In re the Marriage of Terrones

• Court: Court of Appeals of Iowa
• Decided: November 30, 2020
• Docket: 20-0538
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0538 Filed November 30, 2020

IN RE THE MARRIAGE OF BRENDA TERRONES AND JASON TERRONES

Upon the Petition of BRENDA TERRONES, n/k/a BRENDA BOHLKE, Petitioner-Appellant,

And Concerning JASON TERRONES, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Alan Heavens,

Judge.

Brenda Bohlke appeals an order denying her request for modification of

physical care. AFFIRMED.

Shanna Chevalier and Lana L. Luhring of Laird & Luhring Law Firm,

Waverly, for appellant.

Heather A. Prendergast of Roberts, Stevens & Prendergast, PLLC,

Waterloo, for appellee.

Considered by Bower, C.J., and May and Ahlers, JJ. 2

MAY, Judge.

L.T. is the child of Jason Terrones and Brenda Bohlke. Brenda appeals

from an order denying her request for modification of L.T.’s physical care. Brenda

contends the district court should have granted her joint physical care or, in the

alternative, additional visitation. We affirm.

I. Factual Background

Jason and Brenda were married in 2011. L.T. was born in 2013. In August

2015, Brenda petitioned for dissolution. In November 2016, the parties stipulated

the court should order joint legal custody and shared physical care of L.T. The

court entered a decree approving the stipulation and incorporating it by reference.

Brenda began dating Justin Bohlke. Justin owned a home in Iowa City. In

December 2017, they began living together after Brenda accepted a new job that

required her to live in Iowa City. Meanwhile, Jason continued living in the marital

home in Waterloo. Brenda and Justin later had a child together, L.B., who is L.T.’s

half-sibling. And Brenda and Justin married.

In February 2018, Jason filed a petition to modify the November 2016

decree. Jason cited “Brenda’s permanent move to Iowa City” as the reason for

modification. Brenda agreed that her move to Iowa City made a change in custody

necessary. Both parties requested physical care of L.T.

In June 2019, the district court entered a modification decree. The court

concluded “that Brenda’s relocation to Iowa City has caused an unjustified 3

disruption in the court approved parenting schedule for the child.” The court gave

Jason physical care of L.T. and granted Brenda substantial visitation.1

Less than two weeks after the court entered its modification decree, Brenda

accepted a newly-created position and moved to Jesup. Then, in September,

Brenda initiated the current action, through which she seeks modification of the

June decree. Brenda asks for a return to joint physical care because she now

resides about twenty-five minutes from Jason. In the alternative, Brenda requests

additional visitation time to include midweek overnight visitations.

The district court denied Brenda’s request for joint physical care. But the

court awarded her one midweek visitation, ending at 7:30 p.m. Brenda now

appeals.

II. Standard of Review

“Petitions to modify the physical care provisions of a divorce decree lie in

equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). So we review

each issue de novo. Iowa R. App. P. 6.907. But we give weight to the fact findings

of the trial court, who is “greatly helped in making a wise decision about the parties

by listening to them and watching them in person.” In re Marriage of Vrban, 359

N.W.2d 420, 423 (Iowa 1984) (citation omitted). As Judge Doyle has properly

observed:

1 Brenda received visitation on alternate weekends from after school on Friday to Sunday at 7:00 p.m. She also received fifty percent of Christmas break, all of spring break, and “[e]xtended summer visitation beginning the day after school dismisses for the semester and continuing through the end of July each year.” Holidays were divided as provided in the original dissolution decree. Jason was allowed alternate weekends—plus some holidays, like his June birthday—during Brenda’s extended summer visit. 4

[W]e give careful consideration to the findings of the trial court. . . . because the district court, unlike this court on appeal, has the opportunity “to view, firsthand, the demeanor of the witnesses when testifying.” A witness’s facial expressions, vocal intonation, eye movement, gestures, posture, body language, and courtroom conduct, both on and off the stand, are not reflected in the transcript. Hidden attitudes, feelings, and opinions may be detected from this “nonverbal leakage.” Thus, the trial judge is in the best position to assess witnesses’ interest in the trial, their motive, candor, bias and prejudice.

In re Marriage of Rademacher, No. 11-0798, 2011 WL 5868041, at *3 (Iowa Ct.

App. Nov. 23, 2011) (citations omitted). We will affirm unless the district court

“failed to do substantial equity.” Boatwright v. Lydolph, No. 18-0532, 2019 WL

719026, at *1 (Iowa Ct. App. Feb. 20, 2019) (citation omitted).

A. Physical Care

The real focus here is physical care. Brenda bemoans the district court’s

refusal to return to joint physical care. Jason defends the court’s decision.

