In Re the Marriage of Jared Allen and Victoria Allen Upon the Petition of Jared Allen, and Concerning Victoria Allen, N/K/A Victoria Cooling

• Court: Court of Appeals of Iowa
• Decided: March 23, 2016
• Docket: 15-1100
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1100 Filed March 23, 2016

IN RE THE MARRIAGE OF JARED ALLEN AND VICTORIA ALLEN

Upon the Petition of JARED ALLEN, Petitioner-Appellee,

And Concerning VICTORIA ALLEN, n/k/a VICTORIA COOLING, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.

Formerly married parents sought to modify the joint physical care

arrangement, and the mother appeals from the district court’s order placing the

child in the father’s physical care. AFFIRMED.

Judy Johnson of Borseth Law Office, Altoona, for appellant.

Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellee.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ. 2

DANILSON, Chief Judge.

Formerly married parents, Victoria Allen (now Victoria Cooling) and Jared

Allen sought to modify the joint physical care arrangement of the modified

dissolution decree. The mother appeals from the district court’s order placing the

child in the father’s physical care. Finding no reason to disturb the trial court’s

ruling, we affirm.

I. Background Facts and Proceedings.

Victoria and Jared were married in 2001, had a child (M.) in 2004, and

were divorced in 2007. The dissolution decree placed the child in the parties’

joint physical care (eight days with the mother and six days with the father in

each two-week period). At the time, both parents lived in the Waterloo and

Cedar Falls area.

In 2010, the decree was modified to the extent that the parties stipulated

the child would spend alternating weeks with each parent. Both parties have

remarried since the dissolution; Jared in 2009, and Victoria in 2011. Jared and

his spouse have a child together. Victoria and her spouse have two children

together. In November 2014, Victoria’s spouse began a new job in Ames.

Victoria did not immediately move with her spouse, but stayed in the Waterloo

and Cedar Falls area so as not to disturb the joint physical care arrangement or

interrupt the child’s school placement. However, in May 2015, Victoria and the

children joined her spouse, renting a house in Huxley, Iowa. Victoria filed a

petition to modify the physical care of M.; Jared, too, sought physical care of the 3

child. Following a trial, the district court ordered physical care would be placed

with Jared, and Victoria was to pay thirty dollars per month in child support.

Victoria appeals.

II. Standard of Review.

Petitions to modify the physical care provisions of a divorce decree lie in equity. Accordingly, our review is de novo. Although we make our own findings of fact, “when considering the credibility of witnesses the court gives weight to the findings of the trial court” even though we are not bound by them. The children’s best interest is the “controlling consideration.” Utilizing the best-interest standard “provides the flexibility necessary to consider unique custody issues on a case-by-case basis.”

In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (citations omitted).

III. Discussion.

Typically, when an original custody order is modified, the party seeking

modification must prove a material and substantial change in circumstances. In

re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). When the

modification would mean that one parent receives physical care, that parent must

also demonstrate an ability to minister more effectively to the child's well-being.

Id.

Since the entry of the previous modification order in 2010, the parents

have shared equally the physical care of the child. Consequently, we address

this as an initial custody determination where the issue is which parent can

render better care. See Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App.

2002). The parties agree Victoria’s move constituted a material change in

circumstances warranting modification. 4

In making the physical-care decision, the district court is guided by the

factors enumerated in Iowa Code section 598.41(3) (2015), as well as other

nonexclusive factors enumerated in In re Marriage of Winter, 223 N.W.2d 165,

166–67 (Iowa 1974). The ultimate objective of a physical care determination is to

place the child in the environment most likely to bring the child to healthy

physical, mental, and social maturity. In re Marriage of Courtade, 560 N.W.2d

36, 38 (Iowa Ct. App. 1996). As each family is unique, the decision is primarily

based on the particular circumstances of each case. Hoffman, 867 N.W.2d at

32; see also In re Marriage of Hansen, 733 N.W.2d 683, 699 (Iowa 2007).

Upon our de novo review, we find no reason to modify the court’s findings

and conclusions. We note the parties stipulated to shared care both in the

original decree and in the 2010 modification. They each, in essence,

acknowledged the other is a proper caregiver for the child. The shared-care

arrangement worked adequately for eight years. It was only when the parties

were an hour-and-a-half drive from each other that modification of the

arrangement was sought.

Here, the trial court found that each parent “attempted to paint the other

party in an unfavorable light during trial.” It also found, however, “[B]oth parties

and their new spouses are good people who have provided stable and secure

residences for the minor child.” Having reviewed the record de novo, we agree

with this finding. The trial court took into account the relevant factors set out in

Iowa Code section 598.41(3) (listing factors the court “shall consider” in

determining what custody arrangement is in the child’s best interests), including 5

Victoria’s move. While the move was not so far that it would qualify for the

presumed change of circumstances provided in Iowa Code section 598.21D

(providing that a relocation of 150 miles or more may constitute a substantial

change in circumstances warranting a modification of a custody order), both

Victoria and Jared agreed it made the shared-care arrangement unworkable.

The court ultimately determined the stability of keeping the child in the

same school district and near extended family tipped the balance in favor of

placing the child with the father. We do not disturb this finding, and we therefore

affirm.

There are some concerns regarding each parent albeit nothing overly

significant or that bears repeating here except two matters or issues that could

arise again. We share the concern of Victoria that Jared, on one occasion,

harshly punished the child, although not in a physical manner. The incident is

disconcerting but we trust Jared will act more reasonably in his future efforts at

behavior modification of the child. We also note Jared has not been particularly

flexible with modifications to the visitation. Both parents are expected to work

cooperatively in parenting the child and to be flexible in temporary visitation

changes or trade-offs. Visitation terms are not able to be fixed to incorporate all

of the important affairs in the child’s life or the affairs of each parents’ family.1

Both parents request an award of appellate attorney fees. An award of

appellate attorney fees rests within the discretion of this court. In re Marriage of

McDermott, 827 N.W.2d 671, 687 (Iowa 2013). In exercising this discretion, we

1 Both parents shall keep in mind the child’s best interests whether that be a vacation with grandparents, a family birthday party, a wedding, or other important family event. 6

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 of the trial court on appeal.” In re Marriage of Applegate, 567 N.W.2d

671, 675 (Iowa Ct. App. 1997). The relative merits of the appeal are also a

factor. McDermott, 827 N.W.2d at 687. We have considered these several

factors and conclude the parties shall pay their own attorney fees.

AFFIRMED.