Kevin James Daniels v. Brittney Jade Arends

• Court: Court of Appeals of Iowa
• Decided: November 21, 2023
• Docket: 23-0728
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0728 Filed November 21, 2023

KEVIN JAMES DANIELS, Plaintiff-Appellee,

vs.

BRITTNEY JADE ARENDS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Grundy County, John J. Sullivan,

Judge.

Brittney Arends appeals the order modifying the visitation provisions of the

custody decree concerning two children she shares with Kevin Daniels.

AFFIRMED.

Elizabeth M. Wayne, Parkersburg, for appellant.

Jordan M. Talsma of Beecher, Field, Walker, Morris, Hoffman & Johnson,

P.C., Waterloo, for appellee.

Considered by Tabor, P.J., and Chicchelly and Langholz, JJ. 2

CHICCHELLY, Judge.

Brittney Arends appeals the order modifying the visitation provisions of the

custody decree concerning two children she shares with Kevin Daniels. She

contends Kevin failed to show that a material change in circumstances warrants

modifying visitation and that expanding his visits is in the children’s best interests.

She also challenges the denial of her request to modify summer visitation.

Because the evidence supports expanding the children’s visits with Kevin, we

affirm the order modifying the custody decree to expand Kevin’s visitation and deny

Brittney’s request. We also decline to award Brittney appellate attorney fees.

Brittney and Kevin were in a relationship from 2012 until 2017. They have

two children: K.D., born in 2013, and I.D., born in 2015. Although the district court

described their relationship as “toxic and tumultuous,” they agreed to share joint

legal custody of the children with Brittney acting as their physical caretaker. The

district court incorporated their agreement into a January 2020 custody decree.

But the parties could not agree to a visitation schedule; Kevin requested

unsupervised weekend and midweek visits, while Brittney asked that the court

require supervised visitation between Kevin and the children. Ultimately, the court

granted Kevin unsupervised weekend visitation but denied him midweek visits

because of the distance between residences and Kevin’s second-shift work

schedule. The court also granted Kevin two non-consecutive weeks of visitation

with the children during the summer.

In June 2021, Brittney petitioned to modify the custody and visitation

provisions of the decree based on the contentious nature of the parties’

relationship. She asked the court to grant her sole legal custody of the children. 3

She also asked to eliminate summer visitation based on the recommendation of a

counselor. In 2022, while the modification action was pending, Kevin’s work

schedule changed from second-shift to first-shift. On this basis, he petitioned to

modify the visitation provisions of the custody decree.1

After a trial in February 2023, the district court granted Kevin’s request for

modification. The court modified the visitation provisions of the custody decree to

begin Kevin’s weekend visits at 4:30 p.m. on Friday and added weekly visits from

4:30 p.m. to 7:30 p.m. on Wednesday. It denied Brittney’s petition to modify in its

entirety.

Brittney appeals the order granting Kevin’s request to modify visitation while

denying hers. She contends Kevin failed to prove a material change in

circumstances justifies modifying the visitation schedule and that the added

visitation is not in the children’s best interests. Brittney asks us to eliminate

midweek visits and continue weekend visits as stated in the original decree. She

also asks us to reduce or eliminate Kevin’s summer visitation. In the alternative,

Brittney asks us to grant her two non-consecutive weeks with the children in the

summer uninterrupted by visitation with Kevin.

Because this action was tried in equity, our review is de novo. See Iowa R.

App. P. 6.907. Although we are not bound by the district court’s findings of fact,

we give them weight. Iowa R. App. P. 6.904(3)(g). This is especially true when

the findings concern witness credibility. Id.

1 Kevin also sought to modify the provision of the decree allowing Brittney to home

school the children and instead require that they attend public school. The district court denied the request, finding Kevin failed to show a material change in circumstances. Kevin does not appeal the denial of this request. 4

We begin by noting that “the best interests of children are ordinarily fostered

by a continuing association with the noncustodial parent.” Christy v. Lenz, 878

N.W.2d 461, 464 (Iowa Ct. App. 2016) (citation omitted). For this reason, a parent

seeking to modify child visitation has a lower burden of proof than a parent seeking

to modify child custody. Id. The court can modify visitation if the petitioner shows

“by a preponderance of evidence that there has been a material change in

circumstances since the decree and that the requested change in visitation is in

the best interests of the children.” Id. (citation omitted).

The change in Kevin’s work schedule is a material change in circumstances

that warrants modifying visitation. In denying Kevin’s request for midweek

visitation in the original decree, the court cited Kevin’s work schedule. At that time,

Kevin worked Monday through Friday from 1:30 p.m. until 10:00 p.m. With his new

schedule, Kevin’s shift begins at 5:00 a.m. and finishes at 1:30 p.m. The change

provides ample time for a visit and transportation between the parties’ residences

before the children’s bedtime. It also allows weekend visits to begin on Friday

afternoon instead of Saturday morning.

Modifying the visitation schedule to allow midweek and expanded weekend

visits serves the children’s best interests. As the district court found, “The

additional [visitation] will assist in fostering the children’s continuing relationship

with their father.” Brittney makes the same argument against visitation that she

made below. The district court dismissed her concerns about the children being

upset during exchanges and having mosquito bites after a visit with Kevin, noting

that neither is unusual. There is no credible evidence by which to find that the

children’s best interests are served by limiting their contact with Kevin. 5

Brittney challenges the denial of her request to eliminate Kevin’s summer

visitation. She claims that the children’s counselor recommended eliminating

summer visits. But as the district court noted, Brittney never presented any

evidence supporting her claim. We agree that Brittney failed to show a material

change of circumstances that warrants modifying summer visitation. We affirm the

denial of her request to eliminate Kevin’s summer visits and decline her alternate

request for two weeks of uninterrupted time with the children in the summer.

Finally, Brittney requests an award of her appellate attorney fees. Iowa

Code section 600B.26 (2022) allows us to award reasonable attorney fees to the

prevailing party in a modification action. Because Brittney is not the prevailing

party on appeal, we decline her request.