In re The Marriage of Happel ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1393
Filed March 29, 2023
IN RE THE MARRIAGE OF NICOLE A. HAPPEL AND BRIAN D. HAPPEL
Upon the Petition of
NICOLE A. HAPPEL, n/k/a NICOLE A. SHIMP,
Petitioner-Appellant/Cross-Appellee,
And Concerning
BRIAN D. HAPPEL,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Nicole Shimp appeals, and Brian Happel cross-appeals, the district court’s
modification of their dissolution decree. AFFIRMED AS MODIFIED IN PART ON
APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL; AND REMANDED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant/cross-appellee.
Lana L. Luhring of Laird & Luhring Law Office, Waverly, for appellee/cross-
appellant.
Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ.
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VAITHESWARAN, Presiding Judge.
Brian Happel and Nicole Shimp married in 2009 and divorced in 2017. The
dissolution decree incorporated their agreement to exercise joint physical care of
their three children on a two-day-two-day-three-day alternating schedule.
In time, Happel petitioned to modify the joint physical care provision of the
decree. He alleged Shimp relocated from Cedar Falls to Parkersburg, “insisted
the minor children be enrolled in Parkersburg schools,” and “attempted to modify
visitation and transportation arrangements . . . without success.” He sought
physical care of the children, subject to reasonable visitation with Shimp.
Following a hearing, the district court granted the petition.
On appeal, Shimp contends Happel failed to establish a substantial change
of circumstances warranting modification of the joint physical care arrangement
and an ability to provide superior care and, alternatively, she should have been
granted midweek overnight visits with the children. She also seeks appellate
attorney fees. On cross-appeal, Happel asserts the district court’s income
determination underlying the child support calculation was incorrect, the court’s
holiday and summer visit schedules were inequitable, and the court gave
conflicting instructions on the children’s extracurricular activities.
I. Physical Care
“A party seeking modification of a dissolution decree” that provides for joint
physical care must establish a substantial change in circumstances and “a superior
ability to minister to the needs of the children.” In re Marriage of Harris, 877 N.W.2d
434, 440 (Iowa 2016). The district court found a substantial change of
circumstances based on (1) “[t]he expressed concerns of” one of the children and
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“the demands of [Shimp] and her daycare”; (2) “[t]he distance [and travel time] from
where [Shimp] now resides in Parkersburg, Iowa, and the school district as agreed
upon by the parties in Cedar Falls, Iowa”; and (3) “the decline in the parties’ ability
to communicate.” The court declined to find changed circumstances based on
disagreements about the children’s extracurricular activities. The court determined
Happel was the superior caretaker and placement of the children in his physical
care was in the children’s best interests. Shimp takes issue with these findings.
Shimp changed her employment several times, first working for a church,
then a social service agency, then a daycare center, and finally as a self-employed
in-home daycare provider. When she worked for the social service agency, Happel
agreed to change the joint physical care arrangement from the 2-2-3 day
framework set forth in the decree to a 5-2-2-5 schedule, to accommodate Shimp’s
evening commitments. Although Shimp later expressed a desire to return to the
2-2-3 day schedule, she ultimately agreed to operate under the revised schedule.
In short, Shimp’s changed employment circumstances—even before she started
the daycare business—resulted in an abandonment of the schedule to which the
parties stipulated at the time of the dissolution proceeding.
The daycare business compounded the problem of maintaining a joint
physical care arrangement. Shimp worked sixty-five hours per week, from at least
6:00 a.m. to 6:00 p.m. She admitted the older children expressed frustration with
their inability to “do what they want[ed] to do when they want[ed] to do it.” While
their views and the desire of the youngest child to spend more time with his mother
are not dispositive, there is no question Shimp’s schedule and her responsibility
for overseeing eight other children impeded her ability to attend to and transport
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the children. As Happel testified, “she cites not being able to let the boys do
different activities because of daycare, getting the boys late to school because of
daycare, picking the boys up late from school because of daycare.” Although
Happel said he “made it work” and the children “adjusted,” the joint physical care
arrangement contemplated at the time of the decree was simply not feasible.
