                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1828
                             Filed August 17, 2016


IN RE THE MARRIAGE OF LORI A. HELLESO
AND RYAN W. HELLESO

Upon the Petition of
LORI A. HELLESO, n/k/a LORI A. BUERKLEY,
      Petitioner-Appellee,

And Concerning
RYAN W. HELLESO,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carla Schemmel,

Judge.



      Ryan Helleso appeals the district court’s denial of his application to modify

the child custody provisions of the parties’ dissolution decree, increase of his

child support obligation, and denial of his application for show cause.

AFFIRMED.




      Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant.

      Stephen J. Banks of the Banks Law Firm, P.C., Waukee, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
                                         2


DANILSON, Chief Judge.

      Ryan Helleso appeals from the denial of his application to modify the May

2012 dissolution decree, increase in his child-support obligation, and denial of his

application to show cause.

      “The modification of a dissolution decree requires a showing of a change

in circumstances since the date of the decree which substantially relates to the

welfare of the children and which was not within the contemplation of the parties

and the court at the time the decree was entered.” In re Marriage of Wagner,

272 N.W.2d 418, 421 (Iowa 1978). “The party seeking to modify a dissolution

decree thus faces a heavy burden, because once custody of a child has been

fixed, ‘it should be disturbed only for the most cogent reasons.’” In re Marriage of

Harris, 877 N.W.2d 434, 440 (Iowa 2016) (citation omitted). A parent seeking to

modify the custody provisions of a decree must not only show a change of

circumstances but also that the moving party can offer “superior care.” See In re

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

      We review equitable matters such as an application to modify the physical

care provisions of a dissolution decree de novo. In re Marriage of Hoffman, 867

N.W.2d 26, 32 (Iowa 2015). We are not bound by the trial court’s findings, but

given the trial court’s more advantageous position to view the witnesses and

assess their credibility, we give its findings deference.       In re Marriage of

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

      Lori Helleso, now known as Lori Buerckley, and Ryan Helleso are the

parents of four minor children, B.H. (born in 2002), R.H. (born in 2005), E.H.

(born in 2008), and C.H. (born in 2009). The parties have been twice married to
                                         3


each other and divorced. The most recent marriage of the parties was dissolved

by stipulated decree on May 31, 2012.

       In 2014, Lori married Ben Buerckley, who has two children, and lives in

Milo, Iowa. At the time of the modification action, Lori had not moved her family

to the Milo residence because Ryan objected and she awaited the court’s ruling.

Ryan is living with his girlfriend, Erin McNamara, and three of her four children in

Grimes, Iowa.

       Lori was diagnosed as being bipolar with personality disorder in 2002. In

February 2012, prior to the entry of the May 2012 decree, Lori was taken by

Ryan to the hospital emergency room. During that visit, her blood pressure was

low and she was told to immediately discontinue her medications, including her

psychiatric medications.    Lori was also told to follow-up with her counselor

concerning her mental health treatment and prescriptions. Lori has not taken any

medications for her mental illness since 2012.

       When Ryan vacated the Des Moines family residence in December 2011,

Ryan’s disabled father remained in Lori’s care. Thus, with Ryan’s consent, Lori

was caring for the parties’ four children, Lori’s older child from another marriage,

and Ryan’s father. In the 2012 stipulated decree, Lori and Ryan were granted

joint legal custody. Lori was granted physical care of the four children. Parenting

time for Ryan was set out. At the time of the May 2012 decree, Lori’s income

(solely from disability) was $15,744 per year, Ryan’s was about $50,000 per

year, and Ryan’s child support was set at $1237.24 per month for four children.

       On August 5, 2014, Ryan filed an application to modify the custody

provisions of the dissolution decree, asserting Lori’s failure to continue taking her
                                            4


mental-health medication constituted a substantial change of circumstances.

Ryan also complained of Lori’s move to Milo (about thirty miles southeast of Des

Moines) with her new husband. He asked that the children be placed in his

physical care in Grimes (about fifteen miles northwest of Des Moines).         Lori

resisted. Both parties also had earlier filed contempt actions accusing the other

of violating the 2012 dissolution decree.

      On August 4, 2014, the parties signed a mediation agreement that

modified the visitation provisions of the decree.    A second mediation did not

result in an agreement.

      Following a multi-day trial, the district court denied both applications to

modify custody. The court ruled that because Lori’s psychiatric conditions were

known at the time of the dissolution, and Lori’s discontinuation of her mental

health medication had not resulted in adverse treatment or care of the children,

there was not a change of circumstances warranting a modification of the

custody provisions of the decree.

      The district court did not discuss Lori’s move in its ruling. Ryan filed a

motion to modify or enlarge findings, asking that the court

      amend or enlarge and reconsider its findings so that based on the
      move to Milo the visitation schedule should change. The court did
      not list the disruption of moving the children from their home or to a
      new school district. [Ryan] requests that custody be changed so
      that the children can go to school in Grimes or at a minimum
      change to the schedule that was recommended by the Guardian Ad
      Litem [(GAL)]. [Ryan] respectfully requests that the court should
      adopt verbatim the recommendation of the [GAL] regarding a
      visitation schedule due to the fact that Lori did move to Milo.
                                            5


The trial court denied the motion to reconsider.1

       On appeal, Ryan contends the trial court should have modified the decree

due to Lori’s non-treatment of her bipolar condition and her move. We do not

find his characterization of Lori’s mental health deficiencies supported by our

independent review of the record. Lori’s condition was known at the time of the

dissolution, at which time she was not taking medication. We must assume Ryan

considered Lori’s condition when he entered into the stipulation granting Lori

physical care of the children. See Wagner, 272 N.W.2d at 421. We observe that

Ryan also left his disabled father in Lori’s care at the time of the dissolution and

moved out of state shortly after the dissolution was filed. Ryan must have been

confident in Lori’s ability to care for all of her charges.

