Anthony Martin Collins, Jr. v. Veronica Marie Natera, n/k/a Veronica Marie Landals ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2060
Filed November 27, 2019
ANTHONY MARTIN COLLINS, JR.,
Petitioner-Appellant,
vs.
VERONICA MARIE NATERA, n/k/a VERONICA MARIE LANDALS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
Anthony Collins Jr. appeals the district court’s denial of his petition to modify
physical care of the parties’ child. AFFIRMED AS MODIFIED.
Jaclyn M. Zimmerman of Miller, Zimmerman & Evans P.L.C., Des Moines,
for appellant.
Diane L. Dornburg of Carney & Appleby, P.L.C., Des Moines, for appellee.
Considered by Vaitheswaran, P.J., Potterfield, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
MAHAN, Senior Judge.
Anthony Collins Jr. (Tony) appeals the district court’s denial of his petition
to modify the parties’ paternity decree to order physical care of the parties’ child
with him rather than the child’s mother, Veronica Landals. Upon our review, we
affirm the order entered by the court, but we conclude equity requires that Veronica
pay for the child’s travel costs necessary to facilitate visitation with Tony, and we
modify the order in that regard.
I. Background Facts and Prior Proceedings
Tony and Veronica had an “on and off” relationship between 2011 and 2013.
Their child, A.C., was born in 2013, shortly after they separated. Veronica also
has two older children from prior relationships.1
In 2014, Tony filed a petition to establish paternity and custody, requesting
physical care of A.C., or in the alternative, shared physical care. In 2015, following
a two-day trial, the district court entered an order placing A.C. in Veronica’s
physical care. The court found, “Shared care is not in the best interest of [A.C.]”
because “the parties do not have a history of cooperation with each other and that
is likely to continue.” The court further noted the parties’ “history of allowing other
individuals to influence their interpersonal relationship which only resulted in
further needless turmoil.” The court found, “Veronica more so than Tony has
shown that she is better at caring for [A.C.]” and A.C. “is bonded to her half-sibling”
in Veronica’s home. The court awarded Tony visitation with the child every
1
Veronica’s oldest child is an adult.
3
Wednesday overnight and every other Thursday to Saturday. The court ordered
Tony to pay child support in the amount of $552 per month.
Both parties have since married—Veronica married Jay in 2015 and Tony
married Mindy in 2017. Jay has four children (ages seventeen to twenty-one years
old), and Mindy has two children (ages nine and fifteen). It appears these other
relationships have, whether purposefully or inadvertently, instigated problems
between Tony and Veronica. For example, Tony believed Veronica encouraged
A.C. to call Jay “Dadda,” which Tony objected to, because “there’s only one mom,
and there’s only one dad.” Tony emphasized that he would not encourage A.C. to
call Mindy “mom.” Jay, who had lived with A.C. nearly all the child’s life, had
developed a close bond with the child and openly shared his feelings in that regard
on social media, further fueling Tony’s animosity toward the situation.
During the summer of 2017, in the midst of discussions between the parties
regarding Tony’s request for an extension of a right of first refusal to care for A.C.
while Veronica was at work, Veronica unilaterally hired Mindy’s ex-husband’s wife
as A.C.’s daycare provider. Veronica was aware the two women had a “very poor”
relationship. Aside from the clearly questionable nature of her daycare-provider
decision, Veronica later acknowledged it was “[p]robably” better for A.C. to be with
Tony rather than at daycare. Veronica acknowledged she was “[p]ossibly” being
difficult to deal with but said it “goes both ways.”
In September 2017, Veronica emailed Tony advising him she was filing for
modification because she and Jay were planning to move to Texas. According to
Veronica, the decision was “not easy” and was made “after careful thought and
much planning about schools, communities, career opportunities, homes, and
4
future planning.” Veronica requested she and Tony work together to “create our
own terms of agreement” for visitation. Tony responded that he was “shocked and
saddened” by the email, stating, “I do not want you to move and I do not want
[A.C.] to ever have to be without one of us.”
Veronica then filed a petition for modification, alleging her plan to relocate
to Texas was a substantial change in circumstances warranting modification of
Tony’s visitation. Tony filed an answer and counterclaim, alleging, “It is not in the
best interests of the minor child to move out of state, further diminishing her
relationship with her father and siblings.” He requested the paternity decree be
modified to grant him physical care of the child, set a visitation schedule for
Veronica, and order Veronica to pay child support.
