                   IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1919
                              Filed September 10, 2015

IN RE THE MARRIAGE OF MARTIN G. COON
AND REBEKAH A. COON

Upon the Petition of
MARTIN G. COON,
      Petitioner-Appellant,

And Concerning
REBEKAH A. COON,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Buena Vista County, Don E.

Courtney, Judge.



      The father appeals the modification decree awarding legal custody of the

parties’ children to the mother. AFFIRMED.



      R. Scott Rhinehart of Rhinehart Law, P.C., Sioux City, for appellant.

      Nicholas J. Brown of Nick Brown, P.C., Storm Lake, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
                                         2



MCDONALD, J.

        Martin and Rebekah Coon married in 2006 and divorced in 2011. Two

children were born to the marriage: K.C., a daughter, born in 2007; and J.C., a

son, born in 2008. The dissolution action was bifurcated. A decree dissolving

the marriage and dividing the property was entered on April 15, 2011. A second

decree regarding custody and placement of the children was entered on April 10,

2012.    The decree awarded the parties joint legal custody of the children,

awarded Rebekah physical care of the children, and awarded Martin liberal

visitation, including the right to have a daily telephone call with the children at

8:00 p.m. On April 5, 2013, Martin and Rebekah each filed an application to

modify the decree. The district court granted Rebekah’s petition, awarding her

sole legal custody of the parties’ two children and reducing the number of

telephone calls Martin was entitled to have with the children. At the time of trial,

the parties lived a great distance from each other; Martin residing in Cedar Falls

and Rebekah residing in Storm Lake.           The district court denied Martin’s

application seeking physical care of the children. Martin timely filed this appeal.

        Our review in the equity proceeding is de novo. See Iowa R. App. P.

6.907; In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We review

the entire record and decide anew the factual and legal issues properly

preserved and presented for appellate review. See Marriage of Rhinehart, 704

N.W.2d 677, 680 (Iowa 2005). While our review is de novo, we give weight to

the credibility determinations of the district court. See Hoffman, 867 N.W.2d at

32. “[O]ur primary consideration is the best interest of the child[ren].” In re
                                          3



Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995). In determining what is in

the best interests of the children, our prior cases have little precedential value;

we must consider the unique facts and circumstances of each case. See, e.g., In

re Marriage of Snowden, No. 14-1920, 2015 WL 4233449, at *1 (Iowa Ct. App.

Jul. 9, 2015) (“All happy families are alike; each unhappy family is unhappy in its

own way.” (quoting Leo Tolstoy, Anna Karenina 1 (1873))).

       Modification of the custody provisions of a dissolution decree is only

permissible “when there has been a substantial change in circumstances since

the time of the decree” that was not contemplated when the decree was entered.

See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). When

there has been a failure of communication and cooperation between parents

under a joint legal custody arrangement, a modification of custody status is

appropriate. See In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996).

       Legal custody is “an award of the rights of legal custody of a minor child to

a parent under which a parent has legal custodial rights and responsibilities

toward the child.”        Iowa Code § 598.1(5) (2013).           These rights and

responsibilities “include but are not limited to decision making affecting the child's

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

instruction.”   Id.   Legal custody allows parents to participate in fundamental

decisions affecting their child. In re Marriage of Hansen, 733 N.W.2d 683, 690

(Iowa 2007). Joint custody provides “both parents [with] legal custodial rights

and responsibilities” with neither parent’s rights or responsibilities being superior

to the other. See Iowa Code § 598.1(3). Joint legal custody is the preferred
                                         4



legal arrangement. See Iowa Code § 598.41(3); In re Marriage of Weidner, 338

N.W.2d 351, 359 (Iowa 1983); Rees v. Calef, No. 14-1231, 2015 WL 3624385, at

*3 (Iowa Ct. App. Jun. 10, 2015). To award sole legal custody there must be

clear and convincing evidence that joint legal custody “is unreasonable and not in

the best interest of the child to the extent that the legal custodial relationship

between the child and a parent should be severed.” Iowa Code § 598.41(2)(b).

In considering what custodial arrangement is in the children's best interest, this

court considers the various factors set forth in Iowa Code section 598.41(3).

      On de novo review, we conclude Rebekah established a substantial and

material change in circumstances since the time of the original decree and it is in

the best interests of the children to change the parents’ custodial arrangement

viz-a-viz the children.   We further conclude there is clear and convincing

evidence supporting the award of sole custody. The record reflects the parents

have become increasingly hostile to one another and cannot effectively

communicate regarding the children and cannot jointly make good decisions for

and in the best interests of the children. The record further reflects the hostility

between the parties is actively interfering with therapy for their child K.C.

