                   IN THE COURT OF APPEALS OF IOWA

                                 No. 19-1304
                             Filed May 13, 2020


TROY DAVID THORPE,
     Plaintiff-Appellee,

vs.

KELSEY JOANN HOSTETLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Greene County, Gina C. Badding,

Judge.



      Kelsey Hostetler appeals the district court order modifying the parties’

shared care agreement and awarding Troy Thorpe physical care of their child.

AFFIRMED.



      James R. Hinchliff of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

      Michael Lewis of Lewis Law Firm, P.C., Cambridge, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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GREER, Judge.

       Kelsey Hostetler appeals the order modifying the shared-care arrangement

and argues the court erred by granting physical care to Troy Thorpe. Kelsey

argues Troy proved no changed circumstances impacting their 2017 agreed

shared-care arrangement. In the alternative, she urges if physical care is changed

she should be the physical care provider.        Because circumstances changed

making the shared-care arrangement unworkable, on our de novo review we agree

with the district court. Finally Troy requests that Kelsey pay the costs of this

appeal, including his expense for the transcript.

       I. Background Facts and Proceedings.

       Kelsey and Troy never married; they had a child together in 2012. For a

short time, they lived together with the child but then separated when the child was

almost ten months old. At first after the split, Kelsey primarily managed the child’s

caretaking because Troy believed “small kids like that need to be with their

mother.”

       Then in 2013, Troy established his paternity and the parties crafted a formal

custody arrangement involving their child. The child first navigated under a joint

custody arrangement with the mother having physical care.1 But in 2016, Troy

raised several changed circumstances he characterized as “substantial and

material.” Those concerns mainly involved communication between the parents,

Kelsey’s instability, and choice of school for the child. Troy’s impression was that


1 While Kelsey assumed physical care in 2014, the schedule for Troy’s care was
liberal. He had “visitation every other weekend from Friday at 8:00 a.m. to Monday
at 8:00 a.m. and in alternating weeks from Monday at 8:00 a.m. to Wednesday at
8:00 a.m.”
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“there was a lot of moving going on and I didn’t think it was good for the child.” But

while the 2016 proceedings were pending, in June 2017, Kelsey bought a home in

Jefferson, Iowa, blocks from the child’s school. Troy testified Kelsey assured him

she “was going to be sticking around.” With the moving concerns alleviated by

that purchase, the parents stipulated to a shared physical care schedule. And they

agreed that the child would attend the Greene County School District. Under the

newly ordered June 2017 shared schedule, Troy managed the child’s care every

Monday and Tuesday, then Kelsey took care of the child every Wednesday and

Thursday. The parents alternated weekends.

       The background of each parent is important to understand context. At trial,

Troy was thirty years old. He married Shannon in August 2015 and they have had

two children, who were ages two and ten months at the time of trial. Shannon

testified to a strong relationship with Troy and Kelsey’s child. The child calls her

“Mommy Shannon.” Troy and Shannon live in a Jefferson, Iowa farm home, which

he bought from his grandfather’s estate. Troy farms with his family and operates

a trucking business with Shannon. Acknowledging that farming is hard work, Troy

described his schedule as often requiring long hours. During harvest seasons he

might farm until 11:00 p.m. and work seven-day work weeks. Yet when harvest is

over, he finishes the day and is home between 3:00 to 5:00 p.m. In his effort to

operate the trucking company, he often runs loads at night for four hours after the

children go to bed. Shannon works in the local Heartland Co-op office weekdays

from 7:30 a.m. until 4:30 p.m. On a typical weekday morning, they leave home by

6:45 a.m. and take the children to daycare before school starts.
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       At trial, Kelsey, age twenty-six, resided in Waukee, Iowa with her boyfriend,

Aaron Havill, and his two children when they visit him. Aaron invited Kelsey to

move in with him in January 2018 after they met in the fall of 2017 through a dating

site. Kelsey testified the actual move occurred around March 2018. The Waukee

home was fifty-three miles from her Jefferson home. Ultimately, in September

2018, she sold the Jefferson home, closing her option to return there. At the time

of the 2017 stipulation, Kelsey was a licensed practical nurse at the Unity Point

Greene County clinic in Jefferson working for Dr. Van Der Veer. In March 2018,

the doctor left that clinic and invited Kelsey to work for him in a different medical

venture, Caremore. Kelsey stayed at Caremore until February 2019 and then

decided to return to a Unity Point group in West Des Moines. Dr. Van Der Veer

testified that he intends to hire Kelsey once he ramps up a new company called

Exemplary Care. When she joins Dr. Van Der Veer, he estimated that with her

new flexible work schedule, she will be paid $55,000 to $65,000 annually. Kelsey

and the doctor confirmed that the new schedule would be flexible around child

issues.

