In re the Marriage of Weiler

• Court: Court of Appeals of Iowa
• Decided: July 24, 2019
• Docket: 18-1899
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1899 Filed July 24, 2019

IN RE THE MARRIAGE OF SHERRI J. OSWALT-WEILER AND MATTHEW S. WEILER

Upon the Petition of SHERRI J. OSWALT-WEILER, Petitioner-Appellee,

And Concerning MATTHEW S. WEILER, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.

The appellant appeals the district court’s modification of the visitation

provisions of a dissolution decree. AFFIRMED.

Eric D. Puryear and Eric S. Mail of Puryear Law P.C., Davenport, for

appellant.

Jennifer M. Olsen of Olsen Law Firm, Davenport, for appellee.

Considered by Potterfield, P.J., and Doyle and May, JJ. 2

MAY, Judge.

Matthew Weiler (Matt) appeals the district court’s modification of the

visitation provisions of a dissolution decree. Following our de novo review, we

affirm.

Matt and Sherri Oswalt-Weiler (Sherri) married in 2009. They have two

children.

Allegations of abuse surfaced. Sherri filed for divorce. The Iowa

Department of Human Services (DHS) became involved.

In 2014, the district court entered a decree of dissolution. The court

awarded physical care to Sherri. The court awarded Matt “a one-hour supervised

visitation weekly.” The court also awarded Matt four-hour visitation periods on

certain holidays. The court ordered these visits to be supervised “by a mutually

agreed upon individual from Matt[’s] family.”

In 2017, Matt commenced this modification action. He asked the court “to

expand his visitation to allow him unsupervised, overnight visitation.” He also

complained that Sherri failed to keep him informed about the children’s school

activities.

For her part, Sherri asked the court to require “that a professional supervise

all future visitation.” She also asked for a modification of child support and an

award of attorney fees.

Following trial, the district court ordered “all of [Matt’s] visits with his children

[to] be supervised by an independent professional.” The court also ordered Sherri

to create a Google calendar and use it to advise Matt of “any school supervised

event in which either child is engaged.” The court also adjusted child support in 3

Sherri’s favor. Finally, the court ordered Matt to pay court costs as well as $5000

toward Sherri’s attorney fees. Matt appeals.

Matt argues the district court improperly reduced his visitation by requiring

professional supervision for all visitation. He claims his petition only requested an

increase in visitation time; therefore, the district court was precluded from

restricting his visitation. We disagree. In its prayer, Matt’s modification petition

asked the district court to “modify[] his visitation with the children.” This boundless

language invited the district court to enter any appropriate order concerning

visitation. See In re Marriage of Seward, No. 18-1690, 2019 WL 1934002, at *2–

3 (Iowa Ct. App. May 1, 2019) (concluding the petitioner had “fair notice the

visitation provision was potentially at issue given the modification petition’s broadly

worded prayer” and therefore the district court did not improperly modify the

provision sua sponte).

We also note that, months prior to trial, Sherri filed a request for the court

to “[o]rder the holiday visitation . . . to be supervised by a professional instead of

family members.” Likewise, during her testimony at trial, Sherri asked the court to

order that “all visitation with Matt . . . be professionally supervised.” Matt had clear

notice that the district court might grant that request.

Furthermore, based on our de novo review, we find the district court

properly modified the terms of visitation. See Iowa R. App. P. 6.907 (stating

“[r]eview in equity case shall be de novo”). “In order to modify the visitation

provisions of a dissolution decree, a party must establish by a preponderance of

the evidence there has been a material change in circumstances since the decree,

and the requested modification is in the best interests of the children.” In re 4

Marriage of Pont, No. 11-0383, 2011 WL 3480980, at *3 (Iowa Ct. App. Aug. 10,

2011).

Here, the district court correctly found that the children suffered abuse

during a Memorial Day visit at Matt’s parents’ home when Matt’s extended family

members were present. The district court then correctly reasoned that the original

visitation provisions, which allowed Matt’s holiday visitation to be supervised by a

family member, had failed to accomplish their purpose of protecting the children.

We agree with the district court that requiring professional supervision at all

visitations is an appropriate remedy. It will enhance the children’s safety and,

therefore, advance their best interests. See In re J.E., 723 N.W.2d 793, 802 (Iowa

2006) (Cady, J., concurring specially) (noting a child’s safety and need for

permanency are the “defining elements” under the best-interest analysis).

Matt also argues the district court improperly considered a DHS report and

the testimony of DHS investigator Kelsey Wade. She testified about her

investigation of the Memorial Day visit, including her determination that the children

were abused during the visit.

In his brief, however, Matt cites no authority suggesting this evidence was

inadmissible. Accordingly, we decline to address Matt’s argument. Iowa R. App.

P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed

waiver of that issue.”); Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240

(Iowa 1974) (“To reach the merits of this case would require us to assume a 5

partisan role and undertake the appellant’s research and advocacy. This role is

one we refuse to assume.”).1

Matt also claims the district court should not have awarded Sherri $5000 in

attorney fees. In a modification action, the district court has “considerable

discretion” to award attorney fees. In re Marriage of Maher, 596 N.W.2d 561, 568

(Iowa 1999). We find no abuse here. Matt commenced this litigation but Sherri

prevailed as to visitation, the parties’ central dispute. See Iowa Code § 598.36

(2017) (providing that, in a modification proceeding, “the court may award attorney

fees to the prevailing party in an amount deemed reasonable by the court”).

Moreover, Matt’s income far outstrips Sherri’s. See In re Marriage of Sullins, 715

N.W.2d 242, 255 (Iowa 2006) (noting the district court may consider “the respective

abilities of the parties to pay” when determining whether to award attorney fees

(quoting In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994))).

Finally, we note Sherri has requested appellate attorney fees.

Appellate attorney fees are not a matter of right, but rather rest in this court’s discretion. Factors to be considered in determining whether to award attorney fees include: “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 Okland, 699 N.W.2d 260, 270 (Iowa 2005) (quoting In re Marriage

of Geil, 509 N.W.2d 738, 734 (Iowa 1993)). Considering the parties’ income

1 We also decline to address Matt’s argument that the original dissolution decree improperly delegated authority to his therapist and the children’s therapist to determine whether, at some point, visitation could be conducted without supervision. As Sherri notes, Matt chose not to appeal from the original decree in 2014, when it was entered. He may not pursue that appeal now. 6

discrepancy and the outcome of this appeal, we conclude Matt should pay $4400

toward Sherri’s appellate attorney fees.

AFFIRMED.