IN THE COURT OF APPEALS OF IOWA
No. 20-1289 Filed June 16, 2021
IN RE THE MARRIAGE OF SOMMER D. JACOBSON AND JEFFREY N. JACOBSON
Upon the Petition of SOMMER D. JACOBSON, n/k/a SOMMER WASSER, Petitioner-Appellant,
And Concerning JEFFREY N. JACOBSON, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Marlita A. Greve,
Judge.
Sommer Wasser appeals the grant of sole legal custody to Jeffrey Jacobson
and reduction to her visitation. AFFIRMED.
Michael J. McCarthy of McCarthy, Lammers and Hines, L.L.P., Bettendorf,
for appellant.
Catherine Z. Cartee and Chase Cartee of Cartee Law Firm P.C., Davenport,
for appellee.
Considered by May, P.J., and Greer and Schumacher, JJ. 2
GREER, Judge.
Weary of the nature of Sommer Wasser’s (formerly known as Sommer
Jacobson) mothering style, Jeffrey Jacobson requested sole legal custody of their
child, N.J. (born in 2009). We find ourselves hashing over the similar behaviors
that resulted in a loss of physical care for Sommer in 2017. Now she appeals the
district court determination of sole legal custody to Jeffrey and the reduction of her
visitation rights. She also requests appellate attorney fees for having to resist a
motion to dismiss her reply brief.
I. Factual and Procedural Background.
The legal jousting began in May 2015 when the district court awarded these
then-divorcing parties joint legal custody of their child with physical care to Sommer
and visitation to Jeffrey. By April 2016, Jeffrey applied to modify the custody
arrangement and made several contempt applications against Sommer. In the
meantime, Sommer announced she was moving with her husband, Steve
Wasser,1 their newborn child, and N.J. to Virginia because of her new husband’s
job change. After a modification trial in June 2017, the district court granted Jeffrey
physical care with liberal visitation to Sommer. In May 2018, a panel of our court
affirmed the modification ruling. In re Marriage of Jacobson, No. 17-1040, 2018
WL 1633512, at *4 (Iowa Ct. App. Apr. 4, 2018).
1 Sommer married Steve in 2016, about six months before their child was born. 3
For the next year and a half until the next trial, N.J. lived in Iowa with Jeffrey
and Jen Berger.2 Sommer lived in Virginia. During questioning at trial, Jeffrey
characterized Sommer’s actions during that time as:
Q. Do you think—is it your opinion that Sommer does not possess the ability to have a healthy relationship with [N.J.]? A. That’s correct. Q. What do you base your opinion on, Jeff[rey]? A. On the number of messages and letters here, like some of those items that we included here in our exhibits, that send all sorts of insidious messages to [N.J.] that undermine our relationship and make it hard for him to live here, as well as the possessiveness. It’s almost like needing [N.J.] to be with her and needing [N.J.] to—you know, for her emotional well-being, rather than raising a child to eventually be a productive adult.
Indeed, Sommer sent daily notes and gifts to the child—some through Jeffrey and
some through the school until the principal requested she stop sending packages
to the school. Jeffrey found the constant barrage of gifts and messages
“subvertive” and “undermining.” Jeffrey thought the messages suggested “you will
survive living with your father.” Many of the notes referenced topics such as: “you
are stronger than you know”; “your [sic] my whole world”; “[activities for] days your
[sic] missing home, feeling sad, frustrated, angry or even lost”; “if you can just get
by, get by,” and “you are brave.” On one gift, the note instructed, “Pick me up! It
smells like summertime. Remember you’ll be home soon.” Another note on a toy
said: “Rainy day. Put me together when things are seeming tough. Just you. No
sharing. Mom loves you.” She also sent a bottle of soap to N.J. with a note saying
“Just turn on the warm shower. Feel the warmth surround you with this soap. It’s
like I'm holding you from far away.” Jeffrey feared that if he did not give N.J. the
2 Jen and Jeffrey married in September 2017. Jen has a younger child from a previous relationship that lives with them. 4
messages and gifts, Sommer would tell the child and use it to diminish the child’s
trust in Jeffrey. The district court characterized it as Sommer trying “to monopolize
N.J.’s attention to the detriment of his father.”
