                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1822
                               Filed April 5, 2017


IN RE THE MARRIAGE OF JOANNA L. STANLEY
AND TYLER L. STANLEY

Upon the Petition of
JOANNA L. STANLEY, n/k/a JOANNA L. LINN,
      Petitioner-Appellant,

And Concerning
TYLER L. STANLEY,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David M. Porter,

Judge.



      The petitioner appeals the order modifying the child custody and support

provisions of the parties’ dissolution decree. AFFIRMED.



      S.P. DeVolder of The DeVolder Law Firm, Norwalk, for appellant.

      Meegan Keller of Keller Law Office, Altoona, for appellee.



      Considered    by   Potterfield,   P.J.,   and   Doyle   and   Tabor,   JJ.
                                         2


DOYLE, Judge.

       Joanna Stanley, now known as Joanna Linn, appeals the modification of

the decree dissolving her marriage to Tyler Stanley.          She challenges the

modification of the child custody provisions of the decree to grant Tyler sole legal

custody and physical care of the children. She also challenges the trial court’s

calculation of her child support obligation and asks for an award of her trial and

appellate attorney fees.

       I. Background Facts and Proceedings.

       Joanna and Tyler were divorced in September 2013. The terms of the

dissolution decree, to which they stipulated, granted them joint legal custody of

their two children and placed the children in Joanna’s physical care. Under the

parties’ agreement, the decree provides that the children will remain in the

Carlisle School District unless Joanna and Tyler mutually agreed to a change in

enrollment.

       The parties adhered to the custody arrangement until the summer of 2015.

However, after Joanna moved to live with her boyfriend, Loren Cramblit, the

parties’ ability to communicate and co-parent eroded. In August 2015, Joanna

enrolled the children in a different school district without Tyler’s knowledge or

consent, which prompted Tyler to initiate a contempt action. Ultimately, the court

ordered the children remain in the Carlisle School District, found Joanna had

violated the dissolution decree by withholding the children from Tyler and making

unilateral decisions regarding the children, and ordered Joanna to serve a total of

sixty days in jail. Although the court withheld mittimus provided that Joanna
                                             3


allowed Tyler to make up his missed visits with the children, Joanna continued

violating the decree and, as a result, served three days in jail.1

       While the contempt action was pending, Tyler moved to modify the child

custody provisions of the dissolution decree, requesting physical care of the

children.    Joanna cross-petitioned to modify the provisions of the decree

regarding the children’s schooling, how custody was to be exchanged, visitation,

and child support. The court appointed a guardian ad litem for the children.

       The modification action came to a hearing in July 2016. The guardian ad

litem recommended that the court grant Tyler physical custody of the children. In

its September 2016 order, the trial court modified the dissolution decree to grant

Tyler sole legal custody and physical care of the children and ordered Joanna to

pay $545.07 per month in child support. Joanna appeals.

       II. Scope of Review.

       We review orders modifying dissolution decrees de novo.                  See In re

Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give

weight to the trial court’s fact-findings, especially those concerning witness

credibility, though we are not bound by them. See id. “We recognize that the

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.’” See id. (quoting In re Marriage of Walters, 575 N.W.2d 739,


1
  In March 2016, while the modification action was pending, Tyler requested the court
issue mittimus regarding to the contempt finding based on Joanna’s continuing violations
of the decree. After a hearing, the court withheld mittimus but granted Tyler temporary
physical care of the children. Joanna petitioned our supreme court for a writ of certiorari,
arguing the district court abused its discretion by transferring custody of the children to
Tyler and asking to stay the modification action. The supreme court denied the petition
for writ of certiorari and the motion for stay.
                                         4


741 (Iowa 1998)).      We afford the district court “considerable latitude” in its

determination “and will disturb the ruling only when there has been a failure to do

equity.” In re Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005).

       III. Custody.

       Before modifying the custody provisions of a dissolution decree, the court

must find the parties’ circumstances have substantially changed in a way the

parties had not contemplated at the time of the decree’s entry.          See In re

Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). The change

must be more or less permanent and relate to the welfare of the child. See id. If

a substantial change in circumstances is established, the party seeking

modification must show the ability to minister more effectively to the children’s

needs. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

       A. Legal Custody.

       Joanna first argues the district court erred by modifying the decree to

grant Tyler sole legal custody of the children.

       Joint legal custody is preferred in Iowa. See In re Marriage of Bartlett, 427

N.W.2d 876, 878 (Iowa Ct. App. 1988) (“Our statutes express a preference for

joint custody over other custodial arrangements.”). However, joint legal custody

requires parents to agree on basic decisions concerning their children’s

upbringing. See In re Marriage of Miller, 390 N.W.2d 596, 601-02 (Iowa 1986).

