IN THE COURT OF APPEALS OF IOWA
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No. 25-1632
Filed August 19, 2026
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In re the Marriage of Nicholas Ryan Smith and Rebecca Ann Smith, Upon the Petition of Nicholas Ryan Smith, Petitioner–Appellant,
And Concerning Rebecca Ann Smith, Respondent–Appellee.
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Appeal from the Iowa District Court for Black Hawk County, The Honorable Monica Zrinyi Ackley, Judge.
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AFFIRMED AS MODIFIED AND REMANDED WITH DIRECTIONS
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Shanna Happel (argued) of Laird & Luhring Law Office, Waverly, attorney for appellant.
Andrew B. Howie (argued) of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, attorney for appellee.
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Heard at oral argument
by Schumacher, P.J., and Ahlers and Badding, JJ.
Opinion by Schumacher, P.J.
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SCHUMACHER, Presiding Judge.
Nicholas Smith and Rebecca Smith married in 2009 and divorced in 2018. The parties’ dissolution decree was modified in 2020 and again in 2023. The instant appeal concerns revisions to the decree following an action initiated in 2025, the third modification in a period of about seven years.
On appeal, Nicholas claims the court’s failure to act as an impartial trier of fact induced him to settle; the court’s “procedures, decorum, and decisions during these proceedings were unusual”; and the court abused its discretion by placing additional directives on the parties. Nicholas also challenges the court’s calculation of child support and modification of the visitation schedule, specifically the addition of a five-hour Wednesday visit for Rebecca. He requests we vacate the modified decree and grant a new trial. But Nicholas did not move to vacate or move for a new trial before the district court, so we are without authority to grant such request on appeal. Reviewing the record de novo, In re Marriage of Kisting, 6 N.W.3d 326, 332 (Iowa Ct. App. 2024), we affirm as modified and remand with directions.
BACKGROUND FACTS AND PROCEEDINGS In their original stipulated decree, Nicholas and Rebecca agreed to joint legal custody and shared physical care of their two sons, K.R.S., born in 2011, and G.L.S., born in 2014. The agreement provided for a 2-2-3 parenting schedule with alternating weekends. In 2020, the parties agreed to amend the decree to revise the summer vacation and holiday schedules, and the court approved the stipulated modification. In 2023, the parties again agreed to amend the decree to revise the parenting schedule to provide for weekly
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exchanges of the children, to take place on Fridays.1 The court approved the stipulated modification.
The implementation by the parties of the terms of the original decree and subsequent modified decrees was rocky. Since the parties’ dissolution of marriage, both have filed contempt actions against the other, claiming in part that the other had violated the parenting schedules.
In February 2024, K.R.S. began refusing to go to his mother’s home.
Rebecca filed a contempt action, claiming Nicholas “has failed to abide by the court ordered parenting schedule by not requiring K.R.S. to go [to her] home for her parenting time.” Following a hearing, the district court denied Rebecca’s application for rule to show cause, finding in part that “the evidence establishes that rather than interfering or discouraging the relationship between the child and [Rebecca], [Nicholas] has actively supported the relationship and worked to assist in repairing the relationship, at times more ardently and more productively than [Rebecca] has worked to repair the relationship.” The court further observed “[t]he evidence supports a finding that [Rebecca] recognizes, at least partially, that she has engaged in past behavior that has been damaging to her relationship with K.R.S.,” including “unsafe driving . . . that made K.R.S. feel physically unsafe,” emotional disconnect stemming from Rebecca’s communications and mood swings, and Rebecca identifying herself as K.R.S.’s victim “and utilizing guilt as an incentivizing method of encouraging contact.” The court determined Rebecca “failed to meet the burden of showing that [Nicholas] is willfully failing to abide by the Court’s prior orders.”
1 The modification also included a provision for Wednesday evening visitation for the non-placement parent. But the parties later agreed to eliminate the Wednesday visits for both parents.
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A few months later, Nicholas petitioned to modify the decree, seeking physical care of the children. In her answer, Rebecca resisted. Alternatively, she sought physical care of the children or split physical care of the children, with Nicholas having physical care of K.R.S. and Rebecca having physical care of G.L.S.