A trial took place over three days in October 2018, at which the district court
received testimony from Veronica, Tony, Jay, as well as Veronica’s ex-husband
and Jay’s sister. Veronica, Jay, and A.C. had moved to Spring, Texas in December
2017. Prior to the move, Jay’s seventeen-year-old son, of whom Jay had physical
care, elected to move to Omaha to live with his mother. And Veronica’s fourteen-
year-old daughter, of whom Veronica had shared care, elected to remain in the
Des Moines area with her father. Modification proceedings with regard to those
children were pending or complete by the time of trial in this matter.
Veronica works night shifts as an emergency room nurse. She described
an improved work environment at a “magnet hospital, which is pretty much every
nurse’s dream to work in.” Veronica makes $40.50 per hour, as opposed to $29.70
per hour she was making in Iowa. Veronica testified about her research that Iowa
“rank[ed] 50th in pay” for nurses, which “played a role in my wanting to leave Iowa
5
. . . and not be a nurse in Iowa anymore.” Veronica testified the family now lived
in a “safer neighborhood” and A.C. would attend a well-rated school. Jay, who has
worked for FedEx as an airport ramp agent for twenty-one years, testified that in
Iowa he was he was at the “top of the pay scale” and made just under $29 per
hour. Now Jay earns $30.78 per hour, and he testified there are more opportunities
for growth because the Houston airport is a much larger market. He also testified
the warmer climate in Texas was a perk given the outdoor-nature of his job.
Tony lives in Grimes with Mindy and her two children. He works as a
paramedic in Story County, and he also works part-time for the Bondurant Fire
Department. Mindy works at a medical clinic in Waukee. Tony’s parents live
nearby and spend time with A.C. when she is in Iowa. Tony believed it was in
A.C.’s best interests “to be here with her father and close to her family.” He stated
that he has a “great relationship” with A.C., but he believed Veronica “minimalizes”
him and does not respect him as A.C.’s father. Tony described Veronica as being
“deceitful and manipulative to get her way.” Tony believed “this entire move was
to take [A.C.] away from me.” He pointed out that now A.C. is separated from
Veronica’s daughter, who lives in Waukee with her father, which was “one of the
big reasons [Veronica] wanted primary care” in the first place—to keep the half-
siblings together.
Tony acknowledged A.C. has been in Veronica’s physical care since she
was born and “it [would] be somewhat of a transition” to change that, but he opined
that A.C. “transitions here extremely well.” Veronica testified she and Jay moved
to provide better opportunities for their family, and she believed she was better
equipped than Tony to provide for A.C.’s long-term best interests. Veronica
6
testified it “would hurt [A.C.] tremendously” if the child was not able to see her on
a regular, consistent basis.
A.C., who was five-years-old, was described as a “ball of joy,” “sensitive,”
“inquisitive,” and “intelligent.” A.C. was active, excited “to learn new things,” and
was on track to begin kindergarten in the fall of 2019. Veronica testified A.C. “gets
really excited” when she talks to Tony or “when she gets to come back to Iowa to
visit him.” According to Veronica, “I have no doubt in my mind that he loves her
and that she loves him.” Tony believed Veronica is a “good mom,” and he had “no
doubt” about her ability to care for A.C. Both parties agreed they could “work
together” to parent A.C.
The district court entered an order granting Veronica’s request to modify the
visitation schedule and denying Tony’s request to modify physical care. The court
concluded the record did not establish a change in circumstances resulting from
Veronica’s relocation, or from Veronica’s alleged lack of support for Tony’s
relationship with A.C., to justify a modification of physical care. The court further
found Tony had not established “that he is in a better position to provide superior
care for the child as compared to [Veronica].” However, the court found Veronica’s
relocation was a change of circumstances warranting modification of the visitation
schedule. The court incorporated each parties’ respective requests for appropriate
visitation and ordered Tony to have visitation with A.C. for six weeks during the
summer (to be exercised in four- and two-week blocks), every spring break, and
half of holiday breaks. The court also ordered, “Either party may exercise
additional time with the child should that party be in the state where the child is
located.” The court ordered, “Each party shall be responsible for providing
7
transportation for the child at the beginning of their scheduled time with the child.”
Tony appealed.
