                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0056
                             Filed September 12, 2018


DOLGORSUREN SCHMIDT,
    Plaintiff-Appellant,

vs.

JAMES QUINN,
     Defendant-Appellee.
________________________________________________________________


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

Judge.



       Mother appeals from an order denying her petition to modify the physical

care provisions of the parties’ decree of dissolution of marriage. AFFIRMED.




       Robert S. Gallagher and Peter G. Gierut of Gallagher, Millage & Gallagher,

P.L.C., Bettendorf, for appellant.

       James J. Quinn, Davenport, pro se appellee.



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

       Dolgorsuren Schmidt (a/k/a Julia) appeals from an order denying her

petition to modify the decree dissolving her marriage to James (Joe) Quinn. At

issue in this appeal are the physical care provisions of the decree.

       This court’s review is de novo. See Iowa R. App. P. 6.907; In re Marriage

of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (noting modification actions lie in

equity). Prior cases have little precedential value; this court applies the relevant

law to the unique facts and circumstances of each case. See In re Marriage of

Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Marriage of Snowden, No. 14-1920,

2015 WL 4233449, at *1 (Iowa Ct. App. July 9, 2015). Although review is de novo,

appellate courts “afford deference to the district court for institutional and pragmatic

reasons.” Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017); see In re

P.C., No. 16-0893, 2016 WL 4379580, at *2 (Iowa Ct. App. Aug. 17, 2016) (“There

are other, less questionable reasons to exercise ‘de novo review with deference,’

including: notions of judicial comity and respect; recognition of the appellate court’s

limited function of maintaining the uniformity of legal doctrine; recognition of the

district court’s more intimate knowledge of and familiarity with the parties, the

lawyers, and the facts of a case; and recognition there are often undercurrents in

a case—not of record and available for appellate review—the district court does

and should take into account when making a decision.”).

       The record reflects the parties married in 2006 and divorced by way of

stipulated decree in 2013. The parties have two children. During the course of the

parties’ marriage, Joe adopted Julia’s son, C.Q., now eighteen years of age and
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entering his senior year of high school. The parties also have a younger son, M.Q.,

now eleven years of age. Pursuant to the stipulated decree, the parties were

granted joint legal custody of both children, Julia was awarded physical care of

C.Q., Joe was awarded physical care of M.Q., and each parent was granted

visitation with the other child. Shortly after the entry of the decree, the parties

modified the decree to expand summer visitation for the parents and to better

accommodate Julia’s observance of White Month, a Mongolian holiday. In 2016,

Julia filed the instant petition to modify the decree, seeking physical care of both

children and child support. The district court denied the petition, concluding Julia

failed to prove a material change in circumstances not in contemplation of the

decretal court. Julia timely filed this appeal.

       “The general principles guiding our adjudication of petitions for modification

of dissolution decrees are well-established.” In re Marriage of Hoffman, 867

N.W.2d at 32.

       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 Frederici, 338 N.W.2d 156, 158 (Iowa 1983). “The burden on the

party seeking modification is a heavy one.” In re Marriage of Morrison, No. 16-

0886, 2017 WL 936152, at *2 (Iowa Ct. App. Mar. 8, 2017). Courts are chary to

disturb the physical care provisions of a decree because “once custody of children
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has been fixed it should be disturbed only for the most cogent reasons.” Hoffman,

867 N.W.2d at 32. Ultimately, when reaching a conclusion, “[t]he children’s best

interest is the controlling consideration.” Id.; accord Marriage of Winter, 223

N.W.2d 165, 166–67 (Iowa 1974) (listing factors to consider when reaching a best-

interest determination).

