                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1553
                              Filed March 11, 2015

IN RE THE MARRIAGE OF RIMA YAZIGI
AND ANTOINE NAHRA

Upon the Petition of
RIMA YAZIGI,
      Petitioner-Appellant,

And Concerning
ANTOINE NAHRA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Mary E.

Chicchelly, Judge.



      Appeal from decree modifying visitation and other provisions. AFFIRMED

AS MODIFIED.



      Paul K. Waterman of Cronk & Waterman, P.L.C, Iowa City, for appellant.

      Lillian L. Davis of Davis Law, P.L.C., for appellee.



      Heard by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.

       Rima Yazigi appeals from a decree modifying the decree dissolving the

marriage between she and her former husband Antoine (“Tony”) Nahra.             On

appeal, she contends the district court erred in finding a change in circumstances

sufficient to warrant modification of the visitation provisions of the decree. She

also appeals modification of several economic provisions of the original decree.

                                         I.

       Rima and Tony married in Lebanon on July 5, 1998. The family moved to

and worked in Abu Dhabi until approximately 2001 when Tony obtained

employment in Iowa City. The family then moved to Iowa City. Three children

were born into the marriage. In 2009, Rima falsely accused Tony and another

unknown man of sexually abusing her. The police investigated the claims and

found them to be totally unfounded. In 2010, Rima petitioned for dissolution of

the marriage. The district court entered the decree of dissolution of marriage in

2012, finding Rima’s criminal accusations were a result of psychosis or made for

the purpose of obtaining leverage in the planned dissolution of marriage action.

Nonetheless, the district court awarded the parties joint legal custody of the three

children. The district court awarded Tony physical care of the children, with Rima

having liberal visitation rights.

       Five months after the decree of dissolution of marriage was filed, Tony

filed a petition to modify the decree. The asserted ground for modification was

Tony’s intent to relocate to Toronto, Canada, with the children, to pursue

employment. Rima filed an answer and counterclaim, requesting physical care of
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the children be placed with her. The district court found a material change in

circumstances since the time of the decree.         The district court ordered that

physical care of the children remain with Tony, that Rima execute the necessary

papers to allow relocation of the children, and that visitation be modified

accordingly. The district court also modified certain economic provisions of the

decree, ordering the parties to each pay one-half of the children’s travel costs

incurred for visitation, increasing Rima’s child support to $445 per month based

on imputed income, and awarding Tony the dependency exemptions for the

minor children for each and every tax year. Rima timely filed this appeal.

                                          II.

       Our review in this equity action is de novo; we give deference to the trial

court’s fact findings, especially those involving the credibility of the witnesses, but

we are not bound by those findings. See Nicolou v. Clements, 516 N.W.2d 905,

906 (Iowa Ct. App.1994).

                                          III.

                                          A.

       We first address the issues of physical care of and visitation with the

children. The district court ordered that physical care of the parties’ children

remain with Tony.     The district court modified the visitation provisions of the

decree in light of the significant distance between the parties created by Tony’s

impending move to Canada. On appeal, Rima does not challenge the district

court’s denial of her counterclaim seeking physical care of the children. She
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contests only the sufficiency of the evidence supporting modification of the

visitation provisions of the decree.

       The showing required for modification of the visitation provisions of a

decree is less significant than the showing required to modify the custody and

care provisions of a decree. See Nicolou, 516 N.W.2d at 906. “The appellate

courts of this state have consistently held that to justify a modification of visitation

rights, the plaintiff must show there has been a change of circumstances since

the filing of the decree.” “[W]e recognize the reasonable discretion of the trial

court to modify visitation rights and will not disturb its decision unless the record

fairly shows it has failed to do equity.” In re Marriage of Salmon, 519 N.W.2d 94,

95 (Iowa Ct. App. 1994)

       On appeal, Rima argues that Tony’s stated reasons for moving to

Canada—better employment opportunities—are not genuine and that Tony

always wanted to move to Canada. She also argues that Tony’s stated reasons

for moving to Canada do not constitute a material change in circumstances.

Tony argues his stated reasons for moving are genuine and constitute a material

change in circumstances.       The parties’ focus on the genuineness of Tony’s

reasons for moving to Canada misses the larger point:            Tony’s move out of

country with the children—for whatever reason—can be sufficient grounds to

support modification of the decree.       See Iowa Code § 598.21D (2013) (“If a

parent awarded joint legal custody and physical care or sole legal custody is

relocating the residence of the minor child to a location which is one hundred fifty

miles or more from the residence of the minor child at the time that custody was
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awarded, the court may consider the relocation a substantial change in

circumstances.”).