A parent who wants to modify the physical care provisions of a decree—or,

as here, a modified decree—faces a “heavy burden.” In re Marriage of Kelly,

No. 19-1295, 2020 WL 3571863, at *2 (Iowa Ct. App. July 1, 2020) (citing In re

Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995)). First, the parent “must

establish by a preponderance of the evidence that there has been a substantial

change in circumstances since the . . . last modification.” Jacobo, 526 N.W.2d at

864. “The changed circumstances [must] meet three criteria: (1) the court did not

contemplate them when entering the [prior modification]; (2) they were ‘more or

less permanent, not temporary,’ and (3) they related to the welfare of the children.”

Kelly, 2020 WL 3571863, at *2 (citing In re Marriage of Frederici, 338 N.W.2d 156,

158 (Iowa 1983)). 5

If the parent crosses this first hurdle, they still face a second. The nature of

this second challenge depends on the relief sought. If the parent seeks to

(1) “wrest physical care from” the other parent or (2) move the child out of joint

physical care and into physical care with the requesting parent, the requesting

parent must prove “superior parenting ability,” that is, “an ability to minister more

effectively to the children’s well-being” than the other parent. Id. at *3 (citation

omitted). But if the parent is only asking to be placed on “equal footing”—if she is

only asking to move the child from physical care with the other parent to joint

physical care with both parents—then the requesting parent is not required to

prove superiority. Id. Instead, the parent must only show joint physical care is in

the child’s best interest. Id.

With these principles in mind, we first consider whether Brenda proved the

kind of substantial change necessary to justify a change in physical care. In her

petition for modification, Brenda claimed her change of residence was the

substantial change that justified modification. But Brenda had four residences in

four-and-a-half years. We question whether Brenda’s most recent move is “more

or less permanent, not temporary.”2 See Frederici, 338 N.W.2d at 158 (“The

changed circumstances must not have been contemplated by the court when the

decree was entered, and they must be more or less permanent, not temporary.”).

2 We also question whether or not it was a change “not . . . contemplated by the court” during the last modification proceeding. See Frederici, 338 N.W.2d at 158. After the prior modification decree was entered, Brenda filed a motion to amend or enlarge under Iowa Rule of Civil Procedure 1.904. Her motion requested, among other things, that the court would “determine that, should she relocate to within 30 air miles of Waterloo, Iowa, the shared care arrangement will resume.” That is essentially the same argument she is making in this second modification action. 6

Even assuming Brenda has shown the requisite change in circumstances,

however, we do not believe she proved joint physical care is in L.T.’s best interest.

See Kelly, 2020 WL 3571863, at *3.

Iowa Code section 598.1(4) (2019) defines joint physical care as an

arrangement in which “both parents have rights and responsibilities toward the

child including but not limited to shared parenting time with the child, maintaining

homes for the child, providing routine care for the child and under which neither

parent has physical care rights superior to those of the other parent.” “Joint

physical care anticipates that parents will have equal, or roughly equal, residential

time with the child.” In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007).

“Given the fact that neither parent has rights superior to the other with respect to

the child’s routine care, joint physical care also envisions shared decision making

on all routine matters.” Id.

Of course, a court should order joint physical care only if it will serve the

child’s best interest. See Iowa Code § 598.41(5)(a). And a “multitude of factors

go into a determination of whether joint physical care is warranted.” In re Marriage

of Geary, No. 10-1964, 2011 WL 2112479, at *2 (Iowa Ct. App. May 25, 2011);

see Iowa Code § 598.41(3). “Where both parents are suitable caregivers,” though,

the propriety of joint physical care will usually turn on “four key considerations:

(1) stability and continuity of caregiving; (2) the ability of [the parents] to

communicate and show mutual respect; (3) the degree of conflict between the

parents; and (4) the degree to which parents are in general agreement about their

approach to daily matters.” Geary, 2011 WL 2112479, at *2 (citing In re Marriage

of Hansen, 733 N.W.2d 683, 696–99 (Iowa 2007)). 7

Applying these factors here, we note initially that the parties lived under a

joint physical care regime until the June 2019 modification order was entered. Like

the district court, we believe this history is “Brenda’s strongest argument for joint

physical care” now.

Also like the district court, though, we believe other important considerations

weigh against joint physical care. As the court observed, “Brenda’s move to Iowa

City . . . was the starting point to a series of events that resulted in a substantial

deterioration” in Brenda and Jason’s relationship. Now, “the degree of conflict

between Brenda and Jason is unusually high.” Their “ongoing bitterness” and

“clear lack of mutual respect and trust” impedes their ability to co-parent. They

“have significant problems communicating with each other,” sometimes using

attorneys to address parenting issues. And they fight about “the biggest and

smallest” of concerns, such as:

how much deviation from the care schedule is appropriate, what therapist and type of therapy was best, whether L.T. was signed up for counseling fast enough, the cause of L.T.’s health issues, whether L.T. is overall adjusted and happy, the cause of L.T.’s sadness when she is sad, whether L.T. believes she has adequate time with Brenda, how day-care drop-offs should . . . work, how school pick- ups should work, how Monday dance drop-offs should work, how many goodbyes are too many, how much “windshield time” is too much, the care schedule for L.T.’s birthday, whether a mid-week visitation is appropriate, how to best prepare L.T. to be an independent person, how much L.T. needs a routine, what hospital L.T. should go to when a medical issue arises, whether L.T. should wear a headband for a school picture, whether a headband change should have been communicated beforehand, and where each parent should sit at a sporting event.