       By all accounts at trial, Kelsey and Troy’s child was happy, healthy, and

thriving. But just months after agreeing on shared care of the child, in December,

Troy learned from the child that Kelsey moved the two of them to her new

boyfriend’s home in Waukee. Until learning this from the child, Troy claimed he

knew nothing about the new boyfriend or about the residence change. Kelsey

admitted she failed to tell Troy about her move. Now with the move, Kelsey

testified her commute between her Waukee home and Troy’s is just over forty-four
                                          5


miles and to the school around fifty miles. Troy characterized the trip as a “one-

hour drive.”

       Finding the new shared-care arrangement “unworkable,” Troy applied to

modify the 2017 stipulation.     His September 2018 filing highlighted changed

circumstances involving Kelsey’s move to Waukee, and, like his 2016 modification

petition, poor communication issues and Kelsey’s history of instability. Kelsey

maintains these are long-standing issues for Troy and no change impacted the

shared schedule adversely to justify a modification. At trial, the district court

questioned “whether the June 2017 stipulated modification should be modified

again.” After hearing the evidence, the district court agreed with Troy’s position

and found the shared care schedule was unworkable.             Determining that the

evidence “tip[ped] the scales” in Troy’s favor, the district court awarded joint legal

custody with Troy having physical care. The court established liberal visitation for

Kelsey and required her to pay child support of $469.69 per month. After moving

to reconsider the decision, the district court granted Kelsey daily telephone contact

between her and the child but denied all other requests to change the decision.

Kelsey appeals the court’s custody order.

       II. Scope of Review.

       Our review of matters involving child custody and child support is de novo.

Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). “[W]e examine the

entire record and decide anew the issues properly presented.” In re Marriage of

Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). While we are not bound by the fact-

findings of the district court, we give them weight, especially as to credibility
                                           6

determinations. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct. App.

2002).

         III. Is Modification of the 2017 Custody Agreement Warranted?

         Although Troy listed several changed circumstances, at the heart of this

modification is the disagreement over whether this shared-care arrangement is

workable given Kelsey’s move. Kelsey advocates for retaining the shared-care

plan. Troy counters with his opinion that circumstances have changed because

the previous custody plan can no longer work. To help with our review, we benefit

from an extremely well-written and fact specific district court decision. In the end,

the district court agreed with Troy and we agree with the district court.

         Troy faced a heavy burden in proving that a modification is warranted. See

In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980). The guiding

principles used to determine whether a modification should occur are well-

established:

         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.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). And our primary

focus is the best interests of the child. In re Marriage of Fennelly, 737 N.W.2d

91, 101 (Iowa 2007). With that in mind, “once custody of children has been fixed
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it should be disturbed only for the most cogent reasons.” Frederici, 338 N.W.2d

at 158.

       To condone a change in the last custodial order, Troy must prove a

substantial and material change in circumstances since the June 15, 2017 order

changing custody. See id. And as the district court examined the modification

standards, the critical substantial change impacting custody became Kelsey’s fifty-

three mile move to Waukee. Yet Kelsey notes the potential to relocate was a

concern of Troy’s when he signed the shared-care agreement. So it cannot be a

changed circumstance not contemplated.          Indeed, it was a listed change of

circumstance noted in Troy’s 2016 petition to modify. And Kelsey also points to

Troy’s answer to an interrogatory where he stated: “[w]e also wanted to have

something in writing stating that [the child] is ordered to attend school in the Greene

County School District no matter where the Respondent decided to relocate next

unless it was discussed and agreed to by both parties.” (Emphasis added.)

       Countering that argument, both Troy and Kelsey testified that Kelsey

assured Troy that the purchase of the Jefferson house meant she was stable and

staying in the community. See In re Marriage of Slayman, No. 16-1240, 2017 WL

2181865, at *2–3 (Iowa Ct. App. May 17, 2017) (confirming the father’s move was

not in the court’s contemplation where he assured the mother his plan was to stay

in the current location). Otherwise, Troy claims he would not have agreed to a

shared-care plan and the requirement the child attend the Greene County Schools.