Jeffrey argued that similar to the actions in 2017, Sommer continued to
subtly undermine Jeffrey’s custodial rights. Sommer contended she simply acted
as a loving parent. During Jeffrey’s time with N.J., Sommer arranged a playdate
for the child and texted Jeffrey the details without asking Jeffrey in advance.
Sommer sent him texts about school delays and demanded to know where N.J.
would be. Because of adjustment concerns,3 Jeffrey scheduled appointments for
the child with a counselor. The counselors’ (there have been two) notes were
exhibits at trial.
Typically for visitation, N.J. travels every three to four weeks to Virginia for
a three-day weekend. Jeffrey asserted that the long distance travel was negatively
impacting N.J. because Sommer was inflexible with the travel start and return
times. Specifically, he was upset with travel arrangements that landed the child
home after 10:45 p.m. to end the weekend with school the next day. He counted
3After the 2017 modification decision, the counselor made notes of statements made by N.J.: “The judge made a big mistake trading my whole family for just my dad,” “The judge made a huge mistake. She had a surgery so she must have been on drugs,” “I want to send my mom my money,” “I can only trust family—not friends,” “Dad’s a liar! He is selfish,” (to Jen) “You believe all of dad’s lies. Everyone believes him, but not me! My mom tells me the truth,” “I’ll be moving back to Virginia in four months,” “You’re trying to keep me from my mom[,]” . . .“I’m on my mom’s team,” “Steve (stepdad) is my real dad, you’re just my playmate dad,” “you drained mine and my mom’s bank accounts.” 5
seven days of school missed due to various problems with flights on these
weekends.
Text messaging wars are a part of the communication of these parents. In
early 2019, Jeffrey sent a message to Sommer stating he had made plans with the
child for an October weekend. Sommer wanted to visit Iowa to spend time with
N.J. the same weekend.4 As the weekend neared, Jeffrey learned that Sommer
told N.J. she was coming for the weekend anyway. Jeffrey testified N.J. showed
signs of anxiety with heartburn and chest pain as he was nervous about the
weekend. Jeffrey arrived at school on Thursday afternoon to pick up N.J. Without
notice to Jeffrey, Sommer was now in Iowa and had removed the child from the
afterschool program. Sommer, her young child, and N.J. sat in the school
playground. Because Jeffrey did not want N.J. in the middle of a dispute, he sent
Sommer a text offering her an overnight visit if she would return the child to school
on Friday. He confirmed to Sommer that he would then pick up N.J. on Friday for
his family’s weekend plan. As Jeffrey arrived on Friday afternoon, he saw Sommer
at the school. When school released, Sommer first approached N.J., whispered
to him, and, as Jeffrey observed, the child become “really sad.” By the time he got
to Jeffrey, N.J. was crying uncontrollably. They waited in the school as he calmed,
but as they left to go to the vehicle, Sommer sat in the vehicle behind them. She
approached N.J., and Jeffrey explained what he saw and heard:
Sommer cupped [N.J.’s] face in her two hands like this (demonstrating), putting her hands on his cheeks, and she put her nose to his nose and she began to whisper and tell him things. And towards the end of that, about five or more minutes, I motioned to
4 Jeffrey testified their family intended to go to the Friday night school carnival and then head to an out-of-state amusement park for the weekend. 6
say, hey, it’s time for us to go. And she said—and she told him, I know you can do this. You are stronger than you think.
When Jeffrey and N.J. returned home, the child was angry and went to the
basement, found an arrow, and indicated he was going to stab himself. Jeffrey
and Jen took N.J. to the emergency room to be evaluated; the child was treated
and released, and they continued with the weekend plan.
