                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0699
                                Filed August 7, 2019


IN RE THE MARRIAGE OF SAMANTHA J. McMILLIAN
AND JUSTIN R. McMILLIAN

Upon the Petition of
SAMANTHA J. McMILLIAN,
      Petitioner-Appellant,

And Concerning
JUSTIN R. McMILLIAN,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Colleen D.

Weiland, Judge.



       Justin McMillian appeals the district court’s denial of his petition to modify

the parties’ dissolution decree to order physical care of the parties’ child with him.

AFFIRMED.




       Jesse M. Marzen of Marzen Law Office, P.L.L.C., Waverly, for appellant.

       William T. Morrison of Morrison Law Firm, P.C., Mason City, for appellee.



       Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Presiding Judge.

       Justin and Samantha McMillian married in 2011 and divorced in 2015.

Under a stipulated dissolution decree, the district court granted Samantha physical

care of their child, born in 2008.

       Justin petitioned for a modification of the decree. Samantha responded that

he failed to establish a substantial change of circumstances warranting

modification of physical care. At the same time, Samantha sought a modification

of the decree’s visitation provisions.    Following trial, the district court denied

Justin’s modification petition but granted Samantha’s request to alter the visitation

schedule. On appeal, Justin only challenges the court’s denial of his request for

physical care.

       The party seeking modification of physical care bears a “heavy burden.” In

re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). That is because once

custody of a child has been fixed, it should be disturbed only for the most cogent

reasons. Id.

       To change a custodial provision of a dissolution decree, the applying
       party must establish by a preponderance of 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. The 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. They must
       relate to the welfare of the children. A parent seeking to take custody
       from the other must prove an ability to minister more effectively to
       the children’s well-being.

In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (quoting Frederici, 338

N.W.2d at 158).
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        The district court proceeded directly to the question of Justin’s caretaking

ability, and addressed the issue as follows:

        Justin’s housing has been more stable than Samantha’s, but no other
        factor weighs in his favor. Samantha uses or allows methods of
        discipline that this court would not endorse, but they are not outside
        of acceptable parenting parameters. On the other hand, because of
        Justin’s work schedule, A.M. would largely be parented by Justin’s
        spouse—a spouse who, with Justin’s blessing, acts despicably
        towards Samantha. Justin’s home is crowded, and the court finds
        Samantha’s concerns about hygiene and smoking in his household
        to be credible. The Court also considers that Justin subjected
        Samantha to domestic abuse during their marriage. While those
        instances occurred before the dissolution decree, a history of
        domestic abuse remains relevant. Samantha shall continue to
        exercise A.M.’s physical care.

On our de novo review, we begin with the court’s consideration of Justin’s housing

stability.

        Justin’s spouse testified that five children lived in their home, one with

serious behavioral diagnoses. She conceded they would have to move to a larger

home when the youngest child got older. It is true that Justin’s single potential

relocation paled in comparison to Samantha’s many moves following entry of the

decree. And it is true that her moves resulted in the child’s enrollment in multiple

schools over a two-year period, including an online program, to which Justin

objected. But, at the time of the modification hearing, Samantha had returned to

her hometown of Mason City and had enrolled the child in a public school across

the street from her grandparents and aunt and uncle. She recognized the adverse

effect of the relocations on the child and she committed to staying in Mason City,

to avail herself of family support and a consistent public school environment. While

Samantha’s multiple moves and school changes may have amounted to a

substantial change of circumstances not contemplated by the district court at the
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time of the decree, we agree with the court that, even if they did, Justin failed to

prove he could “minister more effectively” to the child’s well-being. Cf. id. (finding

no substantial change of circumstances from a single relocation from a suburban

to a rural school district).

       In addition to his turbulent home environment, the district court was correct

in considering Justin’s history of domestic violence. See, e.g., In re Ziegler, No.

05-0911, 2006 WL 623685, at *3 (Iowa Ct. App. Mar. 15, 2006) (“While [the

father’s] pre-stipulation behavior would not be relevant to establishing a substantial

change in circumstances, it is relevant to the questions of whether he would prove

the superior caretaker, and whether it would be in [child’s] best interests to be

placed in his physical care.” (citing In re Marriage of Daniels, 568 N.W.2d 51, 55

(Iowa Ct. App. 1997) (“[Domestic] abuse discloses a serious character flaw in the

batterer, and an equally serious flaw in parenting. . . . [It] is, in every respect,

dramatically opposed to a child’s best interests.”))); Smith v. Smith, No. 03-0863,

2004 WL 433906, at *2 (Iowa Ct. App. Mar. 10, 2004) (noting the district court’s

acknowledgment of “the seriousness of domestic violence and the negative impact

it has on children”). Samantha described Justin as “very aggressive” with “a lot of

anger issues.” She expressed concern that if he served as primary caretaker, the

child would “become too violent.” Although Justin testified he was never the

subject of a founded child abuse report, he conceded he spanked the child with a

wooden spoon “when [the child] was younger.”

       Justin also did not establish he would communicate more effectively than

Samantha about the child’s welfare. He described his relationship with Samantha

as “terrible” and stated there was “no communication between” them. His spouse
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did not help matters. On one occasion, she told Samantha she “wanted to smack

her head off [her] door.” Although Samantha conceded she bore some of the

responsibility for the breakdown in communication, Justin carried the burden of

proving he would do better than her on that front. He failed to meet his burden.

      We conclude the district court acted equitably in denying Justin’s petition to

modify the physical care provision of the dissolution decree. We affirm the court’s

decision.

      Samantha seeks appellate attorney fees of $2500. An award rests within

our discretion. See In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).

Among the factors to consider are “the relative merits of the appeal.” Id. After

consideration of the merits, we grant Samantha’s request. Justin is ordered to pay

$2500 towards Samantha’s appellate attorney fee obligation.

      AFFIRMED.