II. Standard of Review
We review this modification action de novo. Iowa R. App. P. 6.907; In re
Marriage of Johnson, 781 N.W.2d 553, 554 (Iowa 2010). We give weight to the
fact findings of the district court, especially in determining witness credibility, but
are not bound by them. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).
III. Modification of Physical Care
As the party seeking modification of A.C.’s physical care, Tony bears a
heavy burden. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). This
is because once the custody and care of a child has been fixed, it should be
disturbed only for the most cogent reasons. Id. A.C.’s “best interest is the
‘controlling consideration.’” Cf. Hoffman, 867 N.W.2d at 32 (citation omitted).
To change a custodial provision of a dissolution decree, the applying
party must establish 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 make
the requested change. 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. They must
relate to the welfare of the children. A parent seeking to take custody
from the other must prove an ability to minister more effectively to
the children’s well being.
Id. (quoting Frederici, 338 N.W.2d at 158).
“A decision by a joint custodial parent with physical care of children to move
out-of-state is obviously the kind of decision the other joint custodian has a right to
be consulted about.” Frederici, 338 N.W.2d at 159. However, “the parent having
physical care of the children must, as between the parties, have the final say
8
concerning where their home will be. This authority is implicit in the right and
responsibility to provide the principal home for the children.” Id. “And in our ‘highly
mobile society’ . . . periodic relocation is hardly a surprise.” Hoffman, 867 N.W.2d
at 33 (quoting Frederici, 338 N.W.2d at 160).
Factors the court considers in evaluating whether a relocation undermines
the best interests of the child, are (1) the “motive for the move”; (2) the “location,
distance, and disruption”; (3) the “child[‘s] preferences”; and (4) “relative
advantages and disadvantages of the [new] residence.” Id. at 33–36. Here, the
district court found A.C. “has not expressed a preference, nor is she old enough to
have her preferences given any weight in the analysis” and “neither party has
offered any empirical data or similar evidence in an effort to evaluate the pros and
cons of living in Texas as compared to Des Moines.” Accordingly, the court
focused its analysis on the first and second factors set forth above to reach its
conclusion that Tony had failed to meet his burden to prove A.C.’s move
constitutes a substantial change of circumstances affecting her best interests.
Tony challenges the court’s ruling on appeal, claiming “the credible
evidence shows that Veronica’s motivation to move was specifically to
geographically separate” him from A.C. To support his contention, Tony points to
the subpoenaed testimony of Jay’s sister (stating “it was Veronica’s desire to get
out of Des Moines and get [A.C.] away from Tony to avoid any more appearances
in court”) and Veronica’s ex-husband (stating “[Veronica] did point out that a big
reason [for the move] was because she did not want to raise [A.C.] in the same
school district as Tony”). While we acknowledge the record is replete with messy
testimony painting a picture of the various opinions regarding the proper outcome
9
of this case, the district court expressly gave the testimony of Jay’s sister and
Veronica’s ex-husband “no weight” on this point due to their “lack[] of credibility.” 2
We defer to the district court’s ability to see the parties testify in person, and we
give weight to credibility determinations of the district court. In re Marriage of
Eggeling, No. 18-0234, 2019 WL 478818, at *1 (Iowa Ct. App. Feb. 6, 2019).
In any event, the court noted it was “satisfied that the relocation was
motivated by [Veronica’s] and Jay’s desire to improve their career prospects in that
state.” As the court found:
The record establishes that the move had been contemplated for
some time, and the objective criteria analyzed by [Veronica]
(including the higher pay afforded nurses in Texas, Jay’s increased
marketability with Federal Express as a result of working at a major
international airport and the absence of a state income tax) supports
the ultimate decision to move to Texas. A move to obtain or better
one’s employment is a legitimate reason to relocate, absent proof
that the move was more consistent with a desire to defeat the other
parent’s visitation rights or undermine his relationship with the
children. . . .
. . . . This is not a case where [Veronica] and Jay have
impulsively decided to pull up stakes and move across the country
for no good reason.
On our de novo review of the record, we agree with the court’s findings.
Tony also argues, “The new location, its distance from the noncustodial
parent, disruption for the child[] and relative advantages and disadvantages of the
new residence support an award of primary physical care to Tony.”3 In particular,
2
Indeed, the court stated, “To the degree the trial testimony offered by [Veronica’s ex-
husband] and [Jay’s sister] supports [Tony’s] position in this regard, the court gives their
testimony no weight as lacking in credibility as a result of the lack of written corroboration
and what the court perceives as their animosity exhibited toward [Veronica] and/or Jay.”
