In Re the Marriage of Michael Wood and Narmina Wood Upon the Petition of Michael Wood, and Concerning Narmina Wood ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-2204
Filed August 17, 2016
IN RE THE MARRIAGE OF MICHAEL WOOD
AND NARMINA WOOD
Upon the Petition of
MICHAEL WOOD,
Petitioner-Appellant,
And Concerning
NARMINA WOOD,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Martha L. Mertz,
Judge.
Father appeals the district court order modifying the visitation provisions in
the dissolution decree. AFFIRMED.
Bradley P. Schroeder and Laura J. Lockwood of Hartung & Schroeder
L.L.P., Des Moines, for appellant.
Mark R. Hinshaw of the Law Offices of Mark R. Hinshaw, West Des
Moines, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
Narmina Wood and Michael Wood divorced in June 2013. The Woods
had one child; they stipulated to joint custody, Michael having physical care, and
Narmina having visitation. A little more than one year later, Michael filed a
petition to modify the decree to limit Narmina’s visitation. Narmina filed a counter
application to modify visitation and support. The district court appointed a
custody evaluator to review the custody arrangement. After the custody
evaluation was completed, Michael dismissed his petition to modify the decree.
Narmina did not dismiss her petition. The matter came on for trial, and the
district court granted Narmina’s petition and modified the decree to increase
Narmina’s visitation with the child. The district court left the amount of child
support unchanged. Michael appeals, contending there has not been a change
in circumstances allowing modification and contending the district court erred in
failing to modify the support obligation.
Our review is de novo. See In re Marriage of Hoffman, 867 N.W.2d 26, 32
(Iowa 2015). We examine the entire record and adjudicate rights anew on the
issues properly preserved and presented. In re Marriage of Rierson, 537 N.W.2d
806, 807 (Iowa Ct. App. 1995). We do give some deference to the decision of
the district court where specific, non-generalized findings and conclusions have
been made. See In re P.C., No. 16-0893, slip op. at 4-5 (Iowa Ct. App. Aug. 17,
2016) (explaining we exercise “de novo review with deference,” for reasons of
“judicial comity and respect; recognition of the appellate court’s limited function of
maintaining the uniformity of legal doctrine; recognition of the district court’s more
intimate knowledge of and familiarity with the parties, the lawyers, and the facts
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of a case; and recognition there are often undercurrents in a case—not of record
and available for appellate review—the district court does and should take into
account when making a decision”).
The party seeking to modify visitation must show there has been a change
in circumstances since the entry of the original decree. See Donovan v.
Donovan, 212 N.W.2d 451, 453 (Iowa 1973); see also Nicolou v. Clements, 516
N.W.2d 905, 906 (Iowa Ct. App. 1994). The modification of visitation rights
requires a less extensive change of circumstances when compared to a change
in custody or physical care. See Donovan, 212 N.W.2d at 453; In re Petition of
Holub, 584 N.W.2d 731, 733 (Iowa Ct. App. 1998). The court’s focus is always
the best interest of the child. Nicolou, 516 N.W.2d at 906.
We conclude Narmina met her burden in establishing a change in
circumstances. We first note it was Michael who filed a petition to modify the
parties’ decree, contending there had been a material change in circumstances.
Although he dismissed his petition, his current contention—that there has been
no change in circumstances—is at odds with his prior position. See Greenbriar
Group, L.L.C. v. Haines, 854 N.W.2d 46, 54 (Iowa Ct. App. 2014) (stating the
doctrine of “preclusion of inconsistent positions prevents a party who has
assumed a particular position in judicial proceedings” from reversing course to
the prejudice of an adverse party). Second, we note the change in visitation is
the addition of overnight hours every other Sunday, or thirteen hours every two
weeks. The modification works a relatively minor change to reduce the number
of transitions for the child as she enters school age. Setting aside these two
points, Michael and his family feel wronged by Narmina’s numerous extramarital
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affairs precipitating the parties’ divorce. He and his family have been hostile to
Narmina since the entry of the decree. Michael had his father videotape each of
the child exchanges. Michael’s father, David, with Michael’s knowledge, hired a
private investigator to continually surveil Narmina. Michael’s father sent Narmina
harassing text messages and emails from an anonymous phone number and
email address. The emails were copied to Narmina’s supervisors at Wells Fargo,
where David formerly was the CEO and where Michael is currently employed as
an executive in the legal department. The communications were profane and
racist. The communications revealed private information regarding Narmina, her
medical information, and her personal matters. The communications also
frequently threatened her with physical violence and wished her death. At trial,
Michael admitted his father was behind the harassing communications. We
agree with the district court’s findings that the post-decretal relationship has been
filled with tension. We have repeatedly held that post-dissolution hostility and the
inability to communicate is sufficient to establish a substantial change in
circumstances. See, e.g., Huffman v. Huffman, 176 N.W.2d 859, 863 (Iowa
1970) (taking into account grandfather’s abusive conduct toward adulterous
mother when considering whether modification of physical care was appropriate);
In re Marriage of Coon, No. 14-1919, 2015 WL 5308976, at *2 (Iowa Ct. App.
