In re the Marriage of Wolfswinkel ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1675
Filed June 30, 2021
IN RE THE MARRIAGE OF TIMOTHY WOLFSWINKEL
AND JESSICA WOLFSWINKEL
Upon the Petition of
TIMOTHY WOLFSWINKEL,
Petitioner-Appellant,
And Concerning
JESSICA WOLFSWINKEL,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Richard B. Clogg,
Judge.
Timothy Wolfswinkel appeals an order denying his request for modification
of physical care, support, and visitation. AFFIRMED.
Kodi A. Brotherson of Becker & Brotherson Law Office, Sac City, and
Christopher B. Coppola of Coppola, McConville, Carroll, Hockenberg & Flynn,
P.C., West Des Moines, for appellant.
Andrea M. Flanagan of Flanagan Law Group, PLLC, Des Moines, for
appellee.
Considered by Doyle, P.J., and Mullins and May, JJ.
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MAY, Judge.
This case is about two healthy, developmentally-on-track children. Their
parents are Timothy (Tim) and Jessica Wolfswinkel. Tim and Jessica divorced in
2018. Their decree has already been modified once. Tim appeals from an order
denying a second modification. Tim contends the district court should have
(1) granted him physical care, (2) adjusted child support, and (3) declined to order
him to pay a portion of Jessica’s trial attorney fees. Both parties ask for appellate
attorney fees. We affirm and decline to award appellate attorney fees.
I. Factual Background and Prior Proceedings
Tim and Jessica were married in 2013. In March 2017, Tim petitioned for
dissolution. Tim also applied for appointment of a child custody evaluator because
this “matter involves allegations of serious mental health issues as well as
allegations pertaining to substance abuse.” The court granted the application. In
May, the parties filed a stipulation and agreement on temporary matters that called
for joint legal custody and joint physical care of the children. The court entered an
order approving the stipulation and incorporating it by reference.
In November, the child custody evaluator filed a nineteen page, single-
spaced report. It reported a wide range of details concerning the parents and the
children. It addressed the parents’ history of conflict, including their specific
concerns about each other. As to Jessica, the report addressed allegations of
substance abuse; mental-health struggles, including “aggressiveness and
hostility”; making false allegations against Tim; and more. The evaluator noted
that, although the parents had shared care for many months, they had not yet
agreed that shared care was the best permanent solution. “Yet,” the custody
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evaluator noted, “both parents agree[d]” the children “seem to be doing well” under
the shared care arrangement. For this and other reasons, the evaluator
recommended “[t]he parents should continue to share care of the girls on an equal
basis,” although with the assistance of a parenting coordinator.
In July 2018, the parties stipulated the court should enter a final decree.
Again, the parties agreed upon joint legal custody and joint physical care of the
children. As an acknowledgment of the parties’ prior difficulties, however, the
stipulation also named a co-parenting coordinator and granted her broad powers
to resolve disputes. The court entered a decree approving the stipulation and
incorporating it by reference.
In December, the parties stipulated to a modification of the July 2018
decree. As further recognition of their prior difficulties, the parties agreed (1) to
refrain from “threaten[ing], assault[ing] . . . harass[ing] or otherwise abus[ing]” each
other or “their respective families, including their parents, siblings, and other family
members”; (2) to refrain from “use, or attempt to use [of], physical force . . . that
would reasonably be expected to cause bodily injury”; (3) to “remain a reasonable
distance apart” at the children’s extracurricular and school-related activities “so
that there is no verbal communication with each other”; (4) to “stay away from . . .
each other’s respective residences”; (5) to “not be in the other party’s presence
except in a [c]ourtroom” or mediation; (6) both parties should be present during
appointments with their co-parenting coordinator; and more. The stipulation also
provided that, going forward, “[a]ll communication regarding the children shall be
through [a specified] website and shall be solely used for the purposes of
discussing the children and child-related issues only and no other matters shall be
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discussed. The parties shall have no other communication with each other unless
an emergency should arise.” But the stipulation did not call for a modification of
the joint custody or joint physical care arrangements. On December 19, the court
entered a decree approving the modified stipulation and incorporating it by
reference.