       Julia contends the animosity between the parties warrants modification of

the physical-care provisions of the decree. It is not disputed the parties have a

contentious relationship. It also does not seem disputed the parties’ contentious

relationship negatively impacts the children. However, the contentious nature of

the relationship does not support modification here.          First, “[t]he parties’

contentious relationship is merely a continuation of what came before.” Morrison,

2017 WL 936152, at *3. There has been no change in circumstances since the

entry of the decree. See Albertus v. Albertus, 160 N.W. 830, 831 (Iowa 1917) (“It

would be a sufficient change of circumstances within the reasoning of those cases

if this alleged animosity or other unfitness were not in existence when the original

decree was entered.”). Second, while the parties’ relationship is contentious, we

cannot say the hostility between the parents rises to the level requiring judicial

intervention. Finally, much of the contentiousness between the parties is initiated

by Julia. This is evidenced in her own video exhibits, which show her creating

contentious situations with Joe regarding the children and then recording the

exchanges for evidentiary purposes.      Julia cannot leverage her instigation of

conflict into a legal reason to support modification of the decree. The level of

conflict in this case does not warrant a change in physical care of the child, but
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both parents must mature and find a way to interact in a non-confrontational

manner for the benefit of their children. See In re Marriage of Fortelka, 425 N.W.2d

671, 672 (Iowa Ct. App. 1988) (“Parents must put away their personal animosities

toward each other and work together to meet the children’s needs.”).

      Julia also contends modification is warranted because Joe’s care of the

children negatively affects their physical health.    Specifically, she notes Joe

smokes in the home. She also notes Joe’s home has mold in the basement. Both

of these facts, she contends, contribute to M.Q.’s alleged respiratory ailments. The

evidence relevant to this issue does not support modification. The district court

made several credibility findings regarding this issue to which we defer. The

district court credited Joe’s denial that he smoked in the home and that he smoked

around M.Q. There was no evidence of the existence of mold in Joe’s house other

than Julia’s assertion. Finally, there was no credible evidence M.Q.’s respiratory

health was affected by smoke or mold. Because the evidence does not support

Julia’s concerns, these concerns do not serve as a basis for modification of the

decree.

      There is evidence in the record showing both parents fail to provide or fail

to timely provide each other with information regarding the children, including

educational and medical information. The parties’ mutual failures to communicate

with each other regarding the children’s educational and medical information,

among other things, is contrary to their duties as joint legal custodians. See Iowa

Code § 598.1(3) (2013) (providing when parents are awarded joint legal custody,

both parents have “legal custodial rights and responsibilities toward the child” and
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“neither parent has legal custodial rights superior to those of the other parent”).

The parents’ failures do not support modification. Both parents are at fault, and

changing physical care of M.Q. from Joe to Julia does not resolve the

communication failure. Again, both parents will have to improve in communicating

relevant information to the other regarding both children.

       Even assuming Julia had established a material and substantial change in

circumstances, she has not established the ability to provide superior care. To

justify modification, Julia must show she can provide superior care to the child at

issue. See In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997).

As noted above, Julia causes much of the tension between her and Joe. She does

not share or does not timely share relevant information. She is not supportive, or

only minimally supportive, of Joe’s relationships with the children. Joe has a strong

bond with M.Q. Joe has coached M.Q.’s sports teams. Joe has been M.Q.’s scout

master in cub scouts. M.Q. expressed to his therapist his desire to reside with Joe.

All things considered, the children are doing well in the current care arrangement.

There is nothing in the record supporting the conclusion Julia can provide superior

care to the children. See In re Marriage of Thielges, 623 N.W.2d 232, 238 (Iowa

Ct. App. 2000) (finding the father failed to prove he could provide superior care

because, “[a]t most, the record shows [the father] and [the mother] are both fallible

human beings who can provide the same level of care for their children”).

       On de novo review, we have considered each of the parties’ arguments,

whether or not explicitly referenced in this opinion.        “[T]he district court has

reasonable discretion in determining whether modification [of physical care] is
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warranted and that discretion will not be disturbed on appeal unless there is a

failure to do equity.” In re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006)

(quoting In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998)). We find no

reason to disturb the judgment of the district court.

       AFFIRMED.
