In re the Marriage of McDonald

• Court: Court of Appeals of Iowa
• Decided: December 6, 2023
• Docket: 23-0481
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0481 Filed December 6, 2023

IN RE THE MARRIAGE OF TYLER McDONALD AND CHERI McDONALD

Upon the Petition of TYLER McDONALD, Petitioner-Appellant,

And Concerning CHERI McDONALD, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for O’Brien County, Shayne Mayer,

Judge.

Tyler McDonald appeals from the modification of the decree dissolving his

marriage to Cheri McDonald. AFFIRMED.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Cheri McDonald, Harrisburg, South Dakota, self-represented appellee.

Considered by Bower, C.J., and Buller and Langholz, JJ. 2

LANGHOLZ, Judge.

Tyler McDonald appeals from the order modifying the decree that dissolved

his marriage to Cheri McDonald. He argues that the district court should have

granted him—rather than Cheri—physical care of the parties’ only child together

mainly because the district court gave insufficient weight to certain factors,

including the presumption in favor of placing half-siblings together and Cheri’s poor

relationship with her other children from prior relationships. But the district court

found that placing their child with Cheri would be in the child’s best interests—

particularly the child’s interest in being supported to have a relationship with both

parents—even considering the sibling presumption or other concerns. On our own

de novo review, giving the district court’s findings the weight they deserve, we

agree that placement with Cheri is in their child’s best interests.

Tyler also seeks to reverse Cheri’s partial attorney fee award of $5000. But

Cheri is still a prevailing party, and he offers no other specific argument that the

district court abused its discretion. We also see no abuse of discretion in the

award. So we affirm.

I. Background Facts and Proceedings

Tyler and Cheri McDonald divorced in February 2020 after less than two

years of marriage. They have one son together, who was seven months old at the

time of their divorce. In the dissolution decree, the court gave them joint legal

custody and joint physical care of their son. When things were working as planned,

they were to alternate their care weekly with one three-hour visitation period for

the other parent during each week. 3

Before their divorce was final, Tyler began a new relationship with Kathleen

Britten. And a few months after the decree was entered, Tyler and Kathleen’s

daughter was born. She is about one year younger than Tyler and Cheri’s son.

Tyler and Kathleen have not married. But they live together with their daughter

and another daughter of Kathleen from a previous relationship. Tyler and Cheri’s

son has a close relationship with his half-sister, and the two siblings share a

bedroom when he is in Tyler’s care.

While she has no formal legal relationship with him, Kathleen has played an

active role in the care of Cheri and Tyler’s son and matters related to Cheri’s

involvement with the son. Kathleen was often included in communications

between Tyler and Cheri about arranging visits. Indeed, Tyler essentially

delegated nearly all matters about the timing of Cheri’s visitation—and even phone

communications—to Kathleen rather than working cooperatively directly with

Cheri.

The alternating care stopped going as planned in September 2020 when

Cheri was arrested and charged with sexual abuse in the third degree. The

charges stemmed from an allegation by one of Cheri’s older sons, who was born

from a previous dating relationship and then adopted by her previous husband,

Alan Visser. That son alleged that about seven years before, when he was thirteen

or fourteen, Cheri sexually abused him in the bathroom. The charges were

eventually dismissed by the county attorney. But not before they deteriorated

Cheri and Tyler’s relationship further.

After learning of the charges, Tyler refused to return their son to Cheri's care

for her alternating weeks. She then filed a contempt action. And in late October 4

2020, the district court found Tyler in contempt and ordered him to follow the

decree. The court reasoned that while Tyler’s actions were originally justified, it

was unreasonable to continue to refuse to follow the decree after Cheri was

released from jail. After the contempt order, the parties returned to alternating

weekly care of their son—at least for a while.

