in-re-the-marriage-of-scott-michael-taylor-and-michele-r-taylor-upon-the ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1652
Filed August 19, 2015
IN RE THE MARRIAGE OF SCOTT MICHAEL TAYLOR
AND MICHELE R. TAYLOR,
Upon the Petition of
SCOTT MICHAEL TAYLOR,
Petitioner-Appellee,
And Concerning
MICHELE R. TAYLOR, n/k/a
MICHELE R. WULFF,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane E.
Hoffmeyer, Judge.
A former spouse appeals a modified dissolution decree, challenging
physical care, visitation and child support. AFFIRMED.
Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux
City, for appellant.
Francis L. Goodwin of Baron, Sar, Goodwin, Gill & Lohr, Sioux City, for
appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, J.
Less than two years after their divorce, Michele Wulff, formerly known as
Michele Taylor, filed a petition to modify the visitation provisions of the decree;
Scott Taylor filed a counterclaim for modification of child support; and Michele
amended her petition to request a change in physical care. The district court
declined to modify physical care, formalized the visitation schedule, and ordered
Michele to pay child support. Because we agree with the district court that
Michelle failed to show a substantial change in circumstances justifying
modification of physical care, we affirm on that issue. We also affirm the
visitation schedule and child support order.
I. Background Facts and Proceedings
Michele and Scott married in 1999 and had two children together. C.T.
was born 2001 and B.T. was born 2005. The couple separated in 2009, and
entered a stipulated dissolution decree with court approval on June 11, 2012.
The decree granted the parties joint legal custody with Scott having physical
care. The decree did not set a formal visitation schedule, but granted Michele
“reasonable rights of visitation at all reasonable times and places as agreed upon
by the parties.” The decree did not order child support, but stated that either
party could petition the court for child support in accordance with the state
guidelines if disputes arose.
Michele is employed by an agricultural business and earns $29,484
annually. She remarried in December 2012. Scott is employed by Mibaco, his
mother’s construction business, where he earns $12.50 an hour. He testified that
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he performs bookkeeping and has some managerial responsibilities. Scott
remarried in May 2014. Initially, the parties cooperated in visitation and other
parenting decisions under the stipulated decree. But their relationship turned
contentious in 2014.
On January 23, 2014, Michele filed a petition to modify the original decree.
In that petition she requested a change in visitation. On February 7, 2014, the
Child Support Recovery Unit filed a notice of intent to modify child support. On
February 11, 2014, Michele amended her petition to request primary physical
care or in the alternative, joint physical care, visitation, and an amended child
support calculation. As part of discovery, Michele’s attorney filed a subpoena
seeking financial records of Scott’s family business, including corporate tax and
bank transaction records, as well as financial records related to Scott. The
company filed a motion to quash the subpoena, resulting in a hearing before the
district court. The court found the subpoena overbroad and unduly burdensome.
The court did order the company to produce all financial records related to Scott
generated between January and June 2014, but quashed all other requests
regarding the subpoena. The court also financially sanctioned Michele’s attorney
for an “unwillingness to negotiate or accept a less burdensome remedy.”
Following a hearing on the amended petition, the district court denied
Michele’s request for primary physical or joint physical care, modified the
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visitation schedule, and reset the child support payment based on a new income
calculation. Michele now appeals.1
II. Scope of Review
The district court hears petitions to modify a dissolution decree in equity,
so our review is de novo. In re Marriage of Quirk–Edwards, 509 N.W.2d 476,
476 (Iowa 1993); see Iowa R. App. P. 6.907. That review enables us to reach
our own fact findings, but when considering credibility we defer to the district
court judge who has the ability to evaluate the witnesses in person. See In re
Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). The children’s best
interest is the “controlling consideration.” In re Marriage of Leyda, 355 N.W.2d
862, 865 (Iowa 1984). Using the best-interest standard provides us with flexibility
to consider “unique custody issues” on a case-by-case basis. In re Marriage of
Hansen, 733 N.W.2d 683, 696 (Iowa 2007).
III. Physical Care
To modify a custody provision of a dissolution decree, the petitioning 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 require the requested modification. In re Marriage of Frederici, 338
N.W.2d 156, 158 (Iowa 1983). The changed circumstances must not have been
contemplated by the court when the decree was entered, must be more or less
permanent, and must relate to the welfare of the children. Id. A parent seeking
1
On appeal, Michele challenges the imposition of sanctions against her attorney.
