IN THE COURT OF APPEALS OF IOWA
No. 18-1468 Filed July 3, 2019
IN RE THE MARRIAGE OF MARIE ROSONKE AND BRIAN ROSONKE
Upon the Petition of MARIE ROSONKE, Petitioner-Appellant,
And Concerning BRIAN ROSONKE, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Richard D.
Stochl, Judge.
Marie Rosonke appeals from the order modifying the decree dissolving her
marriage to Brian Rosonke. AFFIRMED.
Crystal L. Usher of Nazette, Marner, Nathanson & Shea LLP, Cedar Rapids,
for appellant.
Christopher O’Donohoe of Elwood, O’Donohoe, Braun & White, LLP, New
Hampton, for appellee.
Considered by Potterfield, P.J., and Doyle and May, JJ. 2
DOYLE, Judge.
Marie Rosonke appeals from the order modifying the decree dissolving her
marriage to Brian Rosonke. She contends the court erred in placing the children
in Brian’s physical care and in ordering her to terminate health insurance coverage
available through her employer. She argues the district court judge erred in failing
to recuse himself from the proceedings. She requests an award of her appellate
attorney fees.
I. Background Facts and Proceedings.
Marie and Brian were divorced in June 2016. They have three children,
who were born in 2007, 2009 and 2013. Pursuant to the parties’ stipulation, the
decree granted them joint legal custody and shared physical care of their three
children. Pursuant to the stipulation, the parties alternated care of the children on
a weekly basis.
Since the divorce, Marie has been in a relationship with Josh Funk. Josh
lives in Elkader, approximately fifty-eight miles from New Hampton, where the
children attend school. In December 2017, Marie petitioned to modify the custody
provisions of the decree to grant her physical care of the children based in part on
her planned move to Elkader. In his answer, Brian requested physical care of the
children.
Marie began staying with Josh in Elkader in January 2018 before formally
moving there in April. Because of the amount of travel required to transport the
children from Elkader to school while in Marie’s care, Brian moved the court for a
temporary custody order placing the children in his physical care during the week 3
for the remainder of the school year. The district court granted the temporary order
following an April hearing.
The modification action came to trial in July 2018. The district court entered
its order modifying the decree the following month. The court found that although
the parties had “some communication problems, they generally got along well and
co-parented,” and “the children were all doing very well under the shared care
arrangement.” However, it found that Marie’s move outside of the children’s school
district was a substantial change in circumstances warranting modification of the
custody provisions of the dissolution decree. Because her move eliminated the
possibility of continuing a shared physical care arrangement, the court went on to
determine to whom it should award physical care. Although the court found both
Marie and Brian have “demonstrated an equal ability to care for the children,” it
determined that placing the children in Brian’s physical care would serve their best
interests. The court noted the lack of connections the children have in Elkader,
where only their mother and her boyfriend live, versus those they have established
in New Hampton, where they have lived and attended school their whole lives and
have family and friends in the community.
II. Modification of Custody.
We review the modification order de novo. See In re Marriage of McKenzie,
709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give weight to the district court’s
fact-findings, especially those concerning witness credibility, though we are not
bound by them. See id. “We recognize that the district court ‘has reasonable
discretion in determining whether modification is warranted and that discretion will
not be disturbed on appeal unless there is a failure to do equity.’” See id. (quoting 4
In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998)). We afford the district
court “considerable latitude” in its determination “and will disturb the ruling only
when there has been a failure to do equity.” In re Marriage of Okland, 699 N.W.2d
260, 263 (Iowa 2005).
The court may modify the custody provisions of a dissolution decree only if
the parties’ circumstances must have substantially changed in a way that was not
within the parties’ contemplation at the time the decree’s entry. See In re Marriage
of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). Here, there is no dispute
that a substantial change in circumstances has occurred warranting modification.
Marie argues their demonstrated inability to co-parent necessitates modification,
claiming Brian has failed to communicate important information with her on
numerous occasions. The district court rejected this claim, finding that in spite of
“some communication problems, [the parties] generally got along well and co-
parented.” Rather, the court found Marie’s move alone amounted to a substantial
change in circumstances that rendered a shared physical care arrangement
unworkable. If the parties’ shared physical care arrangement were to continue as
provided in the dissolution decree, it would require two hours of transportation for
the children to and from school every other week. We agree that under these
circumstances, shared physical care is no longer feasible.
