IN THE COURT OF APPEALS OF IOWA
No. 14-1408 Filed May 20, 2015
IN RE THE MARRIAGE OF MELISSA SUTTON AND PATRICK SUTTON
Upon the Petition of MELISSA SUTTON, Petitioner-Appellee,
And Concerning PATRICK SUTTON, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane
Hoffmeyer, Judge.
Patrick Sutton appeals the modification of the physical care provision of
the decree of dissolution of his marriage to Melissa Sutton. AFFIRMED.
Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux
City, for appellant.
Tara Vonnahme, Sioux City, for appellee.
Considered by Danilson, C.J., Potterfield, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
POTTERFIELD, J.
Patrick Sutton appeals the modification of the decree of dissolution of his
marriage to Melissa Sutton. The modification granted Melissa physical care of
the parties’ youngest daughter, S.M.S., and awarded her child support.
I. Factual and Procedural Background
The decree dissolving the parties’ marriage was entered on June 12,
2012. The decree granted physical care of S.M.S. and the parties’ older twin
daughters to Patrick.1 The parties were to share joint legal custody. Since that
time, the parties’ parenting relationship and ability to communicate has broken
down beyond repair.
The record reflects a litany of ongoing disputes between the two, a
sampling of which we discuss here. Each party accuses the other of subjecting
the children to emotional abuse. Patrick refuses to communicate with Melissa by
telephone and has disabled text messaging so Melissa cannot send him text
messages. He will only communicate with her through his work email. He
admitted he did not disclose the children’s medical issues to Melissa, particularly
the children’s recently prescribed regimen of anti-anxiety medications. Patrick
claims Melissa has improperly refused to reimburse him for medical expenses.
The expenses he claims include purchases of cough drops and Tylenol. Melissa
has lost visitation time with S.M.S. Each party blames the other for the loss (or
forfeit) of visitation hours. Melissa takes exception to Patrick sleeping in the
same bed as S.M.S., who is currently ten years old. One of S.M.S.’s therapists
1 The twins will turn eighteen in just a few weeks, and they are not the subject of this appeal or the underlying modification. 3
agreed that behavior was inappropriate. Patrick claims the behavior was not
inappropriate based on the circumstances of his living space and that he no
longer sleeps with her through the night.
On a number of occasions, Patrick called the police to Melissa’s home
while the children were visiting. Patrick’s demeanor with officers was described
as “very rude.” He demanded the police arrest Melissa, though the police never
did so. The testimony of one of the reporting police officers indicated that on one
occasion, Patrick was present outside Melissa’s house, “very loud, very
demanding, and using profanity.” The officer testified Melissa appeared to be in
fear and was “very concerned about her safety and her children’s safety.”
Patrick describes Melissa as a chronic liar. He relies heavily on the fact
the twins have decided not to attend visitations with their mother for the last
several years. He says the twins made that decision on their own because they
“were no longer willing to be lied to by Melissa.”
The parties both state S.M.S. was previously a very happy and outgoing
girl. Since the dissolution of the parties’ marriage, however, she has become
anxious, unhappy, and socially inhibited as a result—at least in part—of the
acrimony festering between the parties. S.M.S. and the twins have been
undergoing therapy.
Three different therapists testified at the modification hearing. Two are
currently seeing the children. The third, Kelly Wagner, was discharged by
Patrick. Patrick alleges he discharged Wagner because she was not spending
enough time with S.M.S. Wagner, however, testified she believed Patrick would
not have discharged her if she had been willing to state Melissa emotionally 4
abused S.M.S. Wagner testified she believed S.M.S. had actually been
emotionally abused by Patrick. She testified, “Throughout the course of therapy,
I felt an intimidation from Patrick.” She believed S.M.S.’s behavior reflected that
intimidation. She also testified Patrick intimidated Wagner herself such that she
had concerns about coming to court to testify against him. She concluded the
safest, best environment for S.M.S. was in Melissa’s home. The other two
therapists testified on Patrick’s behalf and did not agree with Wagner’s
assessment of Patrick.
Patrick testified on his own behalf. The district court noted, “Patrick, when
testifying, comes across as angry and vengeful.” During the hearing, the court
admonished Patrick for speaking out in the courtroom during other witness’s
testimony, including commentary that a testifying police officer was a liar.
The district court issued its modification order on July 29, 2014. It found,
“Patrick is one of the worst joint custodians this court has ever seen.” It granted
Melissa physical care of S.M.S., awarded child support, and established a
visitation schedule for Patrick to see S.M.S. Patrick now appeals the
modification order.2
II. Standard of Review
We review dissolution cases, including modifications of dissolution
decrees, de novo. See Iowa R. App. P. 6.907; In re Marriage of Okland, 699
N.W.2d 260, 263 (Iowa 2005). “Although our review of the trial court’s award is
de novo, we accord the trial court considerable latitude in making this
2 Melissa did not file an appellate brief in these proceedings. 5
determination and will disturb the ruling only when there has been a failure to do
equity.” In re Marriage of Romanelli, 570 N.W.2d 761, 763 (Iowa 1997). “We
give weight to the findings of the district court, especially to the extent credibility
determinations are involved.” In re Marriage of Hansen, 733 N.W.2d 683, 690
(Iowa 2007); see In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct. App.
