In re the Marriage of Karas

• Court: Court of Appeals of Iowa
• Decided: June 30, 2021
• Docket: 20-1424
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1424 Filed June 30, 2021

IN RE THE MARRIAGE OF CLINTON JEREMIAH KARAS AND NATALIE ELISHA KARAS

Upon the Petition of CLINTON JEREMIAH KARAS, Petitioner-Appellee,

And Concerning NATALIE ELISHA KARAS, n/k/a NATALIE ELISHA ERDAHL, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Amy

Zacharias, Judge.

In this dissolution of marriage modification proceeding, the mother appeals

from the district court’s modification of the physical care provisions relating to the

parties’ children. AFFIRMED.

Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.

Kyle Focht, Council Bluffs, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ. 2

AHLERS, Judge.

In this dissolution of marriage modification action, Natalie Erdahl appeals

from the district court’s order modifying the terms of the parties’ modified decree

related to physical care of their children. Natalie challenges the court’s findings

that there were material and substantial changes in circumstances justifying

modification. She further argues that any changes were not permanent and the

district court recalled facts incorrectly in reaching its decision. Natalie requests

reversal of the district court’s order changing physical care of the children from her

to the children’s father and requests appellate attorney fees.

I. Background Facts and Proceedings

Natalie and Clinton Karas divorced in 2017. At that time, the parties

stipulated that Natalie would have physical care of their son and daughter (born in

2011 and 2008, respectively) with extraordinary visitation to Clint. Pursuant to their

agreement, Natalie was given final decision-making authority over the children’s

medical decisions. In 2018, Natalie applied to modify the parties’ divorce decree

due to her impending move to Ashland, Nebraska. The parties resolved the

modification action by stipulation, resulting in reduction of Clint’s mid-week

visitation and Natalie retaining final decision-making authority regarding the

children’s medical care. The district court approved the parties’ modification

stipulation in early 2019.1

Approximately ten months later, Clint filed this modification action seeking

to change the physical care provisions pertaining to the children. He claimed a

1We will refer to the decree approving the parties’ stipulated modification as “the 2019 modification decree.” 3

change of circumstances since entry of the 2019 modification decree warranted

his requested modification.

The evidence presented at trial shows that, consistent with her stated

intentions when the 2019 modification decree was entered, Natalie and the

children moved to Ashland, Nebraska, where they reside in a two-bedroom

apartment. Natalie and Clint’s son has had significant behavioral challenges for

several years. More recently, their daughter began exhibiting behaviors indicative

of immaturity and aggression toward others. Both children have begun seeing

mental health and occupational therapists.

In terms of other significant circumstances affecting the children, the

evidence established that Natalie has been engaged in a three-year long

relationship with a man named Matt, who lives in the same apartment complex,

though in a separate apartment. In the fall of 2019, Matt began having physical

care of his teenage son. Matt’s son has significant behavioral challenges. With

Natalie’s efforts to blend their families, Natalie and Clint’s children had frequent

interactions with Matt’s son. Most notably, there was an incident in April of 2020,

during the pendency of this action, in which Matt’s son became violent with Matt

while Natalie and the children were present. Natalie was forced to keep the

children in a back room of the apartment where the incident was occurring because

it was not safe to exit. While remaining in hiding, she called the police while the

children called and spoke to Clint on the phone. The children’s interactions with

Matt’s son are typically characterized by outbursts, some physical contact, and

frequent verbal disputes. Matt’s son has also reportedly kicked Natalie and Clint’s

son in the chest and has held a BB gun to his head. Matt’s son is reported be a 4

trigger for the parties’ son’s behavioral problems, and also triggers anxiety in their

daughter, as reported by the children’s therapist.

Turning our attention to Clint’s petition for modification that initiated this

action, Clint cited several changed circumstances he believed warranted a

modification. Those circumstances included the children’s escalating behavioral

problems, aggravating environmental conditions while in Natalie’s care, and

Natalie’s inability to manage the escalating behaviors. After the aforementioned

incident in April, Clint filed a motion requesting temporary custody of the children

until trial could be held in this modification action. Based on the circumstances,

which included Matt’s child being placed in treatment away from the parties’

children and the children being on their summer break from school, the district

court ordered the parties to follow a schedule whereby the parties would alternate

time with the children on a weekly basis until the modification trial.