Because the record fairly reflects Martin is the cause of much of the conflict and

interference with K.C.’s treatment and because Rebekah already had physical

care of the children, we also conclude awarding Rebekah sole legal custody of

the children and physical care of the children was appropriate under the

circumstances.
                                        5



      We need not reiterate all of the disputes between the parents and Martin’s

conduct—much of that was set forth in the district court’s lengthy and thoughtful

modification order.   We discuss several as exemplars.        One of the primary

sources of friction between the parties related to a criminal complaint filed by

Rebekah against Martin. On October 15, 2012, Martin wrote “#breakingpoint a

vendeictive [sic] woman files for more money and and a restraining order against

a man that wanted to be with his kids more lost.” The same day, Martin also

wrote on his twitter feed, “Next day #breakingpoint he walks in to her work feeling

he has lost everything and shoots the woman then himself. #vendetta”. These

tweets were posted shortly after Martin received notice of income withholding.

As a result of these tweets, Rebekah felt threatened, filed a criminal complaint

against Martin, sought an order of protection, and installed a security system in

her home. Ultimately, the criminal case was dismissed because the tweets did

not contain a direct threat of violence against Rebekah. Martin contends the fact

he was not convicted demonstrates Rebekah pursued the matter in bad faith.

We disagree. From the surrounding context, including a history of emotional,

psychological, and physical abuse inflicted by Martin on Rebekah, Rebekah had

reason for concern and did not unnecessarily escalate the situation.

      Another source of great friction between the parties arises out of

allegations of sexual abuse the children made against Martin’s stepson. The

children claimed the stepson had exposed himself to them. Rebekah brought

K.C. and J.C. to the doctor’s office where she worked as a medical assistant.

The doctor spoke to J.C., who “kind of” made reference to someone touching him
                                          6



inappropriately at Martin’s house.     A nurse spoke with K.C., who disclosed

Martin’s stepson touched her inappropriately. As mandatory reporters, the doctor

and nurse reported the allegations to the department of human services. During

the investigation, Rebekah filed an emergency application to cease visitation.

The allegations were unfounded. Martin filed professional complaints against

both the reporting doctor and nurse.          Each complaint was investigated and

closed with a finding no wrongdoing.          Martin is convinced Rebekah put the

children up to this, and he has become obsessed with catching the children in

lies, including taking action contrary to the therapeutic needs of K.C. and

audiotaping the children for potential litigation purposes.

       Another serious source of friction between the parties relates to the mental

health care provided to K.C. K.C. was in therapy before the initial decree was

filed and continued in therapy afterward. Part of the ongoing therapy related to

“anxiety that she was feeling when she would transfer from mom’s care to dad’s

care for visitation.” One of K.C.’s therapists was Ms. Gotto, who specializes in

child therapy. On September 20, 2012, K.C. told Gotto that Martin took all of her

toys, because she “lied.” When Gotto asked K.C. what she lied about, she said

she did not know and if she did lie she would not get her toys back. K.C. also

told Gotto that she was mad Gotto was telling Martin their conversations. Gotto

never told Martin their conversations. Instead, Martin had copies of the notes

from the therapy sessions and was questioning K.C. Part of Gotto’s therapy plan

was to include Martin in K.C.’s therapy.        Gotto tried to arrange joint therapy

sessions with Martin, but K.C. told Gotto she did not want him to attend. Gotto
                                        7



testified Rebekah never requested her to keep Martin from attending the therapy

sessions. On the last occasion Gotto cancelled a therapy session with Martin, he

became angry.    He told Gotto he was required by court order to attend the

therapy sessions, and he threatened to file contempt charges against Gotto if she

did not allow him to do so. When Gotto could not calm Martin down, she decided

it was in the best interests of K.C. to not be exposed to Martin’s anger. On April

21, 2012, Gotto wrote a letter to Rebekah and her attorney recommending they

cease the children’s visitation with Martin because of the rise in K.C.’s stress

level. Gotto reported K.C. had continuous statements of being worried about

being stolen and fear of her dad being mean. K.C. was also experiencing an

increased inability to sleep. Rebekah denied access to the children based on

Gotto’s recommendation.

      K.C.’s mental health condition transitioned from an adjustment disorder

into general anxiety disorder and post-traumatic stress disorder. Sandy Pelzer

started treating with K.C. in July 2013. K.C. often expressed concerns Martin

had a ghost in the office that was recording her therapy sessions. K.C. also

believed Pelzer tells her father everything they talk about in therapy. Pelzer

testified the children are led to believe that their father knows information they

have shared in therapy sessions and the children “don’t entirely feel safe in

therapy, which is a real problem.” Pelzer said she told Martin that he should stop

recording the children because it destroys trust in his relationships.        The

relationship between Martin and Pelzer became hostile. Rather than focusing on

K.C. and her treatment, Martin simply demands to know every detail of K.C. and
                                         8



Pelzer’s therapy sessions and raised complaints with Pelzer’s supervisors.