Shimp’s multiple moves added to the difficulties. At the time of the divorce,
Shimp lived in Cedar Falls. Following the divorce, she moved to Stout, then
Aplington, and finally Parkersburg. Although none of the moves met the 150-mile
discretionary threshold to find a substantial change of circumstances,1 and
Parkersburg was not so far away from Cedar Falls as to preclude joint physical
care under different circumstances, the combination of Shimp’s work hours and
her “relocation triggered the need to abandon joint physical care.” See In re
Marriage of Eggeling, No. 18-0234, 2019 WL 478818, at *3 (Iowa Ct. App. Feb. 6,
2019).
We are left with the parents’ communication difficulties. Texts and emails
between the parents suggest the difficulties were not insurmountable. While both
parents were sometimes brusque, they generally made an effort to communicate
with each other about the children and their welfare.
There was one significant exception. The oldest child told his mother about
trauma he experienced at the hands of another child. Shimp did not tell Happel.
While Shimp contends she was trying to preserve the child’s confidence as he
demanded, she declined to discuss the issue with Happel even after Happel learned
1 See Iowa Code § 598.21D (2021).
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about it from the child. The district court found her “failure to promptly advise
[Happel] of the incident violates every tenet of co-parenting and joint legal custody.”
We agree. Shimp’s refusal to disclose the episode immediately after she was told
about it left Happel wondering why his normally engaged child was suddenly
secluding himself in his room. And her refusal to discuss the issue later, except in
the presence of her church’s members, called her concern about preserving the
child’s confidences into question. The episode cannot be written off as an isolated
error in judgment.
On our de novo review, we conclude Shimp’s multiple changes in
employment, multiple moves, long work hours, and communication lapse amounted
to a substantial change of circumstances not contemplated at the time of the
dissolution decree. We turn to the second prong: proof of superior care.
Happel lived in Cedar Falls where the children went to school and where
most of their extracurricular activities were based. Although his work hours as a
realtor were sometimes unpredictable, he had greater flexibility to manage day-to-
day duties involving the children than did Shimp. While he showed some inflexibility
in his communications with Shimp, we agree with the district court that he was more
likely to support the children’s relationship with the other parent. On our de novo
review, we conclude Happel established he was the superior caretaker. The district
court acted equitably in modifying the joint physical care arrangement to grant
Happel physical care of the children.
II. Visitation
The district court granted Shimp visits “every other weekend from Friday
after school or 3:30 p.m.” until they were delivered to their respective school on
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Monday morning. The court also granted her summer weekend visits from
Thursday evening until Monday morning and five “weeks of summer parental time.”
Finally, the court stated: “In the event [Happel’s] holiday weekend occurs between
his alternating weekends, [Shimp] shall be awarded a make-up weekend during
one of [Happel’s] subsequent weekends. [Shimp] shall designate within 30 days
following the third consecutive weekend of [Happel] her desired make-up
weekend.”
Shimp argues the court should have additionally granted her mid-week
overnight visits from Wednesday afternoon to Thursday morning. Happel counters
that he should have received a weekend visit if one of his was usurped by a holiday
and Shimp should not have received five weeks of summer visitation.
“Upon awarding one parent physical care, the district court shall award the
other parent visitation that assures the children ‘the opportunity for the maximum
continuing physical and emotional contact with both parents.’” In re Marriage of
Gensley, 777 N.W.2d 705, 717 (Iowa Ct. App. 2009) (quoting Iowa Code
§ 598.41(1)(a)). As Shimp points out, the failure to award midweek visits meant
that she did not see the children for eleven days. That was a significant change
from the 5-2-2-5 schedule the parents had been following. Under that schedule,
Shimp exercised parenting time on Wednesdays and Thursdays. Although the
children sometimes went to Happel’s house on Wednesday early-out afternoons,
they were accustomed to being with Shimp in the evenings and on Thursdays.