Because the supreme court denied her petition for writ of certiorari on October 2, 2014,
we decline to address that issue.
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to take custody from the other must prove an ability to minister more effectively to
the children’s well-being. Id. The courts have created this heavy burden to
promote stability in the lives of children with divorced parents. Id. “[O]nce
custody of children has been determined, it should be disturbed only for the most
cogent reasons.” Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).
Michele argues there have been four substantial changes since entry of
the original decree. First, Scott remarried and Michele alleges his new wife has
interfered with their ability to co-parent. She also alleges the children have
conflicts with Scott’s new wife. Second, she claims Scott travels out of town
more for business. Third, she argues Scott is unwilling to facilitate therapy for
the children, despite professional recommendations the children engage in
therapy. Fourth, she argues Scott has been limiting her visitation with the
children since his remarriage. She contends these changes require awarding the
parties joint physical care or placing the children in her physical care.
Upon our de novo review of the record, we find Michele has not proven a
substantial change in circumstances warranting either modification of physical
care. We turn first to the allegations concerning Scott’s new wife. Usually, one
parent’s remarriage in itself does not constitute a substantial change in
circumstances. In re Marriage of Downing, 432 N.W.2d 692, 695 (Iowa Ct. App.
1988). But we do consider new relationships. Id. We do not find the
stepmother’s interference alleged by Michele rises to the level of a substantial
change in circumstances not contemplated at the time of the original decree.
The strain on the relationship between Scott and Michele is not uncommon when
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parties remarry. The record does not show that any conflicts the children have
with their stepmother undermine the physical care arrangement with their father.
Second, the record does not support Michele’s contention that Scott’s job
is requiring more out-of-state travel. Scott testified that if his mother asked him to
be gone frequently for the construction business, he would “find other
employment.” Michele did not show Scott’s work demands constituted a material
and substantial change in circumstances.
Third, any difference of opinion the parties have concerning therapy for
the children does not constitute a change in circumstances warranting
modification of physical care. The record showed the children were doing well in
school and their activities. Scott has not interfered with Michele’s decision to
take the children to family counseling or to see a school counselor.
Fourth and finally, we do not find that any limitations Scott placed on
Michele’s visitation constituted a substantial and material change in
circumstances justifying a change in physical care. Scott alleges when Michele
had the children for visitation on Tuesday and Thursday nights they did not
complete their homework and did not have time to wind down before bed.
Michele pointed to her son’s testimony that when he needs his father’s help with
homework Michele drops him off early. We find the visitation controversy was
appropriately addressed by the district court’s decision to set a formal visitation
schedule to assure Michele’s time with the children, rather than to change the
physical care arrangement.
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IV. Visitation
To modify the visitation provisions of a dissolution decree, a parent must
show a material change in circumstances since the decree and that the
requested alteration to visitation is in the best interest of the children. In re
Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994). This burden is
less demanding than seeking a change in a custodial provision of the decree. In
re Marriage of Brown, 778 N.W.2d 47, 51 (Iowa Ct. App. 2009). “The rationale
for this lower standard is found in the prevailing principle that the best interests of
children are ordinarily fostered by a continuing association with the noncustodial
parent.” Salmon, 519 N.W.2d at 96 (citing Iowa Code section 598.41(1) (1993)).
The original decree in this case did not include a visitation schedule. It
relied on the parties’ mutual agreement to Michele’s visitation rights “at all
reasonable times and places as agreed upon by the parties. If the parties are
unable to agree, either may ask the Court to set reasonable visitation.” As both
parties now recognize the need for a formal schedule, we agree with the district
court’s decision to modify the decree in this respect.
Scott and Michele submitted separate visitation schedules. The court
entered its own schedule, which included every other weekend with Michele and
one midweek visitation night from after school to 8:30 p.m.
Michele now argues the court erred in not selecting her schedule.
Specifically, she asks for an additional mid-week visit, additional weekend
visitation, additional summer visitation, and the right of first refusal. Michele also
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asserts the district court’s visitation order was based on factual findings that were
inconsistent with the record.