At trial, Jeffrey addressed other concerns he has faced with Sommer. One
related to how Sommer handles telephone calls with the child. Sommer requests
that N.J. receive her telephone calls in the privacy of the child’s bedroom. If a call
comes when Jeffrey and the child are not at home, Sommer accuses Jeffrey of
depriving her the ability to have a quality conversation with N.J. Jeffrey testified
about a particular call he overheard. In May 2020, Sommer requested N.J. fly to
Virginia for a three-day weekend. Jeffrey told Sommer he was uncomfortable with
N.J. flying during the pandemic. In a call with his mother, N.J. also expressed his
discomfort about flying on an airplane because of the COVID-19 virus. During the
call, Jeffrey testified he heard Sommer yelling at N.J. that it was Jeffrey’s idea to
keep him from flying, not the child’s idea. Jeffrey observed N.J. lying in a fetal
position during the call. At that point, Jeffrey took the phone outside, waited for
Sommer to stop yelling, and said “[I]s that right, you stupid bitch?”
Shortly before the August trial, Jeffrey applied for an emergency order to
retrieve N.J. from summer visitation with his mother.5 After dropping the child off
for visitation on June 6; he later learned from Sommer’s husband that the police
5 On July 14, 2020, Jeffrey filed to immediately return N.J. to Iowa and asked for future visitation to be supervised. 7
were called on June 7 because the husband and Sommer had an altercation. The
Virginia police report detailed that Sommer, in an intoxicated state, tried to push
her husband down the stairs. The report noted the two were arguing over
Sommer’s refusal to give up alcohol. Two guns in the home were surrendered to
the police. Yet Sommer omitted these details and only told Jeffrey on last minute
notice that she and N.J. would spend time with her relatives in Connecticut.6 In
reality, an order required she leave the Virginia home.
Later in the summer, Sommer moved back to Virginia and lived with N.J.7
in a women’s shelter. While Sommer never told Jeffrey about the situation, he
learned from N.J. that “he was living at a [bed and breakfast]—where people go
after having hard times and there were counselors there.” Jeffrey tried to get
information and offered to pick up the child, but she said no and that N.J. was
having the “best time.” Sommer sent a text to Jeffrey that said do not communicate
with Steve, her husband, especially about N.J. After obtaining an emergency order
to retrieve N.J., Jeffrey overheard Sommer tell N.J. that Steve was abusive and
she could no longer live in the Virginia house. An exhibit at trial referenced
Sommer contacting authorities in mid-June to report she was scared to return
home due to threats made by her husband. In early August, Steve had procured
a protective order against Sommer, requiring the parties to exchange custody of
6 A June 21 email from Sommer to Jeffrey informed him that Steve and Sommer were separating and she and N.J. would be summering in Connecticut at her parent’s home. 7 A report from the shelter’s director of therapeutic services noted N.J. lived there
from July 3 until July 17. 8
their child at the police station and for both the “mother and father [to] begin a
substance abuse program immediately as well as individual counseling.”
At trial, Sommer testified that she was then living in the home with Steve
and they attended counseling together. She offered counseling reports confirming
no additional mental-health or substance-abuse treatment was required for her.
Sommer addressed the daily notes she sends to N.J. as her method of helping him
through “things” the two of them talk about, such as getting kicked off the school
newspaper. In Sommer’s view, the notes are not about Jen or Jeffrey and raise
N.J.’s spirits. Sommer characterized her relationship with N.J. as very close.
Evidence presented bolstered that position. For example, the child’s pediatrician
noted N.J. said “that life isn’t worth living if he can’t see his own mother.” There
was an audio tape played at trial where N.J. sang:
You are the sweetest thing in the world. You are the greatest thing in my life. Your [sic] are the sweetest thing in my life. Do not want to lose you. Do not want to lose you. Do not do not want to lose you now even though you’re in Virginia now. I’ve already lost you. I won’t be back for days and I want to be back soon but I can’t.
