                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0683
                            Filed November 8, 2017


IN RE THE MARRIAGE OF ZACHARY RYAN KAPFER
AND JILL MARNEE KAPFER

Upon the Petition of
ZACHARY RYAN KAPFER,
      Petitioner-Appellee,

And Concerning
JILL MARNEE KAPFER n/k/a JILL MARNEE SWANSON,
      Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Paul R. Huscher,

Judge.



      Jill Swanson appeals a district court order denying her request to modify

the joint-physical-care provision of the decree dissolving her marriage to Zachary

Kapfer. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

INSTRUCTIONS.



      Allison M. Steuterman of Brick Gentry, P.C., West Des Moines, for

appellant.

      Zachary R. Kapfer, Clive, self-represented appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

       Jill Swanson appeals a district court order denying her request to modify

the joint-physical-care provision of the decree dissolving her marriage to Zachary

Kapfer.     Jill contends escalating friction in her relationship with Zachary

constitutes a material and substantial change in circumstances warranting

modification. Citing her efforts to involve their three children in extracurricular

activities and obtain medical treatment for them, Jill maintains she should be

granted physical care. Next, Jill argues the district court should have modified

the decree to grant her the right to make final decisions about the children’s

education, health care, religious upbringing, and extracurricular activities if she

and Zachary reach an impasse.

       Because our de novo review of the record reveals joint physical care is not

working and is having a disruptive effect on the children’s lives, we reverse the

district court order and remand for modification of the dissolution decree to grant

physical care to Jill and liberal visitation to Zachary. But we decline Jill’s second

modification request—the parties will continue to have joint legal custody,

providing them “equal participation in decisions affecting the [children’s] legal

status, medical care, education, extracurricular activities,         and religious

instruction.” Iowa Code § 598.41(5)(b) (2012).

       I.     Facts and Prior Proceedings

       Jill and Zachary divorced in May 2012. They have three children together,

A.M.K. (born in 2006), J.E.K. (born in 2008), and N.E.K. (born in 2010). The

district court awarded the parties joint legal custody, but in accordance with a

parenting plan submitted by the parties, the court ordered: “[I]n the event the
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parties cannot agree as to education decisions, non-emergency health care,

religious upbringing, and extracurricular activities, [Zachary] shall have the right

to make the final decision.”1     The court granted Zachary physical care until

September 2013; after that time, the parties would transition to shared care.2

       Immediately after the divorce, Jill and Zachary generally got along well.

Then both parties remarried: Jill in November 2013 and Zachary in August 2014.

In the months leading up to Zachary’s marriage, Jill found her relationship with

Zachary became strained. In June of 2014, she filed an application to modify the

physical-care provision of the custody decree, alleging a “substantial breakdown

in communication” and asking the court to grant her physical care. Jill also filed

an application for rule to show cause, alleging Zachary failed to provide child

support, to reimburse Jill for costs, and to attend mediation to address issues

with the children.

       Over the next year and a half, those matters remained pending while Jill

and Zachary tried to resolve their disputes through mediation. But the parties

continued to disagree about a variety of issues, including the children’s

extracurricular activities, their basic medical care, and appropriate discipline

practices.   Following a mediation session in October 2014, Jill and Zachary

1
  In a later provision, the court ordered:
         [W]henever possible the parents must discuss the issues and attempt to
         reach an agreement based on what is best for the children at that
         particular time. If the parents are unable to reach an agreement on an
         issue about the children after discussing it with the other parent, either
         may initiate dispute resolution . . . .”
2
  Jill explained she and Zachary had agreed upon this provision because, at the time of
the divorce, Jill did not yet have a home that would accommodate all three children and
because she was “dealing with some anxiety and some depression” and “trying to get
[herself] in a better place.” Zachary testified he agreed to the arrangement because he
believed Jill was going through “a party phase in her life” and “just needed to get her
party phase out.”
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agreed to begin communicating through the website TalkingParents.com, which

allowed them to keep an accurate record of their interactions.3

        After the district court denied Jill’s request for a continuance in early

February 2016, Jill voluntarily dismissed the actions. But four months later, on

June 21, 2016, Jill filed a second application to modify, again asking for physical

care. At trial, Jill also sought to modify the provision allowing Zachary to act as

the final decision maker in the event of a disagreement between them. The court

appointed a guardian ad litem (GAL) for the children at Jill’s request.

        In his answer, Zachary admitted to a breakdown in communication but

denied it amounted to a material and substantial change in circumstances; he

also requested physical care. But at trial, Zachary asked the court to deny Jill’s

modification request and continue the parties’ existing shared-care arrangement.

