                       IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1408
                                Filed May 20, 2015


IN RE THE MARRIAGE OF MELISSA SUTTON
AND PATRICK SUTTON

Upon the Petition of
MELISSA SUTTON,
      Petitioner-Appellee,

And Concerning
PATRICK SUTTON,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Duane

Hoffmeyer, Judge.



       Patrick Sutton appeals the modification of the physical care provision of

the decree of dissolution of his marriage to Melissa Sutton. AFFIRMED.



       Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

       Tara Vonnahme, Sioux City, for appellee.



       Considered by Danilson, C.J., Potterfield, J., and Eisenhauer, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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POTTERFIELD, J.

       Patrick Sutton appeals the modification of the decree of dissolution of his

marriage to Melissa Sutton. The modification granted Melissa physical care of

the parties’ youngest daughter, S.M.S., and awarded her child support.

       I. Factual and Procedural Background

       The decree dissolving the parties’ marriage was entered on June 12,

2012. The decree granted physical care of S.M.S. and the parties’ older twin

daughters to Patrick.1 The parties were to share joint legal custody. Since that

time, the parties’ parenting relationship and ability to communicate has broken

down beyond repair.

       The record reflects a litany of ongoing disputes between the two, a

sampling of which we discuss here. Each party accuses the other of subjecting

the children to emotional abuse. Patrick refuses to communicate with Melissa by

telephone and has disabled text messaging so Melissa cannot send him text

messages.     He will only communicate with her through his work email.             He

admitted he did not disclose the children’s medical issues to Melissa, particularly

the children’s recently prescribed regimen of anti-anxiety medications. Patrick

claims Melissa has improperly refused to reimburse him for medical expenses.

The expenses he claims include purchases of cough drops and Tylenol. Melissa

has lost visitation time with S.M.S. Each party blames the other for the loss (or

forfeit) of visitation hours. Melissa takes exception to Patrick sleeping in the

same bed as S.M.S., who is currently ten years old. One of S.M.S.’s therapists

1
 The twins will turn eighteen in just a few weeks, and they are not the subject of this
appeal or the underlying modification.
                                          3


agreed that behavior was inappropriate. Patrick claims the behavior was not

inappropriate based on the circumstances of his living space and that he no

longer sleeps with her through the night.

       On a number of occasions, Patrick called the police to Melissa’s home

while the children were visiting. Patrick’s demeanor with officers was described

as “very rude.” He demanded the police arrest Melissa, though the police never

did so. The testimony of one of the reporting police officers indicated that on one

occasion, Patrick was present outside Melissa’s house, “very loud, very

demanding, and using profanity.” The officer testified Melissa appeared to be in

fear and was “very concerned about her safety and her children’s safety.”

       Patrick describes Melissa as a chronic liar. He relies heavily on the fact

the twins have decided not to attend visitations with their mother for the last

several years. He says the twins made that decision on their own because they

“were no longer willing to be lied to by Melissa.”

       The parties both state S.M.S. was previously a very happy and outgoing

girl. Since the dissolution of the parties’ marriage, however, she has become

anxious, unhappy, and socially inhibited as a result—at least in part—of the

acrimony festering between the parties.        S.M.S. and the twins have been

undergoing therapy.

       Three different therapists testified at the modification hearing. Two are

currently seeing the children.     The third, Kelly Wagner, was discharged by

Patrick. Patrick alleges he discharged Wagner because she was not spending

enough time with S.M.S. Wagner, however, testified she believed Patrick would

not have discharged her if she had been willing to state Melissa emotionally
                                               4


abused S.M.S.           Wagner testified she believed S.M.S. had actually been

emotionally abused by Patrick. She testified, “Throughout the course of therapy,

I felt an intimidation from Patrick.” She believed S.M.S.’s behavior reflected that

intimidation. She also testified Patrick intimidated Wagner herself such that she

had concerns about coming to court to testify against him. She concluded the

safest, best environment for S.M.S. was in Melissa’s home.               The other two

therapists testified on Patrick’s behalf and did not agree with Wagner’s

assessment of Patrick.

          Patrick testified on his own behalf. The district court noted, “Patrick, when

testifying, comes across as angry and vengeful.” During the hearing, the court

admonished Patrick for speaking out in the courtroom during other witness’s

testimony, including commentary that a testifying police officer was a liar.