Yet, the counseling notes quote N.J. as wanting to split time with both parents.
After the incident at the emergency room, in November 2019, Sommer
applied for a modification of custody asserting that N.J. suffered due to the
separation from her. Jeffrey responded with a counterclaim for sole custody of
N.J. and for a reduction in Sommer’s visitation rights. Before trial, Sommer
dismissed her application for modification. With the counterclaim issues before
the court, on September 7, 2020, the district court ordered sole legal custody and
physical care in Jeffrey and reduced the visitation schedule for Sommer. Sommer
timely appealed. 9
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). So we review
the district court’s decision de novo. In re Marriage of Harris, 877 N.W.2d 434,
440 (Iowa 2016). Thus, “[w]e review the record with fresh eyes but still give weight
to the district court’s credibility findings.” In re Marriage of Heiar, 954 N.W.2d 464,
471 (Iowa Ct. App. 2020). Although trial occurred by electronic format given the
COVID-19 public health emergency, the district court still had the best seat to make
credibility findings. See In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa
2013) (“We give weight to the findings of the district court, particularly concerning
the credibility of witnesses; however, those findings are not binding upon us.”); see
also In re Marriage of Jensen, No. 17-1849, 2018 WL 4361056, at *3 (Iowa Ct.
App. Sept. 12, 2018) (noting the district court has the chance “to observe the
demeanor” of the witnesses and “hear [their] testimony”). We will disturb the
district court’s ruling “only when there has been a failure to do equity.” In re
Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005).
III. Analysis.
A. Motion to Strike Reply Brief.
We first address a procedural issue raised by Jeffrey. As a part of this
appeal, Jeffrey moved to strike Sommer’s reply brief. In the briefing, the parties
quibble over post-trial events that are outside the record made in this case. Jeffrey
posits that because Sommer “argues at length that Jeffrey brought up post-trial
happenings in his brief” the reply brief should be struck. In a “you did it too”
argument, Sommer argues “[h]aving been hoisted by his own petard, [Jeffrey] now 10
feels the remedy is to strike not his brief, but Sommer’s.” Sommer requests
attorney fees for having to resist a motion she feels is unwarranted.
Our rules are clear. If the information is not part of our record on appeal,
we are unable to consider it. See Iowa R. App. P. 6.801 (“Only the original
documents and exhibits filed in the district court case from which the appeal is
taken, the transcript of proceedings, if any, and a certified copy of the related
docket and court calendar entries prepared by the clerk of the district court
constitute the record on appeal.”). Each party crossed that line, and these rule
infractions are not a trivial matter. A party’s disregard of the rules may lead to
summary disposition of the appeal or waiver of an issue. See Inghram v. Dairyland
Mut. Ins. Co., 215 N.W.2d 239, 239-40 (Iowa 1974). But here, we disregard
matters raised outside of the record and admonish counsel to follow our rules
moving forward. See In re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App.
1994) (“We are limited to the record before us and any matters outside the record
on appeal are disregarded.”).
Because we will not consider any information not part of the record on
appeal referenced by either party, we refuse to strike the reply brief or award
attorney fees related to this issue.
B. Change in Custody and Visitation.
Jeffrey faces several hurdles. First, he must establish a material and
substantial change in circumstances since the 2017 ruling by a preponderance of
the evidence. And if successful there, Jeffrey must support the more restrictive
custody arrangement crafted by the district court. This step requires clear and
convincing evidence that joint custody is unreasonable and not in the child’s best 11
interests to the extent that the legal custodial relationship between the child and
parent should be severed. See Iowa Code § 598.41(2)(b) (2020). As to the
reduction in Sommer’s visitation, Jeffrey “must establish by a preponderance of
the 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
child[ ].” See In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa Ct. App.
1994).
