Upon the Petition of Ashley M. Christenson, and Concerning Zachary L. McNew

IN THE COURT OF APPEALS OF IOWA
No. 16-1144
Filed October 26, 2016
Upon the Petition of
ASHLEY M. CHRISTENSON,
Petitioner-Appellant,
And Concerning
ZACHARY L. McNEW,
Respondent-Appellee.
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Appeal from the Iowa District Court for Jasper County, Paul R. Huscher,
Judge.
Ashley Christenson appeals the modification of a stipulated decree
concerning visitation and custody. REVERSED AND REMANDED.
Hilary J. Montalvo of Caldwell, Brierly, Chalupa & Nuzum, P.L.L.C.,
Newton, for appellant.
Zachary L. McNew, Newton, appellee pro se.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Ashley Christenson appeals the district court’s modification of a stipulated
decree of visitation and custody. We find there has been no substantial change
in circumstances justifying modification of physical care. We also find there has
been a substantial change in circumstances requiring child support to be
recalculated. Accordingly, we reverse and remand for further proceedings.
I. Background Facts and Proceedings
S.M. was born in 2012 to Ashley and Zach McNew. They were never
married but cohabited in Ashley’s parent’s basement until May 2013. While living
together, at Ashley’s urging, they agreed to a stipulated decree of visitation and
custody. The decree provided joint legal custody to the parties, physical care of
the child to Ashley, and required Zach to pay child support. The decree also
outlined visitation for Zach and included provisions should Zach change from
working nights to days.
After Ashley and Zach separated, Zach moved into his parents’ home and
began visitation on the schedule set forth in the decree. Both parties have
changed jobs and Zach now works days. After changing from working nights to
days, Zach and Ashley switched to the adjusted schedule in the decree. When it
became apparent to them the child would benefit from more time with Zach,
Ashley agreed to increase Zach’s visitation. Additionally, both parties made
significantly more money after transitioning to their new jobs.
The district court entered a Modification of Decree finding Zach and
Ashley had modified the decree by their actions and instead of Ashley having
physical care, the parties had in fact converted their agreement into shared
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physical care. The modification also set out a visitation schedule if the parties
could not agree on an equitable division of time, reduced Zach’s child support
obligation, detailed the sharing of expenses for future extracurricular activities,
and restated Zach’s responsibility to maintain insurance for the child. Ashley
challenged the ruling by filing a motion to enlarge and amend the trial court’s
ruling; the motion was denied. Ashley now appeals the change of physical care,
the denial of her motion to enlarge and amend, and the denial of her request for
attorney fees.
II. Standard of Review
Our review of equitable actions is de novo. Iowa R. Civ. P. 6.907. We are
bound to examine the record and adjudicate the rights of the parties anew. In re
Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). We defer to
the district court’s determinations of credibility based on the unique opportunity to
hear the evidence and view the witnesses available to the district court. In re
Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).
III. Physical Care
Ashley claims the district court erred in determining the parties had shared
physical care of the child and in modifying the decree to reflect that change. A
court may modify the terms of a decree “only when there has been a substantial
change in circumstances since the time of the decree, not contemplated by the
court when the decree was entered, which was more or less permanent, and
relates to the welfare of the child.” Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa
Ct. App. 2002).
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The decree was originally formulated while Zach and Ashley were
cohabiting and granted Ashley physical care. Zach was granted visitation which
took into account the fact he worked nights but provided alternate visitation if he
began to work a day shift. The district court’s modification found Zach’s
transition to a different shift contributed to a substantial change in circumstances;
however, because this was contemplated in the original decree, we find this
change an inappropriate basis for modification of the decree.
While living together, Zach did care for the child while Ashley worked. The
district court found this amounted to shared physical care. The district court also
found this to be a substantial change not contemplated in the initial decree. We
disagree. We find the parties cannot adjust the terms of the decree by their
actions. See Brown, 487 N.W.2d at 51. The express language of the decree
“should have force and effect, and be given a consistent, effective, and
reasonable meaning.” See id.
Additionally, a party may not leverage the grant of extra visitation or
flexible visitation given by the custodial parent into a substantial change of
circumstance claim. In re Marriage of Wosepka, 836 N.W.2d 152 (Iowa Ct. App.
2013). Allowing one parent to take advantage of the other’s generosity and
willingness to accommodate changes in schedules would discourage cooperation
and effective co-parenting. Therefore, we find there has been no substantial
change of circumstances to justify a change in physical care. Ashley also claims
the district court erred in denying her motion to enlarge and amend; we find it
unnecessary to address this claim.
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IV. Child Support
Ashley further claims Zach’s child support obligation should be
recalculated in line with the parties’ new incomes. We agree and remand to the
district court to calculate the amount of child support in accordance with the
guidelines.
V. Attorney Fees
Ashley also claims the district court erred by refusing to award attorney
fees. An award of attorney fees is not a matter of right but rests within our
discretion. Iowa Code § 600B.26 (2015); Markey v. Carney, 705 N.W.2d 13, 25
(Iowa 2005). We review the denial of trial attorney fees for an abuse of
discretion. In re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013). We find
the trial court did not abuse its discretion and so we deny Ashley’s request for
attorney fees.
REVERSED AND REMANDED.