       We conclude Tony’s move to Canada is a change in circumstances

sufficient to warrant modification of the visitation provisions of the decree. See

id.; In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1983) (finding

spouse’s move from Iowa to Colorado was a substantial change in

circumstances); In re Marriage of Lower, 269 N.W.2d 822, 826-27 (Iowa 1978)

(holding “proposed move” from Iowa to Minnesota constituted a substantial

change in circumstances warranting modification of visitation rights); In re

Marriage of Thielges, 623 N.W.2d 232, 238 (Iowa Ct. App 2000) (holding

mother’s proposed move to North Dakota to get a fresh start and be near family

was a substantial change in circumstances). Having concluded that Tony’s move

to Canada is a change in circumstances, the remaining questions presented are

whether the district court should have modified the visitation provisions and, if so,

whether the modification did equity.

       With respect to the first question, the answer is mandated by statute: “If

the court determines that the relocation is a substantial change in circumstances,

the court shall modify the custody order to, at a minimum, preserve, as nearly as

possible, the existing relationship between the minor child and the nonrelocating

parent. If modified, the order may include a provision for extended visitation

during summer vacations and school breaks and scheduled telephone contact

between the nonrelocating parent and the minor child.” Iowa Code § 598.21D.

The district court correctly decided to modify the visitation provisions to allow
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Rima to continue to exercise the maximum possible contact with the children,

including summer vacations and school breaks.

       With respect to the second question, we conclude the visitation periods

awarded Rima are equitable, but we conclude the district court’s equal division of

the transportation costs was not equitable. Relocating the children to Canada is

wholly Tony’s choice. Tony has income of approximately $84,000 per year, and

he testified at trial that he expects to earn substantially more in Canada while

also having significantly less living expenses. Rima has negligible income and is

required to pay Tony $445 per month in child support. Tony will be required to

pay for all of the children’s travel costs necessary to facilitate visitation.

                                           B.

       We next address the remaining economic provisions of the modification

decree. The district court imputed income to Rima in the amount of $7.25 per

hour for the purposes of calculating child support:

       [T]he Court finds that there is no reason for [Rima] to remain
       unemployed. She is healthy and able. The children are in school
       and have not been in her primary care, and the college courses she
       now takes are online and likely flexible. Many people within the
       United States are able to find at least entry level positions despite
       their lack of local references. Granted, those positions may not pay
       much more than minimum wage, they do exist, especially in a
       college town. Thus, though the Court does impute income to Rima,
       the Court finds that she may not be able to make more than $7.25
       per hour initially, and therefore this is a fair level at which to impute
       income for her.

Rima argues imputation of income was improper because she is now enrolled in

college. Rima has not entered the competitive labor market since moving to

Iowa City. While she may have been providing care to the parties’ children
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during the course of the marriage, she no longer has that daily responsibility. We

can find nothing in the record supporting the conclusion that Rima cannot obtain

gainful employment.      We conclude the district court did not err in imputing

minimum wage income to Rima for the purposes of calculating child support.

See In re Marriage of McKenzie, 709 N.W.2d 528, 533 (Iowa 2006) (“One of the

factors we consider in determining if we will use a parent’s earning capacity,

rather than a parent’s actual earnings, in order to meet the needs of the children

and do justice between the parties is whether the parent’s inability to earn a

greater income is self-inflicted or voluntary.”).

       Rima next contends the district court erred in awarding Tony the

dependency exemptions for all three children. We conclude the district court

equitably awarded the exemptions to Tony. Because Tony is the only one of the

parties who had gainful employment at the time of trial, he is the one who will

benefit most from the exemption. See In re Marriage of Okland, 699 N.W.2d

260, 269-70 (Iowa 2005) (finding equity supports awarding exemptions to the

party who would benefit most from it and noting the general rule is “that the

parent given primary physical care of the child is entitled to claim the child as a

tax exemption”).

                                          IV.

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

modified. Paragraph 6 of the visitation provisions of the modification decree shall

be modified to provide that Tony shall pay 100% of the children’s travel expenses

incurred for visitation. In the event Rima incurs an expense for the children’s
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travel costs, she shall provide a receipt for such expense to Tony, who shall have

thirty (30) days to reimburse Rima for such expense.

      We deny the parties’ requests for appellate attorney fees.        Costs on

appeal shall be taxed to Tony.

      AFFIRMED AS MODIFIED.
