IN THE COURT OF APPEALS OF IOWA
No. 17-0046 Filed August 2, 2017
IN RE THE MARRIAGE OF VALERIE E. HUTE f/k/a VALERIE E. BAKER AND JOSEPH M. BAKER
Upon the Petition of VALERIE E. HUTE f/k/a VALERIE E. BAKER, Petitioner-Appellant,
And Concerning JOSEPH M. BAKER, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Jackson County, Henry W. Latham,
II, Judge.
Former spouse appeals from the order modifying a decree of dissolution
of marriage. REVERSED AND REMANDED.
Bradley T. Boffeli of Boffeli & Spannagel, P.C., Maquoketa, for appellant.
Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellee.
Heard by Vogel, P.J., and Doyle and McDonald, JJ. 2
MCDONALD, Judge.
Valerie Hute and Joseph Baker divorced in 2007. The stipulated decree
provided Valerie with sole legal custody and physical care of the parties’ children,
V.B. and S.B., born in 2002 and 2005, respectively. Joseph was to have
visitation “upon the terms and conditions established in” then-pending child-in-
need-assistance proceedings. The future then came and went as futures do.
The assistance proceedings closed. The parties remained in Maquoketa.
Valerie maintained physical care of the children. Joseph paid child support. But
Joseph never exercised visitation with the children. And Joseph never attempted
to contact the children. Eventually, Joseph met and married a woman who had
three children of her own, including two sons and a daughter. Joseph’s
stepdaughter is approximately the same age as V.B. The stepdaughter and V.B.
attended the same school. Joseph testified his stepdaughter told him V.B. once
asked her about Joseph. Joseph interpreted this to mean V.B. wanted to have
contact with him. In December 2015, Joseph acted on his impulse; he filed a
petition to modify the stipulated decree, seeking visitation with the children. The
district court granted Joseph’s petition, awarded the parties joint legal custody of
V.B. and S.B., ordered reunification therapy for Joseph and the children, and
ordered supervised visitation upon the recommendation of a counselor. Valerie
timely filed this appeal.
I.
Our review is de novo. See In re Marriage of Pals, 714 N.W.2d 644, 646
(Iowa 2006). We review the entire record and decide anew the factual and legal
issues preserved and presented for review. See In re Marriage of Williams, 589 3
N.W.2d 759, 761 (Iowa Ct. App. 1998). “Prior cases are of little precedential
value, except to provide a framework for analysis, and we must ultimately tailor
our decision to the unique facts and circumstances before us.” In re Marriage of
Kleist, 538 N.W.2d 273, 276 (Iowa 1995) (citing In re Marriage of Will, 489
N.W.2d 394, 397 (Iowa 1992)). “Although our review is de novo, we afford
deference to the district court.” In re Marriage of Morrison, No. 16-0886, 2017
WL 936152, at *1 (Iowa Ct. App. Mar. 8, 2017).
II.
We first address the question of legal custody. “Legal custody . . . means
an award of the rights of legal custody of a minor child to a parent under which a
parent has legal custodial rights and responsibilities toward the child.” Iowa
Code § 598.1(5) (2015). These “[r]ights and responsibilities . . . include but are
not limited to decision making affecting the child’s legal status, medical care,
education, extracurricular activities, and religious instruction.” Id. Joint legal
custody includes the right to “equal participation in decisions affecting the child’s
legal status, medical care, education, extracurricular activities, and religious
instruction.” Iowa Code § 598.1(3).
As a general rule, a party seeking to modify the custodial provisions of a
decree must prove “by a preponderance of evidence that conditions since the
decree was entered have so materially and substantially changed that the
children’s best interests make it expedient to [change legal custody].” In re
Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The material and
substantial circumstances “must not have been contemplated by the court” and
“must be more or less permanent, not temporary.” Id. There is a narrow 4
exception to the general rule. In some circumstances, a district court can reserve
jurisdiction to modify the custodial provisions of the decree in the absence of
proof of a material and substantial change in circumstances. See, e.g., In re
Marriage of Ruckman, No. 13-1920, 2014 WL 3748601, at *5 (Iowa Ct. App. July
30, 2014).