1. Substantial Change in Circumstances.
In 2017, the district court modified the decree considering Sommer’s short-
notice move to Virginia. But even more significant, our court noted Sommer had
persistently and maliciously interfered with Jeffrey’s visitation and relationship with
N.J. See Jacobson, 2018 WL 1633512, at *2. In 2017, the “central issue [was]
the mother’s attempt to marginalize the father in the child’s life.” Id. One could
argue that with the 2017 custody change, Sommer’s opportunity for interference
would subside. To that end, Jeffrey’s burden is to show a material and substantial
change in circumstances, and that burden is a heavy one: “undergirding the
fundamental policy that ‘once custody of [a child] has been fixed it should be
disturbed only for the most cogent reasons.’” In re Marriage of Hoffman, 867
N.W.2d 26, 32 (Iowa 2015) (quoting In re Marriage of Frederici, 338 N.W.2d 156,
158 (Iowa 1983)). In this modification case, our overriding consideration is the
best interests of the child. See Iowa R. App. P. 6.904(3)(o).
In the 2020 modification ruling, the district court found a substantial change
in circumstances based on Sommer’s “stepped up” efforts to damage the
relationship between N.J. and Jeffrey. On top of that behavior, the district court 12
addressed Sommer’s altercation with her current husband and her failure to
communicate the situation to Jeffrey, including her several day stay with N.J. in a
women’s shelter. While in our previous case we found Sommer’s interference and
the level of conflict between the parents sufficient to warrant a modification, the
changes crafted there have not solved the concerns. See Jacobson, 2018 WL
1633512, at *2. And, she appears to have learned little from the previous rulings
describing her offending behavior.8 Recognizing the best interests of the child are
our primary concern, we cannot tolerate Sommer’s continuing pattern of behavior.
See In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App. 1994) (“We
recognize there are situations where one parent will seek to put the other parent
in an unfavorable light. Some cases are slight and to be expected in our less than
perfect society. Some cases are serious and should not be tolerated.”). Changing
physical care from Sommer to Jeffrey failed to curb the mother’s behaviors that
directly related to the stress on N.J. It only made her more subtle in her approach.
See Harris, 877 N.W.2d at 442 (finding district court’s “implicit confidence” in the
parents’ ability to communicate under the court ordered joint physical care plan
was misplaced). We have modified custody when “shared custody provisions . . .
8 Even in the original dissolution of marriage proceedings, the district court offered: The court FINDS that both parents are caring and loving but their ability to make reasonable compromise regarding visitation is not particularly strong. Occasionally, SOMMER has used denial of visitation to punish JEFFREY and JEFFREY is demanding that SOMMER provide him with all the visitation he wants, regardless of the changing needs of their son. These issues are character flaws in both parents and will, if not curbed, result in much pain and suffering for [N.J.] throughout his life. The Court admonishes both parents to first consider the well-being of this child before their own comfort and needs. 13
incorporated into the decree have not evolved as envisioned by either of the parties
or the court” or when the parents simply “cannot cooperate or communicate in
dealing with their children.” In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa
Ct. App.1998).
Jeffrey established a material and substantial change in circumstances
warranting a modification of the previous ruling.
2. Sole Legal Custody Determination.
Much of the behavior that brings us to this point relates back to the first
modification case when our court wrote Sommer “exhibited an intense distrust of
Jeffrey manifested in an overzealous and overbearing supervision of Jeffrey’s
visitation with the child.” Jacobson, 2018 WL 1633512 at *3. Now from Virginia,
Sommer exhibits many of those same attributes even though Jeffrey has physical
care. Her messaging is subtle, but the intent is clear. The district court held here
that “Sommer continually attempts to turn N.J. against his father. She tells him
repeatedly that he will ‘survive’ living with his father. She makes derogatory
comments about Jeff and his wife, Jen, to N.J. on a very frequent basis.” Sommer
argues that sending loving daily messages and gifts shows no evil intent and that
contacting medical and dental providers directly fulfills her role as a joint legal
custodian. True, the visitation schedule the district court criticized in this
modification was a product of the last trip to court, as Sommer urges. Yet, the
district court had the benefit of observing the parties and hearing the testimony in
real time. See In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997) (“In
assessing a custody order, we give considerable weight to the judgment of the 14
district court, which has had the benefit of hearing and observing the parties first-
hand.”)
