In re the Marriage of Cavalier

IN THE COURT OF APPEALS OF IOWA
No. 18-0491
Filed February 20, 2019
IN RE THE MARRIAGE OF KALLI CAVALIER
AND AARON CAVALIER
Upon the Petition of
KALLI CAVALIER, n/k/a KALLI TERRELL,
Petitioner-Appellee,
And Concerning
AARON CAVALIER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde,
Judge.
Aaron Cavalier appeals the district court’s order modifying the child care
and custody provisions of his divorce decree. AFFIRMED.
Thomas J. Viner of Viner Law Firm P.C., Cedar Rapids, for appellant.
Kristen A. Shaffer of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for
appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VOGEL, Chief Judge.
Aaron Cavalier appeals from the district court’s order modifying physical
care of K.C., born in 2012, his child with Kalli Cavalier, now known as Kalli Terrell.
He argues the district court abused its discretion by denying his motion to continue
and it should not have changed physical care of K.C. to Kalli. Kalli requests
appellate attorney fees. We find no abuse of discretion and we decline to interfere
with the modification or award attorney fees.
Aaron and Kalli married on September 8, 2012, and the marriage was
dissolved on January 27, 2015.1 The dissolution decree incorporated the parties’
stipulation, in which they agreed to joint legal custody of K.C. with Aaron having
physical care and Kalli having supervised visitation.
On June 28, 2016, Kalli filed her petition for modification, claiming a material
and substantial change in circumstances and seeking shared physical care of K.C.
On September 11, 2017, Kalli moved to amend her petition, asking the court to
grant her physical care of K.C. On September 21, Aaron filed a motion to continue
trial due to Kalli’s recent amendment to her petition, and the court denied his
motion. On October 25 and 26, trial was held on the matter. On January 10, 2018,
the district court issued its ruling, finding a material and substantial change in
circumstances and granting physical care of K.C. to Kalli and visitation with Aaron.
Both parties filed post-trial motions. On March 1, 2018, the court corrected and
modified certain provisions in its earlier ruling, but it retained physical care with
1
Kalli is the mother of another child, who was born in 2014. The parties’ divorce decree
acknowledges Aaron is not the father of this child.
3
Kalli and visitation with Aaron. Aaron now appeals, and Kalli requests appellate
attorney fees.
Regarding the motion to continue, such a motion “is in the discretion of the
trial court and will be interfered with on appeal only where there is a clear abuse
of discretion.” In re Marriage of Hatzievgenakis, 434 N.W.2d 914, 916 (Iowa Ct.
App. 1988). “Ordinarily an abuse is found to exist only where there is not support
in the record for the trial court’s action.” Id. In denying the motion, the court wrote:
[Aaron] is the primary care provider for the minor child pursuant to
the earlier decree. Based upon [Aaron’s] resistance to [Kalli’s]
request to modify primary care to a shared-care arrangement,
[Aaron] would be expected to present evidence at trial that he
remains a fit and proper person to have primary physical care of the
minor child in any event. The fact that [Kalli] now requests, in the
alternative, a modification of the decree to order her to provide
primary care, in light of [Aaron’s] recent move, does not substantially
change the physical care issues to be determined by the Court nor
the evidence to be presented by either party.[2]
We find support for the court’s decision to deny the motion to continue and the
court did not abuse its discretion in doing so. See id.Regarding the modification of physical care, we review such decisions de
novo. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). “Although we
make our own findings of fact, ‘when considering the credibility of witnesses the
court gives weight to the findings of the trial court’ even though we are not bound
by them.” Id. (quoting In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa
1989)). In order to modify a physical care provision:
the applying party must establish by a preponderance of evidence
that conditions since the decree was entered have so materially and
2
Kalli’s resistance to the motion to continue includes an email from Aaron, dated
September 4, 2017, informing her he had moved to a new residence, from Fairfax to Belle
Plaine, on August 4. Kalli has lived in Marion since June 2015.
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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.
Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).
The district court found Kalli made several positive changes since the
decree, specifically finding she: ended her relationship with, and obtained a
protective order regarding, her volatile ex-paramour; has addressed, and
continues to address, her mental health issues; has earned a bachelor’s degree;
has obtained employment; and is purchasing a house. The court also found Aaron
made positive changes in his life but “has demonstrated inability or unwillingness
to support [K.C.’s] relationship with Kalli.” Specifically, the court found Aaron: tried
to prevent Kalli from contacting K.C. at his preschool graduation; denied, without
valid justification, an uninterrupted week of visitation with Kalli as required under
the decree; arranged a daycare provider without permitting or considering input
from Kalli; and instructed the daycare provider not to speak with Kalli. Moreover,
the district court found Aaron’s credibility to be in question. On our review of the
record, we agree with the district court that Kalli has proven a material and
substantial change in circumstances and, because of Aaron’s attempts to thwart
Kalli’s contact with K.C., Kalli is better able to minister effectively to K.C.’s well-
being. We affirm without further opinion regarding the placement of physical care
with Kalli. See Iowa Ct. R. 21.26(1)(a), (b), (d), (e).
Kalli requests appellate attorney fees. Appellate attorney fees are within
the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d 643, 646
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(Iowa 1996). “In determining whether to award appellate attorney fees, we
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
decision of the trial court on appeal.” In re Marriage of Hoffman, 891 N.W.2d 849,
852 (Iowa Ct. App. 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389
(Iowa Ct. App. 1997)). Although successful in defending the district court’s
decision, awarding appellate attorney fees is not warranted.
AFFIRMED.