In this case, the stipulated decree provided Valerie would have sole legal
custody of the children. The district court modified the stipulated decree and
awarded the parties joint legal custody so Joseph could have access to the
children’s educational information. The district court reasoned modification of the
decree’s custodial provisions was warranted in the absence of a material and
substantial change in circumstances because the decree reserved jurisdiction to
revisit the issue. Specifically, the stipulated decree provided, “The court reserves
jurisdiction to revisit issues of legal custody, physical care and visitation pending
the outcome of the juvenile court proceeding set forth above.” The district court
also concluded there had been a material and substantial change in
circumstances making a change in the custodial provisions of the decree in the
best interest of the children.
We first address the reservation of jurisdiction. Reservation of jurisdiction
in child custody matters is heavily disfavored. See In re Marriage of Sjulin, 431
N.W.2d 773, 776 (Iowa 1988) (expressing “distaste for decrees that retain
jurisdiction to review . . . custody”); In re Marriage of Schlenker, 300 N.W.2d 164,
165 (Iowa 1981) (stating “we have discouraged the retention of jurisdiction to
modify divorce decrees without a showing of change of circumstances”); In re
Marriage of Vandergaast, 573 N.W.2d 601, 602 (Iowa Ct. App. 1997) (noting 5
“[t]rial courts should make final disposition of cases in circumstances then
existing”); In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct. App. 1997)
(noting appellate courts in Iowa discourage the retention of jurisdiction).
However, it is not disallowed. If jurisdiction is effectively reserved, then the
moving party is not required to show a change in circumstance. See Ruckman,
2014 WL 3748601, at *5.
To effectively reserve jurisdiction, the decree must explicitly provide the
parties are relieved of the burden to show a material and substantial change in
circumstance as a prerequisite to modification of the custodial provisions of the
decree. See, e.g., Wells v. Wells, 168 N.W.2d 54, 56–57 (Iowa 1969)
(determining jurisdiction was reserved when the stipulation stated “[t]he matter of
custody of the children herein provided for may be reviewed at the request of
either party . . . and without the burden on either party of having to show change
in circumstances”). “Only when the decree unequivocally provides for later trial
court review without the necessity of showing a change of circumstances will we
say this was the trial court’s intent. Otherwise we consider statements
concerning retention of jurisdiction as mere expressions of already existing
authority.” Schlenker, 300 N.W.2d at 166 (citing Betzel v. Betzel, 163 N.W.2d
551, 555 (Iowa 1968)). In addition, the reservation of jurisdiction must be tied to
a specific event or events anticipated to occur in the immediate future or must be
otherwise limited in duration. In the absence of some durational limitation on the
reservation of jurisdiction, the custodial provisions of the decree are merely
temporary. These type of temporary custodial provisions “are rarely, if ever, in
the best interests of the children.” Vandergaast, 573 N.W.2d at 602. 6
The purported reservation of jurisdiction in this case was ineffective and
could not serve as an independent basis to modify the decree in the absence of
proof of a material and substantial change in circumstances. The reservation
provision in this case did not explicitly provide the parties were relieved of the
burden of establishing a substantial and material change in circumstances as
required by Schlenker. See 300 N.W.2d at 166. In addition, the reservation
provision was tied to a specific event—“the outcome of the juvenile court
proceeding.” This indicates the decretal court’s reservation of jurisdiction—if it
had been effective—was intended to readdress the custodial provisions of the
decree at the time the juvenile assistance proceedings closed to give effect to
those proceedings. The assistance proceedings in this case closed in 2007 or
2008. It was incumbent upon the parties to timely present the relevant orders
from the assistance proceedings to the district court to allow the district court to
modify the decree, if necessary. The parties failed to do so. If the window to
modify the custodial provisions of the decree pursuant to the reservation of
jurisdiction were ever open, it is now definitively closed.