Less than seven months later, on July 3, 2019, Tim filed a petition to modify
the December 2018 modified decree. Tim asked for sole legal custody and
physical care of the children.
In October, a Child and Family Reporter (CFR) was appointed by the
parties’ stipulation. In January 2020, the parties stipulated to the CFR’s
recommendations on temporary matters. The recommendations did not include a
change of physical care. The court entered a decree approving the stipulation and
incorporated the CFR’s recommendations by reference.
In July, the CFR filed her report with the court. The report centered on
concerns the CFR had about Jessica. These concerns were categorized “into
three main areas: (1) unfounded allegations and DHS reports[,] (2) relationship
with Nick Roach,1 and (3) mental health concerns.” The CFR acknowledged that,
1 As the CFR explained, Jessica “has been romantically involved, off and on, with
Nick Roach.” The CFR stated in her report: “To be clear, I do not believe that Nick
poses any kind of physical threat to the [children], but he and Jessica have an
extremely volatile relationship. . . . It seems to be that they have broken up/or
reconciled more than five times since May 2019.”
On appeal, Tim argues Jessica’s relationship with Roach constitutes a
material change in circumstances justifying a change in custody. On our own
motion, we consider whether this argument was preserved. See State v. Tidwell,
No. 13-0180, 2013 WL 6405367, at *2 (Iowa Ct. App. Dec. 5, 2013) (noting “our
error preservation rules are, arguably, statutorily required” (citing Iowa Code
§ 602.5103(1) (2011))); see also Top of Iowa Co-op. v. Sime Farms, Inc., 608
N.W.2d 454, 470 (Iowa 2000) (noting appellate courts may raise error preservation
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“[d]evelopmentally, the children appear to be on track and both are healthy.” Still,
the CFR recommended that Tim should be awarded physical care of the children.
Following a two-day trial, the district court dismissed Tim’s petition for
modification and ordered him to pay $15,000 for Jessica’s trial attorney fees. Tim
appeals.
II. Standard of Review
“Petitions to modify the physical care provisions of a divorce decree lie in
equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). So we review
each issue de novo. See Iowa R. App. P. 6.907. But we give weight to the fact
findings of the trial court, who “is greatly helped in making a wise decision about
the parties” by watching and listening to them live. In re Marriage of Vrban, 359
N.W.2d 420, 423 (Iowa 1984) (citation omitted); see also In re Marriage of
Rademacher, No. 11-0798, 2011 WL 5868041, at *3 (Iowa Ct. App. Nov. 23,
2011). We will affirm unless the district court “failed to do substantial equity.”
Boatwright v. Lydolph, No. 18-0532, 2019 WL 719026, at *1 (Iowa Ct. App.
Feb. 20, 2019) (citation omitted).
on their own motion). For an argument to be preserved, it must be raised before—
and ruled upon by—the district court. See In re Marriage of Dauterive, No. 20-
0382, 2021 WL 1017121, at *1 (Iowa Ct. App. Mar. 17, 2021) (collecting cases).
But Roach is not mentioned in the district court’s order. “Additionally, no Iowa Rule
of Civil Procedure 1.904(2) motion was filed to request the court rule on that claim
to preserve error for appeal.” See In re Marriage of Bouchard, No. 16-1256, 2017
WL 936182, at *3 (Iowa Ct. App. Mar. 8, 2017). So we conclude error was not
preserved on any argument regarding Roach. The same applies to other
arguments mentioned in Tim’s briefs but not addressed in the district court’s ruling.
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III. Analysis
On appeal, Tim argues (1) he should be awarded physical care, (2) child
support should be recalculated, and (3) he should not have been ordered to pay
Jessica’s trial attorney fees. Both parties ask for appellate attorney fees.
A. Physical Care
The real focus here is physical care. Tim requests we reverse the district
court’s refusal to grant him physical care. Jessica defends the court’s decision.