Sep. 10, 2015) (affirming modification where “the parents have become
increasingly hostile to one another and cannot effectively communicate regarding
the children”); Mayes v. Hagen, No. 09-1068, 2010 WL 625050, at *4 (Iowa Ct.
App. Feb. 24, 2010) (“[W]e conclude the breakdown in communication was so
complete that a substantial change of circumstances was proven.”); Melchiori v.
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Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002) (“Discord between parents that
has a disruptive effect on children's lives has been held to be a substantial
change of circumstance that warrants a modification of the decree.”); In re
Marriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct. App. 1998) (stating Iowa
courts do not tolerate hostility exhibited by the parents or their families).
The record also establishes increased visitation with Narmina is in the
best interest of the child. Courts should award “liberal visitation . . . which will
assure the child the opportunity for the maximum continuing physical and
emotional contact with both parents.” Iowa Code 598.41(1)(a) (2013). The
modified decree increases the contact between the mother and the child. The
modified decree reduces the number of transitions between the parents, thereby
reducing the number of potential friction points between the parents and their
families and reducing stress on the child. See In re Marriage of Reisen, No. 03-
0129, 2003 WL 22700160, at *2 n.2 (Iowa Ct. App. Nov. 17, 2003) (taking into
account the behavior of the grandparents and concluding “the behavior of the
paternal grandparents is not in the best interests of these children”). While
Michael has shown the ability to provide superior care, the relatively minor
modification, involving only a single overnight every two weeks, does not deprive
him of substantial time with the child that would be detrimental to the child. The
custody evaluator, Dr. Kinnard, recommended to the parties that it would be in
the child’s best interests to reduce the number of transitions between the
parents. This is particularly true as the child begins school. We thus conclude
increased visitation is in the best interest of the child.
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Michael contends the district court erred in not modifying Narmina’s child
support in accord with the evidence admitted at trial. In denying the request to
modify child support, the district court stated that it did a “basic child support
guideline calculation” and was not going to modify support. Under Iowa Code
section 598.21C(1), a court may modify a child support order when the parent
seeking modification is able to show “a substantial change in circumstances,”
including “[c]hanges in the employment, earning capacity, income, or resources
of a party.” Section 598.21C(2) provides “a substantial change of circumstances
exists when the court order for child support varies by ten percent or more from
the amount” that would be due under the child support guidelines. The district
court may also consider whether the change in circumstances is permanent and
not merely temporary. In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa
1983). The parent seeking modification must prove the change in circumstances
by a preponderance of the evidence. In re Marriage of Rietz, 585 N.W.2d 226,
229 (Iowa 1998).
Narmina contends the issue is not properly before the court. We agree.
“It is a fundamental doctrine of appellate review that issues must ordinarily be
both raised and decided by the district court before we will decide them on
appeal.” Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). “When a district
court fails to rule on an issue properly raised by a party, the party who raised the
issue must file a motion requesting a ruling in order to preserve error for appeal.”
Id. The district court denied Narmina’s petition to modify the child support
provisions of the decree, and she has not appealed that issue. Michael
voluntarily dismissed his petition to modify the decree. He has no pending claim
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to increase the amount of child support. We thus affirm the district court on this
issue. See Carson Grain & Implement, Inc. v. Dirks, 460 N.W.2d 483, 484 (Iowa
Ct. App. 1990) (holding that claim was not preserved for appellate review where
it was voluntarily dismissed in the district court).
Narmina requests appellate attorney fees. We have the discretion to
award attorney's fees on appeal. See In re Marriage of Berning, 745 N.W.2d 90,
94 (Iowa Ct. App. 2007). When determining whether an award of appellate
attorney fees is appropriate, we look to the requesting party's financial needs, the
other party's ability to pay, and whether the requesting party was obligated to
defend the trial court's ruling on appeal. See id. Both parties have the financial
means to pay their respective attorney’s fees. We decline to award fees in this
case.
AFFIRMED.