The modification trial took place over three days in April 2025. On the first two days of trial, the court received testimony from Nicholas, Rebecca, Rebecca’s sister, and a 911 dispatcher. At the time of trial, Nicholas lived in Cedar Falls with his wife, Dee, and their two children, ages six and four. Nicholas worked as a deputy for the Black Hawk County Sheriff’s Office, where he had been employed for approximately twenty years. Rebecca lived with her boyfriend, Jason, in Raymond, approximately twenty-five minutes from Cedar Falls. She worked for Veridian Credit Union and had been with this employer for more than twenty years.
G.L.S., age ten, and K.R.S., age fourteen, were reported as good students and were involved in extracurricular activities. Both enjoyed spending time with friends and being outdoors. They attended school in Cedar Falls. G.L.S. was described as “big-hearted” and “artistic,” and he had a good relationship with his parents, his stepmother, and his siblings. K.R.S. was described as more regimented and conscientious; he preferred to be at his father’s home. Nicholas’s wife was described as overly involved with the children and took on a role that at times undercut Rebecca’s position as their mother. Nicholas backed his wife’s involvement in parenting and decision-making, which was reported to have exacerbated the situation. Both Nicholas and Dee testified they supported the children’s relationship with Rebecca, and that they made considerable efforts to get K.R.S. to go to Rebecca’s home when the child refused.
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Nicholas maintained the children’s best interests would be served if he had physical care. He believed the change would “help the relationship with [G.L.S.] and [Rebecca],” because he “didn’t want to see [G.L.S.] go down the same road as [K.R.S.] where he didn’t want to talk to his mom.” Rebecca was concerned that G.L.S. was being pressured and interrogated about coming to her home. Rebecca questioned whether Nicholas encouraged K.R.S.’s relationship with her, stating that Nicholas “presents the appearance that he does” but in reality, “he has not been stern with [K.R.S.] about returning to [her] home.” Rebecca acknowledged she was not a “perfect” parent, she had made mistakes, and she had exhibited anger issues. But she worried that if Nicholas was “the primary parent,” then she would “become detached from both of [her] children.” She believed the best option was for both children to be placed with her. Alternatively, Rebecca asked the court to consider placing K.R.S. with Nicholas and G.L.S. with her “because of the influence that [G.L.S.] seems to be under now at his dad’s home.”
On the third day of trial, after Rebecca concluded her testimony, the court stated, “we’re running out of time.”2 The court directed the parties to “talk about how you want to handle it, because we still have cross-exam of [Nicholas].”
The court then interviewed K.R.S. and G.L.S. separately, outside the presence of the parties. After the children were excused, the hearing resumed. The court referenced the evidence presented thus far, including the reality that K.R.S. refused contact with Rebecca whereas G.L.S. wanted to continue having the same contact with both parents. After a short recess, the
2 Trial was originally scheduled for two days.
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parties’ counsel indicated they would not call additional witnesses. The following colloquy then took place:
COURT: So put together what, what you can. I’ll draft or try to craft some language about [K.R.S.] and see what we can do. And do you want [the parties’] signatures on all of this, so that it establishes that you’ve let them read everything, since we’re not really technically putting this on the record?
COUNSEL FOR NICHOLAS: Yes.
COUNSEL FOR REBECCA: Yes.
COURT: Okay. So [the attorneys] draft and craft, I’ll draft and craft, the three of us will e-mail, get it all put into a document, send it out to the two of you, put your signatures on it for approval, I will approve it as a modified order, and then I will include some language in there that indicates because of the validity of what we’re trying to do with [K.R.S.], the Court will retain the jurisdiction without an establishment of change of circumstance to fix, repair, and help you. Does that work?
COUNSEL FOR NICHOLAS: Yes.
COUNSEL FOR REBECCA: Yes.
REBECCA: Yes.
NICHOLAS: Yes.
Several months later, the court scheduled a telephone conference on July 24 with the parties’ counsel. The court’s scheduling order stated, “The Court is attempting to prepare a final order reflecting terms of modification from trial in April. There have been numerous communications from counsel that are raising numerous issues that need to be addressed.”
Nicholas filed a motion requesting that the July 24 communication be reported. On July 24, after the teleconference with counsel took place, the court entered the following order denying Nicholas’s motion as moot:
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The Court has received a motion for reporting filed by [Nicholas’s counsel]. Attachments to the motion include emails between the attorneys and the Court, some of which have facts that are not part of the record on the modification trial.
The trial in this matter commenced on April 8, 2025 and proceeded for three days. The parties discontinued testimony to undergo discussions about visitation and custody after the Court had the opportunity to talk with the two minor children. After approximately forty minutes, the parties informed the Court that they had reached an agreement. The parties were intending to prepare a proposed decree for the Court to review and edit for entry based on the agreed upon visitation issues and the Court’s findings.