Shortly after her arrest, Cheri moved from northwest Iowa to South

Dakota—first to Sioux Falls and then a nearby small town. Still, the parties

continued to alternate weekly care across the greater distance. But in March 2022,

Tyler petitioned for modification alleging a substantial and material change in

circumstances since the original decree’s entry and seeking sole legal custody and

primary physical care of their son. Cheri agreed there had been a substantial and

material change in circumstances but sought primary physical care herself.

While the petition was pending, Tyler again began refusing to return their

son to Cheri’s care because of a new allegation of sexual abuse. This time,

another son from Cheri and Alan Visser’s marriage accused her of inappropriate

sexual touching two or three years before when he was nine or ten and had been

sleeping in her bed in only his underwear. The allegations were reported to the

Iowa Department of Human Services.1 At the time of the modification trial, no

criminal charges had been filed and Cheri was still appealing the Department’s

preliminary determination that the allegations were founded. Yet from July 2022

until at least the final modification hearing in February 2023—save for one two-

week period—Tyler refused to return their son to Cheri’s care in compliance with

1 The Department has since been renamed as the Department of Health and

Human Services. 5

the original decree. So Cheri again filed for contempt, which was scheduled to be

heard by the district court at the same time as the modification petition.

Then, while both were still pending, Tyler raised a new set of allegations of

improper sexual conduct by Cheri directed toward their son. First, at the end of

July 2022, Tyler reported to the Department concerns about an incident when their

then-three-year-old son pulled Tyler’s hand toward the son’s genital area and was

also reaching for Tyler’s genitals. Tyler expressed concern that this behavior might

mean that Cheri improperly touched their son. Later, in October 2022, Tyler

reported to the Department that their son was using his tongue to ask for kisses

and said that Cheri showed him how to do it and called it a “French.” Both

allegations were determined by the Department to be unfounded.

Throughout the parties’ post-dissolution interactions, they suffered from

poor communication. While neither is blameless, Tyler especially failed to involve

Cheri in important matters about their son, including changing his daycare multiple

times and deciding whether to enroll their son in play therapy. He also once agreed

to let Cheri pick up their son when he was sick, and after she drove from South

Dakota to do so, he refused to answer the door.

After four days of trial between October 2022 and February 2023—hearing

testimony from seventeen witnesses—the district court agreed that Cheri’s

relocation was a substantial and material change in circumstances justifying

modification and granted physical care to Cheri with visitation for Tyler. In a forty-

five-page opinion, the court explained that the decision was “difficult” because both

parents offered “suitable homes” and Tyler’s home included their son’s half-sister.

But the court reasoned that this was outweighed by concerns that Tyler would 6

“continue to parentally alienate” their son from Cheri to the point that it “will be

impossible for Cheri to salvage a relationship with her son” if Tyler were to be

granted physical care. The court pointed to “Tyler’s willful and continual denial of

Cheri’s visitation,” his delegation of visitation matters to his new girlfriend Kathleen

causing “much disfunction,” and his lack of communication with Cheri “about major

issues such as daycare and counseling.”

The district court did not factor in the allegations of sexual abuse against

Cheri because the court found that Tyler failed to present sufficient evidence that

any of the alleged abuse occurred. The court also noted that Cheri passed

polygraph tests about the allegations, that the criminal charges had been

dismissed, and that no new charges had been filed on the later allegations. And

the court expressed concern that the accusations from Cheri’s older sons may

have been driven by their father—Cheri’s ex-husband—and his “disdain” for

Cheri.2

The district court maintained the award of joint legal custody and increased

the amount of child support Tyler must pay Cheri to account for the changed

physical-care award. The court also held Tyler in contempt—ordering him to pay

$1500 in attorney fees as punishment—after finding that he willfully violated the

custody order by refusing to follow the joint-physical-care arrangement and

2 On appeal, Tyler does not challenge the district court’s fact-findings and credibility determinations regarding the sexual abuse allegations or argue for physical care because Cheri is likely to abuse their son. So we do not dwell on these difficult issues or the district court’s method of resolving them. But we emphasize that because there are many reasons a child-sexual-abuse case may be dismissed by a prosecutor unrelated to the veracity of the reported sexual abuse, such a dismissal is not evidence that the charged abuse never happened. And we do not consider it for that purpose here. 7

withholding visitation from Cheri. And the court awarded Cheri $5000 in attorney

fees—about 20% of her total request—as the prevailing party in the modification

proceeding under Iowa Code section 598.36 (2022).

