                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1545
                              Filed May 29, 2014


IN RE THE MARRIAGE OF DENNIS DORMAN
AND JAKELINE DORMAN

Upon the Petition of
DENNIS DORMAN,
      Petitioner-Appellant,

And Concerning
JAKELINE DORMAN,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



      Dennis Dorman appeals the district court’s denial of his application to

modify visitation and application for rule to show cause. AFFIRMED.



      Eric Borseth and Judy Johnson of Borseth Law Office, Altoona, for

appellant.

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

Moines, for appellee.



      Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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VOGEL, P.J.

      Dennis Dorman appeals the district court’s denial of his application to

modify visitation and application for rule to show cause.      Dennis alleges the

district court abused its discretion in denying his request to hold his former wife,

Jakeline Dorman, in contempt, and that it used an incorrect legal standard when

concluding a substantial change in circumstances was not shown such that the

visitation schedule should be modified. Both Dennis and Jakeline request the

award of appellate attorney fees.      The district court described both parties’

behavior as “hostile and uncooperative.” We agree, and therefore conclude the

court did not abuse its discretion in denying Dennis’s application for rule to show

cause, as well as properly concluded no material change in circumstances

occurred warranting modification of the visitation schedule. Consequently, we

affirm. We also decline to award appellate attorney fees to either party.

I. Factual and Procedural Background

      Dennis and Jakeline were married in 2004 and have twin daughters, born

in 2005. In February of 2007 the marriage was dissolved. After a hearing, the

decretal court awarded the parties joint legal custody and granted Jakeline

physical care subject to Dennis’s visitation rights.    On Jakeline’s appeal, our

court modified Dennis’s visitation schedule, but affirmed the decree in all other

respects. In October 2007, Jakeline moved from Polk County to North Liberty,

Iowa, and the dissolution decree was modified pursuant to the agreement of the

parties. The modification order granted Dennis visitation every other weekend

from Thursday at 7:00 p.m. until Sunday at 5:00 p.m. until the children began

kindergarten, at which point Dennis would have the children every other weekend
                                         3


from Friday at noon, or whenever his workday ends, until Sunday at 5:00 p.m.

The holiday visitation schedule was also modified.

       Throughout the pendency of these proceedings, the record is replete with

evidence as to how the parties have demonstrated a lack of communication and

distaste for each other. Visitation exchanges have been difficult, though neither

party claims the other has interfered with their court-ordered visitation.

Unpleasant text messages have been exchanged. However, the district court did

note that the parties’ “despicable” behavior toward each other has been “primarily

kept . . . away from the children.”

       As a result of the parties’ inability to get along, on August 13, 2013,

Dennis filed an application to modify the decree, requesting the visitation

schedule be modified. While the application to modify was pending, Dennis filed

an application for rule to show cause, which included fifty-seven counts of

contempt.    The application alleged Jakeline refused Dennis’s requests for

additional visitation, failed to notify Dennis of the children’s medical appointments

and extracurricular activities, and interfered with Dennis’s relationship with the

children.1 On May 8, 2013, Dennis amended the application, adding seven more

counts of contempt. Jakeline filed an application for rule to show cause as well,

alleging Dennis called her bad names, failed to notify her of the children’s

extracurricular activities, failed to notify her of the children’s injuries and

accidents, and failed to provide dental coverage.


1
  This is Dennis’s second application for rule to show cause. In October 2008, Dennis
requested Jakeline be held in contempt for failing to notify Dennis of medical
appointments and for failing to provide him with her address. The court granted
Dennis’s application and held Jakeline in contempt.
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       A hearing was held on June 12 and 13, 2013, on both applications for rule

to show cause and Dennis’s application to modify. On September 10, 2013, the

court issued a ruling denying the application to modify as well as both parties’

contempt actions, holding there was no material change in circumstances

warranting modification. The court further found neither party had carried their

burden of showing the other had engaged in a willful violation of a court order.

Dennis appeals, asserting the district court abused its discretion in denying the

contempt action and applied the wrong standard of proof when denying his

application to modify visitation.

II. Contempt Action

       We review the district court’s refusal to hold a party in contempt for an

abuse of discretion, “and unless this discretion is grossly abused, the [district

court’s] decision must stand.” In re Marriage of Swan, 526 N.W.2d 320, 327

(Iowa 1995) (internal citation omitted). The party requesting that another party

be held in contempt has the burden of proving the contemnor had the duty to

obey a court order but willfully failed to perform that duty. Christensen v. Iowa

Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). Once a violation of a court order

has been shown, the burden shifts to the contemnor to produce evidence

demonstrating the violation was not willful. Id.

