                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1557
                              Filed April 27, 2016


HEATHER DAWN HELM,
    Petitioner-Appellee,

vs.

THOMAS M. SCHWARTZ,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.



      The father appeals from the order modifying the parties’ decree

establishing paternity, custody, visitation, and support. AFFIRMED.




      David Brick and Allison M. Steuterman of Brick Gentry, P.C., West Des

Moines, for appellant.

      Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des

Moines, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

        The father appeals from an order modifying the parties’ decree

establishing paternity, custody, visitation, and support. The modification order

was entered pursuant to a mediation agreement between the parties, an

agreement to which the father no longer wishes to be bound. On appeal, he

advances several reasons why the modification order was improper and why he

should not be bound by the underlying mediation agreement. We affirm the

judgment of the district court.

                                         I.

        Thomas Schwartz and Heather Helm are the parents of D.S., born in

2007.    The district court entered a decree establishing paternity, custody,

visitation, and support on April 18, 2011. Pursuant to the decree, the parties

were granted joint legal custody of the child, Helm was granted physical care of

the child, and Schwartz was granted liberal visitation.

        On November 27, 2013, Helm filed an application for modification of the

parties’ decree, alleging Schwartz’s inconsistent and unsafe living conditions

created a substantial change in circumstances. On May 9, 2014, the parties

entered into a mediation agreement “as a full and complete resolution of the

pending Modification filed by the Petitioner.” The mediation agreement provided

the parties “shall participate in a custody evaluation with Dr. Keri Kinnaird.” The

purpose of the evaluation was “to determine whether the parties’ current

parenting arrangement is still viable or if the same should be modified.” The

mediation agreement further stated the “parties agree that they shall be bound by

the recommendation of Dr. Kinnaird, and by doing so, there will be no trial.” The
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mediation agreement also stated “[e]ach party understands that, unless permitted

to do so by the Court, the parties will be bound by the terms and conditions they

agreed to herein.” On May 9, 2014, the district court entered an order approving

the stipulation and agreement and appointing Dr. Kinnaird as the custody

evaluator.

       On November 14, the custody evaluator’s report was filed with the court.

The evaluation was based on multiple interviews with the family, parent-child-

interaction observations, personality tests, and collateral phone contacts. The

evaluator recommended Helm have physical care of D.S. and Schwartz’s

visitation with D.S. be decreased but made more regular due to the father being

“too busy” when D.S. was in his care. The evaluator noted, “Perhaps if father-

daughter time is scheduled on consistent days on a set schedule, rather than

rotating as it is currently, and also occurs less frequently, Mr. Schwartz will be

able to focus more on her when he is with her.”

       On January 16, 2015, Helm filed a motion to enforce the mediation

agreement, which Schwartz resisted.          Schwartz contended the evaluator’s

process was flawed.        He also contended the mediation agreement was

unenforceable because the parties did not explicitly stipulate to a change in

circumstances. He also contended the mediation agreement was void because it

improperly delegated authority to modify the decree to a non-judicial officer. On

March 6, 2015, the district court entered an order requiring the parties to take

depositions to “present evidence on the issues raised by the respondent

regarding that process, as well as whether Dr. Kinnaird’s recommendations are

appropriate and otherwise in the best interests of the child.”
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       On July 21, 2015, the district court granted Helm’s motion to enforce the

parties’ mediation agreement. In the order granting the motion, the district court

made independent findings that Dr. Kinnaird’s recommendations regarding

modification and visitation were in the best interests of the child:

       Based upon this Court’s findings and legal conclusions, the Court is
       of the opinion that respondent has not established that Dr.
       Kinnaird’s report was flawed and based upon inaccuracies that
       would invalidate her recommendation as set out in her report.
       Furthermore, the Court finds that her recommendations are in the
       best interest of L.S. and the mediation agreement should be
       enforced.

       On August 18, 2015, the district court entered its modification order. The

district court reduced Schwartz’s visitation with D.S. in accord with Dr. Kinnaird’s

recommendations.

                                           II.

       Our review is de novo. See Nicolou v. Clements, 516 N.W.2d 905, 906

(Iowa Ct. App. 1994). We examine the entire record and adjudicate rights anew

on the issues properly preserved and presented. See id. We give weight to the

findings of the district court, especially when considering the credibility of

witnesses. Id.; see also Iowa R. App. P. 6.904(3)(g).

                                           A.

       Schwartz contends the modification order is improper because the parties

did not explicitly stipulate to, and the district court did not explicitly find, a change

in circumstances as a prerequisite to modification of the decree. As a general

rule, the parent seeking to modify visitation must show there has been a change

in circumstances since the entry of the original decree.             See Donovan v.