Therefore, hostility and inability to communicate between the parents can have a

severe impact on their children. See id. If the parents are unable to cooperate

after joint legal custody is ordered, modification is appropriate.       See In re

Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996).
                                         5


         Joanna and Tyler’s inability to communicate and cooperate under a joint

legal custody arrangement is a substantial change in circumstances that

warrants modifying legal custody of the children. Joanna has demonstrated an

unwillingness to work with Tyler regarding basic parenting issues. In fact, she

has obstructed Tyler’s ability to participate by denying him his scheduled visits

with the children and by failing to consult with him on matters relating to the

children. For instance, Joanna acted unilaterally to change the children’s school

district—in violation of the decree—and to decide it was unnecessary to provide

therapy for the children. Her actions ultimately led the court in the contempt

action to find Joanna was violating the provisions of the dissolution decree in

multiple ways and in an ongoing manner.

         Joanna has demonstrated her refusal to cooperate with Tyler in parenting

the children by insisting on making custody exchanges as difficult as possible for

Tyler, to the detriment of the children. She refused to allow Tyler to temporarily

park his vehicle in her driveway or in the alley behind her home, and she claimed

her neighbors refused to allow Tyler to briefly pull into their driveway for

exchanges. As a result, Tyler was required to park a block and a half away.

Joanna sent Loren to accompany the children, who were fourteen and nine years

old.     During these exchanges, Loren was aggressive and threatening toward

Tyler.     As the district court found based on “the testimony of the credible

witnesses, every custody exchange is fraught with tension and peril.” (Emphasis

in original). Joanna’s claims she was acting on her fear of Tyler, who she claims

was abusive and stalked her, are not substantiated by the record.
                                         6


       The parties’ correspondence also demonstrates Joanna’s inability to

communicate and cooperate with Tyler regarding the children. She failed to reply

to multiple emails inquiring about extracurricular activities, as well as medical and

dental concerns. In one reply, Joanna wrote to Tyler: “If I choose to sign [our

child] up for any extracurricular activities, you will know about it. If your emails

don’t pertain to something important, I’ll block you from my email too.” When

Tyler informed Joanna that he had scheduled a physical to allow their daughter

to participate in sports, Joanna responded:

               Maybe you missed the part about me making the decisions
       about the kids & you no longer are controlling anything. I have
       primary custody of the kids & you have visitation. You know [our
       daughter] is not allowed to play sports until she’s cleared & I will
       make the decisions on whether or not they’re signed up for any
       extracurricular activities from now on. You can do what you want
       while you have them but that does not affect us at home. Unless
       you have [the children] & it’s an emergency do not contact me
       again; I’ve already contacted my attorney & unless you only would
       like to correspond that way, this is the last time I’ll tell you.

When Tyler replied by expressing their daughter’s strong desire to play volleyball

and his belief that their daughter should make the decision to play herself,

Joanna responded:

              I disagree, per the divorce decree; neither parent is to make
       unilateral decisions involving sports. At this time I do not agree with
       either [child] participating in extracurricular activities. They should
       be picked up & dropped before and after school, given the
       appropriate drive time.
              From this point forward, your intimidation, harassment &
       control will need to go through a mediator at the court hearing . . . .

In another exchange, Tyler stated their son wanted to play basketball, provided

her the information about signing up, and stated, “I am ok with him playing.

Please let me know if you feel the same so we can get him signed up. Thank
                                         7


you.” In an email with the subject line “Dumbass,” Joanna responded: “[Our son]

hasn’t brought or mentioned anything about basketball to me & we discuss these

things regularly. Stop trying to control MY life & I’ll let YOU know if he wants

signed up for anything.” In a later email, Joanna categorized Tyler’s attempts to

discuss the children’s appointments and extracurricular activities as “nothing

more than harassing [her].” Although these quotations are from a small sample

of Joanna’s emails to Tyler, they are representative of the overall tone of her

correspondence with him.

       The degree of conflict between the parties prevents them from co-

parenting. Joanna’s animosity toward Tyler permeates her interactions with him,

which are filled with vitriol. She has ignored him and at times threatened him.

Most importantly, Joanna has prevented Tyler from participating in decisions

about the children.    Therefore, the evidence is compelling, and it is in the

children’s best interests, to grant Tyler sole legal custody of the children. We

affirm the modification of the legal custody provision of the dissolution decree.

       B. Physical Care.

       Joanna also challenges the modification of the custody provision of the

dissolution decree to grant Tyler physical care of the children. For the reasons

stated above, we find there has been a substantial change in circumstances

warranting modification.