The Court received the proposed decree with multiple notations from counsel that presented issues that the Court was marshalled with resolving. Thereafter numerous emails were sent (with the Court’s approval) with further suggestions and issues that had arisen post trial. Based thereon, the Court began its preparation of the order. Unable to craft an appropriate method to implement visitation between [Rebecca] and the oldest son, the Court made inquiry with counsel to enlist their professional assistance. A ZOOM meeting was proposed. The ZOOM meeting was not intended to be adversarial nor was it intended to be a hearing to present evidence.
The collaboration has now occurred and an order will be filed.
The court entered a modification order a few days later, which placed K.R.S. in Nicholas’s physical care. The court found, “There is a change of circumstance based on K.R.S.’s refusal to participate in visitation. The Court cannot say with certainty that this change is permanent, but at this time, the parties agree that it is in [K.R.S.’s] best interest to modify the prior order granting them shared physical care.” The court further ordered that “[s]hared care of G.L.S. remains unmodified.” The court set a graduated visitation schedule for Rebecca’s contact with K.R.S., as well as some “additional directives for consideration.” The court also modified the parties’ previously-agreed-upon midweek visitation schedule that provided,
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“Rebecca shall also have dinner time with the children on Wednesday evenings from after school to 8:00 p.m.,” subject to K.R.S.’s work schedule.
The court ordered Rebecca to pay child support in the amount of $434.36 per month and ordered the parties to pay their own attorney fees.
Both parties filed post-trial motions under Iowa Rule of Civil Procedure 1.904, requesting the court to reconsider various parts of the modification order. Following a hearing, the court entered an order clarifying and amending several provisions. Nicholas then filed a motion for nunc pro tunc, pointing out a “scrivener’s error” in the amount for the health insurance deduction for calculating child support. Following a hearing, the court entered an order amending Rebecca’s child support payment to $428.76 per month. Nicholas did not move to vacate the decree or request a new trial.
Nicholas appealed. He then filed a statement of the proceedings of the unreported teleconference on July 24. See Iowa R. App. P. 6.806(1) (“A statement of the evidence or proceedings may be prepared to create a record of a hearing or trial for which a transcript is unavailable if a party deems it necessary to complete the record on appeal.”). Rebecca filed a response, objection, and proposed amendments to Nicholas’s statement. See Iowa R. App. P. 6.806(2) (“The opposing party may file with the clerk of the district court objections or proposed amendments to the statement of the evidence or proceedings within 10 days after service of the statement.”). Our supreme court entered an order directing the district court to enter an order resolving the rule 6.806 statement of proceedings. The district court thereafter filed the following statement:
The Court hereby submits its Appellate Rule 6.806 Statement regarding the conference which occurred on July 24, 2025.
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The Court presided over a three-day modification trial in April of 2025, wherein [Nicholas] appeared with Attorney Shanna Chevalier n/k/a/ Happel and [Rebecca] appeared with Attorney Teresa Rastede. After the conclusion of the interviews with the minor children on day three of testimony, the parties requested a recess to discuss possible resolution. They returned to the courtroom and informed the Court that they reached settlement regarding custody of the two minor children. The terms of the agreement were not placed on the record. Counsel indicated they would prepare a decree with the terms, leaving the issues of visitation and child support for the Court’s determination based on the evidence received at trial.
Due to all the parental conflict, and the multiple times the parties had appeared before the Court for either modification actions or contempt filings, the Court indicated a willingness to assist the parties as reunification of the eldest son and [Rebecca] moved forward via email from counsel. The Court eventually received a draft from counsel along with multiple notes, corrections, and outright objections to the language. [Nicholas] then sent an email through counsel with suggestions for other language that he wished the Court to include in the final order. [Rebecca] objected as the issues were not presented to the Court during the trial.
Numerous contentious emails back and forth between counsel followed due to continued conflict with the eldest son and between the parties. The Court was not able to ascertain what was agreed to and what was not. The Court sent an email to counsel for a ZOOM conference on July 24, 2025. The intention was to ascertain the direction the case was moving. The Court intended to ask counsel if the record needed to be reopened . The Court also intended to make inquiry about engaging a psychologist who had training in parental alienation within the Black Hawk County area as the Court is not familiar with professionals in the field there.