The case proceeded to trial. The district court found sufficiently substantial

changes in circumstances warranting a modification of the physical care

arrangement, and also found Clint to be better suited to parent in the children’s

best interests. Accordingly, the district court modified the decree to grant Clint

physical care of both children and granted Natalie visitation every other weekend

along with one full week in June, July, and August. Natalie now appeals, asserting

there was not a substantial change in circumstances of a permanent nature

warranting modification of the physical care provisions of the decree. Further, she

contends the district court mistakenly misconstrued the evidence in reaching its

decision. 5

II. Standard of Review

We review an order modifying a decree of dissolution de novo. In re

Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). The district court’s findings

are not binding. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

However, particular weight is given as to the district court’s witness credibility

findings. Id. Even though our review of a modification action is de novo, there is

deference to the district court in that we will affirm unless the court failed to do

substantial equity. See Ryan v. Wright, No. 17-1375, 2018 WL 2246882, at *2

(Iowa Ct. App. May 16, 2018) (citing In re Marriage of Mauer, 874 N.W.2d 103,

106 (Iowa 2016)). The child’s best interest is the “controlling consideration.” In re

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

III. Modification of Physical Care

Natalie contends there was not a substantial change in circumstances not

in the court’s contemplation at the time of entry of the 2019 modification decree

that warrants modification of the physical care arrangement. As the party seeking

the modification, the heavy burden is on Clint to prove there was a substantial

change in circumstances. See In re Marriage of Mikelson, 299 N.W.2d 670, 671

(Iowa 1980). The principles governing a physical care modification are well-

established:

To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence 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. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody 6

from the other must prove an ability to minister more effectively to the children’s well being.

Hoffman, 867 N.W.2d at 32 (quoting In re Marriage of Frederici, 338 N.W.2d 156,

158 (Iowa 1983)). The primary focus in light of these principles is the best interests

of the children. In re Marriage of Fennelly, 737 N.W.2d 97, 191 (Iowa 2007). The

district court agreed with Clint that there has been a substantial change in

circumstances, and we agree.

Natalie focuses on the principle that the substantial and material change in

circumstances must have occurred since the last decree–in this case the 2019

modification decree. We agree with Natalie that Clint had the burden to show the

requisite change of circumstances since entry of the 2019 modification decree.

See Hoffman, 867 N.W.2d at 32. However, we disagree with Natalie’s contention

that the district court impermissibly considered circumstances dating to before the

original dissolution decree in determining there were changed circumstances. In

its opinion, the court did note Natalie’s relocations prior to the 2019 modification

decree and the children’s school changes. However, in its opinion, the court

primarily focused on events occurring since the 2019 modification decree. Those

events include escalation of behavioral problems, including the son’s escalation of

destructive behavior evidenced in the summer and fall of 2019, when he destroyed

property in Natalie’s apartment and property at his schools. The court also

considered an incident that occurred during one of the son’s telehealth

occupational therapy appointments when Matt’s son was present. The boys’

interactions in the apartment prompted the therapist to contact child protective

services due to safety concerns related to their interactions. The district court 7

categorized these incidents occurring since entry of the 2019 modification decree

as escalations in behavior constituting changed circumstances, and, on our de

novo review, we agree.

At the time of entry of the 2019 modification decree, it was in the parties’

contemplation that their son had certain diagnoses that manifested themselves in

challenging behavior. It was not, however, in the parties’ nor the court’s

contemplation that their son would begin exhibiting escalations in behavior or that

their daughter would begin to exhibit concerning behaviors while in her mother’s

care. Natalie herself testified that in October 2019 their son really began “going

off the rails.”

The court also cited environmental factors as a change in circumstance as

well. The daughter’s occupational therapist testified that she believes the

daughter’s concerning behaviors are a result of her environment living with Natalie,

and there is no evidence of exhibiting these behaviors when she is spending time

with Clint. Such behaviors include being unhygienic and unkempt when arriving

for appointments while in Natalie’s care, having a generally poor demeanor when

coming from Natalie’s care, and exhibiting a lack of emotional connection with

Natalie. The therapist testified to the daughter being clean, well presented, and

energetic when coming from Clint’s care. Clint and his wife Laura testified to both

children exhibiting significantly less concerning behaviors while in their care as

well. In fact, they saw almost no need for their daughter to be in occupational

therapy, as the issues Natalie points to are not present at their home. The son’s

therapists also testified to similar presentations when he arrives for appointments, 8

noting significant differences in his attitude when coming from Clint’s care versus

coming from Natalie’s care.

Natalie has also encountered increased difficulties when attempting to

control her son’s behavior and outbursts, often relying on Clint to calm him down

over the phone or relying on Matt to physically restrain him. These restraints have

reportedly caused the son physical pain, yet Clint and Laura report rarely needing

to resort to physical restraint to control the son’s outbursts.

