In re the Marriage of Miller

IN THE COURT OF APPEALS OF IOWA
No. 20-1704
Filed August 4, 2021
IN RE THE MARRIAGE OF DANIELLE ECHO MILLER
AND ROCKY LEE MILLER II,
Upon the Petition of
DANIELLE ECHO MILLER, n/k/a DANIELLE RICHARDS,
Petitioner-Appellant,
And Concerning
ROCKY LEE MILLER II,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Richard B. Clogg,
Judge.
The mother appeals the district court’s denial of her petition to modify the
parties’ dissolution decree to give her physical care of their child. AFFIRMED AS
MODIFIED AND REMANDED.
Benjamin Folladori of Mayberry Law Firm, P.C., Urbandale, for appellant.
Anjela A. Shutts and Jennifer B. Chavez-Rivera of Whitfield and Eddy, PLC,
Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2
GREER, Judge.
Danielle Richards, formerly known as Danielle Miller, and Rocky Miller are
the parents of J.M., who was born in 2011. Under the terms of the 2015 decree
dissolving their marriage, the parents shared legal custody of the child and Rocky
was given physical care. Danielle initiated this action in 2019, filing a petition to
modify the decree. She claimed Rocky is no longer fit to provide physical care and
she can provide superior parenting to J.M. Following a trial in 2020, the district
court denied Danielle’s petition to modify physical care but made some changes
to the visitation schedule and Danielle’s child-support obligation. Danielle appeals,
arguing the district court (1) should have granted her petition to give her physical
care of J.M. and (2) erred in calculating her child-support obligation because it
wrongly imputed additional income to her. She asks for appellate attorney fees.
I. Background Facts and Proceedings.
Rocky and Danielle were married in 2006. Their marriage was dissolved by
decree in 2015.1 At the time of the dissolution, there was a pending child-in-need-
of-assistance (CINA) case involving J.M., and the juvenile court had placed J.M.
with Rocky. Danielle “reluctantly consent[ed]” to Rocky getting physical care of
J.M. under the decree, and the parents shared joint legal custody. Originally,
Danielle’s parenting time with J.M. was as ordered by the juvenile court. After the
conclusion of the CINA proceedings, the dissolution decree gave Danielle
parenting time with J.M. on Monday, Wednesday, and Friday evening each week.
1 Both parties appeared pro se at the dissolution of marriage hearing.
3
She also had parenting time Friday evening through Sunday evening on alternating
weekends.
Danielle petitioned to modify the decree in July 2019. In support of her
request, Danielle cited Rocky’s move to West Des Moines. Because she was
ordered to provide all transportation to and from her visits with J.M., her drive went
from “four miles from [her]” at the time of the dissolution to living a distance that,
“depending upon traffic, could be anywhere from 45-50 minutes to a little over an
hour” away.2 She also cited Rocky’s “severe psychological issues” that caused
him to be “involuntarily committed on occasions,” the Iowa Department of Human
Service’s involvement due to J.M.’s considerable number of school tardies and
absences, and past issues Rocky had with firearms.
At the agreement of the parents, J.M. was appointed an attorney. Through
her attorney, J.M. filed a document entitled “requested relief,” in which she made
her preferences known to the court at the time of the modification trial in August
2020. J.M. asked that her parents be awarded joint physical care.3 She also
requested that both parents be ordered to attend individual therapy, to participate
in her play therapy, and to communicate with each other through a co-parenting
application on their phones.
Following a two-day trial, the district court denied Danielle’s request to
modify physical care. The court changed the visitation schedule to minimize
handoffs between the parents and give Danielle another overnight, but it removed
2 Danielle cited Rocky and J.M.’s move in her petition; the details about the
increased distance were part of her testimony at the modification trial.
3 Neither parent asked the court to consider joint physical care.
4
her weekly Monday evening visit. The court also increased Danielle’s child-
support obligation. Danielle appeals.