In the absence of an effective reservation of jurisdiction, modification of
the custodial provisions of the decree was unwarranted. First and foremost,
Joseph did not request modification of the custodial provisions of the decree. He
requested only modification of the visitation provisions of the decree. The parties
were not given notice that custody was at issue. Under the circumstances, sua
sponte modification of the custodial provisions of the decree was not proper.
See In re Marriage of Strang, No. 12-0322, 2013 WL 104820, at *1 n.2 (Iowa Ct.
App. Jan. 9, 2013) (noting the court should not sua sponte modify a decree 7
without an adequate record); see also Grant v. Terry, 961 N.Y.S. 2d 304, 304
(N.Y. App. Div. 2013) (holding it would have been improper for court to change
custody sua sponte where father requested only modification of visitation); cf.
Warren v. Miller, 17 N.Y.S. 3d 535, 535 (N.Y. App. Div. 2015) (affirming
modification of custody without application by the parties where the district court
informed the parties custody would be at issue). Second, less drastic remedies
were available to provide Joseph with information regarding the children. Joseph
can access the children’s education information without a change in the custody
provisions of the decree. See Iowa Code § 598.41(1)(e) (providing “both parents
shall have legal access to information concerning the child, including but not
limited to medical, educational and law enforcement records”). Third, Joseph
failed to prove a material and substantial change in circumstances making it in
the children’s best interest to modify the custodial provisions of the decree. See
Frederici, 338 N.W.2d at 158. The Iowa Department of Human Services founded
a report of sex abuse involving Joseph and V.B. The founded report of sex
abuse gave rise to the assistance proceedings referenced in the stipulated
decree. Joseph has not engaged in any treatment or counseling related to the
sex abuse. Joseph has not had any contact with the children for approximately
ten years. Joseph has not sought out any information regarding the children in
the last ten years. It is not in the children’s best interest to vest Joseph with
equal participation rights in fundamental decisions regarding the children when
he has sexually abused one of them, is a stranger to them, and lacks experiential
history to make an informed choice for them. See Iowa Code § 598.41(3)(i) 8
(providing the district court may consider the safety of the children when making
a custody determination).
For the foregoing reasons, we reverse the judgment of the district court
with respect to modification of the custodial provisions of the decree.
III.
We next address visitation. The Code provides the district court shall
order
visitation . . . where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.
Iowa Code § 598.41(1)(a). Our case law is in accord with the statute,
demonstrating a strong preference for liberal visitation. See Smith v. Smith, 142
N.W.2d 421, 425 (Iowa 1966) (“The rule is well established in all jurisdictions that
the right of access to one’s child should not be denied unless the court is
convinced such visitations are detrimental to the best interest of the child. In the
absence of extraordinary circumstances, a parent should not be denied the right
of visitation.” (quoting Willey v. Willey, 115 N.W.2d 883, 839 (Iowa 1962))).
As a general rule, “[t]o justify a modification of visitation rights, the plaintiff
must show there has been a change of circumstances since the filing of the
decree.” Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct. App. 1994). “The
burden upon the petitioner in a modification of visitation rights differs from the
burden upon him or her in a modification of custody. The degree of change 9
required in a modification of visitation rights is much less than the change
required in a modification for custody.” Id. However, the change of circumstance
still must be beyond the contemplation of the court at the time of the decree.
See, e.g., In re Marriage of Raper, No. 14-1003, 2015 WL 2406784, at *3 (Iowa
Ct. App. May 20, 2015). In addition, the main concern remains the best interests
of the children. See Nicolou, 516 N.W.2d at 906. As with custody, a district court
can reserve jurisdiction to modify the visitation provisions of the decree in the
absence of proof of a change in circumstances, although this, too, is viewed with
strong disfavor.
