In re the Marriage of Barry

IN THE COURT OF APPEALS OF IOWA
No. 17-1973
Filed December 19, 2018
IN RE THE MARRIAGE OF CHAD E. BARRY
AND KATHLEEN M. BARRY
Upon the Petition of
CHAD E. BARRY,
Petitioner-Appellant,
And Concerning
KATHLEEN M. BARRY, n/k/a KATHLEEN M. KRAMER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Harrison County, Gregory W. Steensland,
Judge.
A father appeals from the denial of his petition to modify the custodial and physical
care provisions of his dissolution decree. AFFIRMED AS MODIFIED.
P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs, for
appellant.
Drew H. Kouris, Council Bluffs, for appellee.
Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.
This appeal arises out of Chad Barry’s petition to modify the decree dissolving his
marriage to Kathleen Barry, now known as Kathleen Kramer. At issue on appeal is the
district court’s denial of the petition to modify the custodial provisions of the decree, the
district court’s dismissal of Chad’s application for contempt, and the district court’s
allocation of responsibility for certain debt and medical expenses.
I.
The record reflects the following. Chad and Kathleen married in 2007. They had
two children together: BB boy, born in 2007, and BB girl, born in 2010.
Chad and Kathleen had a tumultuous relationship from the outset. They filed for
dissolution of the marriage in 2009 before reconciling. The parties sought dissolution of
the marriage again in 2012. The proceeding was long and arduous. The district court
described the animosity between Chad and Kathleen as “one of the most intense it ha[d]
ever seen” and noted “that animosity toward each other has not served either of them
well.” The dissolution was final in May 2014. The district court granted the parents joint
legal custody of the children, awarded Kathleen physical care of the children, and
provided Chad with visitation. The decree contained the following guidance: “Both
Kathleen and Chad need to clean up their act and start making decisions for their children
and not for themselves or other vindictive purposes.”
The district court’s guidance was not heeded; the positive feedback loop of anger
and litigation had commenced. Not long after the entry of the decree, both parties filed
applications for rule to show cause. In 2015, Chad filed a petition for modification. In his
petition, Chad requested physical care of the children, alleging Kathleen failed to keep
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him informed of the children’s activities, failed to consult him regarding medical issues,
and refused phone calls between Chad and the children. The district court, already
familiar with this family from the prior dissolution and contempt proceedings, found no
material and substantial change in circumstances justifying modification. The district
court concluded: “The evidence presented in this modification action doesn’t really
present anything new to this court. It is just further evidence on the continuing saga of
utter distrust between Kathleen and Chad.” The decree provided: “If these two parties
don’t get past their complete distrust of each other, they will not be the ones to suffer.
The ones to suffer will be their children.”
The district court proved prescient. Shortly after the district court denied the prior
modification petition, Chad filed the present modification action. In his petition, Chad
requested sole legal custody and physical care of the children, alleging Kathleen sought
to alienate him from the children. Kathleen requested that Chad be held responsible for
unpaid federal taxes and she be held harmless for the same. She also sought
reimbursement for one half of certain unpaid medical expenses for the children. The
matter proceeded to trial along with several contempt claims. Upon consideration of the
evidence, the court characterized the most recent case as “part of the ongoing saga
between these parties.” The district court denied the petition for modification. It found
and concluded there was no material and substantial change in circumstances warranting
modification and no campaign of alienation. The court declined to find Kathleen in
contempt of court. The district court ordered Chad hold Kathleen harmless for unpaid
2011 taxes. The district court concluded Chad should be responsible for half of the
children’s unpaid medical bills in the amount of $3971.52. Chad filed this timely appeal.
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II.
Modification actions are reviewed de novo. See Iowa R. App. P. 6.907; In re
Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (noting modification actions lie in
equity). Prior cases have little precedential value; instead the relevant law is applied to
the unique facts and circumstances of each case. See In re Marriage of Kleist, 538
N.W.2d 273, 276 (Iowa 1995); In re Marriage of Snowden, No. 14-1920, 2015 WL
4233449, at *1 (Iowa Ct. App. July 9, 2015). Although review is de novo, appellate courts
“afford deference to the district court for institutional and pragmatic reasons.” Hensch v.
Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017); see In re P.C., No. 16-0893, 2016
WL 4379580, at *2 (Iowa Ct. App. Aug. 17, 2016). “[T]he district court ‘has reasonable
discretion in determining whether modification is warranted and that discretion will not be
disturbed on appeal unless there is a failure to do equity.’” In re Marriage of McKenzie,
709 N.W.2d 528, 531 (Iowa 2006) (quoting In re Marriage of Walters, 575 N.W.2d 739,
741 (Iowa 1998)).
III.
A.
“The general principles guiding . . . adjudication of petitions for modification of
dissolution decrees are well-established.” Hoffman, 867 N.W.2d at 32.
To change a custodial provision of a dissolution decree, the applying 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 make it expedient to make the requested change.
The changed circumstances must not have been contemplated by the court
when the decree was entered, and they must be more or less permanent,
not temporary. They must relate to the welfare of the children. A parent
seeking to take custody from the other must prove an ability to minister more
effectively to the children’s well being.
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In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). “The burden on the party
seeking modification is a heavy one.” In re Marriage of Morrison, No. 16-0886, 2017 WL
936152, at *2 (Iowa Ct. App. Mar. 8, 2017). The physical care provisions of a decree are
not often disturbed because “once custody of children has been fixed it should be
disturbed only for the most cogent reasons.” Hoffman, 867 N.W.2d at 32. Ultimately,
when reaching a conclusion, “[t]he children’s best interest is the controlling consideration.”
Id.; see Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974) (listing factors to
consider when reaching a best-interest determination).
On de novo review, we see no reason to disturb the district court’s ruling with
respect to the custody and care determination. The parties make serious accusations
and counter-accusations against each other. There is no reason to spread them on the
public record. The district court judge who presided over this modification action is the
same judge who has presided over all proceedings in this ongoing case. The judge was
best situated to make credibility determinations and understand what changes, if any,
occurred between the time of the prior modification action and this action. We defer to
those findings and determinations. See P.C., 2016 WL 4379580, at *2 (“There are other,
less questionable reasons to exercise ‘de novo review with deference,’ including: notions
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 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.”).
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Even if we were to afford the district court no institutional deference, review of the
record demonstrates there has been no material and substantial change in
circumstances. The parents’ relationship is the same now as it has been—dysfunctional.
The ongoing dysfunction of these parents and their continued inability to place their
children first does not constitute a change in circumstances sufficient to warrant the
custody and care provisions of the decree. See Schmidt v. Quinn, No. 18-0056, 2018
WL 4361059, at *2 (Iowa Ct. App. Sept. 12, 2018) (concluding a continuation of poor
communication and animosity between parents does not represent a change in
circumstance warranting modification).
We affirm the district court’s order denying Chad’s petition to modify the legal
custody and physical care provisions of the decree.
B.
We next address Chad’s claim the district court erred in denying his numerous
applications to hold Kathleen in contempt of court.
“[C]ontempt proceeding[s] [are] essentially criminal in nature” requiring each
element be “established beyond a reasonable doubt.” In re Marriage of Ruden, 509
N.W.2d 494, 496 (Iowa Ct. App. 1993). Contempt may be characterized as willful
disobedience. Ary v. Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007). Even when contempt
may be demonstrated, the trial court is not required to hold a party in contempt. See Iowa
Code § 598.23(1) (2106) (noting a “person may be cited and punished by the court for
contempt” (emphasis added)); In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa 1995).
On de novo review, we conclude Chad failed to prove beyond a reasonable doubt
that Kathleen’s conduct amounted to willful violations of the dissolution decree.
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C.
Finally, we address the district court’s ruling regarding Chad’s responsibility for
certain debts, unpaid tax obligations, and certain medical expenses.
The first category of disputed expenses relates to debts acquired during the course
of the marriage. The district court held Chad shall be responsible for certain bills a
collection agency was attempting to collect from Kathleen. The parties did not provide a
great amount of detail regarding these bills. At trial, Kathleen testified the uncollected
debt was for pre-dissolution medical expenses. Chad seems to agree with this
characterization. The district court also held Chad shall be responsible for and hold
Kathleen harmless for tax obligations for tax year 2011.
Chad contests his responsibility for the obligations. His claims are without merit.
