In re the Marriage of Boeck and Nelson

IN THE COURT OF APPEALS OF IOWA
No. 22-0633
Filed December 7, 2022
IN RE THE MARRIAGE OF AUDREY SAMANTHA BOECK
AND KEENAN RUSSELL NELSON
Upon the Petition of
AUDREY SAMANTHA BOECK,
Petitioner-Appellee,
And Concerning
KEENAN RUSSELL NELSON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Audubon County, Greg W.
Steensland, Judge.
A father appeals from the order placing physical care of the parties’ children
with the mother. AFFIRMED AS MODIFIED.
Jason S. Rieper of Rieper Law, P.C., Des Moines, for appellant.
Theodore R. Wonio of Rasmussen, Nelson & Wonio, P.L.C., Atlantic, for
appellee.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.
The timing of their children’s births—one before Audrey Boeck and Keenan
Nelson’s divorce (E.N.) and one after (A.N.)—brings us to an issue in this appeal.1
After the parties’ marriage was dissolved by decree, they reconciled for a while
and had another child but never married again. After the parents separated the
second time, in January 2021 Audrey petitioned to establish custody, support, and
visitation of A.N. In the earlier stipulated dissolution decree, the district court
granted the parties joint legal custody of E.N., placed physical care with Audrey,
and ordered visitation with Keenan on Wednesday evenings and alternating
weekends. So, now with Audrey’s pending petition on file as to A.N., Keenan filed
a petition to modify physical care of E.N. The district court consolidated the cases
to consider custody, care, and support of both children in the same proceeding. At
the onset, the parties agreed on joint legal custody, but Keenan sought joint
physical care of the children. Rejecting Keenan’s plan for joint physical care, at
trial Audrey asked for physical care with a visitation schedule similar to that from
the dissolution decree except Keenan’s Wednesday evening visitation would
change to a Tuesday overnight visitation. The matter proceeded to trial on March
1, 2022. Addressing both children, the court’s decree granted joint legal custody,
placed physical care with Audrey, and continued the visitation schedule from the
dissolution decree with slightly reduced visitation time. Keenan appeals. Audrey
requests appellate attorney fees.
1 The parents were married from 2009 until 2011. E.N. was born in 2009. While
the parents never remarried, they did reconcile from late 2012 until 2020, and it
was during this time that A.N. was born (2013).
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I. Standard of Review
Proceedings to establish or modify physical care are held in equity, and we
review the district court’s decision de novo. Hensch v. Mysak, 902 N.W.2d 822,
824 (Iowa Ct. App. 2017); Christy v. Lenz, 878 N.W.2d 461, 464 (Iowa Ct. App.
2016). We give weight to the court’s findings of fact, especially with regard to
witness credibility, but they are not binding on us. Hensch, 902 N.W.2d at 824;
Christy, 878 N.W.2d at 464. Our primary consideration for establishing and
modifying physical care is the best interests of the children. Iowa R. App. P. 6.904.
II. Analysis
Two issues are raised on appeal by Keenan. He first asserts the district
court should have awarded the parents joint physical care of the children. Then,
in the alternative, Keenan seeks more visitation time than the district court
awarded, claiming no evidence supported a reduction in the time compared to what
he had under the dissolution decree.
A. Joint Physical Care
We apply different standards when viewing the physical-care status of a
child initially as opposed to when we are asked to modify an existing order. So,
we address each child separately using the appropriate vantage point.
The Oldest Child—E.N.:
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
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to minister more effectively to the children’s well being. The heavy
burden upon a party seeking to modify custody stems from the
principle that once custody of children has been fixed it should be
disturbed only for the most cogent reasons.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The same burden
applies to a parent seeking to modify physical care in favor of joint physical care.
In re Marriage of Davis, No. 02-0314, 2002 WL 31641272, at *2 (Iowa Ct. App.
Nov. 25, 2002).
Reconciliation of the parties and the subsequent birth of A.N. were certainly
outside the parties’ contemplation at the time of the dissolution decree. Neither
party disputes the existence of a substantial change in circumstances. But, we
review Keenan’s request to modify the decree for a change to joint physical care
over E.N. with this heavy burden in mind.
The Youngest Child—A.N.:
Without consideration of the heavy burden required to modify an existing
decree, our review as to A.N. centers on evidence addressing the factors listed in
Iowa Code section 598.41(3) (2021). The controlling consideration is the best
interests of the child. In re Marriage of Hansen, 733 N.W.2d 683, 695–96 (Iowa
2007). When determining who will have physical care of the child, we will consider
“stability and continuity with an eye toward providing the [child] with the best
environment possible for [the child’s] continued development and growth.” Id. at
700. “These factors favor a parent who was primarily responsible for physical care
of the child[],” though we examine each case’s unique facts. In re Marriage of
Bain, No. 07-0333, 2008 WL 4325499, at *3 (Iowa Ct. App. Sept. 17, 2008).
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Finally, when a child is born of out wedlock, Iowa Code section 598.41 shall apply
to the determination. See Iowa Code § 600B.40.
We start by considering four factors: “(1) stability, continuity of caregiving,
and approximation; (2) ‘the ability of the [parents] to communicate and show
mutual respect’; (3) ‘the degree of conflict between parents’; and (4) ‘the degree to
which the parents are in general agreement about their approach to daily matters.’”