1994) (“The district court is greatly helped in making a wise decision about the
parties by listening to them and watching them in person.” (Citation and internal
quotation marks omitted)).
III. Discussion
Patrick first asserts Melissa has failed to show a substantial change in
circumstances to support the necessity of modifying the custodial terms of the
dissolution decree. Modification of custodial terms is only proper if “there has
been a substantial change in circumstances since the time of the decree not
contemplated by the court when the decree was entered, which is more or less
permanent and relates to the welfare of the child.” In re Marriage of Malloy, 687
N.W.2d 110, 113 (Iowa Ct. App. 2004).
Patrick attacks the district court’s finding of a substantial change in
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IN THE COURT OF APPEALS OF IOWA
No. 14-1408 Filed May 20, 2015
IN RE THE MARRIAGE OF MELISSA SUTTON AND PATRICK SUTTON
Upon the Petition of MELISSA SUTTON, Petitioner-Appellee,
And Concerning PATRICK SUTTON, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane
Hoffmeyer, Judge.
Patrick Sutton appeals the modification of the physical care provision of
the decree of dissolution of his marriage to Melissa Sutton. AFFIRMED.
Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux
City, for appellant.
Tara Vonnahme, Sioux City, for appellee.
Considered by Danilson, C.J., Potterfield, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
POTTERFIELD, J.
Patrick Sutton appeals the modification of the decree of dissolution of his
marriage to Melissa Sutton. The modification granted Melissa physical care of
the parties’ youngest daughter, S.M.S., and awarded her child support.
I. Factual and Procedural Background
The decree dissolving the parties’ marriage was entered on June 12,
2012. The decree granted physical care of S.M.S. and the parties’ older twin
daughters to Patrick.1 The parties were to share joint legal custody. Since that
time, the parties’ parenting relationship and ability to communicate has broken
down beyond repair.
The record reflects a litany of ongoing disputes between the two, a
sampling of which we discuss here. Each party accuses the other of subjecting
the children to emotional abuse. Patrick refuses to communicate with Melissa by
telephone and has disabled text messaging so Melissa cannot send him text
messages. He will only communicate with her through his work email. He
admitted he did not disclose the children’s medical issues to Melissa, particularly
the children’s recently prescribed regimen of anti-anxiety medications. Patrick
claims Melissa has improperly refused to reimburse him for medical expenses.
The expenses he claims include purchases of cough drops and Tylenol. Melissa
has lost visitation time with S.M.S. Each party blames the other for the loss (or
forfeit) of visitation hours. Melissa takes exception to Patrick sleeping in the
same bed as S.M.S., who is currently ten years old. One of S.M.S.’s therapists
1 The twins will turn eighteen in just a few weeks, and they are not the subject of this appeal or the underlying modification. 3
agreed that behavior was inappropriate. Patrick claims the behavior was not
inappropriate based on the circumstances of his living space and that he no
longer sleeps with her through the night.
On a number of occasions, Patrick called the police to Melissa’s home
while the children were visiting. Patrick’s demeanor with officers was described
as “very rude.” He demanded the police arrest Melissa, though the police never
did so. The testimony of one of the reporting police officers indicated that on one
occasion, Patrick was present outside Melissa’s house, “very loud, very
demanding, and using profanity.” The officer testified Melissa appeared to be in
fear and was “very concerned about her safety and her children’s safety.”
Patrick describes Melissa as a chronic liar. He relies heavily on the fact
the twins have decided not to attend visitations with their mother for the last
several years. He says the twins made that decision on their own because they
“were no longer willing to be lied to by Melissa.”
The parties both state S.M.S. was previously a very happy and outgoing
girl. Since the dissolution of the parties’ marriage, however, she has become
anxious, unhappy, and socially inhibited as a result—at least in part—of the
acrimony festering between the parties. S.M.S. and the twins have been
undergoing therapy.
Three different therapists testified at the modification hearing. Two are
currently seeing the children. The third, Kelly Wagner, was discharged by
Patrick. Patrick alleges he discharged Wagner because she was not spending
enough time with S.M.S. Wagner, however, testified she believed Patrick would
not have discharged her if she had been willing to state Melissa emotionally 4
abused S.M.S. Wagner testified she believed S.M.S. had actually been
emotionally abused by Patrick. She testified, “Throughout the course of therapy,
I felt an intimidation from Patrick.” She believed S.M.S.’s behavior reflected that
intimidation. She also testified Patrick intimidated Wagner herself such that she
had concerns about coming to court to testify against him. She concluded the
safest, best environment for S.M.S. was in Melissa’s home. The other two
therapists testified on Patrick’s behalf and did not agree with Wagner’s
assessment of Patrick.
Patrick testified on his own behalf. The district court noted, “Patrick, when
testifying, comes across as angry and vengeful.” During the hearing, the court
admonished Patrick for speaking out in the courtroom during other witness’s
testimony, including commentary that a testifying police officer was a liar.