3
The district court did not analyze the relative advantages and disadvantages of Iowa and
Texas (observing “neither party has offered any empirical data or similar evidence in an
effort to evaluate the pros and cons of living in Texas as compared to Des Moines”), and
Tony does not present any such evidence on appeal to support his claim. Accordingly,
we decline to specifically address that factor.
10
Tony claims the move to Texas “is highly disruptive” to A.C.’s relationships with
him, her extended family, and her half- and step-siblings. There is no doubt the
distance between A.C. and these relatives will affect those relationships. However,
we agree with the district court that “[s]ome of this disruption can be and has been
mitigated by the scheduling of extended visitation over summers and school
breaks, as well as extended contact through such media as FaceTime, Skype,
etc.”
Both Veronica and Tony testified A.C. is doing well and has a good
relationship with all her family members. Their testimony also supports the
conclusion that A.C. is happy, well-adjusted, thriving in her home in Texas, and
enjoys her visits to Iowa. Tony testified that he has “struggled” with A.C.’s move
and admitted that he has told the child “it’s not fair that she’s so far away from
[him].” But “[p]hysical care issues are not to be resolved upon perceived fairness
to the [parents,] but primarily upon what is best for the child.” Hansen, 733 N.W.2d
at 695 (emphasis in original). On our de novo review of the record, we agree with
the district court’s finding that “[t]o the degree that [Veronica] was initially chosen
as [A.C.]’s caregiver based on her relative stability, she has been able to maintain
that stability despite the relocation.” Because Tony has not established a
substantial change in circumstances to warrant modification of physical care,4 we
affirm.
4
In light of this conclusion, we need not reach Tony’s contention that he “has the ability to
provide superior care to [A.C.]” And Tony does not challenge the modified visitation
provisions ordered by the court.
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IV. Transportation Costs
The district court ordered, “Each party shall be responsible for providing
transportation for the child at the beginning of their scheduled time with the child.”
Tony contends “it is equitable to make Veronica the party responsible for
transportation to facilitate [his] parenting time.” To support his contention, Tony
points to Veronica’s ability to obtain inexpensive airfare for A.C. as a perk of Jay’s
employment with FedEx.5 Tony also points out that Veronica earns significantly
more than he does and is in a superior position to provide transportation for A.C. 6
Tony claims, “[D]ue to Veronica’s access to inexpensive travel, the disparity of
income, and the voluntary nature of her relocation, Veronica should be responsible
for all, or a higher portion, of the cost of facilitating visitation.” Veronica does not
respond to Tony’s claim.
If a parent who is awarded physical care of a child relocates 150 miles or
more from where the child lived at the time of a decree, the court may consider the
move a substantial change in circumstances, as the court did here in order to
modify the parties’ visitation schedule. See Iowa Code § 598.21D (2017). “The
modification may include a provision assigning the responsibility for transportation
of the minor child for visitation purposes to either or both parents.” Id.
5
Veronica testified, “Jay receives a benefit through his work since it’s an airline, so through
a web site we get discounted [standby] airline tickets.”
6
For example, Tony testified, “After receiving notification that my daughter was going to
be taken to Texas, I knew that I would have a fight on my hands and it was going to cost
a lot of money, so I started working a lot at the fire department on my time off from Story
County.” Tony also testified he would have visited A.C. in Texas “every weekend” if he
could have, but had yet to be able to do so due to “[t]ime off work, the expense of hotels,
staying down there, cost of driving and flying down there.”
12
We conclude the district court’s equal division of transportation costs was
not equitable. Veronica chose to relocate to Texas, and her testimony conveyed
many subjective reasons the move benefited her family. See generally In re
Marriage of Beecher, 582 N.W.2d 510, 514 (Iowa 1998) (concluding that a
downward departure from the child support guidelines was not justified even
though father was bearing eighty percent of transportation costs for the children,
noting that a move to California was for his personal benefit). Indeed, Veronica
testified she and Jay now earn more in Texas, their housing costs have improved,
and she is able to provide low-cost airfare for A.C. With the exception of a few
instances, Veronica testified she has voluntarily agreed to provide for A.C.’s
transportation costs.7 And it seems Veronica realizes her leverage on Tony when
it comes to A.C.’s transportation. The record shows a trend of Veronica displaying
control over A.C.’s travel, and sadly some of Veronica’s actions have been to
A.C.’s detriment.8
On our de novo review, we conclude equity requires that Veronica pay for
A.C.’s travel costs necessary to facilitate visitation. See In re Marriage of Ginger,
7
This was despite the parties’ mediation agreement “related to some temporary parenting
time and transportation provisions” between December 2017 and April 2018, which
required each parent to provide the transportation necessary to facilitate the exchange of
A.C. at the beginning of his or her parenting time.