        The GAL filed a report with the court on February 23, 2017. She opined

the shared-care arrangement was unworkable because of the increasing strain in

communications and lack of cooperation between Jill and Zachary. The GAL

also reasoned the parents’ “very different rules at their respective homes and

very different parenting philosophies . . . made transitions between the homes

very difficult for the children.” Citing Zachary’s inflexibility regarding parenting

decisions; tension surrounding Zachary’s wife, Janné; and Zachary’s persistent

criticism of Jill; the GAL recommended the court award physical care of the

children to Jill.


3
 TalkingParents.com is a web-based service that maintains a record of communications
between parents, tracks when each parent logs in or out of the service, and indicates
when each parent views a new communication. See Talking Parents, http://www.talking
parents.com (last visited Oct. 17, 2017).
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       The case proceeded to trial on March 1, 2017.              Jill testified her

communication with Zachary had worsened so much that she could no longer

bring herself to look at Zachary’s acrimonious Talking Parents messages, instead

relying on her father to screen her inbox and let her know when she needed to

respond. She complained Zachary placed unnecessary stress on the children by

refusing to allow them to participate in sports practices or games while in his care

and requiring them to have separate belongings for each household, including a

separate flute for A.M.K.    Zachary acknowledged the parties’ communication

difficulties, complaining Jill frequently scheduled medical appointments for the

children without informing him. He also admitted that because he lacked Internet

access at his home, he tended to check Talking Parents only once a day.

       The district court decided Jill had not “proved a substantial and material

change in circumstances which requires a change in the shared physical care

arrangement presently contained in the decree.”       While the court found “the

[GAL’s] recitation of salient facts in her [r]eport is accurate” and acknowledged

Jill and Zachary’s ability to communicate “has deteriorated somewhat,” it

concluded Jill had not demonstrated a “complete breakdown in communication”

sufficient to constitute a substantial change of circumstances.      But the court

found the provision granting Zachary the right to make final decisions in the event

of a disagreement to be “contrary to the premise of joint legal custody” and

deleted that language from the decree. Jill now appeals the district court’s order.

       II.    Scope and Standard of Review

       Because proceedings to modify the physical care provisions of a

dissolution decree lie in equity, our review is de novo. See In re Marriage of
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Sisson, 843 N.W.2d 866, 870 (Iowa 2014).         We are not bound by the fact-

findings of the district court, but we do give them weight, particularly when

considering witness credibility. See id. Only when there has been a failure to do

equity will we disturb the district court’s determination. See In re Marriage of

McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

       III.   Analysis

       As the party requesting a modification of the physical-care provision, Jill

had the burden to prove by a preponderance of the 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.”

In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (citation omitted). In

addition, the changed circumstances must (1) not have been contemplated by

the decretal court, (2) be more or less permanent, and (3) relate to the children’s

welfare. Id. Finally, Jill was required to prove she could more effectively minister

to the children’s needs. See id. Relying upon In re Marriage of Harris, 877

N.W.2d 434, 441 (Iowa 2016), Jill argues the district court erred in finding she

had not demonstrated these requirements.

       A. Material and Substantial Change in Circumstances

       Jill contends she satisfied her burden of proving a material and substantial

change in circumstances because she and Zachary can no longer communicate

effectively. She identifies three key areas of disagreement, which she believes

demonstrate the extent of the parties’ communication breakdown: (1) the

children’s medical care, (2) the children’s extracurricular activities, and (3) the

parties’ parenting styles. Jill maintains Zachary “often refuses to acknowledge a
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health or behavioral problem, indicating that the kids do not have any issues

while staying with him and suggesting [Jill] is either lying about the problems or

that the kids only have problems when they are with her.” Next she asserts

Zachary “refus[es] to take the children to extracurricular activities that he did not

arrange when they fall on his days with the children.” And she alleges Zachary

needlessly forbids the children to take personal belongings between their

households and frequently disciplines the children a second time for behavior

that occurred while they were in her care.

       Even Zachary, who refutes many of Jill’s allegations and purports to

defend the district court’s decision, devotes much of his argument on appeal to

describing incidents in which the parties failed to communicate. He accuses Jill

of “mak[ing] unilateral decisions” about the children’s medical care, taking the

children to counseling and other medical appointments, and keeping the children

home from school without his knowledge.

       Many of the parties’ difficulties stem from their increasing inability to

communicate with each other. Although the parties began using Talking Parents

to resolve their disputes, the web-based system appears to have had the

opposite effect. In a string of electronic messages, Jill and Zachary take turns

berating the other for attempting to communicate via other means. As the GAL

noted, Zachary, in particular, often sent Jill lengthy messages that were both

“condescending and critical.”

