                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0798
                           Filed December 23, 2015

IN RE THE MARRIAGE OF JEFFREY CHARLES REDMAN
AND JANET LEE REDMAN

Upon the Petition of
JEFFREY CHARLES REDMAN,
      Petitioner-Appellant,

And Concerning
JANET LEE REDMAN,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



      A father appeals the district court ruling denying his request to modify the

provision of the parties’ dissolution decree granting the mother physical care of

the parties’ children. AFFIRMED.



      Dennis D. Jasper, Bettendorf, for appellant.

      Maria K. Pauly of Maria K. Pauly Law Firm, P.C., Davenport, for appellee.



      Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.
                                           2



BOWER, Judge

       Jeffrey Redman appeals the district court’s ruling declining his request to

modify the provision of the parties’ dissolution decree granting Janet Redman

physical care of the parties’ children.        Janet requests an award of appellate

attorney fees. We affirm.

I.     Background Facts and Proceedings

       Jeff and Janet are the parents of two children, J.R., born in 2003, and

K.R., born in 2007.1      K.R., the biological daughter of Jeff’s sister, Margaret

Searle, was born drug-affected with cocaine in her system. Shortly after her

birth, K.R. was placed in foster care with Jeff and Janet, who subsequently

adopted her. J.R. has a learning disability and an individual education plan (IEP)

at school.     With extra school involvement, both children are performing

adequately academically, but K.R. struggles with behavioral issues.

       During the proceedings to terminate Margaret and the father’s parental

rights, the termination court found Margaret had a history of substance abuse

and mental problems. The court also stated K.R., as a toddler, had “suffered

trauma” resulting in the Iowa Department of Human Services (DHS) reporting

“founded sexual abuse to the child by a perpetrator unknown.”                The court

terminated Margaret (and the father’s) parental rights, stating as one reason the

fact Margaret was living with her father and K.R.’s grandfather, Dr. Arthur Searle,

and placement “in this home would be inappropriate because of [Art’s] presence

there.” During Jeff and Janet’s marriage, Art was not active in the children’s


1
 Both parties have one older child from prior relationships. Jeff has visitation with his
son, age thirteen, on alternate weekends. Janet’s adult daughter lives in Boston.
                                           3



lives.   After hearing additional evidence in the modification proceedings, the

modification court concluded: “Suffice it to say, the court believes the record

amply demonstrates that any reasonable parent would be concerned enough

with Dr. Searle’s conduct not to allow him to be alone with children.” 2 Upon our

de novo review of the record, we agree with the modification court.

         A.   Dissolution.   Jeff initiated dissolution proceedings.      In December

2012, Jeff took J.R. to a child and adolescent clinical nurse specialist for

counseling.      Janet brought K.R. to the same counselor in August 2013.

Thereafter, the children have attended weekly sessions, including sessions with

Jeff and Janet.

         The parties’ stipulated decree of dissolution was accepted by the court

and filed on November 22, 2013. The court granted joint legal custody to the

parties with physical care to Janet and liberal visitation to Jeff. The court also

continued the temporary protective order prohibiting Jeff from contacting Janet.

Nevertheless, the parties communicated by text. Jeff has worked full time for

Alcoa for over three years. The dissolution court ordered Jeff to pay $590 per

month in child support to Janet.

         Shortly after the dissolution, the parties agreed to modify Jeff’s visitation

schedule to accommodate his work schedule at Alcoa—four twelve-hour shifts on

one week followed by three twelve-hour shifts the following week—generally,



2
  The modification court explained it was not providing more detail because Janet had
used prior judicial proceedings to report Dr. Searle to the Iowa medical board. The court
also stated “Dr. Searle underwent extensive evaluation, and that no professional
discipline was imposed. The court also notes [he] has never faced criminal charges.”
Like the modification court, we also decline to detail specific testimony.
                                        4



6:00 p.m. to 6:00 a.m. After the de facto modification, the children’s visitation

schedule varied week to week but resulted, overall, in a two-week visitation

rotation.   Generally, due to his work hours, Jeff declined to exercise his

Wednesday evening visitation.

       The month after the dissolution, December 2013, Art’s holding company

purchased a three-bedroom house where Jeff is currently living. Jeff’s new home

is located near the house Art previously had purchased for Margaret. Also in

December, Jeff unilaterally decided to introduce K.R. to Margaret, telling K.R.

that Margaret was her aunt. Contacts between K.R. and Margaret ensued. Jeff

told Janet, who was unhappy with Jeff’s unilateral decision, Margaret had really

changed.    K.R. shortly thereafter found out that Margaret was her biological

mother. After J.R. complained to his mother that Margaret and Art were favoring

K.R., Janet floated the idea to Jeff of K.R. and J.R. having separate visitation

times so each child received attention, but the proposal was not enacted.