[Nicholas]’s counsel asked in an email if the conference was going to be reported. The Court indicated in an email dated July 17, 2025, it was not an evidentiary matter and therefore would not be reported. [Nicholas]’s counsel then filed a motion asking for the conference to be reported. The Court denied the motion as the Court did not intend the meeting to be adversarial.
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During the discussion, the Court addressed the emails that had been sent and what the attorneys’ intentions were going forward. Counsel tried to address issues which were more of how the adults were to act toward one another and not issues of custody and visitation. The Court attempted to redirect the parties to ascertain if a hearing needed to be set. The Court also tried to have a conversation about avoiding modifications in the future as the parties had been in court every year since the Decree of Dissolution was entered. Since the youngest child was not in high school it appeared that the family would be in court long after the undersigned’s retirement. The Court stressed the damage the parties’ vitriol was doing to the children.
The Court was willing to permit a hearing on the email issues if necessary to avoid further conflict, attorneys’ fees, and appeal. The parties declined the opportunity for another hearing. The specifics were not essential to the Court’s final order. The specific details as proposed by [Nicholas]’s attorney cannot therefore be verified, as indicated by [Rebecca]’s counsel.
The attorneys did not agree with appointing a psychologist to aid in the visitation process. [Nicholas]’s counsel was very opposed to the family’s participation in additional counseling. Attorney Rastede suggested names of psychologists, but unfortunately none were approved.
The Court ended the unproductive discussions. Thereafter the Court entered its final order of modification. The Court did not use any of the attorneys’ contentious discussion points in the order since the information was outside of the purview of the Court’s intentions. The ruling rested on the evidence received at trial.
Subsequently, the Court was notified that a Motion for Nunc Pro Tunc was filed as it appeared that the Court used the wrong figures for medical insurance in calculating child support. A formal hearing was set. Argument was received. A record was made. The Court rendered another order. The notice of appeal was filed.
See Iowa R. App. P. 6.806(3).
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Additional facts will be set forth below as relevant to the claims raised on appeal.3
DISCUSSION
I. Inducement to Settle
Nicholas claims the district court acted as a partial trier of fact which caused him to enter a settlement. Rebecca maintains that Nicholas failed to preserve error on this issue. “It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal.” Id.
This is the first time that Nicholas has raised this complaint. The trial transcript reveals that he agreed to begin settlement negotiations on the last day of trial without issue. In fact, in response to a question from Rebecca’s counsel asking if the same judge will be appointed to them in the future, the court said: “If you don’t like me, ask me to get off, I’ll consider that. . . . If
3 We note that Nicholas does not appear to challenge the substantive order relating to physical care, except as addressed below with regard to G.L.S.’s visitation. As Rebecca points out, Nicholas “does not appeal [the parties’] fundamental agreement”—i.e., that Nicholas “would receive physical care of K.R.S. while G.L.S. remained in the parties’ joint physical care.” In his reply brief, Nicholas responded “that Nicholas is requesting that the entire Decree be vacated and the trial reheard [as] an appeal on the placement of the children.” But we consider only the claims articulated by Nicholas in his brief on appeal. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992) (“[W]e have long held that an issue cannot be asserted for the first time in a reply brief.”). Indeed, during oral argument, Nicholas’s counsel conceded that Nicholas was not challenging the physical-care arrangement ordered by the court.
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you don’t like what I’ve done, no harm, no foul.” Nicholas neither asked the court to recuse itself nor indicated that he felt pressured into settling. Moreover, in his motion for record of the hearing after trial, Nicholas acknowledged that the court stated it had enough information to decide the case, but he did not raise the issue of inducement. Specifically, Nicholas stated:
On day three of trial, the Court, after having met with each of the children in chambers but not before the parties had finished calling other witnesses, indicated off the record to counsel that the court had had enough information to render its decision. The Court stated, however, that the parties could continue their cases or each counsel could go talk to their clients and see if they could reach an agreement.
This was one of several post-trial opportunities for Nicholas to raise the issue. Similarly, no mention of inducement is found in his rule 1.904 motion to enlarge or amend the order. Nicholas cannot raise the issue for the first time on appeal. As such, we do not address this claim.