Donovan, 212 N.W.2d 451, 453 (Iowa 1973); see also Nicolou, 516 N.W.2d at
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906. Under the circumstances, we disagree the parties had to explicitly state or

the district court had to explicitly find a change in circumstances. The parties

entered into a mediation agreement to resolve the modification action.          A

stipulation and settlement in a family law proceeding “is a contract between the

parties.” See In re Marriage of Jones, 653 N.W.2d 589, 593 (Iowa 2002). The

agreement is “enforceable like any other contract, and a party may not withdraw

or repudiate the stipulation prior to entry of judgment by the court.” Id. It was

sufficient for the parties to settle their dispute subject to the district court’s

approval even in the absence of proof of a change in circumstance. See, e.g., In

re Jorgensen, 2015 WL 9451088, at *2 (Iowa Ct. App. Dec. 23, 2015) (noting

parties can stipulate to modification without a showing of change in

circumstances); In re Marriage of Ruckman, No. 13–1920, 2014 WL 3748601, at

*7-9 (Iowa Ct. App. July 30, 2014) (modifying custody without a substantial

change in circumstances when stipulated original decree allowed for modification

absent a substantial change and modification was in the best interests of the

child).

          Independently, on de novo review, we conclude there was a change in

circumstances.       The changes were set forth in Dr. Kinnaird’s report,

recommendation, and deposition.       They included, but were not limited to:

Schwartz being “too busy” to spend time with the child during his parenting time;

Schwartz not taking D.S. to her extracurricular activities; Schwartz’s frequent

changes of residence; and the “peer-like relationship” between Schwartz and

D.S. The changes were referenced by the district court in its order granting

Helm’s motion to enforce the mediation agreement. The changes are significant
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enough to meet the lower threshold required in cases involving the modification

of visitation rights.     See Donovan, 212 N.W.2d at 453 (“However as to

modification of visitation rights as compared to child custody changes the general

rule is that a much less extensive change of circumstances need[s to] be shown

in visitation right cases.”).

                                           B.

       Schwartz argues the mediation agreement filed on May 9, 2014 is void as

a matter of law because the authority to modify the prior decree was improperly

granted to a non-judicial third party. “It is well established that the district court is

the only entity that can modify a custody or visitation order, subject to the review

of the appellate courts.” In re Marriage of Stephens, 810 N.W.2d 523, 530 (Iowa

Ct. App. 2012). The “obligation to modify a decree cannot be delegated to any

person or entity because that person or entity has no jurisdiction to render such a

decision.”    Id.   The court has the “responsibility to make an impartial and

independent determination as to what is in the best interests of the child, and this

decision cannot be controlled by the agreement or stipulation of the parties.” Id.

at 531.      “While the district court [can] seek and consider the therapist's

recommendations only the district court [can] modify the decree after the parties”

had the right to be heard. Id.

       The father’s argument is unavailing. The cases upon which the father

relies are distinguishable; each of the cases involved a situation in which a

therapist or counselor was allowed to change care or visitation arrangements

without judicial oversight. In this case, the district court acknowledged it was

improper to delegate authority to modify the parties’ decree to a non-judicial
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officer. The district court recognized it was not bound by the parties’ mediation

agreement and it had “the responsibility to determine whether the provisions

upon which the parties have agreed constitute an appropriate and legally

approved method of disposing of the contested issues.” Jones, 653 N.W.2d at

593. The district court afforded Helm and Schwartz the opportunity to depose

witnesses and gather evidence regarding the custody evaluator’s process and

recommendation. The district court then made an independent determination

that modification of the parties’ decree was in the best interests of the child.

There was no delegation of final decision-making authority in this case.

                                     III.

       We affirm the district court’s modification order. On the facts presented

here, the father had no right to withdraw his acceptance of the mediation

agreement. See, e.g., In re Marriage of Oehler, No. 98-1257, 1999 WL 710820,

at *3 (Iowa Ct. App. Aug. 27, 1999) (“Once Lonnie agreed to the settlement, he

had no right to repudiate his acceptance prior to the district court's final order

approving the joint stipulation for modification.”). The district court independently

found and concluded it was in the best interests of the child to modify the decree.

       Helm requests $1500 in appellate attorney fees. We have the discretion

to award attorney's fees on appeal. See In re Marriage of Berning, 745 N.W.2d

90, 94 (Iowa Ct. App. 2007). When determining whether an award of appellate

attorney fees is appropriate, we look to the requesting party's financial needs, the

other party's ability to pay, and whether the requesting party was obligated to
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defend the trial court's ruling on appeal. See id. We have considered these

factors and decline to award appellate attorney fees to Helm.

      AFFIRMED.