       In February 2014, Janet texted Jeff, stating she did not want Margaret

picking up her kids. Jeff replied: “If Margaret comes with me, then she comes

with me.” Later, Jeff allowed Margaret to drive the children back to Janet’s home

without him. In early March 2014, Art took K.R. and her brothers, ages eleven

and thirteen, to a folk dance in Iowa City, even though a reasonable parent would

not have allowed unsupervised visitation with Art.        Jeff believed nothing

inappropriate could happen because the boys joined the excursion.              A

reasonable parent would not believe teenage boys could provide supervision.
                                              5



       Our de novo review of the record shows support for the district court’s

findings:

              In the spring of 2014, Jeff and Janet discussed a voluntary
       modification of the decree. They discussed a transfer of physical
       care of K.R. to Jeff—together with the adoption subsidy they
       receive for [her]—in return for Jeff’s payment of J.R.’s child support
       in advance (approximately $50,0000). The parties also discussed
       establishing a bank account for medical expenses. Jeff was to
       maintain health insurance for both children. Although [at trial] Janet
       denies discussing this arrangement, the court finds her testimony is
       not credible . . . .[3]

       B. Modification. Jeff responded to Janet’s offer by suggesting he pay

$25,000 as a fair amount for one child’s child support, and then suggesting he

pay $35,000. Negotiations broke down, and at the end of May 2014, Jeff filed a

petition to modify physical care, seeking physical care of both children. Janet

answered and counterclaimed, seeking to change Jeff’s visitation schedule.

After Jeff’s filing, Janet demonstrated immaturity and an inability to put the

interests of the children first by insisting the parties return to the visitation

provisions in the decree and abandon their de facto visitation arrangement. After

a hearing on Jeff’s motion for visitation, the court’s August 2014 ruling found the

“de facto visitation schedule” the parties had been using and “that is conducive to

the work schedules of the parties and allows for the children to maximize the

amount of time they spend with a parent” should remain in place.

       Also in August 2014, Jeff pulled the children into adult issues. Jeff told the

children he was planning a trip with them to the Wisconsin Dells and it was


3
  During a subsequent DHS investigation of Jeff spanking K.R. with a wooden “back
scratcher,” Janet told the investigator that she had stressed to Jeff that a split of physical
care for the children would only be considered if Art and Margaret were not in the picture
or around the kids, based on the past harm and risk of harm.
                                           6



Janet’s fault they could not go on the trip.4        When the children’s counselor

confronted Jeff about how he handled the situation, Jeff demonstrated immaturity

and an inability to put the interests of the children first by defending his actions

and insisting the children had a right and a need to know.

       In September 2014, Jeff spanked K.R., who discussed the paddling with

her counselor, a mandatory reporter to DHS. The DHS investigator consulted

with K.R.’s doctor, who stated “there are components of emotional trauma

occurring.” In mid-October of 2014, the DHS confirmed both physical injury (Jeff

spanking K.R. with a wooden “back scratcher”) and denial of critical care—failure

to provide proper supervision (Jeff allowing K.R. to have multiple interactions with

Margaret and Art without adult supervision).5 Jeff asked DHS to reopen the

physical-injury investigation, and it did. Two days later, the children’s counselor

told DHS that Jeff “is asking questions of [K.R.] in a manner which is leading and

negative. There is some question as to the potential emotional damage this

could cause.”

       In November 2014, DHS issued an addendum changing its physical-care

finding to “not confirmed.” The change was based on the additional investigation




4
  In the summer of 2014, the door to the basement in Jeff’s home was damaged and had
a big hole, but the children did not know how that occurred. Jeff stated he was not angry
but rather was practicing boxing when he created the hole.
5
   When the DHS investigator told Jeff about the findings, she also asked if he had
reviewed the written materials she had given him on “protecting children from sexual
abuse. Jeff advised he has those papers posted on his refrigerator [as] a reminder to
him.” Jeff stated neither child had the ability to read the papers. The DHS investigator
then “advised Jeff the papers were meant for him, as an adult, and are not intended for
the children to see. He was encouraged to remove them. Jeff said we would have to
agree to disagree.”
                                          7



showing K.R. had fallen out of a tree on the same day Jeff spanked her.6 The

addendum did not change the confirmed finding as to Jeff inappropriately

allowing K.R. to have unsupervised interactions with Margaret and Art. Although

confirmed, the report was not placed on the registry due to the situation

appearing to be “minor, isolated, and unlikely to reoccur.”