The district court issued its modification order on July 29, 2014. It found,
“Patrick is one of the worst joint custodians this court has ever seen.” It granted
Melissa physical care of S.M.S., awarded child support, and established a
visitation schedule for Patrick to see S.M.S. Patrick now appeals the
modification order.2
II. Standard of Review
We review dissolution cases, including modifications of dissolution
decrees, de novo. See Iowa R. App. P. 6.907; In re Marriage of Okland, 699
N.W.2d 260, 263 (Iowa 2005). “Although our review of the trial court’s award is
de novo, we accord the trial court considerable latitude in making this
2 Melissa did not file an appellate brief in these proceedings. 5
determination and will disturb the ruling only when there has been a failure to do
equity.” In re Marriage of Romanelli, 570 N.W.2d 761, 763 (Iowa 1997). “We
give weight to the findings of the district court, especially to the extent credibility
determinations are involved.” In re Marriage of Hansen, 733 N.W.2d 683, 690
(Iowa 2007); see In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct. App.
1994) (“The district court is greatly helped in making a wise decision about the
parties by listening to them and watching them in person.” (Citation and internal
quotation marks omitted)).
III. Discussion
Patrick first asserts Melissa has failed to show a substantial change in
circumstances to support the necessity of modifying the custodial terms of the
dissolution decree. Modification of custodial terms is only proper if “there has
been a substantial change in circumstances since the time of the decree not
contemplated by the court when the decree was entered, which is more or less
permanent and relates to the welfare of the child.” In re Marriage of Malloy, 687
N.W.2d 110, 113 (Iowa Ct. App. 2004).
Patrick attacks the district court’s finding of a substantial change in
circumstances by discussing a long list of individual factors, including S.M.S.’s
difficulty making friends, her introversion, the discharge of her counselor,
Patrick’s refusal to allow Melissa to take S.M.S. during summer visitation, and
several others. Patricks’ point-by-point refutation alleges none of the
circumstances discussed is enough to satisfy the requirements of a substantial
change. He fails to recognize, however, that the circumstances he discusses are
merely symptoms that, when considered in the aggregate, reflect the larger 6
substantial change in this case: the complete breakdown of the parents’ ability to
communicate and work together as joint custodians and the attendant damage to
S.M.S.’s well-being. The parties’ relationship now suffers from a level of
animosity not contemplated by the court at the time of the dissolution decree.
The parties’ behavior indicates these circumstances are more or less permanent,
and the effect on the welfare of S.M.S. is well-documented in the record. We
affirm the district court’s finding of a substantial change in circumstances
supporting modification of the physical care provisions of the dissolution decree.
Patrick next claims Melissa has not shown she can provide superior care.
“The parent seeking to change the physical care from the primary custodial
parent to the petitioning parent has a heavy burden and must show the ability to
offer superior care.” Id. The district court recognized, and we agree, that
Melissa’s parenting has not been perfect. Both parties share in the blame for the
breakdown of their relationship as joint custodians of the children.
However, we further agree with the district court: Patrick’s ability to
minister to S.M.S’s well-being is compromised by his vindictive and
uncooperative behavior. S.M.S.’s emotional well-being has been damaged as a
result. The district court cited In re Marriage of Winnike, 497 N.W.2d 170, 174
(Iowa Ct. App. 1992), in which this court held, “In determining custody we can
give great weight to a parent’s attempt to alienate a child from her other parent if
evidence establishes the actions will adversely affect a minor child.”
Melissa demonstrated good-faith efforts to improve her relationship with
her daughters by supporting their therapy and attending sessions on her own and
with her children. She has generally kept the channels of communication with 7
Patrick open and worked to remain involved in S.M.S.’s life despite the difficulties
she has faced throughout the parties’ contentious post-dissolution relationship.
Relative to the quality of Patrick’s ability to minister to S.M.S.’s physical,
psychological, and emotional well-being, Melissa has demonstrated her ability to
offer superior care.
On the whole, our “primary consideration is the best interests of the child.”
In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999); see Iowa Code
§ 598.41(3) (2013). We find the district court’s modification order provides for
S.M.S.’s best interests. We therefore decline to disturb the provisions of its
modification order awarding Melissa physical care of S.M.S., its award of child
support,3 or its visitation schedule.
IV. Conclusion
The record shows by a preponderance of the evidence there is a
substantial change in circumstances supporting the district court’s modification
order. Similarly, the record shows by a preponderance of the evidence Melissa
can provide superior care. On our de novo review, we find the district court’s
modification order achieves an equitable result in the best interests of the child,
and we therefore affirm the order. In consideration of this result, we exercise our
discretion to assign each party its own costs on appeal.
AFFIRMED.
3 We decline to disturb the modification order as to Patrick’s alternative claim asking this court to allow him to claim S.M.S. as a dependent for tax purposes. Patrick has not asserted how such a result is required to achieve equity between the parties other than to explain the parties’ previous tax situation when the twins were also claimed as dependents. We find equity has been achieved without granting Patrick the exemption. See In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996).