II. Standard of Review.
“Petitions to modify the physical care provisions of a divorce decree lie in
equity,” so our review is de novo. In re Marriage of Harris, 877 N.W.2d 434, 440
(Iowa 2016). “Though we make our own findings of fact, we give weight to the
district court’s findings.” Id.III. Discussion.
A. Physical Care.
Danielle asked the court to modify the dissolution decree to give her
physical care of J.M. “A party seeking modification of a dissolution decree must
prove by a preponderance of the evidence a substantial change in circumstances
occurred after the decree was entered.” Id. “The changed circumstances affecting
the welfare of the child[] and justifying modification of the decree ‘must not have
been contemplated by the court when the decree was entered, and they must be
more or less permanent, not temporary.’” Id. (quoting In re Marriage of Frederici,
338 N.W.2d 156, 158 (Iowa 1983)). Danielle also has the burden to “prove a
superior ability to minister to the needs of the child[].” Id.The district court concluded that neither element was proved, ruling, “Many
of the issues Danielle raised existed at the time the Decree was entered or pre-
dated the Decree in 2015.” We disagree. Rocky’s diagnosis of post-traumatic
stress disorder (PTSD) and his previous use of illegal drugs, such as
methamphetamine, were known at the time of dissolution. But Rocky and J.M.
moved homes several times in the five years between the dissolution and the
5
modification trial, and J.M. was forced to attend three different schools as a result.
Plus, Rocky originally lived only a short distance from Danielle at the time of the
dissolution—about four miles—but he and J.M. lived approximately a one-hour
drive away at the time of the modification trial. See Thorpe v. Hostetler, 949
N.W.2d 1, 5–7 (Iowa Ct. App. 2020) (finding a substantial change in circumstances
when one parent moved one-hour away after the original physical-care
determination). With Danielle having visits with J.M. three weeknight evenings
each week, this required the child to spend two hours in a vehicle each Monday,
Wednesday, and Friday evening.4 See id. (noting “that the child travel[ed] an hour
each way” and “[a]s the child ages and becomes more involved in extracurricular
activities, the stress of the commute falls on the child disproportionately”).
Likewise, the amount of time on the road is possibly doubled5 for Danielle, who
was ordered to provide all transportation to and from visits because Rocky did not
have a driver’s license.
And, although the decree called for the parents to communicate about
important decisions, including the child’s education, Rocky made the two school
changes without weighing input from Danielle. See Harris, 877 N.W.2d at 440-41
(modifying custody when the parents cannot communicate or respect each other).
Rocky’s requirement that Danielle pick up and drop off the child at the townhouse
community mailboxes instead of at the door of his home; his requirement that
4On the Fridays of Danielle’s weekend with J.M., the time in the vehicle was likely
split between one hour on Friday and one hour when J.M. was returned on Sunday.
5 Danielle works as a construction inspector; the jobsites she works at are
sometimes near J.M. and Rocky’s home, which reduces the amount of extra time
Danielle must drive to pick up J.M. for visits.
6
Danielle not call him, but only text; and his lack of flexibility with visitation is also
concerning. See id. at 441 (noting the depth of animosity was not lost on the
children who were troubled by the behavior and wished the parents would “get
their act together”).
With a focus on the educational concerns, we note J.M. has missed and
been late for a substantial amount of school while in Rocky’s care. In the 2016-
2017 school year, J.M. missed twenty-three and one-half days of school and was
tardy fifteen times. The next school year, she missed twelve days and was tardy
thirty-one times. In 2018-2019, J.M. missed nine days of school and was tardy
thirty-six times. Rocky testified the tardies were often “just . . . one minute late,
two minutes late.” But his repeated inability to get J.M. to school on time, coupled
with reports J.M. asks school officials for food after arriving, is concerning. When
DHS looked into J.M.’s absences in February 2017, J.M. reportedly told the social
worker she is late to school “a lot” because “me and dad are lazy.” But we think
what looks like “laziness” to a small child is more likely the result of Rocky’s PTSD,
which he testified manifests itself as anxiety, trouble sleeping, and depression.