A parent who wants to modify the physical care provisions of a decree—or,
as here, a modified decree—faces a “heavy burden.” In re Marriage of Kelly,
No. 19-1295, 2020 WL 3571863, at *2 (Iowa Ct. App. July 1, 2020) (citing In re
Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995)). First, the parent “must
establish by a preponderance of the evidence that there has been a substantial
change in circumstances since the . . . last modification.” Jacobo, 526 N.W.2d at
864. “The changed circumstances [must] meet three criteria: (1) the court did not
contemplate them when entering the [prior modification]; (2) they were ‘more or
less permanent, not temporary,’ and (3) they related to the welfare of the children.”
Kelly, 2020 WL 3571863, at *2 (citing In re Marriage of Frederici, 338 N.W.2d 156,
158 (Iowa 1983)).
If the parent crosses this first hurdle, they still face a second. The nature of
this second challenge depends on the relief sought. Where, as here, a parent
seeks to move the child out of joint physical care and into physical care with the
requesting parent, the requesting parent must prove “superior parenting ability,”
that is, “an ability to minister more effectively to the children’s well-being” than the
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other parent. Id. at *3 (citation omitted); see In re Marriage of Terrones, No. 20-
0538, 2020 WL 7021557, at *2 (Iowa Ct. App. Nov. 30, 2020).
With these principles in mind, we consider whether Tim proved the kind of
substantial change necessary to justify a change in physical care. In the July 2019
petition for modification, Tim listed the following particulars as “the material and
substantial change in circumstances”: (1) Jessica “continuously make[s] false
accusations against” Tim; (2) Jessica has “increased mental health symptoms,
instability and increased substance abuse issues”; (3) Jessica “has made it
extremely difficult to co-parent and continues to cause issues in violation of” court
orders; and (4) Jessica’s “allegations and actions are having a detrimental impact
on the minor children.” In his appellate brief, Tim expands this list by detailing
fourteen reasons why “the parties’ ability to share physical care of their children
has deteriorated.”2
Even so, the district court concluded Tim had failed to prove “a material and
substantial change in circumstances, more or less permanent in nature, affecting
the welfare of the children, and not contemplated by the court or the parties” at the
time of their last modification. The district court acknowledged that “Jessica claims
Tim has continued to bully her and make abusive comments and demands toward
2 Tim notes in his appellate brief that “the parties historically had communication
issues and Tim had concerns about Jessica’s mental health” even before the
divorce was final in July 2018. And following our de novo review, we note that a
number of the reasons Tim lists in his brief either predate the prior modification or
cannot be placed on the timeline of events. See Jacobo, 526 N.W.2d at 864.
Indeed, Tim only claims the listed reasons arose “since July 2018,” not since the
December 2018 modification. We note also that some reasons listed by Tim were
not mentioned in the district court’s order and, therefore, are not preserved for
review. See Dauterive, 2021 WL 1017121, at *1.
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her [while] Tim claims Jessica has responded in a manner Tim has repeatedly
identified as ‘crazy’ and ‘unstable’” over the “two years since the [d]ecree.” Yet,
the court observed, there was “no evidence to support Tim’s claims that Jessica
has ‘increased mental health symptoms, instability and increased substance
abuse issues.’” Nor does Jessica have any new mental-health diagnoses. Nor,
as the court noted, does she suffer from any disorder or condition “that adversely
affects her ability to parent the children.” Moreover, the court found, “[t]he parties
continue to communicate and co-parent their children in the same way they did
when the [m]odification [d]ecree was entered.” Although their history of conflict is
well documented, the court found, the parents are able to “co-parent as effectively
as they ever have before.” While the situation is “not ideal,” the court observed,
“there is simply insufficient evidence that there has been a material and substantial
change in circumstances warranting a modification of” custody. See Frederici, 338
N.W.2d at 158 (“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.”).