       In March 2015, a two-day modification hearing commenced. Janet had

recently obtained a part-time job at a nearby mechanic’s shop and adjusts her

schedule to meet the children’s schedule.          She was also working towards

reactivating her training as a pharmacy tech. Several days after the hearing, the

court entered a ruling declining to modify physical care, declining to modify Jeff’s

visitation, and declining to extend the protective order. Our de novo review of the

record supports the modification court’s findings:

              The court gives the children’s stated preferences no weight
       due to their ages and lack of maturity. In addition, there is
       substantial evidence the children have been coached by Jeff.
       Specifically, [the children’s counselor] testified that many of their
       responses appear to be rehearsed. The court finds the children
       have been influenced to a degree to render their opinions
       unreliable.

The court imputed income to Janet, set child support for Jeff, and modified this

support in a post-trial order recognizing Jeff’s extraordinary visitation. Jeff now

appeals.




6
  The DHS addendum stated, while Jeff may have caused K.R.’s physical injury, “there is
not a preponderance of the evidence at this time to state that is how the markings were
incurred.”
                                         8



II.    Standard of Review

       We review modification proceedings de novo. In re Marriage of Sisson,

843 N.W.2d 866, 870 (Iowa 2014). We examine the entire record and decide

anew the legal and factual issues properly presented.           In re Marriage of

Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We “recognize that the district

court was able to listen to and observe the parties and witnesses.”           In re

Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App. 2009). Consequently,

we give weight to the district court’s findings of fact, especially when considering

the credibility of witnesses, but we are not bound by them. In re Marriage of

Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009).

III.   Discussion

       Jeff argues the district court should have modified the decree to award

him physical care of the children.

       Physical care is the right and responsibility to maintain a home for the

children and provide for the routine care of the children.       In re Marriage of

Fennelly, 737 N.W.2d 97, 101 (Iowa 2007) (recognizing the district court’s

opportunity to observe the witnesses). Here, Jeff “is seeking the most significant

modification,” a “modification that would remove the parties’ children from

[Janet’s] physical care and place them in his physical care.” See In re Marriage

of Thielges, 623 N.W.2d 232, 236 (Iowa Ct. App. 2000). To succeed in this

“significant modification,” Jeff has a heavy burden.       See In re Marriage of

Frederici, 338 N.W.2d 156, 158 (Iowa 1983).            Jeff “must establish by a

preponderance of the evidence that conditions since the decree was entered
                                            9



have so materially and substantially changed that the children’s best interests

make it expedient” to modify custody. See Thielges, at 236. Additionally, Jeff

“must also prove [he] has the ability to minister more effectively to the well-being

of the parties’ children.” Id. at 237. The best interests of the children are the

controlling considerations. Id. at 235.

       The burden upon Jeff is heavy “because children deserve the security of

knowing where they will grow up, and we recognize the trauma and uncertainty

these proceedings cause all children.” See In re Marriage of Rosenfeld, 524

N.W.2d 212, 213–14 (Iowa Ct. App. 1994). Consequently, once physical care

has been fixed, it “should be disturbed only for the most cogent reasons.” Id. at

214. We will not disturb the modification court’s ruling unless “there has been a

failure to do equity.” Sisson, 843 N.W.2d at 870.

       Our reading of the record shows that since entry of the dissolution decree,

the parties have struggled to put their children’s best interests ahead of their own

discontent with and animosities toward each other.7 It is clear that up to this

point, despite the fact both Janet and Jeff love their children, they have

deliberately and intentionally put their own agendas ahead of the children’s best

interests. It is also exceedingly clear the children’s emotional health is being

affected by their parent’s immature and unnecessary behavior towards each

other. We urge both parents to act with more maturity, to discontinue efforts to


7
  As an example, Janet called the police to the school, claiming Jeff had violated the no-
contact order. But by prior arrangement with the school, Jeff and not Janet had planned
to be there for a discussion. Similarly, Jeff spoke negatively about Janet to the parties’
previous foster child, claiming Janet had spanked K.R. in an attempt to get Jeff in trouble
with the DHS—even though Jeff had already admitted to DHS that he spanked K.R. with
a wooden “back scratcher.”
                                         10



alienate the children from the other parent under the untenable claim of the

children’s “right to know,” and to act on their love for the children by putting the

children’s interests first.