Even so, a change to sole custody is an extreme move. The factors to
consider in determining whether joint or sole legal custody should be granted are:
(a) Whether each parent would be a suitable custodian for the child. (b) Whether the psychological and emotional needs and development of the child will suffer due to a lack of active contact with and attention from both parents. (c) Whether the parents can communicate with each other regarding the child's needs. (d) Whether both parents have actively cared for the child before and since the separation. (e) Whether each parent can support the other’s relationship with the child. (f) Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity. (g) Whether one or both parents agree or are opposed to joint custody. (h) The geographic proximity of the parents.
Iowa Code § 598.41(3)(a)-(h). Three key factors relate to this case: the
psychological and emotional needs of N.J., the parent’s ability to communicate
about the child’s needs, and their ability to support the other’s relationship with the
child.
The child’s therapy records provide a bird’s-eye view into the damaging
effects of Sommer’s inability to support Jeffrey’s relationship with N.J. and the
negative impact on the child. Most compelling, the child reported being unable to
tell Sommer he liked being with his father. See In re Marriage of Gensley, 777
N.W.2d 705, 716 (Iowa Ct. App. 2009) (holding sole legal custody was warranted
because father discouraged the children to think well of their mother to the point
they would not acknowledge the mother in public when with the father). N.J. 15
expressed worry about Sommer’s reactions. In February 2018, the child’s
therapist noted:
Therapist has communicated with mom that if she has concerns to please call the proper authorities such as police or DHS. Taking session time to address mom’s concerns is not helping [N.J.] progress and rather shows how enmeshment appears a concern between this mother and [N.J.]. For example, [N.J.] has shared mom will buy him a dog if he lives in Virginia. [N.J.] has told therapist he doesn’t think his mom would be okay if he stays living in Iowa. .... . . . It is therapist’s professional opinion that [N.J.] may be sharing exaggerated examples of dad’s perceived deficits to reassure his mom of his loyalty to her.
As a further concern, the counselors noted the tension N.J. felt while the parents
waited for the 2017 modification appeal to resolve. Yet, in Jeffrey’s care, the child
reported being happy and wanting to stay with him at least half time. N.J.’s stress
heightened with fears about how his mother felt and if she could handle being away
from him.
Although Sommer no longer had physical care, there remained an effort on
her part to control the narrative that she was the preferred parent. The October
2019 weekend dispute rang of a competition where she wanted to assert her
dominant role over Jeffrey and place the child directly in the middle to choose. The
content of the notes and letters developed an undertone of unhappiness and
sadness with life. Sommer’s lack of insight into how her messaging and behaviors
negatively impact this child weigh against her position on appeal. See In re
Marriage of Liebich, 547 N.W.2d 844, 849 (Iowa Ct. App. 1996) (awarding sole
legal custody to father after finding mother’s behavior to be emotionally damaging
to the child); see also In re Marriage of Weidner, 338 N.W.2d 351, 357 (Iowa 1983)
(concluding the parents’ mutual mistrust and dislike of one another “wreaked havoc 16
in the lives of the parents and, more importantly, the day-to-day lives of their
children”). Jeffrey testified:
Q. You can give the dates as much as you can, but have these kind of comments you’re going to tell the Court about been happening consistently for three years, every year, all the time? A. Yeah, that’s correct, similar statements to the items that you see in the exhibits there, like you’re stronger than you know; and if you can just get by, get by; you’ll be at your real home soon. Q. Does she also call you a liar and other things, tell him he’s brave? A. Yeah, she tells [N.J.]that he’s brave for being able to live at my home.
