In Re the Marriage of Karen A. Taylor and Timothy D. Taylor Jr. Upon the Petition of Karen A. Taylor, and Concerning Timothy D. Taylor Jr.

• Court: Court of Appeals of Iowa
• Decided: March 23, 2016
• Docket: 15-1003
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1003 Filed March 23, 2016

IN RE THE MARRIAGE OF KAREN A. TAYLOR AND TIMOTHY D. TAYLOR JR.

Upon the Petition of KAREN A. TAYLOR, Petitioner-Appellee,

And Concerning TIMOTHY D. TAYLOR JR., Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, William C. Ostlund,

Judge.

The father appeals the district court’s modification of joint physical care of

the minor children and granting the mother physical care. AFFIRMED.

Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des

Moines, for appellant.

Eric Borseth of Borseth Law Office, Altoona, for appellee.

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

VOGEL, Judge.

Timothy Taylor appeals the district court’s modification of joint physical

care of his and Karen Taylor’s minor children, which granted Karen physical care.

Timothy claims no substantial change in circumstances occurred such that a

modification of the physical care arrangement was warranted. The district court

found such a change based on the level of discord between the parties and their

deteriorated ability to co-parent the children. We agree that it is in the children’s

best interests the decree be modified and therefore affirm.

I. Factual and Procedural Background

The parties were married in 1997. One child, T.T., was born in 1998.

Another child, A.T., was born in 2006. In May 2011, the marriage was dissolved.

The decree granted the parties joint legal custody and joint physical care of the

children, an arrangement that initially proved to be successful. In 2012, Timothy

began a relationship and cohabitation with Amy Lundstrum. The otherwise

amicable cooperation between Timothy and Karen as co-parents began to

crumble to the point where Karen filed a petition to end the decreed joint physical

care, seeking physical care of the children. Timothy resisted. After a hearing in

March 2015, the court granted Karen’s petition by written ruling on May 11, 2015.

Timothy appeals.

II. Standard of Review

We review modification of custody proceedings de novo. In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (2015). While we are not bound by the district

court’s findings of fact, we accord them weight; additionally, the best interest of

the children is our primary consideration. Id. 3

III. Substantial Change in Circumstances

Timothy asserts no substantial change in circumstances occurred such

that a change in the joint physical care arrangement was warranted.

To modify a custody decree:

[T]he 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 from the other must prove an ability to minister more effectively to the children’s well being.

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

The district court found Timothy’s relationship with Amy, which began in

2012, “signaled the deterioration of [the joint physical care] arrangement.” When

Timothy ended their cohabitation in November 2012, the previously well-

functioning, co-parenting returned. It ceased again when Timothy and Amy

decided to move back in together in December 2013. As the district court found:

“A reoccurring factor of abrasion and influence in this matter is Amy Lundstrum.

For whatever reasons, the shared parenting arrangement appears to have

deteriorated with the permanent insertion of Amy into Tim’s life.”

Fortunately, the parties have been able to shelter A.T. from much of the

stress of the adults’ relationships. T.T., however, has not been so fortunate.

Due to Timothy’s choice to put Amy’s interests ahead of T.T.’s interests, the

father-son relationship came to a standstill. T.T. has not had much, if any,

contact with Timothy since September 2014. While the record is replete with 4

examples of the poor dynamics between the parties—as well as the adverse

effect this has had on T.T., and to some extent, A.T.—it would serve no purpose

to repeat that which the district court has already noted. However, we concur

with the district court’s finding that the father-son relationship has “been

significantly eroded,” with Timothy unable to understand his role in bringing about

such a dramatic rift.

To help sort out the best interests of the children, a guardian ad litem

(GAL) was appointed. After reviewing her work with the parties and the children,

the district court stated:

[H]er involvement, investigation and perception of the parties is extremely comprehensive and intuitive. While the Court does not consider the findings of facts as evidence in this case, the Court does find her analysis to be consistent with this Court’s consideration of the evidence presented at the time of trial.

Indeed, the GAL’s written report was detailed and extensive. In part, she wrote:

Tim does not seem to have an appropriate understanding of his children’s emotional needs. Nor does Tim appear to be able to prioritize his children’s needs over his own. He is not interested in co-parenting with Karen. His decisions have ruined his relationship with his son. .... Continued joint physical care will not work in this case due to the breakdown in the father’s relationship with the son; and the breakdown in the parties’ ability to co-parent the children. A primary caregiver must be designated.

The district court agreed, and found a material change of circumstances meriting

modification.1 These circumstances include the fact Timothy and Amy professed

to be in a permanent relationship, which led to the breakdown of Timothy and

1 We do agree with Timothy the district court erred in one of its findings relating to an incident when T.T. went with Karen to Timothy’s home to retrieve some of his belongings. It was Karen, not Amy, who enlisted the assistance of the police to accompany them to maintain the peace. 5

T.T.’s father-son relationship, as well as Karen and Timothy’s ability to co-parent.

See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998) (noting

the discord between the parents and the disruption it had on the lives of the

children warranted a modification to designate a physical caregiver). The court

then found Karen to be the parent who should have physical care of the children

and granted Timothy visitation. Given Karen’s superior ability to parent—as

demonstrated by her continual urging of T.T. to restore his relationship with

Timothy, contrasted with Timothy’s allowing his relationship with Amy to interfere

with his relationship with both the children—we agree with the district court it is in

the children’s best interests to modify the dissolution decree by granting Karen

physical care of the children. See id.; Frederici, 338 N.W.2d at 158.

IV. Attorney Fees

The district court directed each party to pay their own attorney fees and to

share the costs, including the costs of the GAL. On appeal, Timothy requests an

award of appellate attorney fees, as well as a remand to the district court for an

award of trial attorney fees. Karen also requests an award of appellate attorney

fees.

In determining 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 decision of the

trial court on appeal. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App.

1997). In this case it is clear both parties enjoy good income, but it was Karen

who was obligated to defend the district court’s decision. We award Karen 6

$3000 in appellate attorney fees, and costs on appeal are assessed to Timothy.

We decline to remand to the district court to revisit the attorney-fee ruling below.

For these reasons, we affirm the district court’s decision.

AFFIRMED.