And while Rocky’s diagnosis was known at the time of the dissolution decree, we
cannot say the district court contemplated its possible negative impact on J.M.’s
school attendance. See Denson v. Capps, No. 20-0774, 2021 WL 3075740, at *3
(Iowa Ct. App. July 21, 2021) (considering the parents’ ability to get the child to
school consistently in a modification action because the child “must consistently
be in school to reap its benefits, which serve as the building blocks for her future”).
Further, while the district court noted that many of the issues Danielle raised
existed at the time of the 2015 decree, Rocky admitted to multiple relapses on
7
methamphetamine since the entry of the original decree. He was involved in an
incident where he discharged a firearm, requiring law enforcement intervention and
a hospitalization, all occurring when he was the primary caretaker for J.M. While
he owns a home in Lacona, he moved a substantial distance from the mother due
to his belief that he and J.M. were not safe in the home. He repeatedly accuses
the mother of belonging to a gang, hacking his social media, and breaking into his
home. All unproven. Since the original decree, he acknowledges driving with his
daughter in the vehicle without a driver’s license. Considering all of these
circumstances, there has been a substantial change in circumstances since the
entry of the dissolution decree.
Next, we must consider whether Danielle proved she has a superior ability
to minister to the needs of the child. This is a closer call. Neither of these parents
is perfect. Rocky continues to live with PTSD and the attendant difficulties that
causes in his life. To his credit, he continues to seek outside, professional help as
needed, and he relies on his support network when necessary. Rocky was also
very forthcoming about his relapses6 on methamphetamine and the treatment he
sought to ensure those relapses were a one-time mistake rather than the beginning
of a spiral back into addiction. It is clear that Rocky takes his struggles with mental
health and substance abuse seriously, and he puts in the work to manage both
while also being J.M.’s primary caretaker. We applaud his commitment to being a
healthy adult so he can be a good, available parent to J.M. But we must also
6 Rocky testified he has relapsed “[a] couple times” since the March 2015 decree.
He did not know the exact dates of his relapses but believed the most recent
relapse would have been “[o]ver a year and a half ago . . . maybe close to two”
years before the modification trial.
8
consider how Rocky’s mental health has impacted his parenting of J.M. Cf. In re
D.H., No. 18-1552, 2019 WL 156668, at *2 (Iowa Ct. App. Jan. 9, 2019) (“[A]
parent’s mental health is a factor that should be considered when evaluating the
parent’s ability to care for his or her child.”).
Rocky testified his frequent change of home—including his intentional move
to a one-hour distance from Danielle’s home—is related to his belief that his
previous home was “broken into . . . over a hundred” times. Rocky has accused
Danielle of perpetrating at least some of the break-ins, which Danielle denied doing
during her testimony at the modification trial. The district court made no findings
as to Rocky’s belief his home has been repeatedly broken into nor his allegations
against Danielle. But on our review, we note that no credible evidence supports
Rocky’s assertions. By his own admission, he never reported a single break-in to
law enforcement. And when asked directly if he had any evidence Danielle broke
into his home, Rocky testified, “No evidence.” Plus a witness called by Danielle
who knows both Danielle and Rocky testified that Rocky once confronted him at a
local gas station and, out of nowhere, accused the acquaintance of hacking his
computer. Additionally, J.M.’s maternal grandmother, who Danielle lives with,
testified that when she was unable to reach Rocky through text message, she
called him to say she had arrived to pick up J.M. for a visit. Rocky’s response to
being called was to tell her not to threaten him. The grandmother was asked, “Has
[Rocky] ever accused or made allegations that you are or have harmed him?” and
she responded, “Well, yes, but I just ignore that.” Rocky has made several
decisions, including the location of J.M.’s home and school and the time she can
spend with her maternal family members, based on his belief he is being targeted
9
and in danger. But there is no evidence his belief is supported by facts. 7 We
cannot ignore the impact his apparent paranoia is having on J.M.8
As we already alluded, Danielle has her own issues that impact her
parenting. Like Rocky, she has a history of using methamphetamine. And the
man to whom she was married at the time of the modification trial, with whom she
shared a then-two-year-old child, was actively addicted to methamphetamine and
experiencing his own issues involving DHS. But Danielle had filed for divorce from
her husband and she testified that he had not lived with her and their child since
June 2019. This testimony was corroborated by Danielle’s mother, with whom
Danielle and her other child live. Danielle has lived in the same home with her
parents since the original decree was entered in 2015 and she testified she has no
intention to leave; she is “going to end up owning” the acreage in the future.