Tyler then asked the district court to amend its decree under Iowa Rule of

Civil Procedure 1.904(2), mainly arguing that the court failed to properly consider

the presumption that siblings should not be separated when determining physical

care. The court explained that it did consider the relationship between Tyler and

Cheri’s son and his half-sister. But it still granted the motion in part to explain its

reasoning as to why the parties’ “absolute inability to communicate” and “Tyler’s

refusal to work towards reunification between Cheri and [their son], outweighed

keeping primary care with Tyler,” even considering the reduction in time their son

will have with his half-sister.

Now, Tyler appeals. He challenges only the decisions placing physical care

with Cheri and awarding her $5000 of attorney fees.

II. Physical Care

We review a district court’s decision to modify the physical-care provisions

of a dissolution decree de novo. In re Marriage of Hoffman, 867 N.W.2d 26, 32

(Iowa 2015); see also Iowa R. App. P. 6.907. But we recognize that a district court

“is greatly helped in making a wise decision about the parties by listening to them

and watching them in person” while we “rely on the printed record” and “are denied

the impression created by the demeanor of each and every witness.” In re

Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citation omitted). We thus

give weight to a district court’s fact findings even though we are not bound by them.

See id. (relying “heavily on the trial court’s findings of fact” to resolve evidence 8

“irreconcilably in conflict” when “[t]hose findings were clearly expressed, supported

by substantial evidence, and led to a sound and equitable determination of the

sensitive” physical-care issue); see also Iowa R. App. P. 6.904(3)(g).

Ordinarily, a party seeking to modify a joint-physical-care provision to obtain

primary physical care would first need to prove by a preponderance of the evidence

that a substantial change in circumstances—more or less permanent and not

originally contemplated by the court—arose after entry of the decree. See In re

Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). If such a qualifying change

is found, then the party must show that he or she is “better suited” than the other

parent “to minister to the needs of the” child. Id. at 444; see also Melchiori v. Kool,

644 N.W.2d 365, 368–69 (Iowa Ct. App. 2002). But here, the parties agree that

there has been a substantial change in circumstances and neither seeks to

continue joint physical care. So we—like the district court—focus our attention on

which parent can best care for their child.

In making this decision, “the child’s best interest is the overriding

consideration.” In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). The

factors in Iowa Code section 598.41(3) and In re Marriage of Winter, 223 N.W.2d

165, 166–67 (Iowa 1974), guide us. See Fennelly, 737 N.W.2d at 101. And our

goal “is to place the child[] in the environment most likely to bring them to health,

both physically and mentally, and to social maturity.” In re Marriage of Hansen,

733 N.W.2d 683, 695 (Iowa 2007).

In a detailed and thoughtful ruling, the district court concluded that Tyler and

Cheri’s son should be placed in the physical care of Cheri. The court scrutinized

the extensive evidentiary record that was well-developed by the parties. It weighed 9

the relevant factors required by our caselaw. And it found the decision on who

would be the better parent “difficult,” given the relative merits and concerns about

each. But the court ultimately found that Tyler’s past actions demonstrated that

placement of primary physical care with him would not support their son’s

relationship with Cheri. See Iowa Code § 598.41(3)(e) (requiring consideration of

“[w]hether each parent can support the other parent’s relationship with the child”);

see also id. § 598.41(3)(c) (requiring consideration of “[w]hether the parents can

communicate with each other regarding the child’s needs”).