8
For example, in March 2018, the night before a planned exchange of A.C. in Tulsa,
Veronica text-messaged to Tony, “I can save you the trip and fly her to DSM tomorrow if
you agree to have her passport application completed and notarized by the time she return
on April 7th.” When Tony responded, “Per my lawyer’s advice, I am not signing the
application at this time . . . . ,” Veronica stated, “See you in Tulsa.” Veronica later admitted
it would have been better for A.C. to fly rather than drive.
On another occasion, Veronica failed to notify Tony when she and A.C. were
unable to get on a flight to Texas and stayed an extra night in Des Moines; Veronica waited
until they were back in Texas to notify Tony. Veronica agreed that in hindsight she should
have let him know sooner.
13
No. 13-1908, 2014 WL 5478145, at *3 (Iowa Ct. App. Oct. 29, 2014) (“Though we
understand the need to relocate for one’s career, the move was nonetheless
Tracy’s sole decision, and given the parties’ relative income, the resulting cost of
transporting the children should not fall on Tanya. We therefore conclude the
district court failed to do equity when it ordered Tanya to pay for the children’s
transportation costs when the children travel from Georgia back to Iowa.
Consequently, Tracy will be responsible for all transportation costs regarding the
children’s visits to Georgia.” (citation omitted)); see also In re Marriage of Yazigi &
Nahra, No. 13-1553, 2015 WL 1046129, at *3 (Iowa Ct. App. Mar. 11, 2015) (“[W]e
conclude the district court’s equal division of the transportation costs was not
equitable. Relocating the children to Canada is wholly Tony’s choice. Tony has
income of approximately $84,000 per year, and he testified at trial that he expects
to earn substantially more in Canada while also having significantly less living
expenses. Rima has negligible income and is required to pay Tony $445 per
month in child support. Tony will be required to pay for all of the children’s travel
costs necessary to facilitate visitation.”); In re Marriage of Worzala, No. 09-1191,
2012 WL 2757127, at *1–2 (Iowa Ct. App. July 14, 2010) (affirming court’s order
holding the father entirely responsible for transportation costs after his move to
Georgia, stating, “Andrew elected to move for his personal benefit. There is no
evidence that the company he worked for insisted on or even encouraged the
move as a condition of continued employment. Rather, Andrew made a lateral
transfer to Georgia hoping the new position would eventually reap monetary
benefits”).
14
We note a concern that if Veronica is responsible for all transportation
expenses—and scheduling, to the extent that she described standby travelers as
needing to be “very flexible”—that Veronica will have no incentive to cooperate
with Tony on the dates and times of visits. Cf. In re Cariaso, No. 03-1174, 2004
WL 360546, at *3 (Iowa Ct. App. Feb. 27, 2004) (“Both parents are charged with
maintaining the best interests of the child, and thus with cooperating with
visitation.” (citing In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App.
1991)). Unfortunately, the record substantiates this concern. However, we believe
Veronica is capable of acting in the child’s best interests going forward to facilitate
visitation with Tony. See In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct.
App. 1994) (stating liberal visitation rights is generally considered to be in a child’s
best interests); In re Marriage of Ruden, 509 N.W.2d 494, 496 (Iowa Ct. App. 1993)
(holding a child should be assured the opportunity for the maximum continuing
physical and emotional contact with both parents). Accordingly, we modify the
court’s order with respect to transportation costs, as set forth above.
V. Appellate Attorney Fees
Both parties seek an order requiring the other to pay their appellate attorney
fees. An award of appellate attorney fees is not a matter of right but rests within
this court’s discretion. Markey v. Carney, 705 N.W.2d 13, 25-26 (Iowa 2005). 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 district
court’s decision on appeal. Id. at 26. We decline to award appellate attorney fees
to either party.
AFFIRMED AS MODIFIED.