          The district court issued its modification order on July 29, 2014. It found,

“Patrick is one of the worst joint custodians this court has ever seen.” It granted

Melissa physical care of S.M.S., awarded child support, and established a

visitation schedule for Patrick to see S.M.S.                  Patrick now appeals the

modification order.2

          II. Standard of Review

          We review dissolution cases, including modifications of dissolution

decrees, de novo. See Iowa R. App. P. 6.907; In re Marriage of Okland, 699

N.W.2d 260, 263 (Iowa 2005). “Although our review of the trial court’s award is

de novo, we accord the trial court considerable latitude in making this


2
    Melissa did not file an appellate brief in these proceedings.
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determination and will disturb the ruling only when there has been a failure to do

equity.” In re Marriage of Romanelli, 570 N.W.2d 761, 763 (Iowa 1997). “We

give weight to the findings of the district court, especially to the extent credibility

determinations are involved.” In re Marriage of Hansen, 733 N.W.2d 683, 690

(Iowa 2007); see In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct. App.

1994) (“The district court is greatly helped in making a wise decision about the

parties by listening to them and watching them in person.” (Citation and internal

quotation marks omitted)).

       III. Discussion

       Patrick first asserts Melissa has failed to show a substantial change in

circumstances to support the necessity of modifying the custodial terms of the

dissolution decree. Modification of custodial terms is only proper if “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).

       Patrick attacks the district court’s finding of a substantial change in

circumstances by discussing a long list of individual factors, including S.M.S.’s

difficulty making friends, her introversion, the discharge of her counselor,

Patrick’s refusal to allow Melissa to take S.M.S. during summer visitation, and

several others.      Patricks’ point-by-point refutation alleges none of the

circumstances discussed is enough to satisfy the requirements of a substantial

change. He fails to recognize, however, that the circumstances he discusses are

merely symptoms that, when considered in the aggregate, reflect the larger
                                         6


substantial change in this case: the complete breakdown of the parents’ ability to

communicate and work together as joint custodians and the attendant damage to

S.M.S.’s well-being.    The parties’ relationship now suffers from a level of

animosity not contemplated by the court at the time of the dissolution decree.

The parties’ behavior indicates these circumstances are more or less permanent,

and the effect on the welfare of S.M.S. is well-documented in the record. We

affirm the district court’s finding of a substantial change in circumstances

supporting modification of the physical care provisions of the dissolution decree.

       Patrick next claims Melissa has not shown she can provide superior care.

“The parent seeking to change the physical care from the primary custodial

parent to the petitioning parent has a heavy burden and must show the ability to

offer superior care.”   Id.   The district court recognized, and we agree, that

Melissa’s parenting has not been perfect. Both parties share in the blame for the

breakdown of their relationship as joint custodians of the children.

       However, we further agree with the district court: Patrick’s ability to

minister to S.M.S’s well-being is compromised by his vindictive and

uncooperative behavior. S.M.S.’s emotional well-being has been damaged as a

result. The district court cited In re Marriage of Winnike, 497 N.W.2d 170, 174

(Iowa Ct. App. 1992), in which this court held, “In determining custody we can

give great weight to a parent’s attempt to alienate a child from her other parent if

evidence establishes the actions will adversely affect a minor child.”

       Melissa demonstrated good-faith efforts to improve her relationship with

her daughters by supporting their therapy and attending sessions on her own and

with her children. She has generally kept the channels of communication with
                                             7


Patrick open and worked to remain involved in S.M.S.’s life despite the difficulties

she has faced throughout the parties’ contentious post-dissolution relationship.

Relative to the quality of Patrick’s ability to minister to S.M.S.’s physical,

psychological, and emotional well-being, Melissa has demonstrated her ability to

offer superior care.

       On the whole, our “primary consideration is the best interests of the child.”

In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999); see Iowa Code

§ 598.41(3) (2013). We find the district court’s modification order provides for

S.M.S.’s best interests.     We therefore decline to disturb the provisions of its

modification order awarding Melissa physical care of S.M.S., its award of child

support,3 or its visitation schedule.

       IV. Conclusion

       The record shows by a preponderance of the evidence there is a

substantial change in circumstances supporting the district court’s modification

order. Similarly, the record shows by a preponderance of the evidence Melissa

can provide superior care. On our de novo review, we find the district court’s

modification order achieves an equitable result in the best interests of the child,

and we therefore affirm the order. In consideration of this result, we exercise our

discretion to assign each party its own costs on appeal.

       AFFIRMED.

3
  We decline to disturb the modification order as to Patrick’s alternative claim asking this
court to allow him to claim S.M.S. as a dependent for tax purposes. Patrick has not
asserted how such a result is required to achieve equity between the parties other than
to explain the parties’ previous tax situation when the twins were also claimed as
dependents. We find equity has been achieved without granting Patrick the exemption.
See In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996).