While these parents have communicated about the child, the cumulative
effect of the messaging has created a toxic situation for the child warranting a
change. See In re Marriage of Ertmann, 376 N.W.2d 918, 920 (Iowa Ct. App.1985)
(concluding the parties’ inability to communicate and cooperate must rise above
the “usual acrimony that accompanies a divorce” “[t]o be significant enough to
justify a denial of joint custody”). As our supreme court noted in Harris, “[i]f the
modification ordered here does not achieve more mature parental communication
and cooperation by both parents in furtherance of the best interests of the children,
the remedy of sole legal custody remains an option in any future modification
proceedings.” 877 N.W.2d at 444. Here, we find “clear and convincing
evidence . . . that joint custody is unreasonable and not in the best interest of the
child to the extent that the legal custodial relationship between the child and a
parent should be severed.” See Iowa Code § 598.41(2)(b). We affirm the district
court’s award of sole legal custody to Jeffrey.
3. Visitation Changes.
After hearing the testimony, the district court determined the best interests
of the child required Sommer’s visitation be reduced. Generally, it is in the child’s 17
best interests to have maximum continuous physical and emotional contact with
both parents. See In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa Ct. App.
1985). Requiring all visitation to occur in the Quad Cities, except for the summer
visitation or by agreement of the parents, the modified schedule9 gave Sommer
the following scheduled visitations: one weekend per month in the Quad City area
from Friday after school until Sunday at 8:00 p.m.; six weeks in the summer, not
to include the week after or before the school term; every Thanksgiving break;
alternating the Christmas holiday with Sommer receiving Christmas day in even
years; and every spring break. The modification order also provided that if Jeffrey
agrees, he will arrange for roundtrip flights for N.J. to visit Sommer. The flights
must allow N.J. to be returned to the Quad Cities no later than 8:00 p.m., and
outgoing flights will be planned to ensure N.J. does not have to leave Jeffrey’s
residence before 6:00 a.m. Additionally, Jeffrey would be responsible to pay for
these flights. The modification also limited Sommer’s phone contact with N.J. to
three times per week. See Salmon, 519 N.W.2d at 95–96 (noting courts require
“much less extensive change in circumstances” to modify visitation than is required
to modify custody). In determining the appropriate amount of visitation, the district
court found it troubling that ten year old N.J. was required to fly alone from Iowa to
Virginia for three-day weekends many times each year. There was some support
in the counseling notes that N.J. was weary with the schedule and did not like flying
alone so often. From the viewpoint of the child and from our vantage point, the
9 The district court ordered that none of the visitation would occur unless Sommer confirmed undergoing a mental-health and substance-abuse evaluation and treatment within ninety days after the order,. 18
new schedule offers a more stable and less stressful experience with each parent.
See Gensley, 777 N.W.2d at 716 (finding an award of sole legal custody ensures
one parent makes the decisions, fostering a more stable atmosphere for the
children in some circumstances).
Similar to Walton, we hope the change in visitation fosters a better
relationship for N.J. with both parents. See 577 N.W.2d at 871 (modifying physical
care to the mother and restricting the father’s visitation schedule by making it less
flexible to address cooperation concerns). In the end, these parents might take a
lesson from Walton:
The parties’ complaints that the other interferes with their relationship with the children will be remedied, somewhat, by making Jason’s visitation schedule less flexible. However, government cannot micro-manage peoples’ lives. Kari and Jason have allowed their bitterness toward each other to interfere with the well-being of their children. The court cannot order an awakening by the parties that fully supporting [the children’s] relationship with the other parent is what their children need. This is something Kari and Jason must do on their own.
Id. We affirm the visitation provisions of the district court ruling.
C. Attorney Fees.
Sommer requests attorney fees on appeal. We deny that request. In
deciding whether to award 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 trial court’s decision on appeal.”
In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996). Sommer did not prevail
so she is not entitled to appellate fees. 19
IV. Conclusion.
For all the reasons outlined above, we affirm the district court’s ruling in
total.
AFFIRMED.