We recognize the district court’s reference to the parties living “some
distance” apart does not reflect the testimony that Michele now lives only two
miles away from Scott. But even when we consider the parents’ close
geographic proximity in our de novo review, we believe the visitation schedule
set by the district court is in the children’s best interests. See Iowa Code
§ 598.41(1)(a). The schedule allows the children the certainty of a consistent
and increased amount of time with Michele. The visitation schedule is also
consistent with C.T.’s testimony that he was willing to spend time with both
parents. We do not believe that adding another day of midweek visitation would
benefit the children. By all accounts, they are thriving on the routine observed in
Scott’s home and another school night away from that structure could detract
from their positive focus.
Finally, we address Michele’s request for the right of first refusal. The
phrase “right of first refusal” in our case law means the custodial parent would be
required to offer the non-custodial parent the opportunity to care for the children
when the custodial parent was unavailable to provide supervision for an
extended period before seeking a third-party child care provider. See, e.g., In re
Marriage of Klemmensen, No. 14-1292, 2015 WL 2089699, at *3 (Iowa Ct. App.
May 6, 2015) (citing In re Marriage of Lauritsen, No. 13–1889, 2014 WL
3511899, at *3 (Iowa Ct. App. July 16, 2014)). In this case, Michele asks for the
following provision: “[w]hen either parent cannot care for the children for more
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than 12 hours and it is their scheduled parenting time, they must contact the
other parent first to care for the children.” Michele claims first refusal is in the
best interest of the children because it maximizes the physical and emotional
contact between the parents and the children. She also claims a first-refusal
provision would protect the children from negative comments she alleges Scott’s
mother makes about Michele.
With Scott and Michele struggling to cooperate and communicate, we find
it would not be in the children’s best interest to require a right of first refusal.
Moreover, the record did not reveal that Scott had any standing work
commitments that would require him to place the children in the care of a third
party for any significant length of time. We agree with the district court’s decision
not to include a right-of-first-refusal provision in the visitation schedule.
V. Child Support
The court ordered Michele to pay $675 a month in child support. The
court reached this calculation by using the annual incomes reported by Michele
and Scott, as well as imputing an additional $2900 a year to Scott based on
financial benefits from his employer Mibaco—the family business.
Michele asks us to remand for a new trial on the calculation of child
support due to Scott’s inconsistent testimony about his income. Michele claims
the court should have considered the assistance Scott received from his mother.
She claims Scott’s housing costs should be included in the court’s determination
of “other income.” Michele also argues she was unable to discover the true
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amount of Scott’s compensation because the district court quashed her
subpoena for Mibaco’s financial records.
We find the child support determination to be accurate based on the
evidence presented. Further, we find the district court properly handled
Michele’s requests for information regarding Mibaco’s finances. The court
acknowledged the benefits Scott received from working for his family’s company
in calculating his income. The determination included the payment of various
personal expenses, including utilities bills and costs of a car. The court found
Scott’s housing was not provided by the company but personally by his mother.
Support available to Scott from his family was not a factor the district court was
required to consider in setting the child support award. See In re Marriage of
Drury, 475 N.W.2d 668, 672 (Iowa Ct. App. 1991). The child support payment
shall remain as entered by the district court.
VI. Appellate Attorney Fees
Both sides ask for appellate attorney fees. These are not a matter of right,
but rest in our discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255
(Iowa 2006). In arriving at our decision, we consider the parties’ needs, ability to
pay, and the relative merits of the appeal. Id. We find both parties have roughly
the same ability to pay. Because Scott is victorious on appeal we believe he is
entitled to reasonable attorney fees.
Scott has not provided an affidavit of attorney fees with documentation to
support his request. We remand to the district court to enter judgment against
Michele in a reasonable amount. See, e.g., Markey v. Carney, 705 N.W.2d 13,
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26 (Iowa 2005) (“[U]nder our current practice, the issue of appellate attorney fees
is frequently determined in the first instance in the district court because of the
necessity for making a record.” (quoting Lehigh Clay Prods., Ltd. v. Iowa Dep’t of
Transp., 545 N.W.2d 526, 528 (Iowa 1996))).
Costs shall be assessed equally between the parties.
AFFIRMED.