When shared physical care is no longer in the children’s best interests, the
court must determine which parent to grant physical care. See id. at 870-71. In
cases in which a noncustodial parent seeks physical care, that parent bears a
heavy burden of proving “the ability to offer superior care” because the original
decree found the custodial parent to be the better parent. Melchiori v. Kooi, 644 5
N.W.2d 365, 368 (Iowa Ct. App. 2002). However, for parents sharing physical
care, the court has previously determined both to be suitable physical caretakers.
See id. at 368-69. In such cases, the parent who “can administer most effectively
to the long-term best interests of the children and place them in an environment
that will foster healthy physical and emotional lives is chosen as primary physical
care giver.” Walton, 577 N.W.2d at 871. Our objective “is to place the children 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). The Iowa legislature and our supreme court have provided a nonexclusive
list of factors the court is to consider in determining the children’s best interests.
See id. at 696.
The district court found that the parties have “demonstrated an equal ability
to care for the children.” Marie complains that because the court found neither
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IN THE COURT OF APPEALS OF IOWA
No. 18-1468 Filed July 3, 2019
IN RE THE MARRIAGE OF MARIE ROSONKE AND BRIAN ROSONKE
Upon the Petition of MARIE ROSONKE, Petitioner-Appellant,
And Concerning BRIAN ROSONKE, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Richard D.
Stochl, Judge.
Marie Rosonke appeals from the order modifying the decree dissolving her
marriage to Brian Rosonke. AFFIRMED.
Crystal L. Usher of Nazette, Marner, Nathanson & Shea LLP, Cedar Rapids,
for appellant.
Christopher O’Donohoe of Elwood, O’Donohoe, Braun & White, LLP, New
Hampton, for appellee.
Considered by Potterfield, P.J., and Doyle and May, JJ. 2
DOYLE, Judge.
Marie Rosonke appeals from the order modifying the decree dissolving her
marriage to Brian Rosonke. She contends the court erred in placing the children
in Brian’s physical care and in ordering her to terminate health insurance coverage
available through her employer. She argues the district court judge erred in failing
to recuse himself from the proceedings. She requests an award of her appellate
attorney fees.
I. Background Facts and Proceedings.
Marie and Brian were divorced in June 2016. They have three children,
who were born in 2007, 2009 and 2013. Pursuant to the parties’ stipulation, the
decree granted them joint legal custody and shared physical care of their three
children. Pursuant to the stipulation, the parties alternated care of the children on
a weekly basis.
Since the divorce, Marie has been in a relationship with Josh Funk. Josh
lives in Elkader, approximately fifty-eight miles from New Hampton, where the
children attend school. In December 2017, Marie petitioned to modify the custody
provisions of the decree to grant her physical care of the children based in part on
her planned move to Elkader. In his answer, Brian requested physical care of the
children.
Marie began staying with Josh in Elkader in January 2018 before formally
moving there in April. Because of the amount of travel required to transport the
children from Elkader to school while in Marie’s care, Brian moved the court for a
temporary custody order placing the children in his physical care during the week 3
for the remainder of the school year. The district court granted the temporary order
following an April hearing.
The modification action came to trial in July 2018. The district court entered
its order modifying the decree the following month. The court found that although
the parties had “some communication problems, they generally got along well and
co-parented,” and “the children were all doing very well under the shared care
arrangement.” However, it found that Marie’s move outside of the children’s school
district was a substantial change in circumstances warranting modification of the
custody provisions of the dissolution decree. Because her move eliminated the
possibility of continuing a shared physical care arrangement, the court went on to
determine to whom it should award physical care. Although the court found both
Marie and Brian have “demonstrated an equal ability to care for the children,” it
determined that placing the children in Brian’s physical care would serve their best
interests. The court noted the lack of connections the children have in Elkader,
where only their mother and her boyfriend live, versus those they have established
in New Hampton, where they have lived and attended school their whole lives and
have family and friends in the community.
II. Modification of Custody.
We review the modification order de novo. See In re Marriage of McKenzie,
709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give weight to the district court’s
fact-findings, especially those concerning witness credibility, though we are not
bound by them. See id. “We recognize that the district court ‘has reasonable
discretion in determining whether modification is warranted and that discretion will
not be disturbed on appeal unless there is a failure to do equity.’” See id. (quoting 4
In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998)). We afford the district
court “considerable latitude” in its determination “and will disturb the ruling only
when there has been a failure to do equity.” In re Marriage of Okland, 699 N.W.2d
260, 263 (Iowa 2005).