Tyler argues that the district court did not give sufficient weight to the

interests of their son in not being separated from his half-sister who resides in

Tyler’s home with her mom, Kathleen. Tyler is correct that “[i]n trying to foster

children’s best interests, we ordinarily endeavor to keep children of broken homes

together.” In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981) (internal

citation omitted). The supreme court has explained that children of broken homes

are “the innocent victims of marital bankruptcy” who should not be denied “the

benefit of constant association with each other” unless “their best interests require

it.” In re Marriage of Wahl, 246 N.W.2d 268, 270 (Iowa 1976). And these principles

apply whether the children are full siblings or half-siblings. In re Marriage of Orte,

389 N.W.2d 373, 374 (Iowa 1986). But even if this presumption applies to a later-

born half-sibling who was never a part of the dissolved marriage home, it is “not

ironclad” and can be overcome when other interests outweigh the benefits of a

placement together. Jones, 309 N.W.2d at 461.

The district court made precisely that judgment call here. And we agree.

Tyler and Cheri’s son’s long-term interests in having his primary caregiver support 10

his relationship with his other parent and communicate about his needs outweigh

the somewhat increased contact with his half-sister that would occur if he were

placed in her home. See In re Marriage of Quirk–Edwards, 509 N.W.2d 476, 480

(Iowa 1993) (holding that parent’s attempt to limit child’s contact with other parent

was a compelling reason to separate half-siblings and place child with the other

parent); see also Iowa Code § 598.41(1)(c) (“The court shall consider the denial

by one parent of the child’s opportunity for maximum continuing contact with the

other parent, without just cause, a significant factor in determining the proper

custody arrangement.”). This is all the more so given that the parties continue to

have joint legal custody and Tyler has been awarded visitation rights that should

allow the half-siblings significant association with each other. See In re Marriage

of Pundt, 547 N.W.2d 243, 246 (Iowa Ct. App. 1996).

Tyler also contends that the district court should have given greater weight

to the poor quality of Cheri’s relationships with her older children. He points

specifically to the fact that two older sons accused her of sexual abuse as evidence

of an estrangement that shows Cheri will eventually become estranged from their

son too. But the district court did consider these relationships—noting that the

parties agreed “that Cheri does not have close relationships with her other

children” for reasons that “are unclear.” And the court carefully parsed through the

evidence surrounding the allegations of sexual abuse before finding them

unproven. Particularly when there are lurking concerns that the relationships with

her older children have been aggressively undermined by Cheri’s former husband,

we agree with the district court that this is not a basis to deprive Tyler and Cheri’s

son from the best opportunity to keep strong relationships with both of his parents. 11

No doubt, both Tyler and Cheri love their son and could provide a good

home for him. But Tyler’s consistent actions depriving their son of a full relationship

with Cheri and failing to involve her appropriately in decision-making tip the

balance in deciding who will be the better parent. Granting physical care to Cheri

and visitation rights to Tyler best serves the long-term interests of their son. We

thus affirm the district court’s physical-care decision.

III. Attorney Fees

Tyler further argues the court abused its discretion in ordering him to pay

$5000 of Cheri’s trial attorney fees and the court costs for the modification

proceedings. In a modification proceeding, the district court has discretion to

“award attorney fees to the prevailing party in an amount deemed reasonable by

the court.” Iowa Code § 598.36. An award of trial attorney fees lies in the sound

discretion of the district court. In re Marriage of Michael, 839 N.W.2d 630, 639

(Iowa 2013). The key factor to be considered is “the parties’ respective abilities to

pay.” Id. And the ruling will not be altered on appeal in the absence of an abuse

of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995).

Tyler is correct that if we had reversed the district court’s physical care

ruling, Cheri would no longer be “the prevailing party” eligible for an award of

attorney fees. See Iowa Code § 598.36. But we have not. And Tyler makes no

other specific argument about how the district court abused its discretion in

awarding attorney fees. The district court did not abuse its discretion in awarding

Cheri some of her trial attorney fees and costs.

AFFIRMED.