Following our de novo review, with appropriate deference to the trial judge’s
first-hand observations, we agree that Tim has failed to meet his burden. As noted
in our recitation of the facts, the parties’ history of conflict and difficulty in
communication predates their dissolution. It certainly predates their prior
modification, which was essentially a no-contact order that strictly limited their
channels for communication. And yet, Tim has not shown that Jessica’s actions
since the prior modification have made it more difficult for them to communicate
and co-parent. Rather, as the district court found, “[t]he parties continue to
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communicate and co-parent their children in the same way they did when the
[m]odification [d]ecree was entered.” See In re Marriage of Christy, No. 18-1702,
2019 WL 6893782, at *3 (Iowa Ct. App. Dec. 18, 2019) (“After all, their contentious
relationship is ‘merely a continuation of what came before.’” (citation omitted)).
And while the parties’ discord is unfortunate, it does not prevent them from making
decisions and providing care for their children.3 Nor does it rise to the level of a
substantial change in circumstances from those that existed in December 2018,
when their decree was last modified. See Albertus v. Albertus, 160 N.W. 830, 831
(Iowa 1917) (“It would be a sufficient change of circumstances within the reasoning
of those cases if this alleged animosity or other unfitness were not in existence
when the original decree was entered.”).
Because Tim has not demonstrated the requisite change in circumstances,
we need not decide whether the district was correct in concluding Tim failed to
demonstrate “an ability to minister more effectively to the children’s well-being”
than Jessica. See Kelly, 2020 WL 3571863, at *3 (quoting Frederici, 338 N.W.2d
at 158). Even so, we choose to address a question raised by both parties, namely,
3 The CFR testified that she did not know of any issues involving “routine medical,
vision, dental, that sort of thing.” And both parents are engaged with the children’s
school and daycare provider. Simply put, the parties’ discord is between
themselves. And Tim does not provide us with evidence that the conflict “relate[s]
to the welfare of the children” or prevents the parties’ from making decisions on
routine matters. Frederici, 338 N.W.2d at 158; see In re Marriage of Hynick, 727
N.W.2d 575, 580 (Iowa 2007) (“[T]he main distinction between joint physical care
and primary physical care with liberal visitation rights is the joint decision making
on routine matters required when parents share physical care.”); see also Christy,
2019 WL 6893782, at *4 (“[W]hile the parents’ relationship remains contentious,
we cannot say their hostility rises to the level requiring judicial intervention. Our
record shows the parents do engage in civil communication and cooperation
concerning [the child]’s welfare and activities.” (citation omitted)).
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whether shared care continues to be in the children’s best interests. See In re
Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007) (noting that “[w]hen
considering the issue of physical care, the child’s best interest is the overriding
consideration”). Despite their troubles, the parties have exercised shared physical
care since shortly after Tim petitioned for dissolution in 2017. The children have
become accustomed to the arrangement over the last four years. And
notwithstanding the parents’ interpersonal issues, the joint care arrangement
appears to be working adequately for the children: As the district court found,
“[b]oth girls are developmentally on track and physically and emotionally healthy.”
The record supports this finding, and we adopt it. All things considered, we are
not convinced it would be in the children’s best interests to change the custody
arrangement now. See In re Marriage of Harris, No. 12-1969, 2013 WL 5394283,
at *4 (Iowa 2013) (“Our basic framework for the best-interests physical care inquiry
is well established, and stability and continuity of caregiving have been primary
considerations.”).
B. Child Support and Trial Attorney Fees
Tim’s arguments on amending child support and reversing the district
court’s order requiring him to pay Jessica’s trial attorney fees hinge on him being
awarded physical care. Because we affirm the district court’s order continuing joint
physical care, we need not address Tim’s arguments further.
C. Appellate Attorney Fees
Tim and Jessica both request attorney fees on appeal. Appellate attorney
fees are awarded upon our discretion and are not a matter of right. See In re
Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). When considering whether
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to award fees, “we consider 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
McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (internal quotation marks and
citation omitted).
After considering all relevant factors, we decline to award attorney fees.
IV. Conclusion
We find no grounds to disturb the district court’s order. We affirm.
AFFIRMED.