The court may modify the custody provisions of a dissolution decree only if
the parties’ circumstances must have substantially changed in a way that was not
within the parties’ contemplation at the time the decree’s entry. See In re Marriage
of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). Here, there is no dispute
that a substantial change in circumstances has occurred warranting modification.
Marie argues their demonstrated inability to co-parent necessitates modification,
claiming Brian has failed to communicate important information with her on
numerous occasions. The district court rejected this claim, finding that in spite of
“some communication problems, [the parties] generally got along well and co-
parented.” Rather, the court found Marie’s move alone amounted to a substantial
change in circumstances that rendered a shared physical care arrangement
unworkable. If the parties’ shared physical care arrangement were to continue as
provided in the dissolution decree, it would require two hours of transportation for
the children to and from school every other week. We agree that under these
circumstances, shared physical care is no longer feasible.
When shared physical care is no longer in the children’s best interests, the
court must determine which parent to grant physical care. See id. at 870-71. In
cases in which a noncustodial parent seeks physical care, that parent bears a
heavy burden of proving “the ability to offer superior care” because the original
decree found the custodial parent to be the better parent. Melchiori v. Kooi, 644 5
N.W.2d 365, 368 (Iowa Ct. App. 2002). However, for parents sharing physical
care, the court has previously determined both to be suitable physical caretakers.
See id. at 368-69. In such cases, the parent who “can administer most effectively
to the long-term best interests of the children and place them in an environment
that will foster healthy physical and emotional lives is chosen as primary physical
care giver.” Walton, 577 N.W.2d at 871. Our objective “is to place the children 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). The Iowa legislature and our supreme court have provided a nonexclusive
list of factors the court is to consider in determining the children’s best interests.
See id. at 696.
The district court found that the parties have “demonstrated an equal ability
to care for the children.” Marie complains that because the court found neither
party was the “better” parent, the court should only have modified the shared care
plan. However, the court placed the children in Brian’s physical care after finding
that it was in their best interests to reside with him “in the only home and community
they have ever known.” In other words, their caregiving ability being equal, the
court found that Brian offered the environment that was better able to foster the
children’s physical, mental, and emotional health. We concur in this determination.
Marie also complains that the court refused to allow the oldest child to testify
as to her preference concerning custody. In determining what custody
arrangement is in a child’s best interests, the court considers “[w]hether the
custody arrangement is in accord with the child’s wishes or whether the child has
strong opposition, taking into consideration the child’s age and maturity.” Iowa 6
Code § 598.41(3)(f) (2017). However, the child’s wishes are not controlling and
are given less weight in a modification action than would be given in an original
custody proceeding. See In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa Ct.
App. 1991). The analysis is more complicated than simply asking the child’s
preference. See id. at 101-02. In assessing the child’s preference, the court must
look at the child’s age and educational level, the strength of the child’s preference,
the child’s relationship with family members, and the reasons the child gives for
the decision. See In re Marriage of Jahnel, 506 N.W.2d 473, 475 (Iowa Ct. App.
1993).
Although the oldest child did not testify at trial, the court did note her
preference to live with Marie. Importantly, the court found that Marie “has
immersed the children, especially the oldest, in this controversy.” The court
concluded that the child’s “desires are not surprising considering the amount of
involvement she has had in these proceedings.” The court also considered the
child’s age of eleven before concluding that “her desires do not override the fact it
is in her best interest to remain in a supportive environment.” The record supports
the court’s findings and the court adequately weighed the child’s preference in light
of the facts. Cf. Herron v. Herron, 141 N.W.2d 562, 566 (1966) (“The wishes of a
seven or eight-year-old or even a ten-year-old should be given little if any weight
since they are not of an age to exercise discretion in choosing a custodian.”); Hunt,
476 N.W.2d at 102 (finding weight of nine-year-old child’s custody preference was
diminished based on evidence showing the father’s actions influenced her
testimony); In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987)
(noting that although testimony by ten-and-one-half-year-old child the court 7
deemed to be “mature beyond her years” concerning custody preference “may give
us some insight, we are not truly knowledgeable about what goes on behind closed
doors in these family homes” while the child “is privy to these interactions and they
have influenced her decision”).
We affirm the district court’s order modifying the custody provisions of the
dissolution decree to grant Brian physical care of the children.
III. Insurance Coverage.
Marie also challenges the portion of the court’s order concerning the
children’s health insurance coverage. The order states:
The court does believe it is in the best interest of the children for them to be enrolled in an insurance plan that allows them to receive care in their home community. Marie shall work with Brian to assist enrolling the children in the Hawkeye plan if it is available despite her access to coverage through her employment.