II. Court “Procedures, Decorum, and Decisions”
Nicholas generally claims the district court’s “procedures, decorum, and decisions during these proceedings were unusual.” Specifically, he takes issue with the court’s failure to report the July 24 teleconference,4 the court’s “unique and unconventional” comments throughout the proceeding, the
4 Throughout his brief, Nicholas takes issue with the court’s failure to report the July 24 teleconference. While we do not condone the court’s decision, we do not find grounds for reversal here. The parties and the court provided rule 6.806 statements of the proceedings on this topic, and Nicholas identifies no specific facts or evidence from the conference that would have changed the outcome. See In re Marriage of Gardner & Maldonado, No. 20-0762, 2021 WL 1661237, at *3 (Iowa Ct. App. Apr. 28, 2021). “It is well-settled that nonprejudicial error is never ground for reversal on appeal.” Jones v. Univ. of Iowa, 836 N.W.2d 127, 140 (Iowa 2013).
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court’s consideration of evidence prior to the last modification, the court’s weighing of the evidence in favor of Rebecca “while failing to find any fault in Rebecca’s actions,” and the court’s description of K.R.S.
“Judges set the tone for a courtroom.” In re Hanson, 19 N.W.3d 857, 865 (Iowa 2025) (citation omitted). Nicholas highlights the Iowa Code of Judicial Conduct, which states, “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” Iowa Code of Judicial Conduct r. 51:2.2. This rule is usually relevant in recusal cases. See, e.g., In re Marriage of Herum, No. 17-2092, 2018 WL 4635908, at *2 (Iowa Ct. App. Sep. 26, 2018). As Nicholas maintains, “A judge should recuse themselves once they participate in settlement negotiations.” Nicholas acknowledges he “has not asked Judge Ackley to recuse herself up to this point,” however, he argues “Judge Ackley would need to recuse herself for any future litigation due to her participation by mediating this matter through attorneys to this point.” “Judicial predilection or an attitude of mind resulting from the facts learned by the judge from the judge’s participation in the case is not a disqualifying factor.” State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005). Nicholas “would also have to prove prejudice resulted.” In re Marriage of Cickavage, No. 21-1492, 2022 WL 1486182, at *6 n.6 (Iowa Ct. App. May 11, 2022). Nicholas makes neither claim on appeal. See id. In any event, Nicholas did not raise the issue of recusal before the district court, so this claim is not preserved. See Meier, 641 N.W.2d at 537.
Nicholas also points to Iowa Code of Judicial Conduct rule 51:1.2, which provides: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” “The test for appearance of impropriety is whether the conduct would create
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in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” Iowa Code of Judicial Conduct r. 51:1.2 cmt. 5.
While Nicholas points to “moments where he found the court unsympathetic to his cause” and some offhanded commentary by the court, he has failed to show how the court’s conduct violated the rules of judicial conduct or the law. See Cickavage, 2022 WL 1486182, at *6. Even viewing the court’s statements in isolation, as Nicholas does, we cannot conclude that they would “cause a reasonable person to question the court’s impartiality.” Milas v. Soc’y Ins., No. 16-2148, 2017 WL 6513967, at *4 (Iowa Ct. App. Dec. 20, 2017); see In re Marriage of Kassouf, No. 04-1720, 2005 WL 724589, at *2 (Iowa Ct. App. Mar. 31, 2005) (“Under the facts in this case, a reasonable person with knowledge of all facts would not conclude that the judge’s impartiality should be questioned.”).
III. Additional Directives
As part of the decree, the district court included the following section: F. ADDITIONAL DIRECTIVES FOR CONSIDERATION:
1. Behavioral Modification Counseling/Therapy: With the help of counsel, the parties shall find a qualified behavioral therapist for K.R.S. He may continue to see Robert Boezinger if necessary. The sessions shall be in person. Both parties shall follow any recommendations given to them by the provider.
2. Family Therapy: At least one time per month, the children and [Nicholas] and Rebecca shall attend family counseling to assist them in developing better interpersonal relationships and communication skills.
3. Social Media: The parents shall agree on parental controls to be utilized for the social media on each child’s phone if they have one. Neither
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parent shall give greater access than that which is agreed upon. The parents shall also have an agreed upon App on the phone that tracks the location of the minors.
4. Parent Teacher Conferences: If the school is able, the parents shall make separate dates and times to attend the boys’ conferences. If the school cannot accommodate this provision, then the parents may attend together. Neither party shall bring a significant other to the conference. Both parents will again sign up on the school’s student portal.
5. Videotaping And Recording: Neither party shall record the children in any manner for future court proceedings. Neither party shall record the other without the other’s explicit consent or they are in violation of Iowa’s eavesdropping statute.