       Lori’s primary medical provider, Physician’s Assistant William Andrews,

testified he had provided care for Lori and her children for several years. He did

not have concerns about the children’s health or cleanliness. He knew of Lori’s

bipolar diagnosis and that she was not taking medication currently. Andrews

testified he had observed no manic or depressive symptoms in his dealings with

Lori. Ryan’s complaints that the children’s care has been neglected due to Lori’s

mental health condition are not borne out by the testimony of the school nurse

either. A GAL report that suggested Ryan would provide better care than Lori is

not particularly helpful in light of the fact that the GAL did not have a full


1
  At the time of the modification action, Ryan’s income had increased to $65,956.80 per
year. The child support guidelines indicated his support obligation with such earnings is
greater than a ten-percent deviation, which constitutes a substantial change of
circumstances warranting modification. See Iowa Code § 598.21C(2) (2013). The court
set Ryan’s child support at $1637.53 for four children, which was to be reduced to
$1454.28 for three children, reduced to $1245.36 for two children, and reduced to
$861.49 for one child “as discussed in the prior decree.”
                                           6


understanding of Ryan’s own mental health history, his relatively recent bout with

anxiety and depression, and his own discontinuation of medication. Nor do we

find Lori’s contemplated move to reside with her husband is for “no good reason”

as suggested by Ryan. While Iowa law considers a relocation of 150 miles or

more a substantial change of circumstances, see Iowa Code § 598.21D, that

provision is not implicated here. Upon our de novo review of the record, we find

no reason to disturb the court’s denial of the application to modify child custody

as there has been no change of circumstances not contemplated by the decretal

court.

         We also find no gross abuse of discretion in the trial court’s rejecting both

parties’ applications to show cause. See In re Marriage of Swan, 526 N.W.2d

320, 327 (Iowa 1995) (“We hold the trial court here had broad discretion and

‘unless this discretion is grossly abused, the [trial court’s] decision must stand.’”

(citation omitted)). Here, the trial court ruled:

         [T]he court is unable to find the willful disregard needed for a
         finding of contempt. Rather, both parties in this case have failed to
         cooperate in achieving the goals contained in the decree related to
         agreeing on how to make decisions concerning [the children]
         together. This behavior, particularly since much of it was done in
         reaction to the behavior of the other party, does not rise to the
         necessary level needed for a finding of contempt against either
         party.

Ryan contends this ruling was erroneous.

         When a trial court refuses to hold a party in contempt pursuant to Iowa

Code section 598.23, our review is not de novo. In re Marriage of Hankenson,

503 N.W.2d 431, 433 (Iowa Ct. App. 1993).             The district court has “broad

discretion” and “may consider all the circumstances, not just whether a willful
                                         7


violation of a court order has been shown, in deciding whether to impose

punishment for contempt in a particular case.” Swan, 526 N.W.2d at 327. “[A]

trial court is not required to hold a party in contempt even though the elements of

contempt may exist.” Id.

       We adopt this language of the trial court:

       [S]ince Ryan returned to Des Moines and began wanting more time
       with the children, the parties have displayed an inability to work
       together or agree on matters related to the children. While the
       court finds both parties love the children and are able individually to
       take care of them, the court also finds both parties less than
       credible in much of their testimony with each choosing to attack the
       other parent rather than tell the truth on various issues. They also
       have both displayed a complete inability to abide by the[ ] . . .
       parenting, custody, and visitation[ ] [provisions] of their decree.
       Rather, they have both repeatedly tried to negotiate changes to
       modify application of the provisions in the decree in favor of
       themselves, and then blame[ ] [the] other for failing to cooperate.
       Ryan has been more guilty of this than Lori, which unfortunately
       has led Lori to avoid talking to Ryan, including about matters
       related to the children. These parties have been able to use their
       “communications” with each other as a weapon against the other,
       rather than as a process to fairly resolve issues about the children
       for the benefit of those children.

We do not find an abuse of discretion in the trial court’s denial of Ryan’s

application to show cause. We therefore affirm the district court in all respects.

       We add that although the parties are free to temporarily deviate from the

visitation terms (and are encouraged to do so when it is in the children’s best

interests), along with that flexibility there must be reasonable notice and the

other’s consent. Without consent, the terms as previously ordered control.

       Both parties to this action would also be well advised to give consideration

to the best interests of the children in their efforts to co-parent their children.

They have both performed poorly in consulting with each other, and have yet to
                                        8


develop a working relationship to parent their children without constant minor

disagreements. Disengaging their emotions and avoiding blaming the other can

improve communications.

      Lori has sought an award of appellate attorney fees. Appellate attorney

fees are not a matter of right, but rather rest in this court’s discretion. In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We consider “the needs

of the party seeking the award, the ability of the other party to pay, and the

relative merits of the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa

1993). In light of our affirmance and Ryan’s substantially greater income, we

award Lori $2500 in appellate attorney fees.

      Costs are assessed to Ryan.

      AFFIRMED.