Marie notes that to be eligible for enrollment in the Hawki plan, she must terminate
the health insurance coverage that is available through her employer. She
complains the court failed to make a finding that her employer’s health insurance
plan has an unreasonable cost or is not accessible.
Iowa Code section 252E.1A(3) requires the court to “order as medical
support for the child health care coverage if a health benefit plan other than public
coverage is available to either parent at the time the order is entered or modified.”
The section defines a health benefit plan as “available” if it “is accessible and the
cost of the plan is reasonable.” Iowa Code § 252E.1A(3). A health benefit plan is
available if the plan is accessible and the cost of the plan is reasonable. Chapter
252E defines a health benefit plan as “accessible” if it “does not have service area
limitations or provides an option not subject to service area limitations” or if it “has 8
service area limitations and the dependent lives within thirty miles or thirty minutes
of a network primary care provider.” Id. § 252E.1(1).
Marie concedes that the health insurance coverage offered through her
employer requires services to be provided at a UnityPoint facility, and the closest
facility is forty-two miles from New Hampton. Because the health insurance
coverage is not considered accessible under chapter 252E, the court was not
required to order it as medical support. We affirm this portion of the court’s order.
IV. Recusal.
Marie also challenges the denial of her motion for recusal. “We review a
judge’s recusal decision for an abuse of discretion.” State v. Millsap, 704 N.W.2d
426, 432 (Iowa 2005). A court abuses its discretion when it acts unreasonably or
bases its decision on untenable grounds. See id. “A ground or reason is untenable
when it is not supported by substantial evidence or when it is based on an
erroneous application of the law.” Id. (citation omitted).
“The burden is on a party seeking recusal to establish a basis for it, and the
determination is committed to the judge’s discretion.” In re Marriage of Clinton,
579 N.W.2d 835, 837 (Iowa Ct. App.1998). “Actual prejudice must be shown
before a recusal is necessary.” McKinley v. Iowa District Ct., 542 N.W.2d 822, 827
(Iowa 1996) (citation omitted). “The test is whether a reasonable person would
question the judge’s impartiality.” Id.
Marie argues the judge’s comments and rulings suggest a bias in Brian’s
favor. Specifically, she notes that after learning at the hearing on temporary
custody that the Iowa Department of Human Services was investigating two
allegations of abuse against Brian, the judge stated, “I’m well aware in modification 9
situations we often get allegations of abuse that turn out to be more litigation-
motivated.” The judge also stated that because the children were not removed
from Brian’s care, the allegations were not pertinent to him. Marie moved for
recusal, arguing the judge’s “impartiality is reasonabl[y] in question.” The court
denied the motion. The issue was again addressed before the start of trial. Marie’s
counsel stated, “It’s not that you are, in fact, actually bias[ed]; it’s the fact that the
court has in some part issued statements on the record that seems to predispose
the court to how it’s going to view evidence before it’s been heard on the merits.”
The Iowa Code of Judicial Conduct requires that judges “uphold and apply
the law, and . . . perform all duties of judicial office fairly and impartially.” Iowa
Code of Judicial Conduct R. 51:2.2. Recusal is required when the “judge has a
personal bias or prejudice concerning a party or a party’s lawyer, or personal
knowledge of facts that are in dispute in the proceeding.” Id. r. 51:2.11(A)(1).
However, the “judge shall disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be questioned.” Id. r. 51:2.11(A).
The test for disqualification is objective, and the party seeking
disqualification bears the burden of proof. See Millsap, 704 N.W.2d at 432. “Only
personal bias or prejudice stemming from an extrajudicial source constitutes a
disqualifying factor.” Id. A judge’s opinions formed “on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” In re C.L.C., 798 N.W.2d 329, 337 (Iowa Ct. App. 2011) (quoting
Liteky v. United States, 510 U.S. 540, 555 (1994)). “Judicial predilection or an 10
attitude of mind resulting from the facts learned by the judge from the judge’s
participation in the case is not a disqualifying factor.” Millsap, 704 N.W.2d at 432.
Because Marie has not met her burden of showing the judge had a personal
bias or prejudice against her that stemmed from an extrajudicial source, we find
no abuse of discretion.
V. Appellate Attorney Fees.
Appellate attorney fees are not a matter of right but rest within our
discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We
consider “the needs of the party seeking the award, the ability of the other party to
pay, and the relative merits of the appeal.” Id. Based on the foregoing, we decline
to award Marie appellate attorney fees.
AFFIRMED.