6. Text and E-Mail Communication Between the Parties: The parties may communicate with one another about visitation issues, custodial issues, parenting issues, school issues, medical/health issues, and generally anything involving the minors. The communication shall be respectful and shall not attempt to instruct the other parent on the law.
(Cleaned up).
The district court’s order also included language and requirements on Nicholas to enforce visitation. Specifically, Nicholas highlights the following language: “Nick shall utilize his training as a law enforcement officer to ensure attendance, just as he would ensure the compliance of a person of interest during a traffic stop or investigation”; “If K.R.S. absconds, he should be reported as a runaway and suffer the consequences of his choices by having either law enforcement of Juvenile Court Services retrieve him.”
Nicholas claims the court’s “additional directives” constitute an abuse of discretion. He asks this court to strike the additional directives and extraneous visitation requirements from the modification order.
Although our review is de novo and we reach our own findings of fact, In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015), we give weight to
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the findings of the district court because it “has a firsthand opportunity to hear the evidence and view the witnesses,” In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
We first highlight that ordinarily placing additional directives on the parties that are in the best interest of the children are within the purview of the district court. Here, the caption of the paragraph is entitled “Additional Directives for Consideration.” Such language suggests that the directives are non-binding. But the language in the body of the paragraph utilizes the word “shall.” Given the litigious nature of the parties and considering what is in the best interests of the children, while giving appropriate deference to the district court, we remove the “Additional Directives for Consideration,” subparagraphs 1 through 6. We also conclude the following language should be redacted from the decree: “Nick shall utilize his training as a law enforcement officer to ensure attendance, just as he would ensure the compliance of a person of interest during a traffic stop or investigation,” and, “If K.R.S. absconds, he should be reported as a runaway and suffer the consequences of his choices by having either law enforcement or Juvenile Court Services retrieve him.” These provisions impose duties on Nicholas as an officer, rather than a parent.
IV. Modification of Visitation
According to Nicholas, the parties “as well as the Court, all agreed on the record made on day three of trial that nothing would change for G.L.S.” regarding placement or visitation. Nicholas claims the court “abused its discretion by modifying the visitation of G.L.S.”
Specifically, the court ordered that in addition to G.L.S.’s usual alternating-week shared care schedule,
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[c]oinciding with the rotation for G.L.S., Rebecca will have K.R.S. in her care every other weekend commencing Friday from after school or no later than 3:00 p.m. to Monday morning at which time she shall take K.R.S. to school, or if there is no class that Monday, he shall remain with her until 3:00 p.m. Rebecca shall also have dinner time with the children on Wednesday evenings from after school to 8:00 p.m.
(Emphasis added). Nicholas challenges Rebecca’s weekly Wednesday visits with both children, claiming “[t]his change was not supported by a change in circumstances, the parties made no request for the change, and it lessens G.L.S.’s time with his father.”
But the issue of modification of physical care was raised by both parties. Their claims inherently included requests for lesser relief beyond what was requested, including more visitation time. See Crank v. Winters, No. 19-0724, 2020 WL 1310341, at *5 (Iowa Ct. App. Mar. 18, 2020) (noting that although the mother “specifically requested modification of physical care but did not make a specific prayer for modification of visitation,” the court would “liberally construe her prayer for general equitable relief to include a request for modification of visitation”). Specifically, Rebecca’s prayer for relief in her answer and counterclaim requested “such other and further relief as the Court deems just and equitable in the premises.” See In re Marriage of Seward, No. 18-1690, 2019 WL 1934002, at *2 (Iowa Ct. App. May 1, 2019) (holding visitation “was potentially at issue given the modification petition’s broadly worded prayer,” and “[h]ad the court found a material and substantial change in circumstance warranting modification of physical care, the petition’s prayer permitted the court to modify ʻother matters appropriate under the circumstances,’ which would include the visitation provision of the decree”).
As a backdrop to Nicholas’s claim on appeal, we note the court’s findings relating to physical care:
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Had the parties not agreed to allow K.R.S. to continue to reside with his father to the exclusion of Rebecca, the Court may have taken a different route upon hearing additional witnesses. K.R.S.’s intentional alienation of his mother and disobedience to his father and court orders was not and continues to not be based on sound reasoning. He has been given significant authority due to his reckless conduct in running away on multiple occasions. He has become a masterful manipulator and bad example to his younger siblings who are witnessing his defiance without consequence. Efforts to attend counseling have failed and that is possibly due to the fact the counseling has not focused on behavioral modifications and removing the illogical and irrational reasoning he uses when he makes choices about his contact with Rebecca.