In re Marriage of Hansen, 886 N.W.2d 868, 874 (Iowa Ct. App. 2016) (quoting In
re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007)).
As to stability and continuity, Keenan asserts the parties co-parented during
their relationship. However, he acknowledged Audrey was the children’s primary
caregiver whenever the parties separated. He also acknowledged Audrey has
always been primarily responsible for doctor visits and medical decisions, even
while the parties were in a relationship. Further, Keenan’s lack of involvement with
the children’s schooling did not support a co-parent role. The history of care by
Audrey detailed in the testimony reflected her role as the primary caregiver over
the children. Thus, stability and continuity favor Audrey continuing to act as the
primary caregiver.
As to the other three factors involving communication and conflict, Keenan
asserts the parties’ “struggles” are in the past and related to jealousy at the end of
their relationship. He further described their conflict as “now virtually nonexistent”
as they co-parent effectively. But the record is replete with examples of the parties’
disrespect, conflict, and disagreement both before and after their relationship
ended. And with this dynamic in mind, Audrey offered reasons why minimizing
stress for the children was important for their best interests.
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Text messages in the record show the parties appropriately co-parenting at
times, but the messages also show open hostility and insults between the parties
at other times. Keenan was charged with domestic assault from an August 2020
incident with Audrey, and he eventually pled guilty to simple assault. Keenan
testified he believes Audrey filed her petition seeking custody and care of A.N.
because she was upset he had a new girlfriend, which indicates the same tensions
that ended their relationship were still present at trial. In December 2021, Keenan
unilaterally decided to install monitoring software on the children’s cell phones and
refused to share details of the software with Audrey; this conflict was only resolved
when Audrey’s father bought the children new phones.
An incident from summer 2021 is illustrative of the parties’ ongoing
difficulties. On the day in question, Keenan took the children to the county fair.
Audrey separately attended the fair at the same time. At a certain point, A.N.
became separated from Keenan. Audrey testified she noticed A.N. alone and
confused in a crowd, so they sat together on a bench to figure out what happened.
Keenan soon found the two of them together on the bench. Audrey testified
Keenan started “screaming” at both of them before she could say anything to him.
Keenan denied yelling but acknowledged he “became extremely upset because
Audrey never told” him she had A.N. Neither party’s version of events describes
appropriate co-parenting that day. Our review of these factors does not support
an award of joint physical care for A.N.
For the same reasons, we conclude Keenan failed to carry his burden that
a change in physical care is in E.N.’s best interests. We find that Audrey is the
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superior parent to address both E.N.’s and A.N.’s needs. Therefore, we affirm the
court’s decision to place both children in Audrey’s physical care.
B. Visitation
As an alternative to the physical-care request, on appeal, Keenan
advocates for more expansive visitation time with the children. In tandem with
Audrey’s arguments visitation should be exercised with both children together, we
review the visitation schedule recognizing that while Keenan did not specifically
ask for more visitation time, he did ask for expanded time. For reasons unknown,
the district court granted less visitation than Audrey offered at trial and less than
Keenan exercised under the dissolution decree as to the older child.2 Keenan has
followed that same schedule with the younger child. We note that in her proposed
parenting plan, Audrey requested that the “Court modify the . . . Decree and award
[Keenan] every Tuesday overnight.” In her testimony, she reasoned that the
overnight would make it easier for Keenan to have time with the children together
given the busy activity schedule of the older child.
The parties live about fifteen minutes from each other and in the same
school district. Despite the concerns with co-parenting, Audrey testified Keenan is
a good father who is bonded with the children. And there was no evidence that
there were serious problems with visitation as framed under the dissolution decree.
On appeal, Audrey does not provide any reason to reject her own request to
increase Keenan’s parenting time other than to assert the court already “provided
equitable and reasonable visitation.” Seeing no argument to the contrary, we find
2The change would go from a five-hour Wednesday evening visit to an overnight
on Tuesdays.
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Audrey’s request at the trial to increase visitation with Keenan is in the children’s
best interests. We modify the decree as follows:
Keenan will be granted reasonable and liberal visitation to
include a minimum of every other weekend commencing Friday after
school (or at 4:00 p.m. if the child is not in school) until Sunday at
8:00 p.m.; every Tuesday commencing after school (or at 4:00 p.m.
if the child is not in school) and concluding the following day when
school begins (or at 12:00 p.m. if the child is not in school).
C. Appellate Attorney Fees
Audrey requests appellate attorney fees. “Appellate attorney fees in a
dissolution-of-marriage action are not awarded as a matter of right but rather rest
in our discretion.” In re Marriage of Towne, 966 N.W.2d 668, 680 (Iowa Ct. App.
2021). “Factors to consider in determining whether to award appellate attorney
fees include ‘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 In re Marriage of Sullins,
715 N.W.2d 242, 255 (Iowa 2006)). Audrey is employed full-time and has the
means to pay her attorney fees. Each party had some success on this appeal and
so we decline to award appellate attorney fees to Audrey.
III. Conclusion.
We find joint physical care is not in the children’s best interests and confirm
Audrey as the physical-care parent as to both children. We modify visitation with
Keenan to Tuesday overnights and alternating weekends, as Audrey requested at
the district court. We decline to award appellate attorney fees.
AFFIRMED AS MODIFIED.