       Our objective “is to place the children in the environment most likely to

bring them to health, both physically and mentally, and to social maturity.” In re

Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).                The controlling

consideration is the children’s best interests. See In re Marriage of Fennelly, 737
                                         8


N.W.2d 97, 101 (Iowa 2007). We note the legislature has defined the “best

interest of the child” as including, but not limited to, “the opportunity for maximum

continuous physical and emotional contact possible with both parents, unless

direct physical or significant emotional harm to the child may result from this

contact.”   Iowa Code § 598.1(1) (2015) (emphasis added).           In making this

determination, we look at the list of factors set forth in Iowa Code section

598.41(3), as well as those articulated in Winter. See Hansen, 733 N.W.2d at

696. Relevant here are the questions of “[w]hether the parents can communicate

with each other regarding the child[ren’s] needs” and “[w]hether each parent can

support the other parent’s relationship with the child[ren].”      See Iowa Code

§ 598.41(3)(c), (e).

       Ordinarily, the parent seeking to modify the physical care provision of a

dissolution decree must prove “there has been a substantial change in

circumstances since the time of the decree not contemplated by the court when

the decree was entered, which is more or less permanent and relates to the

welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.

App. 2004). That parent then “has a heavy burden and must show the ability to

offer superior care.” Id.; see also In re Marriage of Spears, 529 N.W.2d 299, 301

(Iowa Ct. App. 1994) (stating “once custody of a child has been fixed, it should be

disturbed only for the most cogent reasons”).

       In determining that Tyler is better able to minister to the children’s needs,

the trial court stated:

               The court is wholly unimpressed with [Joanna]’s conduct
       over the past eighteen months. [Joanna]’s dishonesty, her
       willingness to create conflict with [Tyler], as well as her
                                          9


       willingness to embroil the children in this litigation is simply
       unacceptable. More troubling than [Joanna]’s conduct over the
       past eighteen months, is the documented negative shift in the
       children’s demeanor.
               This court finds it is no longer in the children’s best
       interest to maintain the current physical care arrangement. The
       court also finds that [Tyler] can administer most effectively to the
       long-term best interests of the children and place them in an
       environment most likely to bring them to health, both physically
       and mentally, and to social maturity. While the children would
       benefit from regular contact with [Joanna], the court concludes
       [Joanna’s] home environment is unstable, and the children’s
       future in it would be uncertain. Consequently, it is not in their
       best interest to keep them there.

       The trial court’s concerns are amply supported by the record, and we

share those concerns.       Joanna clearly is unable to support the children’s

relationship with Tyler. She denied him the visitation she stipulated to in the

dissolution decree.   After she was found to have violated the decree, Tyler

emailed Joanna asking her if he could have the children for three days of

visitation to make up for the visitation she had denied him; her response was

“Absolutely not.” In another email, Joanna asserted her need to get what she

categorized as Tyler’s “controlling, harassing behavior” out of her and her

children’s lives, claiming, “You will try to control them the way you controlled me.”

       This court shares the district court’s concerns about Joanna’s relationship

with Loren, who has a lengthy criminal history with convictions for domestic

abuse assault.    Loren has displayed aggression toward Tyler during custody

exchanges and called the parties’ daughter a “little bitch.” It is no coincidence

that the deterioration of Joanna’s ability to co-parent with Tyler coincides with the

beginning of her relationship with Loren. The children told the guardian ad litem

that they fear Loren. After speaking with the parties’ daughter in chambers, the
                                         10


court found both she and the guardian ad litem to be “particularly credible when

discussing the damage [Joanna] and [Loren] are causing.” However, in spite of

the obvious concerns about him, Joanna had no objection to allowing Loren

around the children. Moreover, she indicated an unwillingness to abide by any

court order preventing Loren from being around the children during visitation.

       The record shows the Joanna’s actions and decisions have negatively

impacted the children. Tyler has shown a superior ability to put the children’s

needs first in order to act in accordance with their best interests. Based on this

record, we affirm the modification of the dissolution decree to grant Tyler physical

care of the children.

       IV. Child Support.

       Joanna also challenges the portion of the modification order requiring her

to pay Tyler $545.07 per month for child support. Specifically, she argues the

trial court erred in imputing income to her in the amount of $35,000 per year.

       The court may impute income to a party based on that party’s earning

capacity upon finding “that a parent is voluntarily unemployed or underemployed

without just cause.”    Iowa Ct. R. 9.11(4). We calculate earning capacity by

“determining employment potential and probable earnings level based on work

history, occupational qualifications, prevailing job opportunities, earning levels in

the community, and other relevant factors.” Id.

       In determining the amount of child support Joanna should pay, the court

noted Joanna was unemployed at the time of the hearing. However, in looking at

her employment history, the court found Joanna was capable of earning $35,000
                                         11


annually. Joanna disputes this finding, arguing she is unable to work because of

her medical condition.