Even so, Brenda urges that In re Marriage of Orte, 389 N.W.2d 373 (Iowa

1986) weighs in favor of joint physical care so that L.T. can live with L.B. In Orte,

the court “expressed a strong interest in keeping children of broken homes 8

together.” 389 N.W.2d at 374 (noting that “these general principles should govern

awards of physical care in cases of half siblings as well as others”). And, indeed,

a joint physical care arrangement may provide additional opportunities for contact

between L.B. and L.T. Even so, the existence of a half-sibling does not

automatically make joint physical care appropriate. Even with a half-sibling

involved, we have declined to order joint physical care when other circumstances

showed it was not in a child’s best interest. See, e.g., In re Marriage of Luethje,

No. 19-0768, 2020 WL 375946, at *4–5 (Iowa Ct. App. Jan. 23, 2020); see also

Orte, 389 N.W.2d at 374 (noting the court may “depart from this general rule” when

doing so “may better promote the long-range interests of children” (citation

omitted)). And in this case, we agree with the district court that joint physical care

is not in L.T.’s best interest because of the high degree of conflict between the

parents, their problems with communication, their lack of mutual respect and trust,

and their inability to agree on so many things.

Although joint physical care once worked for this family, it is no longer

consistent with L.T.’s best interest. We decline to order it.

B. Visitation

As an alternative to joint physical care, Brenda asks this court to grant her

midweek overnight visitations. In reviewing Brenda’s request, we recognize “the

reasonable discretion of the trial court to modify visitation rights.” In re Marriage

of Salmon, 519 N.W.2d 94, 95 (Iowa Ct. App. 1994). We “will not disturb its

decision unless the record fairly shows it has failed to do equity.” Id.

Under the June 2019 decree, Brenda had no midweek visitation. In the

present action, the district court modified the June 2019 decree by giving Brenda 9

visitation on Wednesday nights until 7:30 p.m. Also, because Brenda takes L.B.

to the same daycare L.T. attends, Brenda gets to see L.T. every school day.

Unsatisfied, Brenda asks us to further expand her visitation by adding a

midweek overnight. But we believe the district court chose an appropriate balance

between (1) allowing L.T. to spend time with Brenda and L.B. during the week and

(2) avoiding excessive disruption of L.T.’s weekly schedule. Because the district

court did not fail to do equity, we decline to disturb its decision. See Salmon, 519

N.W.2d at 95; In re Marriage of Gulsvig, 498 N.W.2d 725, 727 (Iowa 1993)

(rejecting request for midweek visitation rights); In re Marriage of Ertmann, 376

N.W.2d 918, 922 (Iowa Ct. App. 1985) (ordering Wednesday evening visitations

from 4:30 p.m. until 8:30 p.m.); In re Marriage of Fish, 350 N.W.2d 226, 230–31

(Iowa Ct. App. 1984) (rejecting midweek visitation as it would “involve excessive

shifting of the child between parents and could impair the child’s sense of

stability”); see also In re Marriage of Sheriff, No. 14-1410, 2015 WL 4646493, at

*2 (Iowa Ct. App. Aug. 5, 2015) (“Further, there is no independent requirement for

midweek visitation.”).

Brenda also suggests we should reduce her summer visitation and, in

return, provide additional visitation during the week. But her appellate brief does

not state what specific parts of her summer visitation should be reduced. And,

other than requesting a midweek overnight visit, her brief does not specify how her

visitation during the week should be expanded. As explained, though, we believe

the district court appropriately decided on a midweek evening visit rather than an

overnight. And, viewed as a whole, we believe the visitation now available to

Brenda is “liberal” and provides “the child the opportunity for the maximum 10

continuing physical and emotional contact with both parents.” Iowa Code

§ 598.41(1)(a). Plus the current arrangement provides substantial time for L.T.

and L.B. to be together. See Orte, 389 N.W.2d at 374. We decline to alter

visitation.

C. Appellate Attorney Fees

Jason requests attorney fees on appeal. Appellate attorney fees are

awarded upon our discretion and are not a matter of right. See In re Marriage of

Okland, 699 N.W.2d 260, 270 (Iowa 2005). When considering whether to award

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.’” In re Marriage of McDermott,

827 N.W.2d 671, 687 (Iowa 2013) (internal quotation marks and citation omitted).

After considering all relevant factors, we decline to award attorney fees. But

we tax all costs of this appeal to Brenda.

III. Conclusion

We find no grounds to disturb the district court’s order. We affirm.

AFFIRMED.