Verne David Miller Jr. v. Lisa Mae Meyer

• Court: Court of Appeals of Iowa
• Decided: November 9, 2016
• Docket: 16-0455
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0455 Filed November 9, 2016

VERNE DAVID MILLER JR., Petitioner-Appellant,

vs.

LISA MAE MEYER, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.

A father appeals the court’s denial of his application to modify the custody

arrangement established in a stipulated decree. AFFIRMED.

Matthew L. Noel of Mayer, Lonergan & Rolfes, Clinton, for appellant.

Colista K. Anglese of Hammer Law Firm, P.L.C., Dubuque, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2

VOGEL, Presiding Judge.

Verne Miller appeals from the order denying his application to modify the

custody decree between him and Lisa Meyer involving their seven-year-old child.

He claims the evidence showed the current joint physical care arrangement was

not functional and, if he were granted physical care, he would provide superior

care. Lisa defends the district court’s modification decision and asks for an

award of appellate attorney fees.

The custody of this child has a long and storied history, which is not

necessarily pertinent to this appeal. What is essential is that, following the

termination of a guardianship, a stipulated joint physical care decree was entered

in December 2014. Verne was incarcerated in February 2015, and Lisa

petitioned to modify the custody arrangement two months later. Upon his release

from jail, Verne filed a cross-claim also seeking a modification of custody. Lisa

eventually dismissed her application, leaving only Verne’s cross-claim for trial in

February 2016.

The district court denied Verne’s modification request, finding the request

to modify was made less than four months after the entry of the stipulated decree

and approximately one-half of the time between the decree and the application to

modify Verne was in jail. The court noted much of Verne’s complaints predate

the entry of the decree, and those matters cannot be considered when

determining whether there is a material and substantial change in circumstances.

See In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004) (“Courts

are empowered to modify the custodial terms of a dissolution decree only when

there has been a substantial change in circumstances since the time of the 3

decree not contemplated by the court when the decree was entered, which is

more or less permanent and relates to the welfare of the child.” (emphasis

added)).

The main change Verne asserted justified the modification was an

allegation the child made against the child’s maternal grandmother’s boyfriend in

April 2015. Those allegations were investigated, and the department of human

services (DHS) determined the report was not founded and not confirmed. The

DHS worker testified at the modification hearing that she had no concerns from

an abuse stand point if Lisa wanted to have the maternal grandmother and her

boyfriend care for the child in the future.

Ultimately, the district court found “Verne essentially wants a ‘re-do’ on the

decree that he, along with Lisa, asked the Court to enter at the end of 2014.”

The court concluded Verne had not shown a material and substantial change in

circumstances, nor had he proven he would have been a superior caregiver, as

is required to modify custody. See id. (noting the parent seeking to modify the

physical care arrangement “has a heavy burden and must show the ability to

offer superior care”).

Upon our de novo review of the record in this case, we agree with the

district court’s decision to deny Verne’s application to modify the physical care

arrangement. See id. (noting our standard of review is de novo).

Lisa requests an award of appellate attorney fees. Such an award rests in

our discretion, and “we consider the needs of the party making the request, the

ability of the other party to pay, and whether the party making the request was

obligated to defend the decision of the trial court on appeal.” See In re Marriage 4

of Applegate, 567 N.W.2d 671, 675 (Iowa Ct. App. 1997). Upon reflection on

these factors, we award Lisa $1500 in appellate attorney fees.

AFFIRMED.