In this case, the stipulated decree provided, “The parties agree that Joe
shall exercise visitation with the minor children upon the terms and conditions
established in the juvenile court proceedings.” The district court concluded the
reservation of jurisdiction was a sufficient reason to modify the visitation
provisions of the decree. The district court also concluded there had been a
change in circumstances and modification was in the best interests of the
children. The district court ordered Joseph and the children to attend therapy.
The district court also ordered Joseph to have supervised visitation upon the
recommendation of the therapist. Valerie contends modification was improper,
and she contends the district court impermissibly delegated authority for
establishing visitation to a third party.
The reservation of jurisdiction was ineffective to modify the visitation
provisions of the decree without showing a change in circumstances. As noted
above, the reservation of jurisdiction did not explicitly provide the parties were
relieved of the burden of establishing a change in circumstances as required by 10
Schlenker. See 300 N.W.2d at 166. As also noted above, the opportunity to
modify the stipulated decree without showing a change in circumstances, if any,
has passed.
In the absence of a valid reservation of jurisdiction, it was incumbent upon
Joseph to establish both a change in circumstances and modification would be in
the best interest of the children. See In re Marriage of Brown, 778 N.W.2d 47,
51–52 (Iowa Ct. App. 2009). Joseph contends the closing of the juvenile
proceedings is a change in circumstances sufficient to warrant modification of the
decree. Under the circumstances, we disagree. There appears to be a
misconception in this case regarding Joseph’s visitation rights prior to filing this
modification action. The stipulated decree did not deny Joseph the right of
visitation. The stipulated decree provided Joseph would have visitation on the
terms and conditions established in the juvenile court proceedings. The closing
of the juvenile court proceedings is thus not a change in circumstance; it was
specifically contemplated by the decree. Joseph simply failed to take any action
upon the closing of the juvenile proceedings.
Joseph contends the passage of time and changing family dynamics
constitute a change in circumstances sufficient to warrant modification of the
visitation provisions of the decree. Specifically, he notes the children are older,
can participate in therapy, and can self-protect. He also notes he is remarried, is
a stepfather, and has demonstrated appropriate relationships with his
stepchildren. Joseph also has started a trucking company and appears to be
having some financial success. At first glance, none of the cited circumstances
seems like a change in circumstances within the meaning of our law—that is, 11
changes not in the contemplation of the decretal court. One would expect the
children to age, the parties to remarry, and the parties to become more financially
stable over time. However, time changes everything, or so it is said, and,
perhaps, the passing of a sufficient amount of time in conjunction with the cited
changes could be a change in circumstances.
An interesting and comparable case is Smith, 142 N.W.2d at 421. In that
case, the husband physically abused his wife and son. See Smith, 142 N.W.2d
at 422. The parties divorced. The wife was granted sole custody, and the
husband was disallowed visitation with any of the parties’ four children. See id.
After the passing of several years, the father sought modification of the decree to
allow visitation with his children. The court concluded the father had made a
sufficient showing to change visitation. “In addition to the passage of time,” the
father showed significant improvement in his mental health. Id. at 423. The
father had happily remarried. See id. The father had established a business and
was “able to report a most satisfying growth in the development of his venture.”
Id. The court concluded, “It is obvious there has been considerable change in
appellant’s temperament and self-control. Present conditions indicate these
factors should not stand in the way of visitation privileges.” Id. at 424.
While this case has superficial similarities to Smith, it is also materially
different. The father in Smith presented evidence from a psychologist showing
“definite evidence of improved self-control and thinking.” Id. at 423. The court
thus concluded the reasons for restricting visitation no longer existed. In
contrast, Joseph did not engage in any sort of therapy or counseling to address
the reasons for the decretal visitation provision. He also presented no evidence 12
that such treatment was unnecessary. The mere fact that Joseph now has a
stepdaughter is not sufficient evidence that he has addressed the underlying
circumstance giving rise to the original visitation provision. We cannot conclude
Joseph established a sufficient change in circumstances to warrant modification
of the stipulated decree.
