                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0662
                            Filed January 27, 2016


Upon the Petition of
KAYLA JO HALE, n/k/a KAYLA
JO ROWSON,
      Petitioner-Appellee,

And Concerning
JASON MICHAEL GUILLIAMS,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Clinton County, Paul L. Macek,

Judge.



      Jason Guilliams appeals the denial of his application for modification

concerning the parties’ minor child. AFFIRMED.




      M. Leanne Tyler of Tyler & Associates, P.C., Davenport, for appellant.

      Alicia D. Gieck of H.J. Dane Law Office, Davenport, for appellee.




      Considered by Doyle, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

        Jason Guilliams appeals the district court’s ruling denying his request to

modify the provision of the parties’ paternity decree granting Kayla Rowson

physical care of the parties’ child. On cross-appeal, Kayla claims the district

court erred by allowing a Department of Human Services (DHS) caseworker to

testify about a child abuse report. Kayla requests an award of appellate attorney

fees. We affirm the ruling of the district court and award Kayla appellate attorney

fees.

I.      BACKGROUND FACTS AND PROCEEDINGS

        Jason and Kayla are the unmarried parents of one child, A.G., born in

2010. On May 26, 2011, the district court entered a stipulated order establishing

custody, visitation, and child support for A.G. The order provided the parties with

joint legal custody and Kayla physical care of A.G. Jason, who had moved to

Florida in March 2011, was granted two annual periods of visitation of at least

nine days per visit.

        Since the entry of the 2011 order, Kayla married Michael Rowson in

September 2012. Michael provided substantial care to A.G. Michael and Kayla

have one child together, who was two at the time of the modification hearing.

Michael has another fifteen year-old child, D.R., from a previous relationship.

Michael and Kayla are separated and seeking a divorce. In 2014, Kayla had a

brief affair with Joshua McRae, which lasted approximately two months. Kayla

allowed Joshua to reside in the home she shared with D.R. and A.G. Joshua

sexually abused D.R. The DHS conducted an investigation, which resulted in a
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founded child abuse assessment against Kayla for denial of critical care and

failure to provide proper supervision for D.R. In her report, the DHS investigator

noted some safety concerns and cleanliness problems with Kayla’s living

conditions. Joshua was subsequently arrested for physically abusing Kayla. As

a result of the DHS investigation, a Family Resources case coordinator was

assigned to Kayla. The case coordinator had no safety or cleanliness concerns

with the residence. Additionally, the case coordinator found Kayla to be a loving,

attentive, bonded, and aligned parent; an active parent able to respond to the

needs of her children.

      Jason married shortly after he moved to Florida in 2011. During this time,

Jason was unemployed for approximately a year and half and fell behind on

paying child support. At the time of the hearing, Jason was $3487.52 in arrears,

but had made substantial strides in remedying the deficit. Jason’s family and

extended family live near him in Florida. Jason has visited A.G. in Iowa on a few

occasions since his move to Florida. He speaks with her on the telephone five to

ten times per year.

      Jason filed an application for modification of custody and/or visitation and

child support on April 21, 2014, claiming a substantial change in circumstances

had occurred since the 2011 order. A trial on Jason’s application was held on

March 3, 2015. The court declined to modify the physical care provisions of the

original order, but granted Jason additional visitation time. Jason now appeals.
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II.    STANDARD OF REVIEW

       This modification action was tried in equity, and our review is de novo.

Iowa R. App. P. 6.907; In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).

However, we give weight to the trial court’s findings because it was present to

listen to and observe the parties and witnesses. In re Marriage of McDermott,

827 N.W.2d 671, 676 (Iowa 2013); see also Iowa R. App. P. 6.904(3)(g).

III.   MERITS

       A.     Modification

       Jason claims he demonstrated a “substantial change in circumstances”

not within the contemplation of the district court when it entered the decree, and

he is the parent best suited to care for the child.

       The objective of physical care “is to place the children in the environment

most likely to bring them to health, both physically and mentally, and to social

maturity.”   In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Changing physical care of children is one of the most significant modifications

that can be undertaken. In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa

Ct. App. 2000). The parent seeking to modify the physical care provision of a

paternity decree must prove “there has been a substantial change in

circumstances since the time of the decree not contemplated by the court when

the decree was entered, which is more or less permanent and relates to the

welfare of the child.” See In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa

Ct. App. 2004). In addition, the parent seeking to modify physical care has a

“heavy burden” and “must show the ability to offer superior care.” Id.; see also In
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re Marriage of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once

custody of the children has been fixed, it should be disturbed only for the most

cogent reasons”). The controlling consideration is the child’s best interest. In re

Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).

      Jason claims the evidence supporting his modification claim includes

Kayla’s unstable living conditions, multiple significant others, lack of adult

problem-solving skills, integrity when dealing with authorities, psychiatric

problems, and lack of support for Jason’s relationship with A.G. Upon our de

novo review of the record, we conclude Jason failed to prove a substantial

change in circumstances, adopting the district court’s analysis:

             In this case, [Jason] has not shown an ability to provide
      superior care. [Jason] has demonstrated that he matured a great
      deal since leaving for Florida. He has married a woman who is well
      grounded and a positive influence. He has stopped drinking
      alcohol and has obtained gainful employment. He is making
      substantial efforts to provide financially for A.G. He has recognized
      his shortcomings in this regard and is making progress toward
      bringing his child support current. He is able to express good will
      toward [Kayla] and express a willingness to team with her in rearing
      A.G. On her part, [Kayla] has reared a child who has developed
      appropriately. There was no evidence that she consumes alcohol
      to excess. She has provided financially for A.G.; at times she was
      the sole support for A.G. Arguably, [Jason]’s present situation
      might be better than that of [Kayla]. He does have the financial
      support of parents who have the wherewithal to assist mightily.
      This does beg the question as to where this support resided when
      [Jason] was paying very little child support and was having only
      limited contact with A.G. However, that question need not be
      answered. Suffice to say that if both parties and their parents have
      learned that it does indeed take a team to raise A.G., she will be
      much better off. A.G. will be benefitted by greater contact with her
      father and his family. A change of custody would not benefit her
      and would actually cause harm.

      We affirm the district court’s ruling.
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      B.     Appellate Attorney Fees

      Kayla requests an award of appellate attorney fees totaling $5000. An

award of appellate attorney fees is not a matter of right but rests within our

discretion. Iowa Code § 600B.1 (2013); Markey v. Carney, 705 N.W.2d 13, 25

(Iowa 2005). Given the circumstances in this action, we award Kayla $2000 in

appellate attorney fees.

IV.   CONCLUSION

      Jason has been unable to show a “substantial change in circumstances

since the time of the decree not contemplated by the court when the decree was

entered, which is more or less permanent and relates to the welfare of the child”;

therefore, we decline to reverse the district court’s order.    See Malloy, 687

N.W.2d at 113. Since Kayla has prevailed, we decline to address her cross-

appeal. We award Kayla $2000 in appellate attorney fees.

      AFFIRMED.
