holidays,

and summers to make up for the lack of weekday parenting time.

Under the newly modified schedule, Laura has weekend visitation every

weekend except one weekend per month. Previously, Laura and Bryan alternated

weekends. The children now reside with Laura during the summers with Bryan

receiving visitation every other weekend and each parent being entitled to one two-

week, uninterrupted parenting time per summer. And where the parties previously

alternated holiday parenting time every year, Laura now enjoys parenting time

every MLK Day, Memorial Day, and Labor Day weekends, as well as Good Friday,

spring break, and winter break.

II. Standard of Review

Appeals of the district court’s modifications of the child visitation provisions

of a dissolution decree are equity proceedings. In re Marriage of Trickey, 589

N.W.2d 753, 756 (Iowa Ct. App. 1998). Consequently, our review of both the facts

and the law is de novo. Id.; Iowa R. App. P. 6.907. Although we make our own

findings of fact, when considering the credibility of witnesses we give weight to the

findings of the trial court even though we are not bound by them. In re Marriage

of Salmon, 519 N.W.2d 94, 95 (Iowa Ct. App. 1994). The best interests of the

children is the controlling consideration. Id. at 95–96.

III. Discussion

Bryan argues the modified parenting schedule is not in the best interest of

the children. He takes issue with the district court fashioning a schedule which

would “result[] in Laura having 135 to 145 overnights throughout the year,

compared to the 150 to 160 she had previously.” In particular, he requests the 5

schedule be modified so that (1) an “every other weekend schedule” is used during

the school year, (2) the children are exchanged every two weeks during the

summer, and (3) most holidays are evenly split between Laura and Bryan and

alternating between even and odd numbered years.

In child custody cases, the first and governing consideration of the courts is

the best interests of the child. Iowa R. App. P. 6.904(3)(n). A child’s best interests

are served by allowing both parents an “opportunity for maximum continuous

physical and emotional contact” with their children, notwithstanding “direct physical

or significant emotional harm to the child . . . from this contact.” Iowa Code

§ 598.1(1) (2023).

In modification actions concerning visitation, Iowa courts generally award

the non-custodial parent liberal visitation rights as a means of accomplishing the

child’s best interests. See In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.

App. 1992). “Physical care issues are not to be resolved based upon perceived

fairness to the spouses, but primarily upon what is best for the child.” In re

Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). But a child’s best interests

are served by allowing both parents an “opportunity for maximum continuous

physical and emotional contact” with their children, notwithstanding “direct physical

or significant emotional harm to the child . . . from this contact.” Iowa Code

§ 598.1(1); cf. Stepp, 485 N.W.2d at 849 (“[G]enerally, liberal visitation rights are

in the children’s best interest.”).

Bryan argues the modified schedule is not in the children’s best interests

because the district court “severely limited [his] opportunity to have parenting time

with the children” which “affects his ability to have quality interactions with the 6

children outside of school or the ability to involve extended family who live out of

town.” While Bryan frames his appeal as a best interests issue, we interpret it as

a fairness argument, arguing “the district court seemed more focused on being fair

to Laura.” He contends that the district court was focused on being fair to Laura

when it only modified the schedule to decrease her parenting time by roughly ten

percent.

But as Bryan recognizes, we look to the children’s best interests and liberal

visitation is generally in their best interests. And we are not convinced that,

because most of his parenting time is during school weeks, he will lack quality time

with the children. Nor are we concerned that such a schedule will prevent the

children from integrating into their new home environment. While we certainly want

to foster a smooth transition into the children’s new city and schools, Bryan’s

argument overlooks the importance of maintaining contact and connections with

the city and friends with which they are already familiar. A physical care schedule

that provides ample time and ability for the children to maintain those existing

connections will support them as they start a new life in Forest City.

Accordingly, we concur with the district court that the modified order

properly reflects the children’s interests in maintaining contact with their mother

and existing community while also encouraging them to build new relationships in

Forest City. Under the modified order the children are under Bryan’s care during

school weeks and one weekend a month. Since the children will not be in Hubbard

during the weekdays, placing them with Laura three weekends a month ensures

that their support systems in that community don’t wither. 7

That is an important consideration. While the district court found, and we

agree, that there is no indication that Bryan’s move was motivated by animus

towards Laura, it will nonetheless be a stressful transition for the children because

they are well-established in Hubbard. Even though the decision to move will likely

be profitable for his business, his decision to move still has the effect of uprooting

his children’s lives. We are thus tasked with protecting the children’s best interests

in the face of this inevitable move. Contrary to Bryan’s view, we believe the school

year parenting schedule set by the district court will aid the children’s transition to

Forest City while also protecting their existing connections to their mother and the

Hubbard community. Further modifying the school year parenting schedule would

not be in the children’s best interests.

Likewise, we believe the record fairly shows the district court did equity in

crafting the summer and holiday parenting schedules. See Salmon, 519 N.W.2d

at 95. Bryan complains that the schedule is “overly complicated and involves a

great deal of exchanges.” We disagree—the schedule is not complex. Besides

biweekly weekend parenting time for Bryan, both parents are allotted two weeks

of extended visitation time.

We reiterate that the district court was tasked with crafting a schedule that

provides “opportunity for maximum continuous physical and emotional contact”

with both parents.” Iowa Code § 598.1(1). Because Bryan is the physical care

provider, this means that Laura must be provided liberal visitation rights. Here, the

district court accomplished that through liberal holiday visitation scheduling for

Laura. The district court’s chosen holiday schedule allows Laura to have

continuous and consistent contact with the children through a majority of the yearly 8

extended holiday periods. But the schedule alternates every year for major

holidays such as Easter, Thanksgiving, and Christmas, as well providing Bryan the

children every Father’s Day. Bryan fails to make clear why the holiday schedule

is not in the children’s best interests. He primarily relies on his argument that there

are too many exchanges in the schedule, stating the schedule is “unduly disruptive

to what the children have experienced the majority of their lives.” But Bryan’s

choice to move 100 miles away is also disruptive to the children’s lives, and the

move was always going to create a burdensome exchange situation. Laura should

not be denied her right to liberal visitation due to Bryan’s decision to move.

“Appellate attorney fees are not awarded as a matter of right” and rest in

our discretion. Worth v. Geinitz, No. 23-1080, 2024 WL 2316657, at *3 (Iowa Ct.

App. May 22, 2024). We disagree with Laura that “Bryan’s positions on appeal are

predicated upon modification principles inapplicable to visitation cases” and

decline to award her appellate attorney fees.

Finding the modified parenting schedule is in the best interests of the

children, we affirm.

AFFIRMED.