       We turn to the issue before us, which is not an original custody

determination. In support of his modification claim, Jeff alleges a myriad of bad

behavior by Janet and contends the district court should have considered the

cumulative effect of the evidence showing: (1) Janet has not been attentive to

school and homework issues; (2) Janet does not properly feed the children; (3)

Janet does not meet the children’s needs as to dental work and medications; (4)

Janet allowed K.R. to come into possession of a page from a pornographic

magazine at her house; (5) Janet is financially irresponsible by not working more

hours; and (6) Janet sought a voluntary modification that split the physical care of

the children in return for Jeff’s prepayment of child support.      Jeff claims the

cumulative effect of these factors establishes a substantial change in

circumstances warranting modification.

       Upon our review of the record, we, like the district court, are not

persuaded the evidence shows Janet does not properly feed the children. The

children’s long-term counselor testified she has no concerns in this regard and

had discussed with J.R. “wants” (food not currently in the home) versus “needs”

(eating the food in the home). Further, the record shows J.R. has been gaining

weight.   Our review also shows any dental issues were due to the parent’s

communication difficulties. Janet, not Jeff, sets up and takes the children to all

their medical appointments, and Janet, for the most part, has made sure J.R.’s
                                          11



ADHD medication is administered. Finally, Janet’s decision to work part-time so

that she is always home when the children are home does not demonstrate

financial irresponsibility in the circumstances of this case.

       Thus, after concluding Jeff has failed to prove factors two, three, and five,

we turn to the cumulative effect of factors one, four, and six. The record shows

Janet was not as attentive as she should have been to the children’s school and

homework issues in the fall of 2013 and spring of 2014. But, the record also

shows Janet has since increased her participation, making any effect diminished

by Janet’s recognition and correction of this factor. As to factor four, the district

court concluded: “[T]he incident is troubling—especially in light of K.R.’s history

of sexual abuse—[but] the court is convinced it was an isolated incident.” As to

factor six, the record shows Jeff was upset by the amount Janet requested in

prepaid child support and as a result made two different counteroffers during the

negotiations. The district court had the benefit of observing the parties and their

demeanor during the modification hearing, which causes us to defer to the district

court's impressions and evaluation of the parties. See In re Marriage of Roberts,

545 N.W.2d 340, 343 (Iowa Ct. App. 1996). Accordingly, this “isolated incident,”

even when combined with Janet’s previously ineffectual but improved interaction

with the school and with Janet’s efforts to negotiate a voluntary change in

custody, is not sufficient to meet the substantial-and-material-change standard,

given both Jeff’s “heavy burden” and the deference we accord the district court.

       Even if there had been a substantial change in circumstances, on our de

novo review we also agree with the district court’s finding that modifying physical
                                        12



care would not be in the children’s best interests. The record shows that Jeff is

so heavily invested in making Janet look bad that he cannot see how his well-

documented behavior negatively impacts the children. Thus, we agree with the

court’s conclusion Jeff failed “to demonstrate that he has the ability to minister

more effectively to the needs of the children.” At most, the record shows Jeff and

Janet are both fallible human beings who love their children. See Rosenfeld, 524

N.W.2d at 213 (“If both parents are found to be equally competent to minister to

the children, custody should not be changed.”).         Jeff emphasizes Janet’s

proposal the parties split the care of the children while minimizing his unilateral

actions interweaving Margaret in and out of K.R.’s life. We are also concerned

whether Jeff fully appreciates the potential danger to his children from any

unsupervised contact with Art, who recently increased his financial support of

Jeff.   On balance, the split-custody discussion, which occurred after Jeff

unilaterally initiated contact between K.R. and Margaret and after Jeff rebuffed

Janet’s concerns thereafter about making Margaret a part of K.R.’s life, does not

overcome the myriad of concerns we have with Jeff’s parenting behavior and

overall behavior (succinctly set forth by the district court). No purpose would be

served by restating the court’s analysis here, as we agree with its discussion of

the parties’ strengths and weaknesses. See id. (stating physical care “once fixed

should be disturbed only for the most cogent reasons”); see also In re Marriage

of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (stating a district court “is greatly

helped in making a wise decision about the parties by listening to them and

watching them in person”).
                                          13



       We recognize the district court has “reasonable discretion” in resolving

modification-of-physical-care issues and its “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). Under the circumstances of this case, we cannot

conclude the district court failed to do equity.

IV.    Appellate Attorney Fees

       Janet requests an award of appellate attorney fees.           “An award of

appellate attorney fees is not a matter of right but rests within our discretion.” In

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

Janet’s request we consider her needs in making it, the ability of Jeff to pay, and

whether Janet was obligated to defend the district court’s decision on appeal.

See id. Janet has prevailed under our review. Given the circumstances of the

parties, we find equity requires Jeff to contribute toward Janet’s appellate

attorney fees. We order Jeff to pay $1500 of Janet’s appellate attorney fees.

       The costs of this appeal are taxed to Jeff.

       AFFIRMED.