       But the move to Waukee came after shared care started and was unknown

to Troy when he agreed to shared care. Kelsey’s subterfuge about the move

reinforces Troy’s version that it was not an expected change. Describing the
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current custodial care situation, Kelsey notes that the shared-care experience

lasted about twenty-three months before the modification trial and no one testified

to any negative effect on the child. Of those months, she argues they shared care

for nine months (thirty-nine percent of the time between the proceedings) while

both lived in Jefferson. And without detriment to the child, for the remaining

fourteen months (or sixty-one percent of the time between proceedings) Kelsey

lived in Waukee and Troy remained in Jefferson. Kelsey’s efforts at maintaining

the status quo in spite of the travel distance has been extraordinary. Specifically

she lists efforts mitigating the claim the shared care arrangement was

“unworkable”: (1) Kelsey handled all transportation between the homes and

school, the child remained in the Jefferson school district as earlier agreed, (2)

Troy testified his day-to-day life was unaffected by Kelsey’s move, and (3) the child

missed no Jefferson activities since the move. But our focus remains on not

whether this schedule can managed, but if it is in the best interests of the child

over the long-term to continue as is.

       So we return to the best interests of the child. While all these efforts

reduced the stress of the move, Kelsey failed to acknowledge any harm the move

could bring to the child, now or in the future. She had no concerns about the one-

hour drive back and forth between the Waukee house and Jefferson school. She

saw no issues with having the child participate in extracurricular activities part-time

in Waukee and part-time in Jefferson. Troy agrees that joint legal custody is

appropriate, but claims a child shared-care arrangement with equal custodial time

is impossible because of the distance between Jefferson and Waukee. See In re

Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007) (noting that “[j]oint physical
                                          9


care anticipates that parents will have equal, or roughly equal, residential time with

the child”).

       Despite the benefits Kelsey gained from her move and that she has reduced

the impact on Troy, the plan requires that the child travel an hour each way

between Waukee and Jefferson either to school or for the transfers of care. As the

child ages and becomes more involved in extracurricular activities, the stress of

the commute falls on the child disproportionately. “Physical care issues are not to

be resolved based upon perceived fairness to the spouses, but primarily upon what

is best for the child.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Because the parents now reside an hour drive apart, the shared-care arrangement

is now unworkable and not in the best interests of the child. See Teggatz v.

Ellingson, No. 19-1816, 2020 WL 2065944 at *2 (Iowa Ct. App. Apr. 29, 2020)

(finding the hour travel time between the parties’ homes was a “major obstacle” to

joint physical care); Slayman, 2017 WL 2181865, at *3 (declining to award joint

physical care because a ninety-eight mile commute was not in the best interest of

the child); Fitch v. Wurtz, No. 12-1646, 2013 WL 988897, at *3 (Iowa Ct. App.

Mar. 13, 2013) (noting that relocation of parent to location more than fifty miles

away may deprive child of benefits of joint physical care requiring a change in the

plan); In re Marriage of Scurr, No. 11-1905, 2012 WL 2122306, at *1 (Iowa Ct. App.

June 13, 2012) (declining to award joint physical care because a forty-five minute

commute was not in the best interest of the child); In re Marriage of Metcalf, No.

06-0324, 2006 WL 3018228, at *1 (Iowa Ct. App. Oct. 25, 2006) (finding that a

move out of a child’s school district requiring a drive of an hour or more between

homes makes joint physical care arrangement unworkable).
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       We find Kelsey’s move was a substantial and material change in

circumstance requiring a modification of the shared care plan. Given that decision,

we must select the superior physical care provider.

       IV. Who Can Best Minister to the Child’s Needs?

       After two days of trial the district court found two factors that “tip[ped] the

scales in Troy’s favor.” The first was the stability Troy offered. The second was

the instability of Kelsey’s life history.    The court reviewed the positives and

negatives of each parent before concluding Troy was best suited as the physical

care provider. Stability and continuity of caregiving are important considerations

in determining who should be physical care provider. Hansen, 733 N.W.2d at 696.

“The objective of a physical care determination is to place the children in the

environment most likely to bring them to health, both physically and mentally, and

to social maturity.” Id. at 695.