There is also no evidence modification of the decree is in the best interest
of the children. The father in Smith had made repeated attempts to modify the
visitation provisions of the decree, which the court considered “testimony as to
his interest in [the children].” Id. at 424. In contrast, Joseph has not made any
prior attempt to seek visitation with his children. Further, Joseph has not made
any attempt to contact the children in almost ten years despite the fact they all
reside in a small community. In Smith, the father sent money to the children and
“different presents during the holidays and birthdays.” Id. Here, Joseph paid
child support, but he never sent the children any presents on holidays or
birthdays. At trial, Joseph was unsure of V.B.’s birthday. In Smith, the mother
testified the children “had no mental block against their father” and testified the
children “stated they would like to see their father.” Id. In this case, the record is
devoid of similar testimony. To the contrary, the guardian ad litem’s report stated
the children did not express any interest in seeing their father. When asked what
effect visitation would have on the children Joseph conceded, “[t]o be honest, I
don’t know. It could either be good or bad.” While the district court found
Joseph’s interest in building a relationship with his children is genuine, “our
governing consideration in defining visitation rights is the best interests of the
children, not those of the parent seeking visitation.” In re Marriage of Dubendorf, 13
No. 0-672, 2000 WL 1724044, at *3 (Iowa Ct. App. Nov. 20, 2000). There is no
evidence modification is in the best interest of the children.
An additional consideration is relevant. As noted above, the stipulated
decree provided Joseph with the right of visitation upon the terms and conditions
set forth in the assistance proceedings. However, Joseph did not put into
evidence the relevant orders from the juvenile court proceedings. He had very
little knowledge of the juvenile court proceedings. He testified he did not
participate in the juvenile proceedings. He testified he did not know whether the
proceedings were closed. He testified he never attempted to obtain any
information regarding the proceedings. Valerie had only limited information
regarding the juvenile court orders. She testified the juvenile court provided for
Joseph to have visitation so long as he completed certain steps, including
therapy. Joseph conceded he did not complete any therapy. It thus seems
incorrect to posture this case as a modification action in which one parent is
seeking to modify an order prohibiting visitation, as in Smith. Instead, this is a
case in which a parent was awarded visitation upon certain terms and conditions,
ignored court orders for almost a decade, and failed to exercise the ordered
visitation for almost a decade, and now seeks a new order with new terms and
conditions. We see no reason to now allow Joseph to circumvent the terms and
conditions imposed by the juvenile court merely because he chose to ignore
court orders for a sufficiently lengthy period of time.
For the foregoing reasons, we conclude modification of the visitation
provision of the decree was not warranted. Joseph is entitled to exercise
visitation upon the terms and conditions set forth in the juvenile court 14
proceedings. Because we conclude modification is not warranted under the
circumstances, we need not address Valerie’s claim that the district court
delegated its power to an impermissible third party.
IV.
Valerie seeks attorney fees. We will not disturb the district court’s denial
of Valerie’s claim for fees incurred in the district court. We do address her
request for appellate attorney fees. “An award of appellate attorney fees is not a
matter of right but rests within our discretion.” Kurtt, 561 N.W.2d at 389 (citing In
re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994)). “[W]e
consider the needs of the party making the request, the ability of the other party
to pay, and whether the party making the request is obligated to defend the trial
court’s decision on appeal.” In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa
1991) (citing In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct. App.
1981)). We award Valerie appellate attorney fees in the amount of $3049.50.
V.
We hold the district court did not have retained jurisdiction to modify the
custodial or visitation provisions of the degree in the absence of proof of changed
circumstances and proof modification was in the best interests of the children.
We hold the father failed to satisfy his evidentiary burden to justify modification of
the custodial provisions and visitation provisions of the stipulated decree of
dissolution. We vacate the judgment of the district court and remand this matter
for dismissal of Joseph’s petition to modify the decree of dissolution of marriage.
REVERSED AND REMANDED.