Ultimately, Pelzer was unable to continue to treat with K.C. because of Martin’s

interference. K.C. was without treatment at the time of trial.

       Martin argues Rebekah should not have sole custody because she “has

done everything humanly possible to interfere with Martin’s rights as a parent”

and “has treated the children as pawns.” Martin claims Rebekah: (1) terminated

phone calls between Martin and the children, (2) denied Martin visitation without

a court order, (3) filed frivolous criminal charges which were dismissed prior to

trial, (4) told the children to lie about being physically and sexually abused, (5)

took the children to a neighboring town near Martin for a weekend and did not tell

him they would be nearby, (6) spoke in negative terms about Martin to the

children, (7) took the children to a multitude of therapists seeking one willing to

ignore Martin’s rights as a father, (8) set into motion false abuse allegations, and

(9) made every effort to drive a wedge between Martin and his children so that

they learn to hate him as much as their mother does. We need not discuss each

of the claims in detail. On de novo review, we find and conclude the contentions

are without merit.

       The various conflicts between the parents about these issues and others

have made the prospect of a cooperative joint custodial arrangement largely

untenable. The parents do not speak to each other except by email. Martin

frequently refuses to meet Rebekah at the exchange point with the children.

Instead, he sends his parents to pick up his children while he waits somewhere

close by to complete the exchange. The parties cannot agree on a therapy plan
                                        9



for K.C. because of Martin’s belief Rebekah is using therapy to manipulate the

children to hate him. We affirm the award of sole legal custody to Rebekah. See

In re Marriage of Gensley, 777 N.W.2d 705, 715-17 (Iowa Ct. App. 2009)

(awarding sole legal custody to the mother because of parents’ “utter inability” to

communicate with each other and the father’s failure to support the mother’s

relationship with the children); In re Marriage of Liebich, 547 N.W.2d 844, 849

(Iowa Ct. App. 1996) (affirming sole legal custody for the father, because of the

parents’ inability to communicate and the mother did not support the father’s

relationship with the child); Rees, 2015 WL 3624385, at *4; In re Marriage of

Bloss, No. 1999-156, 2000 WL 63192, at *4 (Iowa Ct. App. Jan. 26, 2000)

(affirming award of sole legal custody where there was a “total absence of

cooperation and communication” between the parents).

      Martin also argues the court should have granted his application and

awarded physical care of the children to him rather than Rebekah. Physical care

provides a parent with “the right and responsibility to maintain a home for the

minor child and provide for the routine care of the child.”       See Iowa Code

§ 598.1(7). The changing of physical care of a child is one of the most significant

modifications that can occur in family matters. See In re Marriage of Thielges,

623 N.W.2d 232, 236 (Iowa Ct. App. 2000); see also Hoffman, 867 N.W.2d at 32.

The parent requesting the modification “must establish by a preponderance of

the evidence” there has been a substantial and material change in circumstances

and it is in the children’s best interest to make a change in physical care.

Hoffman, 867 N.W.2d at 32 (citing In re Marriage of Frederici, 338 N.W.2d 156,
                                        10



158 (Iowa 1983)).      These “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.” Id. (quoting Frederici, 338 N.W.2d at 158).

The substantial change in circumstances must affect the welfare of the children.

See id. (quoting Frederici, 338 N.W.2d at 158).       The parent requesting the

change must also prove “an ability to minister more effectively to the children’s

well-being.” Id. (quoting Frederici, 338 N.W.2d at 158); see also Thielges, 623

N.W.2d at 235.     Our courts have concluded in order to promote stability in

children’s lives, “once custody of children has been fixed it should be disturbed

only for the most cogent reasons.” Id. (quoting Frederici, 338 N.W.2d at 158);

see also Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

      Martin has failed to meet his “heavy burden.” As set forth above, Martin is

the primary cause of the conflict between the parents and is not supportive of the

therapy necessary to address K.C.’s mental health condition.           The same

considerations that lead us to conclude Rebekah should have sole legal custody

of the children also lead us to conclude Rebekah and not Martin should have

physical care of the children. Martin does not present the best environment to

raise K.C. and J.C. to bring them to mental and physical health.

      Rebekah seeks an award of appellate attorney fees.            We have the

discretion to make an award of appellate attorney fees. See In re Marriage of

Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007) (citing In re Marriage of Kurtt,

561 N.W.2d 385, 389 (Iowa Ct. App. 1997)). The court will “consider the needs

of the party making the request, the ability of the other party to pay, and whether
                                        11



the party was required to defend the district court’s decision on appeal.” Id. We

decline to award appellate attorney fees in this case.

      For the foregoing reasons, the judgment of the district court is affirmed.

      AFFIRMED.
