Alexis Ficek v. Ronald Morgan, III ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0122
Filed June 7, 2023
ALEXIS FICEK,
Plaintiff-Appellee,
vs.
RONALD MORGAN III,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.
A father appeals the district court’s order on remand of his petition to modify
visitation. AFFIRMED AS MODIFIED.
Ronald Morgan, Newton, self-represented appellant.
Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, West Des Moines, for
appellee.
Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
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CHICCHELLY, Judge.
Ronald (Ronnie) Morgan appeals the district court’s order on remand of his
petition to modify visitation with two minor children, A.M. and E.M. Ronnie alleges
that the court’s holiday visitation schedule is not in the children’s best interests and
that the children’s mother, Alexis Ficek, should share responsibility for
transportation to and from visitation. Upon our de novo review, we affirm the
court’s decision with respect to visitation but modify the order such that the
responsibility for transportation shall be shared. We decline Alexis’s request for
appellate attorney fees.
I. Background Facts and Proceedings.
The facts are substantially as we set them out in Ronnie’s last appeal:
Ronnie and Alexis were never married but have two minor
children together, A.M., born in 2011, and E.M., born in 2013. In
2015, the court entered a decree establishing paternity, child
custody, visitation, and support. Ronnie and Alexis were awarded
joint legal custody. Alexis was awarded physical care subject to
Ronnie’s scheduled visitation, which included alternating weekends
and overnights during the week. The court ordered Ronnie to pay
$667.92 per month in child support and provide health insurance for
the children.
Ronnie began using opiates in approximately 2017 and later
developed an addiction to heroin. He entered an in-patient treatment
facility in early 2019, but upon his departure, Ronnie relapsed and
overdosed while the children were in his care. The children found
him unresponsive and called a grandparent for assistance. Ronnie
re-entered in-patient treatment in July and eventually transitioned to
a sober living house from August into October. Ronnie relapsed
upon his release but maintains he has remained sober since October
27, 2019 and no longer requires any form of treatment.
After Ronnie’s overdose in the children’s presence, Alexis
filed an application for modification of the court’s 2015 decree.
Ronnie did not participate in the modification case, and the court
entered a default judgment in November 2019. The court awarded
sole legal custody to Alexis and left Ronnie’s visitation rights up to
Alexis’s discretion—with visitation to occur as deemed to be in the
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best interests of the children and under the supervision of Alexis, a
professional supervisor, or a third party chosen by Alexis.
Since then, Alexis and Ronnie’s co-parenting relationship has
remained rocky. As the district court noted, “they bicker
inappropriately when discussing the children” and “clearly do not
agree on many issues.” Ronnie faults Alexis for, among other things,
not being more liberal with his visitation, limiting his phone
communication with the children, and over-enrolling the children in
extracurricular activities—particularly during the time they have
agreed to set aside for his visitation.1 Alexis likewise faults Ronnie
for a number of issues, including inconsistent and cancelled visits,
lack of attendance at therapy sessions, and “hostile” communication.
At the same time, Ronnie has started down a better path in
many ways. He provided five clean drug tests in the two years
between the default modification order and the modification trial
presently under review. Although Ronnie struggled to work and fell
behind in child support during the height of his addiction, he has
maintained steady employment since April 2021. He is married, and
his wife’s three children reside in their home part-time. Ronnie is
afforded regular, unsupervised, and overnight visitation with his
eldest child, R.M., born out of a different relationship in 2008.
In December 2020, Ronnie filed a petition for modification,
alleging a substantial change in circumstances since the default
order. After a bench trial in November 2021, the court ordered the
modified paternity order from 2019 to remain in full force and effect,
except that the provision requiring supervision of Ronnie’s visitation
be deleted.
Ficek v. Morgan, No. 22-0217, 2022 WL 4361747, at *1–2 (Iowa Ct. App. Sept. 21,
2022).
In that appeal, we determined the district court acted equitably and in the
children’s best interests by refusing to confer legal custody or decrease child
support for Ronnie. While we also agreed with the court’s decision to remove the
supervision requirement for Ronnie’s visitation, we disagreed that his visitation
should be left entirely to Alexis’s discretion. Therefore, “we remand[ed] to the
1 The parties have engaged in mediation on at least two occasions. Most recently,
they agreed in May 2021 that Ronnie shall have parenting time with the children
every Saturday from 10:00 a.m. until 7:00 p.m.
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district court to set a gradual visitation schedule for Ronnie that progresses, over
a period of no more than six months, to every other weekend from Friday at
5:00 p.m. until Sunday at 5:00 p.m., as well as additional visitation on a weekday
or worknight, the details of which shall be set by the district court upon
consideration of the children’s best interests.”
