                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1451
                               Filed May 15, 2019


KELLY HOPE TORRES,
     Petitioner-Appellant,

vs.

DANIEL ELDON MORRISON,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Tod J. Deck,

Judge.



      Kelly Torres appeals a district court order modifying a custody decree.

AFFIRMED.




      John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.

      Craig H. Lane of Craig H. Lane, P.C., Sioux City, for appellee.



      Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                         2


MULLINS, Judge.

       Kelly Torres and Daniel Morrison were never married but are the parents of

X.M.-T., born in 2009. A stipulated decree establishing custody, visitation, and

child support was entered in September 2011. At that time, both parties were

residing in Sioux City. The stipulated decree provided for joint legal custody and

shared physical care of the child pursuant to a specific parenting-time schedule.

In August 2014, the decree was modified by stipulation to provide each of the

parties with parenting time on an every-other-week basis.

       Daniel is a middle school special education and behavioral teacher. He also

works part time at a boys and girls home. Daniel married his current wife, Heather,

in October 2016. The marriage produced a son, who was eighteen months old at

the time of the modification trial. Heather is a stay-at-home mom. Daniel, Heather,

and their son now live in Remsen, which is roughly forty-five minutes away from

Sioux City. Kelly continues to reside in Sioux City with her adult son from a prior

relationship. Daniel maintains a structured parenting style. Kelly maintains a more

freestyle approach to parenting.      Daniel is generally supportive of Kelly’s

relationship with X.M.-T. Kelly appears to be unsupportive of X.M.-T.’s relationship

with Daniel; she says negative things about Daniel in front of X.M.-T. Examples of

these types of comments include statements that Daniel does not love him

anymore or Daniel loves his younger son more than he loves X.M.-T.

       The evidence shows the continuing viability of the shared-physical-care

arrangement has deteriorated since the last modification, largely as a result of

Kelly’s conduct. For example, in the spring of 2015, there was an incident in which,

according to Daniel’s testimony, Kelly came to Daniel’s residence and threw
                                         3


somewhat of a tantrum as a result of Daniel making the child eat steak for dinner

instead of what the child wanted, chicken. According to Kelly’s testimony, she

came to the residence upon concerns that Daniel was physically abusing the child.

Kelly ultimately called the police. When the police arrived, Kelly told the officers

she observed Daniel throw the child down. Officers inspected the child. No

criminal charges were filed. Then, in June, there was an incident at Daniel’s church

in which Kelly essentially showed up and took the child during Daniel’s parenting

time. A similar incident occurred following one of the child’s t-ball games in June

2016.

        In mid-September 2016, a few weeks before Daniel and Heather were to be

married, there was a disagreement between Daniel and Kelly concerning one of

the child’s doctor’s appointments. Kelly alleges Daniel physically assaulted her

during this episode. Her claim is wholly unsubstantiated. Shortly thereafter, Kelly

filed a petition for relief from domestic abuse against Daniel.       A temporary

protective order was initially entered prohibiting Daniel from contacting X.M.-T.,

which would have prevented the child from attending Daniel’s wedding. However,

the district court struck that part of the order shortly before the wedding. Kelly’s

petition for relief was ultimately denied because she “failed to meet her burden of

proof that an assault occurred.” On September 22, Kelly filed a petition requesting

modification of the physical-care provisions of the custody decree, alleging Daniel

“has physically abused [Kelly] and the parties’ child.” Daniel counterclaimed for

sole legal custody and physical care.        About a week after Kelly filed her

modification petition, Kelly reported to the Iowa Department of Human Services

(DHS) that Daniel physically abused her and the child. A child-abuse assessment
                                            4


was conducted, which resulted in a not-confirmed finding. There is evidence that

Kelly coached the child to report negative things about Daniel during the

investigation. More than a year later, in November 2017, Kelly reported to DHS

that Daniel physically abused his younger son. An investigation likewise resulted

in a not-confirmed finding. Again, there is evidence that Kelly coached X.M.-T. in

relation to this investigation.

       Kelly agreed in her testimony that she has contacted law enforcement to

conduct welfare checks at Daniel’s residence on several occasions, too many

times to count. As the district court noted, “There was no credible evidence

presented to support the reasonableness of any of these ‘welfare checks.’”

Generally speaking, since the decree was modified in 2014, the parties’ ability to

effectively communicate in furtherance of the child’s best interests has languished.

        Prior to the modification trial, Kelly withdrew her request for modification of

physical care. Daniel continued to seek modification of custody and physical care.

In its subsequent modification ruling, the court declined to modify legal custody but

awarded Daniel physical care with liberal visitation for Kelly.       The court also

modified other provisions of the decree relative to the modification of physical care.

The court denied Kelly’s motion to reconsider, enlarge, or amend pursuant to Iowa

Rule of Civil Procedure 1.904(2). Kelly appeals. She argues Daniel did not meet

his burden to show a substantial change in circumstances or that he has a superior

ability to minister to the child’s needs.

       Appellate review of an equitable action to modify the physical-care

provisions of a custody decree is de novo. See Iowa R. App. P. 6.907; Melchiori

v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002); see also In re Marriage of
                                         5

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We give weight to the factual findings

of the district court, especially when considering the credibility of witnesses, but

we are not bound by them. Iowa R. App. P. 6.904(3)(g). The best interests of the

child is our primary consideration. Iowa R. App. P. 6.904(3)(o); Hoffman, 867

N.W.2d at 32.