Again, had the parties not agreed, the Court may have placed G.L.S. in Rebecca’s primary care upon hearing from additional witnesses. The Court has concerns about the pressures that have been and may continue to be exerted on him by his brother as a result of G.L.S.’s desire to continue to be with Rebecca. It was very evident in speaking with G.L.S. that he has an ardent desire to be with his mother. Nick cannot eradicate Rebecca from the children’s lives and pretend she does not exist so he can contain his nuclear family to his new wife, and four children. Rebecca maintains her parental rights as a joint legal custodian over the boys. Nick has to make every effort to show a united front with Rebecca in all decisions about the boys to elevate her role in their lives from what it has been relegated to since all the unfortunate issues have arisen with K.R.S.
In his post-trial motion, Nicholas asked the court to reconsider its modification to the visitation schedule. The court denied his request, stating:
The Court hereby finds that it is in the best interest of the minor children that they continue to have regular contact with one another. That contact should also be in a setting that includes their mother. The Court does not find this to be such a burden and Nick should not only permit it but encourage it.
Under these facts and circumstances, we find no error in the district court’s modification to the Wednesday visitation. Like the district court, we concur the record reveals a change in circumstances sufficient to warrant modification of the visitation provision and conclude additional time for
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Rebecca with the children together is in the children’s best interests. See id. at *3. We affirm on this issue.
V. Calculation of Child Support
Nicholas challenges several aspects of the court’s child support order.
First, he claims the court erred by failing to “utilize the appropriate method for calculating split/blended care arrangements.”
Child support is determined by applying the child support guidelines.
In re Marriage of Hilmo, 623 N.W.2d 809, 811 (Iowa 2001); see also Iowa Code § 598.21B(2)(c) (2024) (creating a rebuttable presumption that the amount of child support resulting from application of the guidelines is the correct amount). As Nicholas points out, the child support guidelines instruct courts how to calculate child support in cases such as this. Specifically, Iowa Court Rule 9.14(4)5 states:
Split or divided physical care. In the cases of court-ordered split or divided physical care, child support shall be calculated in the following manner: determine the amount of child support required by these guidelines for each party based on the number of children in the physical care of the other party; offset the two amounts as a method of payment; and the net difference shall be paid by the party with the higher child support obligation unless variance is warranted under rule 9.11.
To support his claim, Nicholas points to incorrect amounts used by the court for health and dental insurance deductions and contributions to Rebecca’s health savings account (HSA). But after the court entered its modification order and ruled on the parties’ post-trial motions, the court
5 This rule was amended effective January 1, 2026, but the substantive provision remains unchanged.
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convened another hearing on these alleged discrepancies. Following that hearing, the court entered the following nunc pro tunc order:
In reviewing the calculations, the Court misinterpreted and therefore misapplied the HSA account contribution and the costs for vision and dental coverage provided through [Rebecca’s] employer. The amount indicated on the guidelines was half of the deductible cost and not the premium for the health insurance coverage for the minors.
According to Exhibit T-XX, Veridian Credit Union provides medical, dental and vision coverage for its employees. [Rebecca] has elected coverage under the HSA/PPO Plan. The deductible is $3,300.00. Vision coverage for an employee is $9.72 and for employee and child is $20.48. Dental coverage is at no cost. Veridian contributes $62.50 per month into the employee’s HSA account. Once the deductible / out-ofpocket limit has been met, all covered expenses are paid in full for the remainder of the year. The plan does not cover copays or coinsurance.
[Rebecca] suggests that the Court use a deduction of $223.00 per month for the insurance costs attributable to her. This includes her personal contribution to the HSA. The HSA payment cannot be deducted as it is not coming out of [Rebecca]’s earnings as a cost for the coverage she is receiving; rather it is an asset with a tax savings benefit that if not used, becomes a roll-over investment. The permissible cost to the Respondent for insurance is $10.76 for vision.
The guidelines provide for a split care calculation by selecting that instruction in the program. Using that tool, the support obligation would be analyzed as follows. The support would be $1,317.77 for two children. Dividing that number by 2 (for number of children) means each parent is responsible for $658.00. [Rebecca] is responsible for 54% of that figure which equates to $355.59. Adjusting the guideline calculation for the one child in shared care, [Rebecca] would owe $73.17 to [Nicholas]. Therefore her child support obligation for the two children in a split care arrangement is to combination of those figures to wit: $428.76.