The dissolution decree provided: “Kathleen shall be responsible for the debt to her
parents. Chad shall be responsible for the debt to Kysa Krohnke and any other debt
acquired by the parties during the course of their marriage that remains outstanding on
the date of this Decree.” Under the plain language of the decree, Chad is responsible for
any pre-dissolution debts other than those due to Kathleen’s parents. See In re Marriage
of Ruter, 564 N.W.2d 849, 851 (Iowa Ct. App. 1997) (noting interpretation of a dissolution
decree should give effect to the express and implied intent of the decretal court). While
the debts litigated in this case were not specifically identified in the decree, they fall within
the category of pre-dissolution debts for which Chad has been assigned sole
responsibility. The district court did not err.
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The second category of disputed expenses is the division of post-dissolution
medical expenses for the children. Chad challenges his obligation for half of a therapy
bill and half of the bills associated with CHI health providers.
Chad’s challenge to these expenses has merit. The dissolution decree provided:
“The parties shall each pay 50% of the uncovered medical expenses . . . . Each shall
provide notice to the other of uncovered medical expenses within 15 days after receiving
notice of the amount due.” We interpret this provision of the decree to require a parent
notify the other of the amount due within fifteen days of receipt of notice of the amount
before the other parent is required to pay one half of the amount due. See id. (noting
interpretation of a decree should seek “to give effect to ‘that which is both expressed and
implied’” (quoting Bowman v. Bennett, 250 N.W.2d 47, 50 (Iowa 1977))). Here, Kathleen
admitted into evidence bills showing unpaid medical expenses for the children. However,
Kathleen provided no evidence that she provided Chad with timely notice of the amounts
due for certain bills. In particular, Kathleen did not provide timely notice for the therapy
bill; Chad is thus not responsible for one half of the $2115.00 due. With respect to the
CHI bills, Chad is not responsible for one half of the following: the CHI-Logan bill for
$77.00; the Logan Clinic bill for $119.20; the Logan Clinic bill for $52.04; the Children’s
Physicians bill for $74.53; the Children’s Physicians bill for $116.44; or the Children’s
Physicians bill for $46.07. After omitting these expenses, we reduce Chad’s obligation to
$2671.38.
IV.
Finally, we address attorney fees. Chad contends the district court abused its
discretion when refusing to award him trial attorney fees. See In re Marriage of Francis,
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442 N.W.2d 59, 67 (Iowa 1989) (stating trial attorney fee awards are reviewed for an
abuse of discretion). “The court has considerable discretion in awarding attorney fees.”
In re Marriage of Schenkelberg, 824 N.W.2d 481, 488 (Iowa 2012). Upon review of the
record, we conclude the district court did not err in refusing to award Chad trial attorney
fees.
Both parties request appellate attorney fees. “Appellate attorney fees are not a
matter of right, but rather rest in this court’s discretion.” See In re Marriage of McDermott,
827 N.W.2d 671, 687 (Iowa 2013) (quoting In re Marriage of Okland, 699 N.W.2d 260,
270 (Iowa 2005)). “In determining whether to award appellate attorney fees, we consider
‘the needs of the party seeking the award, the ability of the other party to pay, and the
relative merits of the appeal.’” Id. (quoting Okland, 699 N.W.2d at 270). After considering
the relevant factors, we decline to award either party appellate attorney fees.
V.
We have considered each of the parties’ arguments, whether discussed in full
herein. We conclude the district court did not err in refusing to modify physical care and
legal custody of the children. With respect to the 2011 tax debt, we conclude it amounts
to an outstanding pre-dissolution debt, which the decree dictates is Chad’s obligation.
The court did not err in ordering Chad to hold Kathleen harmless for the 2011 tax debt.
Additionally, the collection agency’s bills relate to pre-dissolution debt, which is Chad’s
obligation. The court did not err in ordering Chad pay half of this pre-dissolution debt.
However, we find the district court erred in ordering Chad pay one half of the challenged
post-dissolution expenses without a showing that Kathleen notified Chad of the expenses
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within fifteen days of receiving notice herself. We reduce Chad’s obligation for the
presented expenses to $2671.38.
AFFIRMED AS MODIFIED.