       The following principles apply to modification of the physical-care provisions

of a custody decree:

       [T]he applying party must establish by a preponderance of evidence
       that conditions since the decree was entered have so materially and
       substantially changed that the [child’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 child[]. A
       parent seeking to take custody from the other must prove an ability
       to minister more effectively to the [child’s] well being. The heavy
       burden upon a party seeking to modify custody stems from the
       principle that once custody of children has been fixed it should be
       disturbed only for the most cogent reasons.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

       On appeal, Kelly agrees “the record is filled with incidents of tension,

selfishness and anger.” However, she argues the circumstances show “the parties

can effectively co-parent and communicate when it comes to” furthering the child’s

best interests and, therefore, no change in circumstances has occurred. Upon our

de novo review, we disagree. Kelly has deliberately made unsubstantiated claims

against Daniel in her apparent quest to extricate him from the child’s life. Daniel

has taken the high road and chosen not to follow suit by engaging in similar tactics.

We have no doubt the acrimony between the parties resulting from Kelly’s conduct

is the root of the child’s anxiety and related mental-health issues. Simply stated,
                                           6


“[t]he shared custody provisions agreed to by these parties and incorporated into

the decree have not evolved as envisioned by either of the parties or the court.”

Melchiori, 644 N.W.2d at 368.        The discord between the parties has had a

disruptive effect on the child and amounts to a substantial change in circumstances

warranting modification of the physical-care provisions of the decree. See id. The

fact that Kelly has continued in her tirade over several years shows the change in

circumstances is “more or less permanent, not temporary.” See Frederici, 338

N.W.2d at 158. We conclude Daniel met his burden to show a substantial change

in circumstances.

       We turn to whether Daniel met his burden to show he has a superior ability

to minister to the child’s well-being. See In re Marriage of Harris, 877 N.W.2d 434,

440 (Iowa 2016); Frederici, 338 N.W.2d at 158. Our primary consideration in

making this determination is the long-term best interests of the child. See In re

Marriage of Zabecki, 389 N.W.2d 396, 395 (Iowa 1986). “Prior cases are of little

precedential value, except to provide a framework for our analysis, and we must

ultimately tailor our decision to the unique facts and circumstances before us.” See

In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995).

       “The factors the court considers in awarding custody are enumerated in

Iowa Code section 598.41(3)” (2016). In re Marriage of Courtade, 560 N.W.2d 36,

37 (Iowa Court App. 1996). “Although Iowa Code section 598.41(3) does not

directly apply to physical care decisions, . . . the factors listed here as well as other

facts and circumstances are relevant in determining” physical care. In re Marriage

of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). “In determining which parent serves

the child’s best interests, the objective is to place the child in an environment most
                                          7

likely to bring the child to healthy physical, mental, and social maturity.” Courtade,

560 N.W.2d at 38. The following factors are relevant to the determination of which

parent can more effectively minister to the child’s long-term well-being in this case:

(1) whether each parent would be a suitable custodian, (2) whether the child will

suffer due to lack of active contact with and attention from both parents, (3) whether

the parents can effectively communicate about the child’s needs, (4) whether both

parents have actively cared for the child, (5) whether each parent can support the

other’s relationship with the child, (6) whether one or both parents agree to or

oppose shared physical care, and (7) the geographic proximity of the parents. See

Iowa Code § 598.41(3). We also note our consideration of the characteristics of

the child and parents, the child’s needs and the parents’ capacity and interests in

meeting the same, the relationships between the parents and child, the effect of

continuing or disrupting an existing physical-care arrangement, the nature of each

proposed environment, and any other relevant matter disclosed by the evidence.

See In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).

       We acknowledge that neither parent is perfect nor a bad parent.

“Determining what custodial arrangement will best serve the long-range interest of

a child frequently becomes a matter of choosing the least detrimental available

alternative for safeguarding the child’s growth and development.” Id. at 167. Upon

our de novo review of the record and consideration of the foregoing factors, we

agree with the district court that Daniel met his burden to show he can provide

superior care to the child. That is not to say that we think Daniel can provide

perfect care, or that Kelly has not historically provided good care; we only conclude

placement in Daniel’s physical care will be “most likely to bring the child to healthy
                                          8

physical, mental, and social maturity.”       See Courtade, 560 N.W.2d at 38.

Consequently, we affirm the district court’s modification ruling.

       Daniel requests an award of appellate attorney fees.              See Iowa

Code § 600B.26; Schaffer v. Frank Moyer Constr. Inc., 628 N.W.2d 11, 23 (Iowa

2001) (holding that a statute allowing an award of trial attorney fees permits an

award of appellate attorney fees as well). An award of appellate attorney fees is

not a matter of right but rests within this court’s discretion. In re Marriage of

Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining whether to award

attorney fees, we consider the needs of the party making the request, the ability of

the other party to pay, and whether the party making the request was obligated to

defend the district court’s decision on appeal. Id. Although we acknowledge

Daniel was required to defend the modification ruling on appeal, in consideration

of the foregoing factors, we deny Daniel’s request for fees. Costs on appeal are

assessed to Kelly.

       AFFIRMED.