Shimp testified she selected those days because she could “ensure that the
children participate in church activities as they grow.” She chose Thursdays to
“prevent[] unnecessary exchanges.” While the addition of Wednesday visits would
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raise the specter of school pick-up and drop-off challenges, an eleven-day
separation from the mother is problematic after the equal care time the children
previously enjoyed. We reach that conclusion notwithstanding the lengthy
weekend visit from Friday through Monday morning. See In re Marriage of
Hansen, 733 N.W.2d 683, 702 (Iowa 2007) (granting the noncustodial parent
6:00 p.m. to 8:00 a.m. Wednesday overnight visitation); In re Marriage of Toedter,
473 N.W.2d 233, 235 (Iowa Ct. App. 1991) (modifying a dissolution decree to
provide noncustodial parent with midweek overnight visitation together with
alternating weekends); In re Marriage of Ertmann, 376 N.W.2d 918, 922 (Iowa Ct.
App. 1985) (modifying dissolution decree to provide for midweek visitation).
On our de novo review, we modify the visitation provision of the modified
decree to grant Shimp midweek visits from Wednesday after school or from
9:00 a.m. if there is no school until school begins on Thursday morning or if no
school on Thursday, until 9:00 a.m.
As noted, Happel argues the district court failed to give him the same
opportunity afforded Shimp to have a make-up weekend when her weekend visit
fell on a holiday weekend assigned to Happel. But, as primary caretaker, he had
regular contact with the children, even when his weekend visit fell on a holiday
assigned to Shimp. As noncustodial parent, Shimp stood to lose contact with the
children for a lengthy period of time if one of her weekend visits fell on Happel’s
holiday. We conclude the district court acted equitably in declining to include the
same provision for Happel.
Finally, Happel seeks a reduction of the summer visitation granted Shimp
from five weeks to three weeks. In support of his request, he reprises most if not
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all the arguments he raised for affirming the physical care determination. In our
view, those contentions carry far less weight in the visitation calculus where, as
noted, the goal is to “assure[ ] the opportunity for maximum continuous physical
and emotional contact with both . . . parents.” In re Marriage of Thielges, 623
N.W.2d 232, 239 (Iowa Ct. App. 2000). We affirm the five-week summer visitation
provision in favor of Shimp.
III. Child Support
The district court ordered Shimp to pay Happel $476 per month in child
support. Happel argues the court incorrectly assigned Shimp annual income of
$36,000 per year rather than $38,000 per year and inappropriately assigned him
annual income of $100,000 per year rather than $60,000 per year. In light of our
modification of the midweek visitation provision of the decree, we remand for
recalculation of child support, at which time the parties may revisit the underlying
income figures.
IV. Prioritization of Extracurricular Activities Over Parental Time
Happel argues “the conflicting statements in the district court’s modified
order causes confusion as to whether the parties are expected to support the extra-
curricular activities of the children.” He seeks the addition of the following
language:
The school, sports, drama, musical, and other extracurricular
activities of the children shall be paramount over the parental time of
a given parent. If the child is with a parent or [is] scheduled to be
with a parent at the time of such an activity, he/she will cooperate in
providing transportation and allow the child to attend the activity.
The district court addressed the issue as follows:
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[Happel] asked the court to include language requiring the parties to
endeavor in allowing the children to participate in scholastic and
extracurricular activities, but further requests the decree place
extracurricular activities of the children to be paramount over the
parental time of a given parent. The court declines to do so at this
time. As indicated, the court finds [Happel], if given the opportunity,
would have the children involved in extracurricular activities seven
days a week. The language would then thus require [Shimp] now
within her parental time to be required to sacrifice her parental time
to that of the extracurricular activities of potentially three different
activities at the same time.
The court acted equitably in refusing to include the requested language.
We discern no basis for prioritizing the children’s large number of extracurricular
activities over Shimp’s parenting time.
V. Attorney Fees
Shimp seeks an award of appellate attorney fees. An award rests in our
discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). Given the
disparity in the parties’ incomes and the fact that Shimp prevailed on her request
for mid-week visitation, we order Happel to pay $3000 toward her appellate
attorney-fee obligation.2
AFFIRMED AS MODIFIED IN PART ON APPEAL; AFFIRMED AS
MODIFIED ON CROSS-APPEAL; AND REMANDED.
2 Happel filed a motion for limited remand to address an upcoming issue relating
to vacation. In light of our disposition of the other issues and the remand
accompanying the opinion, we find it unnecessary to address the motion.