Natalie contends these circumstances are not permanent so as to justify a

modification to the custody arrangement. We agree with Natalie that the changed

circumstances must be “more or less permanent, not temporary” to support

modification. See id. However, we disagree with Natalie’s contention that Clint

has not made such a showing. In making her argument, Natalie points to the

district court’s discussion of two incidents in April of 2020. During those incidents,

Matt and his son were in a physical altercation in the presence of Natalie and her

children. Natalie removed the children to a separate room and called the police.

In the days following, Matt’s son physically harmed Natalie’s son by kicking him in

the chest. Natalie points to these instances as temporary and resulting from

transitioning to at-home working and schooling due to the COVID-19 pandemic. It

is clear, however, that these incidents are only two specific examples of the

escalating behaviors and unsafe environment that have been occurring since the

previous modification. Natalie and Matt have been in a relationship for several

years, and as noted by the district court, it does not appear there will be any change

in that going forward. They both testified to a desire to have all three children

together again in the future. While the district court considered these two events 9

in its determination, as it should have, it also considered the additional changed

circumstances as set out above. Accordingly, the argument that the district court

relied only on temporary considerations is unpersuasive. The escalating behaviors

and Natalie’s increased inability to control those behaviors existed prior to the

pandemic and have continued largely unabated since, persuading us the

circumstances are more than a temporary event. The changed circumstances

identified by the district court and by us on our de novo review have occurred

through much of 2019 and 2020. Our standard is “more or less permanent,” and

this continued escalation and unsafe environment qualifies. See Simpkins v.

Simpkins, 137 N.W.2d 621, 623 (Iowa 1965) (recognizing the changed

circumstances warranting modification “must be ‘more or less’ permanent or

continuous”). We find no reason to disagree with the district court’s determinations

and accordingly agree that Clint has met his burden of showing a change in

circumstance not within the court’s contemplation at the time of entry of the 2019

modification decree and such change is more or less permanent.

Though not addressed in Natalie’s brief, we consider the fact the party

seeking modification must also show that he or she is the parent who is better

equipped to parent in the children’s best interests. Frederici, 338 N.W.2d at 158.

The children’s therapists testified to their beliefs that many of the children’s

concerning behaviors, especially the daughter’s, are environmentally triggered. It

appears there is little follow-through with therapist-recommended exercises and

home policies in Natalie’s home, leaving the children deprived of the structure they

require. Further, Natalie’s relationship with Matt has put her children in repeated

dangerous situations due to the proximity of and interactions with Matt’s son. As 10

the district court noted in its ruling, “to continue contact between [Matt’s son] and

either of her children, is absolutely unacceptable.” The district court also noted,

“Natalie’s own testimony convinces the court that she is not putting her children’s

interests first.” Due to Natalie’s inability to provide a safe, structured, and

consistent household for her children, we agree that Clint is better suited to parent

in the children’s best interests.

IV. District Court’s Mistaken Factual Findings

Natalie contends the district court’s decision was based on mistaken

recollection and misapplied facts. In the court’s ruling, it stated a safety plan for

Matt’s son was implemented before the incident during which Matt’s son kicked

the parties’ son in the chest. Upon review of the record, it is clear the safety plan

was implemented after that incident occurred, not before. However, this does not

change the outcome of the case. The district court’s decision makes it clear it

considered circumstances well beyond just the timing of the safety plan

implemented to address Matt’s son’s physical attacks on others. Even if we

assumed the district court placed too much weight on this factual mistake, we do

not do so on our de novo review. For the reasons explained throughout this

opinion, we find the facts warrant modification to place physical care of the children

with Clint.

V. Appellate Attorney Fees and Costs

Natalie requests that we order Clint to pay her appellate attorney fees.

Appellate attorney fees in a dissolution of marriage modification proceeding “are

not a matter of right, but rather rest in this court’s discretion.” In re Marriage of

Okland, 699 N.W.2d 260, 270 (Iowa 2005). The factors we consider include “the 11

needs of the party seeking the award, the ability of the other party to pay, and

relative merits of the appeal.” Id. Natalie was not successful on appeal, and any

imbalance between Clint’s ability to pay and Natalie’s need does not rise to a level

to warrant an award of appellate attorney fees. Therefore, we deny Natalie’s

request for appellate attorney fees. Each party shall be responsible for his or her

own attorney fees. Costs of this appeal are assessed to Natalie.

AFFIRMED.