                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0182
                             Filed March 11, 2015


IN RE THE MARRIAGE OF JOLENE MICHELLE JOHNSON
AND PAUL LEE JOHNSON

Upon the Petition of
JOLENE MICHELLE JOHNSON,
      Petitioner-Appellee,

And Concerning
PAUL LEE JOHNSON,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.



      Paul Johnson appeals from the district court’s order modifying the decree

dissolving his marriage to Jolene Johnson. The modification awarded Jolene

physical care of their two minor children.   We agree with the district court’s

findings and affirm. AFFIRMED.



      Mark R. Hinshaw of The Law Offices of Mark R. Hinshaw, West Des

Moines, for appellant.

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

Moines, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, J.

       Paul Johnson appeals from the district court’s order modifying the decree

dissolving his marriage to Jolene Johnson. The modification awarded Jolene

physical care of their two minor children.     We agree with the district court’s

findings and affirm.

       I. Factual and Procedural Background

       Paul and Jolene were married in September 2007. They had two children

together who are currently seven and four years old.           Their marriage was

dissolved by court decree on October 31, 2011. The dissolution decree awarded

the parents joint custody and, despite their contentious relationship, joint physical

care of the children.

       Paul took on a new paramour, Cyrena, with whom he now lives. The

district court’s findings of fact—which are supported by the record—state:

       Paul lives with Cyrena Johnson, age 28; their history and status
       [are] confusing. At one point, Paul testified that he and Cyrena had
       been together for two years. However, later testimony established
       that they moved in together in October 2012 after knowing one
       another for approximately three months. . . . [P]olice were called to
       Paul’s home on September 29, 2012 in reference to a possible
       domestic dispute. However, at that time, Cyrena denied any
       romantic relationship between her and Paul. The fact the police
       could not determine whether there was an intimate relationship
       between Paul and Cyrena was one of the reasons no domestic
       abuse assault charge was filed, according to the report. Thus it is
       not clear when their romantic relationship began.

In addition to Paul and Jolene’s two children, there are four other children living

in Paul’s household: Cyrena’s three daughters from two prior relationships and

Paul and Cyrena’s child. Paul’s older child from another relationship visits in

Paul and Cyrena’s home.
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       In the years following the dissolution decree, Paul and Jolene’s already

tenuous relationship grew even more strained. Cyrena interjected herself into

the tense relationship as well by communicating directly with Jolene to criticize or

challenge Jolene about her care of the children.              Paul began to permit his

parents or Cyrena1 to take on the care of the children without honoring Jolene’s

first right of refusal as provided in the dissolution decree.2 Jolene discovered this

fact when she went to Paul’s house to check on the children after she could not

reach Paul by phone.        She discovered that Paul had left the children in his

mother’s care. An altercation between Paul’s mother and Jolene ensued, and

police were called to the scene.

       Another ongoing incident during the period between the dissolution and

modification involved an infestation of bed bugs in Paul’s home. The children

were returning to Jolene’s care with mysterious bug bites. Jolene asked Paul to

have his home checked for an infestation numerous times. Paul and Cyrena

denied that there was any problem at their home, insinuated that Jolene’s home

may have been the source of the bites, and claimed that a professional had

determined there was no problem at Paul’s home.                   Ultimately a bed bug

infestation was discovered in Paul’s home.

       Both Paul and Jolene claim that the other disparages them in front of the

children. The older child, P.J., has demonstrably borne the brunt of the parties’


1
   The record also reflects Paul sometimes tasks an unnamed individual—who is known
to the children as “cousin” and appears to be either a friend or relative of Cyrena’s—with
the children’s care.
2
  The decree provides: “If either party is unable to be personally present with the children
during their respective visitation or parent time for longer than three (3) hours, they shall
first offer the time to the other parent to spend with the children prior to obtaining third
party care.”
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acrimony. On the recommendation of one of P.J.’s teachers, Jolene arranged for

him to begin meeting with a counselor.3 After six months of counseling, P.J.’s

counselor wrote:

               [P.J.] is a sad and confused child. He does have a great
       deal of anxiety which seems to emanate from his belief that his
       father and step-mother hate his mother. From [P.J.]’s perspective,
       he reports hearing a great deal of negative, critical, and mean-
       spirited remarks about his mother.[4] . . . Of course, these situations
       have escalated the problematic co-parenting relationship that
       seems to exist between Jolene and Paul. . . .
               The hostility that exists between the two families is very
       troubling to [P.J.]. This situation has a direct effect on his ability to
       cope with life stressors and distracts him from normal
       developmental tasks.
               [P.J.]’s troubles are compounded given the current joint
       physical care status. He is under a great deal of stress.[5]

       Jolene applied for modification of the decree of dissolution on April 10,

2013, claiming the circumstances since the order establishing joint physical care

had substantially changed due to increased hostility between the parties and the

deterioration of the children’s mental and emotional well-being. Paul resisted

Jolene’s application. He filed an application for the district court to appoint a

custody evaluator. The court did so. The evaluator conducted his evaluation

and reported to the court, “It is my recommendation that the custody

arrangement be modified so as to provide that the mother be the primary care

giver and physical custodian.”



3
  Jolene informed Paul of the arrangement and invited his input or participation. Paul
elected not to participate and noted that he did not believe counseling was necessary.
4
  In an email to Paul, Jolene wrote, “[P.J.] says that [Cyrena] calls me an idiot, stupid,
and bit[ch]. He has also said that Cyrena tell[s] them to hit me, not talk to me, not listen
to me and that she is a better mom th[a]n I ever will be.”
5
  Paul claims the counselor’s findings are the result of a bias in Jolene’s favor. We
agree with the district court: there is no evidence in the record of any bias that would
have guided the counselor’s findings in one way or the other.
                                         5


       The district court conducted a hearing on the modification application. It

heard the testimony of Jolene, Paul, Cyrena, and Paul’s mother. The district

court issued its modification order on December 30, 2013. In its order, the court

made specific findings regarding the credibility of pivotal witnesses:

       Neither Paul nor Cyrena were credible while testifying. Cyrena in
       particular seemed to think that her time on the witness stand was a
       source of great amusement. . . . In Paul’s case, it was difficult to
       determine at times whether he was actively attempting to mislead
       the Court or simply oblivious to the problems his children are
       experiencing and the causes of those problems.

Additionally, Paul’s mother “vividly demonstrated her hatred of Jolene while

testifying.   Her dislike is so extreme that it is difficult to accept any of her

testimony.” The district court concluded:

       After considering all of the evidence in the case, the Court finds that
       there has been a substantial change in circumstances since the
       entry of the dissolution decree on October 31, 2011. The
       relationship between Jolene and Paul has deteriorated, in part due
       to Paul’s new relationship with Cyrena. While [it] is certainly not
       unanticipated that a divorced parent will become involved with a
       new significant other, or even that the new significant other will not
       have a rosy relationship with the ex-spouse, no one would have
       anticipated the level of animosity and antagonism between Jolene
       and Cyrena.       More important, the children’s well-being has
       significantly deteriorated since October 31, 2011. The custody
       arrangement which the Court foresaw in October 2011 as being in
       the best interests of the children has turned out to the contrary, and
       the children are suffering as a result.

       The district court found that “Jolene is a superior caretaker for the children

not only as to Paul, but as to the prior joint physical care arrangement.”         It

modified the dissolution decree, awarding Jolene physical care of the children

while providing visitation rights for Paul. It ordered Jolene and Paul to begin co-

parent counseling and awarded child support to Jolene. Paul appeals.
                                          6


       II. Standard of Review

       We review a modification of a dissolution decree de novo. In re Marriage

of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). We are not bound by the

factual findings of the district court, but we give them weight; we give special

weight to the district court’s determination of the credibility of a witness. See id.

       III. Discussion

               Courts are empowered to modify the custodial terms of a
       dissolution decree only when 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.