       While Zachary and Jill originally had been able to negotiate transitions

between their households, the parents’ increasingly rancorous relationship took a

toll on the children. The GAL reported the transitions between the two homes
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were “very difficult” for the children because Zachary and Jill imposed different

rules and employed different parenting philosophies. Zachary and Janné insisted

the children call Janné “mom” and they referred to Jill as “the other mom.”

A.M.K. expressed sadness that Zachary and Janné sometimes “make fun” of her

mom. The younger children have experienced problems during the shared-care

arrangement. J.E.K struggled a bit in school and required a tutor to catch up in

reading. N.E.K. had occasional temper tantrums.

       When shared custody provisions do not evolve as envisioned by the

parents or the court issuing the decree, and parents cannot cooperate or

communicate concerning their children, it is appropriate for a district court to find

a substantial change in circumstances and modify custody. Harris, 877 N.W.2d

at 441 (quoting In re Marriage of Hansen, 733 N.W.2d 683, 698 (Iowa 2007) for

the proposition that a key consideration in deciding if joint physical care is in the

children’s best interests is the ability of the parents to “communicate and show

mutual respect”). As our court noted in Melchiori v. Kooi, 644 N.W.2d 365, 368

(Iowa Ct. App. 2002):

       Discord between parents that has a disruptive effect on children’s
       lives has been held to be a substantial change of circumstance that
       warrants a modification of the decree to designate a primary
       physical caregiver if it appears that the children, by having a
       primary physical caregiver, will have superior care.

       On our de novo review, we find the mounting discord between Zachary

and Jill disrupted the lives of their three children and warranted modification of

the decree. The district court’s confidence in the parents’ ability to communicate

in their children’s best interests under a joint-physical-care arrangement was

misplaced. See Harris, 877 N.W.2d at 441.           We conclude Jill satisfied her
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burden to prove a material and substantial change in conditions since entry of the

decree that were not contemplated by the decretal court, are more or less

permanent, and involve the children’s welfare.

       B. Parent with Ability to More Effectively Meet Children’s Needs

       The next question is whether Jill or Zachary can “administer most

effectively to the long-term best interests of the children and place them in an

environment that will foster healthy physical and emotional lives.”      See In re

Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct. App. 1998). While Jill is not

blameless in the failure of the joint-physical-care arrangement, we conclude she

is better suited than Zachary to minister to the children’s needs.

       Significantly, the record shows Jill would be more amenable to promoting

the children’s relationship with Zachary than he would be encouraging their

interaction with Jill.   See In re Marriage of Holst, No. 02–0381, 2002 WL

31641452, at *2 (Iowa Ct. App. Nov. 25, 2002) (“[A] parent's willingness to

encourage contact with the noncustodial parent is a critical factor in determining

custody.”). For example, the children did not feel comfortable calling Jill from

Zachary’s house but had no reluctance to call Zachary from Jill’s house. Neither

does it foster a positive relationship when Zachary and Janné refer to Jill as “the

other mom” at their home and make derogatory comments about Jill in front of

the children. We also find Jill has been more committed than Zachary to allowing

the children to engage in the extracurricular activities they enjoy—like dance, flag

football, and soccer. And Jill has been the parent who has secured medical

treatment for the children.    Accordingly, we conclude the decree should be
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modified to Jill having the physical care of the children. On remand, the district

court should establish a schedule for visitation by Zachary and set child support.

      C. Final-Decision-Maker Provision.

      Lastly, the district court vacated language in the original decree that

granted Zachary the power to act as final decision maker “in the event [the]

parties cannot agree as to education decisions, non-emergency health care,

religious upbringing, and extracurricular activities.” On appeal, Jill contends the

district court should have modified the decree to grant her that power.        We

disagree.   Allocating physical care of the children to Jill should not deprive

Zachary of his rights and responsibilities as their joint legal custodian.

Specifically, he should continue to enjoy equal participation in decisions

impacting the children’s “legal status, medical care, education, extracurricular

activities, and religious instruction.” See Iowa Code § 598.41(5)(b). Because Jill

and Zachary are joint legal custodians, they have an “ongoing mutual

responsibility to cooperate in the best interests of the children.” See Harris, 877

N.W.2d at 444.

      IV. Conclusion.

      We modify the dissolution decree and allocate to Jill the physical care of

the three children.   We remand to the district court to establish a visitation

schedule and to determine child support based upon the parties’ present

circumstances. We affirm the district court’s action vacating the final-decision-

maker provision in the original decree.          Costs are taxed to Zachary.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

INSTRUCTIONS.