On remand, the district court set a visitation schedule consistent with our
opinion and ordered that Ronnie would be solely responsible for transportation for
his visitation. In December 2022, Ronnie filed a motion to reconsider, requesting
the court also put in place a holiday visitation schedule and modify the
transportation arrangement. The court found a holiday visitation schedule would
be in the children’s best interests and ordered the following schedule to go into
effect after completion of the six-month graduated schedule, which was anticipated
to end on March 31, 2023.
Holiday Even Years Odd Years
Easter – 10:00 a.m. to Respondent Petitioner
2:00 p.m.
Mother’s day – 10:00 a.m. Petitioner Petitioner
to 2:00 p.m.
Memorial day – 10:00 a.m. Petitioner Respondent
to 2:00 p.m.
Father’s day – 10:00 a.m. Respondent Respondent
to 2:00 p.m.
Labor day – 10:00 a.m. to Respondent Petitioner
2:00 p.m.
Thanksgiving day – Petitioner Respondent
10:00 a.m. to 2:00 p.m.
Christmas Eve – Respondent Petitioner
10:00 a.m. to 2:00 p.m.
Christmas Day – Petitioner Respondent
10:00 a.m. to 2:00 p.m.
New Year’s Eve – Respondent Petitioner
10:00 a.m. to 2:00 p.m.
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The court also denied Ronnie’s motion with regard to transportation. Ronnie filed
a timely appeal.
II. Review.
Our review of custody proceedings for a child born out of wedlock is de
novo. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). We give weight to the
district court’s factual findings and credibility determinations, though we are not
bound by them. Id.; Iowa R. App. P. 6.907. “Prior cases have little precedential
value, except to provide a framework for analysis, and we must base our decision
on the particular facts and circumstances before us.” In re Marriage of Will, 489
N.W.2d 394, 397 (Iowa 1992).
III. Discussion.
Ronnie requests that we award him a more generous holiday visitation
schedule, which either reflects that of the original 2015 decree or the proposed
holiday schedule included in his recent motion to reconsider, enlarge, or amend.
Essentially, he wishes to add additional holidays to the schedule and enjoy more
time with the children on each holiday. He also asks for extended visitation during
the children’s summer break, which was previously afforded under the parties’
2015 decree. In evaluating Ronnie’s request, we look first and foremost to the best
interests of the children. See In re Marriage of Brainard, 523 N.W.2d 611, 615
(Iowa Ct. App. 1994) (“Although liberal visitation is the benchmark, our governing
consideration in defining visitation rights is the best interests of the children, not
those of the parent seeking visitation.”).
We find the district court’s order is consistent with our direction on remand,
which was to support the children’s best interests with a slow and steady approach
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to increased visitation. Ronnie may not enjoy the visitation he was initially
afforded, but consistency will be key—both for his well-being and sobriety and in
his relationship with the children. We remind the parties that the court-ordered
visitation schedule is the minimum, and additional visits may occur as may be
mutually agreed to by the parties. In re Marriage of Bevers, 326 N.W.2d 896, 899
(Iowa 1982). Ultimately, we affirm the district court’s order with respect to holiday
and summer visitation.
As for the transportation arrangement, Ronnie requests that we enter an
order requiring that he and Alexis share the burden. Ronnie argues the present
allocation is a financial hardship and is inequitable because he earns less income
than Alexis. See In re Marriage of Lambert, No. 10–1495, 2011 WL 1584585, at
*4 (Iowa Ct. App. Apr. 27, 2011) (affirming the allocation of all transportation costs
to one parent when supported by a disparity in income levels); Erdman v. Vopava,
No. 15–1030, 2016 WL 1358968, at *5 (Iowa Ct. App. Apr. 6, 2016) (declining to
impose a greater share of the transportation costs on the party who voluntarily
moved out of state when the other parent could not demonstrate a disparity in
income). He points out that both parents have reliable transportation and jobs that
allow flexibility in transporting the children. They live approximately thirty-five to
forty-five minutes apart.
Ronnie also contends that splitting transportation to and from visits will
maximize the children’s quality time with him and be beneficial for them to see their
parents supporting each other’s relationship with the children. We agree and
determine transportation obligations should be shared. We therefore modify the
decree so that the receiving parent is responsible for transporting the children.
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Alexis requests that Ronnie be ordered to pay her appellate attorney fees.
An award of attorney fees is a matter of our discretion and not merely a matter of
course. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). “We are to
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.” In re Marriage of Ales, 592 N.W.2d 698, 703 (Iowa
1999). Given the comparable financial positions of the parties and merits of the
arguments on appeal, we decline to award appellate attorney fees to Alexis.
AFFIRMED AS MODIFIED.