       In denying the contempt action, the district court stated:

              At trial, both parties introduced evidence of text messages
       they alleged substantiated their claims, but also showing instances
       in which the parties were able to cooperate in at least working out
       scheduling issues. The court found both parties’ testimony less
       than credible at trial, particularly when they were testifying about
       each other. They both have continued to demonstrate the lack of
       respect they have for each other and their almost total inability to
                                            5


         work together to parent their children. Both parties are responsible
         for their own behavior which has lead to their dysfunctional
         relationship, but the court in unable to fault one party more than the
         other for the resulting consequences of this behavior.
                 ....
                 In this case the court finds that both parties have behaved
         despicably to the other, although they have primarily kept these
         acts away from the children. The court, however, cannot find that
         Dennis or Jakeline has proven beyond a reasonable doubt that the
         other has willfully failed to abide by a court order, or that she or he
         did so for a bad or evil purpose. It is unfortunate that neither party
         is living up to the expectations of mutual parenting contemplated by
         joint legal custody as set out in their Decree, but there is insufficient
         evidence in this case for the court to hold either party in contempt

         As an initial matter, we defer to the credibility determinations of the district

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

Moreover, upon review of the record, we agree with the court Dennis failed to

carry his burden of proof.       Each party is at fault for creating such a hostile

environment and putting their own disputes ahead of doing what is best for the

children. We find no abuse of discretion in the district court’s decision, and

consequently, we affirm the order denying Dennis’s contempt action.

III. Application to Modify Visitation

         We review the ruling on an application to modify de novo. In re Marriage

of Brown, 778 N.W.2d 47, 51 (Iowa Ct. App. 2009).                  To succeed on an

application to modify visitation, the movant must establish by a preponderance of

the evidence there has been a material change in circumstances since the entry

of the original decree and that a change in the visitation schedule is in the

children’s best interest.       Id. at 51–52.       However, compared to custody

modification proceedings, this is a much less demanding burden of proof. Id. at

51.
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       Though the district court cited cases relating to the modification of custody

arrangements, on our de novo review, we nonetheless conclude Dennis failed to

show a material change in circumstances occurred such that the visitation

schedule should be modified.        When the parties have continuously had an

extremely strained relationship, the fact the parties continue to experience

difficulty with each other does not amount to a material change in circumstances.

See generally Donovan v. Donovan, 212 N.W.2d 451, 453 (Iowa 1985) (noting

that, to warrant a modification of the visitation schedule, there must be a material

change in circumstances since entry of the original decree).2 Here, the parties’

relationship has remained consistently strained since they divorced.             Their

behavior toward each other has not deteriorated significantly; rather, it has simply

remained hostile. As the district court noted, “[t]his is not a substantially changed

circumstance, but rather a tragic but continuing circumstance, and as such it

does not warrant modification of the Decree.”

       Moreover, it does not appear to be in the best interests of the children to

modify the visitation schedule. Both parties testified the girls are well-adjusted,

happy, and energetic. The children were seeing a counselor beginning in 2010,

but according to the parties’ testimony, the children have not needed to see the

counselor “for quite some time.” Furthermore, the district court noted the parties’

behavior toward each other has been “primarily kept . . . away from the children.”

Consequently, we conclude Dennis did not carry his burden of proof showing


2
  Dennis relies on an unpublished case from this court to compare degrees of
noncompliance with visitation. However, we review the facts germane to each case, and
while an unpublished case may be persuasive, it is not controlling legal authority. See
Iowa R. App. P. 6.904(2)(c).
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there has been a material change in circumstances and that modification of the

visitation schedule is in the children’s best interest.   We therefore affirm the

district court’s denial of his application to modify.

IV. Appellate Attorney Fees

       Both parties request the award of appellate attorney fees.       Appellate

attorney fees are not a matter of right but rest within our discretion.     In re

Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). “In determining

whether to award appellate 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 decision of the trial court on

appeal.” Id. Upon consideration of these factors, and in light of the financial

circumstances of both parties, we decline to award appellate attorney fees to

either party.

       Costs of this appeal assessed one-half to each party.

       AFFIRMED.