As the district court recognized, “Danielle’s circumstances have improved
since the Decree. She has maintained consistent employment and sobriety.”
Danielle is employed as an inspector for construction jobsites. She sometimes
works longs days—testifying she has had to be at a jobsite by 4:30 a.m.—and does
not always receive much notice before she is required to work an extended shift.
But the maternal grandparents have been able to help transport J.M. so Danielle
7 Yet, in a 2017 DHS report investigating the allegation that Rocky had the six-year
old child shoot a BB gun at “monsters,” Rocky told the investigator that “[h]e moved
into [his mother’s] home due to concerns for his own mental health and ongoing
sobriety. He stated that living in the country, away from his family, he struggled
with maintaining sobriety and keeping his mental health in good standing.”
8 As it pertained to his decision to move to West Des Moines, Rocky testified: “It
was driving me crazy. I couldn’t—I couldn’t live life with all the break-ins and all
the threats. It was affecting my daughter. She was having nightmares all the times
about robbers.”
10
does not miss her visits, and Danielle testified her mother would be able to help
out with J.M. before and after school if Danielle’s job required her to be away.
In deciding whether Danielle has shown she can offer superior parenting,
we are being asked extrapolate into the future. This is not an easy task, but our
case law tells us “[t]he past is prologue.” In re Marriage of Hoffman, 867 N.W.2d
26, 43 (Iowa 2016) (Waterman, J., dissenting). The stability Danielle has shown
with her job and her home and the built-in support of her parents, with whom she
lives,9 convinces us Danielle can more effectively administer to J.M.’s needs.
Because there has been a substantial change in circumstances since the
entry of the dissolution decree and we are convinced Danielle can offer superior
parenting, we modify the decree to give Danielle physical care of J.M.
B. Child Support.
Danielle challenges the child-support obligation, arguing the district court
wrongly imputed income to her in making its calculation. Because we modify
physical care, the prior child-support obligation must be changed. We remand to
the district court to recalculate the obligation based on the change in physical care
and the parties’ financial circumstances at the time of recalculation. See id. at 37.
The district court should also determine who will best benefit from the tax
exemption related to the child as a part of the child-support calculation.
9 We view the relationship between J.M. and her grandparents as a positive; we
note the 2015 decree provided for “[a]t least once each month” visitation between
the maternal grandparents and J.M., which was separate and apart from Danielle’s
parenting time with J.M.
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C. Appellate Attorney Fees.
Danielle asks for appellate attorney fees. “In a proceeding for the
modification of an order or decree under this chapter the court may award attorney
fees to the prevailing party in an amount deemed reasonable by the court.” Iowa
Code § 598.36 (2019). While Danielle has been successful on appeal, she earns
substantially more than Rocky, who receives limited income from his military
disability. We decline to award Danielle appellate attorney fees.
IV. Conclusion.
We disagree with the district court; we conclude Danielle proved a
substantial change in circumstances since the entry of the original decree and a
superior ability to minister to the needs of the child. Therefore, we modify the
decree to award Danielle physical care of J.M. We remand for the recalculation of
child support and a determination of the allocation of the tax exemption based on
this change. We decline to award Danielle appellate attorney fees.
AFFIRMED AS MODIFIED AND REMANDED.