IT IS HEREBY ORDERED that the child support obligation for the minor children in a split care arrangement is $428.76 owed by [Rebecca] to [Nicholas]. [Nicholas] shall pay 46% of uncovered expenses and [Rebecca] shall pay 54% of uncovered expenses. Any arrearage owed
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shall be paid at the rate of 10% of the total obligation or $43.00 per month until paid in full.
Nicholas takes no issue with the court’s order as to the HSA and insurance deductions on appeal. Indeed, his claim on appeal does not specify what amounts used by the court were in error (aside from the claim addressed below) or how the court incorrectly computed Rebecca’s child-support obligation based on the formula set forth in rule 9.14(4). We therefore decline to address the claim concerning HSA and health and dental insurance further.
As to gross incomes, Nicholas claims the court failed to “utilize an income for Nicholas consistent with the requests at trial” and instead used “the increased amount in Rebecca’s motion to enlarge.” At the outset, we note that neither party challenges the court’s determination that Rebecca’s gross monthly income for child-support purposes should be based off her annual income of $88,872.83. Nicholas challenges the court’s determination that his gross monthly income should be based on an annual income of $89,877.00.
Nicholas’s Exhibit 1 includes his pay stubs, which provided that his income in 2024 was $88,232.94. At trial, Rebecca testified she used the information provided by Nicholas in Exhibit 1 showing his “year-to-date income for 2024 to represent what would most likely happen in 2025”— “Gross was 88,232.94” to reach his gross monthly income for child-support purposes. Nicholas argued that his overtime pay, which totaled $4,469.12 in 2024, should not be included in his income. However, we observe that Nicholas agreed he worked overtime “on occasion,” and he testified that his pay stubs “pretty much tell the story of how often [he] really g[ot] overtime.”
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We further note that Nicholas’s first pay stub for 2025 showed overtime pay in the amount of $987.36.
In her post-trial motion, Rebecca alternatively requested the court use an “upward deviation” for Nicholas’s annual income to add $1,645.60 for an additional week in 2024. Ultimately, the court found “[Nicholas]’s income is $89,877.00; and Rebecca’s income is $88,872.00, as calculated by Rebecca in her proposed guidelines and exhibits.” The court used those numbers to determine the parties’ gross monthly incomes for the child-support calculation.
Upon our review, we determine Nicholas failed to carry his burden to prove his overtime “should be excluded from gross income as uncertain and speculative.” Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005); accord In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992) (noting “[o]vertime wages are not excluded as income,” unless such “appears to be an anomaly or is uncertain or speculative”). But we further conclude the district court’s final child-support calculation was not supported by the most reliable evidence presented of the parties’ respective incomes. See In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991) (noting the court is to determine the parents’ income from the most reliable evidence presented). Rather, the record supports the finding that Rebecca’s annual income is $88,872.83 and Nicholas’s annual income is $88,232.94.
But we conclude that the child support was not set in accordance with the Iowa Supreme Court child support guidelines for the custody provisions in place here, with Nicholas having physical care of one child, K.R.S., and with the parties continuing to share physical care of G.L.S.
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We remand for the district court to recalculate Rebecca’s child-
support obligation using gross monthly incomes calculated from the annual incomes set out above: Rebecca at $88,872.83 and Nicholas at $88,232.94, with Nicholas having physical care of one child and the parties continuing to share physical care of the second child in accordance with rule 9.14(4). No new evidence should be received or considered on remand.
VI. Appellate Attorney Fees
Both parties request appellate attorney fees. Iowa Code section 598.36 permits an award of “attorney fees to the prevailing party in an amount deemed reasonable by the court” in “a proceeding for the modification of [a] . . . decree.” “Appellate attorney fees are not a matter of right, but rather rest in this court’s discretion.” In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (citation omitted). “In determining whether to award appellate attorney fees, 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. (cleaned up). After consideration of these factors, we decline to award appellate attorney fees to either party.
DISPOSITION
Upon our review of the issues properly before us on appeal, we affirm as modified to redact the provisions specified above that place additional parenting obligations on Nicholas as a law enforcement officer and ambiguous language concerning additional directives, and we remand for the district court to recalculate Rebecca’s child-support obligation as directed
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above. We decline to award appellate attorney fees. Court costs are assessed equally to the parties.
AFFIRMED AS MODIFIED AND REMANDED WITH DIRECTIONS.