In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004).                     If

modification is warranted based on a substantial change in circumstances, we

then must determine if Jolene has satisfied the heavy burden of demonstrating

that she can provide superior care. See id.

       Physical care issues are not to be resolved based upon perceived
       fairness to the spouses, but primarily upon what is best for the
       child. The objective of a physical care determination 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).

       Paul argues there has not been a substantial change in circumstances

because the parties’ combative relationship pre-dates the original dissolution

decree. He argues, therefore, that the current antagonistic climate that exists

between the two was within the contemplation of the court at the time of

dissolution.6 We disagree. Jolene asserted and the district court found that the


6
  Paul also argues the district court applied an “expectation” standard instead of a
“contemplation” standard when considering whether Jolene’s asserted changes in
                                           7


current circumstances constitute a severe degeneration from the state of the

parties’ relationship at the time of dissolution. Additionally, measurable harm to

the children has come to pass since the dissolution as reflected by the findings of

P.J.’s counselor. Paul’s refrain that the harms are merely “mild anxiety” lend

credence to the district court’s supposition that he is “oblivious to the problems

his children are experiencing and the causes of those problems.” We agree with

the district court that there has been a substantial change in circumstances and

that modification was proper.

       Paul goes on to claim that Jolene has not demonstrated she possesses

superior parenting skills. He also claims it is not in the children’s best interests to

modify their physical care. We disagree. In addition to the evidence that the

children are exposed to an emotionally unhealthy environment at Paul and

Cyrena’s home, the record shows that Paul and Cyrena were slow to correct their

bed bug infestation and quick to cast blame on third parties.

       The record is clear that Jolene’s home will serve as a better environment

for the children’s mental, emotional, and physical health. This is particularly true

in that Paul has not demonstrated an understanding that there are real and

tangible harms to the children that must be rectified. Based upon our analysis of




circumstances were within the contemplation of the court at the time of dissolution.
While the court did use the words “expect” and “anticipate” in their plain-language sense
in its discussion of what circumstances were within the contemplation of the court at the
time of dissolution, it does not necessarily follow that the court crafted its own legal
standard. There is no support in the record for this element of Paul’s argument.
Regardless, we reach the same conclusion as the district court on our de novo review by
applying Paul’s so-called “contemplation” standard.
                                            8


the statutory considerations used to evaluate child custody matters, 7 Jolene has

shown that she can provide superior care of the children and that it is in the

children’s best interests for her to assume their physical care.          We therefore

affirm the district court’s modification.

       AFFIRMED.




7
  Iowa Code section 598.41(3) (2015) provides in relevant part:
                 In considering what custody arrangement . . . is in the best interest
         of the minor child, the court shall consider the following factors:
                 a. Whether each parent would be a suitable custodian for the
         child.
                 b. Whether the psychological and emotional needs and
         development of the child will suffer due to lack of active contact with and
         attention from both parents.
                 c. Whether the parents can communicate with each other
         regarding the child's needs.
                 d. Whether both parents have actively cared for the child before
         and since the separation.
                 e. Whether each parent can support the other parent’s relationship
         with the child.
                 f. Whether the custody arrangement is in accord with the child’s
         wishes or whether the child has strong opposition, taking into
         consideration the child’s age and maturity.
                 g. Whether one or both the parents agree or are opposed to joint
         custody.
                 h. The geographic proximity of the parents.
                 i. Whether the safety of the child, other children, or the other
         parent will be jeopardized by the awarding of joint custody or by
         unsupervised or unrestricted visitation.
On our de novo review, we find that subsections (a), (c), (e), and (g) weigh heavily
against continued joint physical care in that Jolene has demonstrated her parenting
abilities are superior to Paul’s, the parties clearly cannot effectively communicate with
each other, Paul and Cyrena actively subvert the children’s relationship with Jolene, and
Jolene (along with P.J.’s counselor and the custody evaluator) is adverse to continued
joint physical care. The value of any subsection supporting continued joint physical
care—such as geographic proximity—is insubstantial in comparison to the serious
nature of the contrary factors.