       There is little evidence in the record concerning Joanna’s medical

condition. Joanna testified that her doctor placed her on medical leave in May

2014 due to herniation in her neck and chronic migraines and claimed her doctor

had not yet released her to work. Joanna also testified that her migraines were

now under control. She testified that she injured her back in January 2016 and

underwent surgery for a lumbar fusion in May 2016.           She claimed she had

physical restrictions as a result of her surgery, testifying: “I cannot lift anything—

not supposed to lift, push, or pull anything over ten pounds for the next six

months. No bending, twisting. Not supposed to sit for long periods of time, and I

have to walk daily.”

       On cross examination, Joanna was asked about the availability of social

security disability benefits:

                Q. Why aren’t you on disability? A. Because it’s still going
       through the paperwork. It takes a long time.
                Q. When did you file for disability? A. I don’t know the exact
       date.
                Q. Do you know the month? A. No.
                Q. Do you know the season? A. I know that it’s in—I know
       that it’s in determination stage right now.
                Q. Do you know the season that you filed for disability? A.
       No.
                Q. Whose attorney are you using? A. I haven’t used one.
                Q. What year was it? A. The—2014.
                Q. So you filed for disability potentially up to two years ago
       and haven’t heard anything? A. It’s in determination. They said it
       could take up to three years.

Her testimony on this issue is simply not credible.
                                        12


      There is no medical evidence in the record to support Joanna’s claims that

she is currently unable to work. Without any such evidence before us, we affirm

the determination of Joanna’s child support payment using income imputed to

Joanna based on her employment history.

      V. Attorney Fees.

      Finally, Joanna challenges the district court’s award of $1000 in trial

attorney fees to Tyler. She requests an award of her trial attorney fees. Both

parties seek an award of their appellate attorney fees.

      A. Trial Attorney Fees.

      Joanna argues it was error to award Tyler $1000 in trial attorney fees

because the court failed to consider Tyler’s needs or her ability to pay. Because

of her financial situation, Joanna requests that we order Tyler to pay her attorney

fees instead.

        The trial court in a modification action may award the prevailing party

attorney fees in an amount the court deems reasonable.           See Iowa Code

§ 598.36. In making this determination, the court must consider, in part, the

respective abilities of the parties to pay. In re Marriage of Guyer, 522 N.W.2d

818, 822 (Iowa 1994). We will only overturn an award if the trial court abused its

discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). In

other words, the trial court’s decision must rest on grounds that are clearly

unreasonable or untenable. See Smith v. Iowa State Univ., 885 N.W.2d 620, 624

(Iowa 2016).

      In determining Joanna should pay $1000 of Tyler’s attorney fees, the trial

court noted Tyler was the prevailing party. It also considered Joanna’s “limited
                                         13


ability to contribute” to Tyler’s attorney fees. The court then found that it was

Joanna’s conduct—“i.e., venomous communication flows from [Joanna] to

[Tyler]”—that led Tyler to initiate the modification action. On this basis, the trial

court found the $1000 award was “fair and reasonable.” We find no abuse of

discretion. Because Joanna was not the prevailing party, she is not entitled to an

award of her trial attorney fees. See Iowa Code § 598.36; In re Marriage of

Mueller, 400 N.W.2d 86, 89 (Iowa Ct. App. 1986) (“Considering the fact that

Sharon was not successful in her application, we do not find an award of attorney

fees proper at this time.”).

       B. Appellate Attorney Fees.

       Both parties ask for an award of their appellate attorney fees. Whether to

make such an award is within our discretion. Spiker v. Spiker, 708 N.W.2d 347,

360 (Iowa 2006). It depends on three factors: (1) the needs of the party making

the request, (2) the ability of the other party to pay, and (3) whether the party

making the request was obligated to defend the trial court’s decision on appeal.

Id.

       Tyler is the prevailing party on appeal. He has a superior ability to pay

attorney fees based on the parties’ relative incomes and earning capacity. We

note that Joanna has incurred a significant amount of trial attorney fees—both

her own and some of Tyler’s—during both the modification action and the

contempt action. This situation is solely of her making. Joanna’s ongoing pursuit

of a court order finding in her favor, while simultaneously violating valid court

orders, has led to this appeal. The irony is not lost on this court. Had Joanna

adhered to the provisions of the decree to which she stipulated, there would have
                                       14


been no basis for Tyler to have filed the contempt or modification actions and

neither party would have incurred attorney fees.

      Although Tyler has a superior ability to pay attorney fees, Joanna’s actions

prompted the litigation before us and Tyler was required to defend this appeal.

Under the circumstances, we find it appropriate to order Joanna to pay $500 of

Tyler’s appellate attorney fees. Costs of this appeal are taxed to Joanna.

      AFFIRMED.