       And when both parents are superior by all standards our task is

monumental. Here the district court struggled, calling it “a close case.” We agree.

We first acknowledge that a new physical care schedule that significantly contrasts

with the child’s “past experience can be unsettling, cause serious emotional harm,

and thus not be in the child’s best interest.” Id. at 697. Because these parents

start on equal footing in our review and because Troy proved a material and

substantial change in circumstances, we impose the standard of who has the

ability to “minister more effectively to the routine daily needs of the [child].”

Frederici, 338 N.W2d at 160.

       Troy’s key point is that Kelsey reverted to her history of unstable

relationships and home situations. And the district court found Kelsey’s instability
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most concerning. “In custody modification cases, stability is the trump card.”

Rolling v. Hoffman, No. 14-0102, 2014 WL 2600315, at *2 (Iowa Ct. App. June 11,

2014). Within months after assuring Troy she would stay in her newly purchased

Jefferson home, Kelsey moved to be with Aaron after just meeting him in the fall

of 2017.2 Some insight into the relationship came from text messages Kelsey sent

to her friend in the summer of 2018. According to Kelsey, her relationship with

Aaron was rocky and without love. See In re Marriage of Decker, 666 N.W.2d 175,

179 (Iowa Ct. App. 2003) (commenting that the type of relationship a parent

establishes with an in-home companion might be “an indication of where that

parent’s priority for his or her child[ ] is in his or her life”). These text messages

detailed exchanges between Kelsey and Aaron that involved screaming, name

calling, and throwing an item while the children were present. Kelsey confided “I

pray every night we find a way out of this hell.” Kelsey’s descriptions of events in

those text messages revealed a chaotic home life in Waukee in the summer of

2018 that would not have suited the best interests of the child. Even Kelsey

characterized the situation as an unsafe environment. She also clarified at trial

that the couple had counseling and resolved those issues. But the district court,

after hearing similar complaints about Aaron from his previous wife and after

observing the testimony describing the concerning behaviors, found that Kelsey

and Aaron’s relationship “appear[ed] less than stable to the Court.” Finally the

district court also considered Kelsey’s pre-modification history of short-term


2There is a discrepancy in the record about the move-in date. Kelsey testified it
was in March 2018. Kelsey’s boyfriend testified that he separated from his now
ex-wife in October 2017, Kelsey’s move occurred in January 2018, and his divorce
was finalized in March of 2018.
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relationships with men and multiple changes in residence as a factor supporting

her instability. See In re Marriage of Rierson, 537 N.W.2d 806, 808 (Iowa Ct. App.

1995) (“It is well-settled children need a stable and caring home environment.”).

      Kelsey urged, and the court considered, factors that militate against an

award of physical care to Troy. Those concerns related to Troy’s controlling nature

over Kelsey, the reality that Troy’s schedule requires that Shannon cover much of

his parental-care responsibilities, Troy’s laborious work schedule, and Troy’s non-

involvement in the child’s medical care and the activities in Waukee. Noting the

behaviors of Troy and Shannon are getting worse, Kelsey testified she feels she

is “told what [she] should do” rather than discussing what should happen with the

child. Troy delegates to Shannon the communication with Kelsey about the child

because of Troy’s work schedule. Without the help of his wife, we have no clear

picture of how Troy would operate on his own as a parent. While these areas of

concern mitigate against Troy as the physical care parent, we have the history of

his care over the life of the child. See In re Marriage of Mayfield, 577 N.W.2d 872,

874 (Iowa Ct. App. 1998) (finding the parent with physical care has the

responsibility to engage the other parent in serious decisions about the child).

Added to Troy’s track record, Shannon has been involved with the child for many

years, he has involved extended family in the area, and the child has a close

relationship with the younger half-siblings.    Keeping the half-siblings together

weighs in Troy’s favor. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476,

480 (Iowa 1993) (noting that siblings, including half-siblings, should be separated

only for the most compelling reasons).         Thus, based on these factors and
                                           13


considering the creditability findings of the district court, the scales do tip in Troy’s

favor. We affirm the award of physical care in Troy.

       V. Costs.

       We deny Troy’s request for all costs of the appeal.

       VI. Conclusion.

       In our de novo review we find that a substantial change in circumstances

justified modifying the custodial arrangement. We affirm the district court decision

to award Troy physical care. We deny the request for payment of costs to Troy.

       AFFIRMED.
