
                        IN THE SUPREME COURT OF IOWA

                              No. 147 / 04-1182

                           Filed January 20, 2006

WANDA JEAN SPIKER and
JAMES LEE SPIKER,

      Appellants,

vs.

SHERRY LYNN SPIKER and
KELLY KEITH SPIKER,

      Appellees.
________________________________________________________________________
      Appeal from the Iowa District Court for  Clay  County,  Frank  Nelson,
Judge.

      Grandparents appeal from district court judgment vacating  grandparent
visitation order pursuant to mother’s petition.  AFFIRMED AND REMANDED.

      Scot  L.  Bauermeister  of  Fitzgibbons  Law  Firm,  Estherville,  for
appellants.

       Michael  J.  Houchins  of  Zenor,  Houchins  &  Borth,  Spencer,  for
appellees.

CADY, Justice.
      The issue in this case is whether a  custodial  parent  can  modify  a
grandparent visitation order on the ground that the applicable provision  of
the grandparent visitation statute, upon which  the  order  was  based,  was
subsequently found unconstitutional.   The  district  court  determined  the
visitation  order  was  subject  to  modification,  and  it  terminated  the
visitation.  We agree and affirm the judgment of the district court.
      I.    Background Facts and Proceedings
      Jim and Wanda Spiker are the grandparents of Paige and  James  Spiker.
Paige and James are the children of Kelly Spiker,  Wanda  and  James’s  son,
and Sherry Spiker.  Sherry and Kelly  were  divorced  on  August  16,  1999.
Sherry was designated the primary physical caretaker of  the  children,  and
Kelly was allowed visitation.
      On February 5, 2001, Wanda and Jim filed a  petition  for  grandparent
visitation under Iowa Code section 598.35 (2001).  They filed  the  petition
after Kelly stopped visiting  the  children  in  January  2000,  and  Sherry
stopped allowing the children to visit them.  On August 21,  in  the  course
of the litigation,  Wanda,  Jim,  and  Sherry  entered  into  a  stipulation
agreement providing that Wanda and Jim would be allowed visitation with  the
children and that they would provide transportation of the children  to  and
from visits.  However, they could not agree as to the length or time of  the
visitation, so they left that issue for the court to  decide.   Following  a
hearing, the court granted Wanda and Jim visitation  with  the  children  on
the first weekend of every month beginning September 2001.  Sherry  did  not
appeal.
      Visitation occurred as ordered for almost a  year  when  Sherry  began
withholding Paige from visits.  By 2004, Sherry refused to allow  Wanda  and
Jim to visit either Paige or James.
      On February 19, 2004, Wanda and  Jim  initiated  contempt  proceedings
against Sherry for refusing to allow  visitation  with  the  children.   The
court entered an order for Sherry to show cause why she should not  be  held
in contempt.  Sherry responded that her  refusal  to  allow  visitation  was
“due to good cause for the children’s best  interest.”   She  also  asserted
that the  grandparent  visitation  statute  was  unconstitutional  and  that
enforcement of the visitation order would violate her due process rights.
      The court held a hearing on the issue of Sherry’s  contempt  on  March
22, 2004.  It issued an order on March 25  finding  Sherry  in  contempt  of
court.   The  court  reasoned  that  Sherry  should  have   challenged   the
constitutionality of the visitation order at  or  before  trial,  not  as  a
defense in contempt proceedings.  See Walker  v.  City  of  Birmingham,  388
U.S. 307, 317-21,  87  S.  Ct.  1824,  1830-32,  18  L. Ed. 2d  1210,  1217-
20 (1967) (holding the way to challenge an  unconstitutional  ordinance  and
injunction issued under it was to  apply  to  have  injunction  modified  or
dissolved, not to violate the injunction and assert its  unconstitutionality
as a defense in contempt proceedings; stating “respect for judicial  process
is a small price to pay for the civilizing hand  of  law,  which  alone  can
give abiding meaning to constitutional  freedom”).   Instead  of  sentencing
Sherry to jail time for  contempt,  the  court  awarded  Wanda  and  Jim  an
additional seven days of visitation with the children  in  June  2004.   See
Iowa Code § 598.23(2)(b) (“The court may, as an  alternative  to  punishment
for contempt, make an order which . . . [m]odifies visitation to  compensate
for lost visitation time . . . .”).
      Sherry filed a motion to enlarge or amend under rule  1.904(2),  again
arguing that enforcement of the  visitation  order  would  violate  her  due
process right to raise  her  children  without  undue  interference  by  the
State.  She contended that the order could not be enforced absent a  finding
that she was an unfit mother.   She  further  argued  that  the  stipulation
agreement she entered into with Wanda and Jim was unenforceable and did  not
validly waive her constitutional  rights.   The  court  denied  the  motion.
Sherry did not appeal.
      On April 27, 2004, Sherry filed a petition to modify, vacate, or  stay
the visitation order, again arguing that the  decree  was  unconstitutional.
After Wanda and Jim filed their answer, Sherry moved for  summary  judgment,
and Wanda and Jim resisted.  On June 29, 2004, the  court  granted  Sherry’s
motion for summary judgment and vacated the  visitation  order.   Wanda  and
Jim appeal.
      II.   Standards of Review
       “[C]hallenges  to  Iowa’s  grandparent   visitation   statute   raise
‘questions of substantive due process and liberty interests in  the  context
of statutory interpretation’ obliging us ‘to  review  the  record  de  novo,
making our own evaluation of the totality of the  circumstances.’”    In  re
Marriage of Howard, 661  N.W.2d  183,  187 (Iowa  2003)  (quoting  Santi  v.
Santi,  633  N.W.2d  312,  316  (Iowa  2001)).   “Substantive  due   process
‘“provides  heightened  protection  against  government  interference   with
certain fundamental rights and liberty interests.”’”  Sanchez v. State,  692
N.W.2d 812, 819 (Iowa 2005) (quoting Troxel v. Granville, 530 U.S.  57,  65,
120 S. Ct. 2054, 2060, 147 L. Ed.  2d  49,  56  (2000)).   We  apply  strict
scrutiny when a fundamental liberty interest is at  issue.   Id.  at  819-20
(citing Reno v. Flores, 507 U.S. 292,  302,  113  S.  Ct.  1439,  1447,  123
L. Ed. 2d 1, 16  (1993)).   We  have  held  that  “the  parental  caretaking
interest,” or the right to direct  the  upbringing  of  one’s  children,  is
fundamental.  Id. (citing Santi,  633  N.W.2d  at  317).   Therefore,  state
action infringing on that interest must be  narrowly  tailored  to  serve  a
compelling state interest.  Id. (citing Santi, 633 N.W.2d at 318).  We  have
already held that the provision of the  grandparent  visitation  statute  at
issue in this case, section 598.35(1), is not narrowly tailored to  serve  a
compelling state interest and  is  unconstitutional  on  its  face.   In  re
Marriage of Howard,  661  N.W.2d  183,  185,  192  (Iowa  2003).   The  only
question is whether this holding  allows  Sherry  to  modify  a  grandparent
visitation order from which she did not appeal.
      III. Discussion
      A.    Res Judicata
      Wanda and Jim first argue that Sherry is barred from  challenging  the
constitutionality  of  the  visitation  order  under  the  doctrine  of  res
judicata.[1]  They claim Sherry should have appealed  the  August  21,  2001
decree  granting   visitation   if   she   wanted   to   challenge   it   as
unconstitutional.  This argument is supported by several general  principles
governing res judicata, and was recently adopted  by  the  Arkansas  Supreme
Court in Hunt v. Perry, 138 S.W.3d 656 (Ark. 2003).
       In  Hunt  v.  Perry,  a  grandmother   sought   visitation   of   her
grandchildren from their father, her former son-in-law.   Hunt,  138  S.W.3d
at 657.  The father argued  the  Arkansas  Grandparent  Visitation  Act  was
unconstitutional, relying on the Supreme Court’s Troxel  decision.   Id.  at
658.  The district court found the statute was  constitutional  and  granted
the grandmother visitation.  Id.  The father  did  not  appeal  this  order.
Id.  A short time later, the Arkansas Supreme  Court  held  the  grandparent
visitation statute was unconstitutional, and the father sought to  terminate
the grandmother’s visitation.  Id.  The district court held the  father  was
barred under res judicata from relitigating  the  constitutionality  of  the
statute.  Id. at 659.  On appeal, the supreme court agreed:


      [T]he fact that he failed to pursue an appeal now  prevents  him  from
      challenging the trial  court’s  previous  order  finding  the  statute
      constitutional.  In sum, because we have a case that involves the same
      parties, the same issue, and has already been decided by  a  court  of
      competent jurisdiction, the doctrine of res judicata is applicable.

Id. at 662; see also Ingram v. Knippers, 72  P.3d  17,  21-22  (Okla.  2003)
(holding  mother  could  not  relitigate  constitutionality  of  grandparent
visitation statute in action to terminate visitation order  when  she  could
have, but did not, raise the issue in an appeal of the initial order).   But
see In re T.J.K., 62 S.W.3d 830, 832 (Tex. Ct. App. 2001) (“If Troxel  truly
does  make  [the  grandparent  visitation  statute]  unconstitutional,  then
maintaining an order granting  grandparent  access  would  be  inappropriate
because it would violate [the parent’s] Fourteenth  Amendment  rights  under
the United States Constitution.  The order granting  grandparent  visitation
is subject to modification by the trial court.”).
      In deciding whether to follow this holding, we must determine  whether
the Hunt decision is consistent with our prior law concerning res  judicata.
 See Handeland v. Brown, 216 N.W.2d 574,  577 (Iowa  1974)  (“[W]e  have  no
obligation to adopt a rule  just  because  it  has  generally  been  adopted
elsewhere.  Although cases from other states may  be  persuasive  authority,
they have  no  greater  cogency  than  the  reasoning  by  which  they  were
decided.”).  We therefore turn to consider that body of law.
      “The  doctrine  of  res  judicata  embraces  the  concepts  of   claim
preclusion and issue preclusion.”  Colvin v. Story  County  Bd.  of  Review,
653 N.W.2d 345, 348 (Iowa 2002) (citing Bennett v. MC  No.  619,  Inc.,  586
N.W.2d 512, 516 (Iowa 1998)); accord 18 Charles Alan Wright et al.,  Federal
Practice and Procedure § 4402, at 7  (2d  ed.  2002)  [hereinafter  Wright].
Wanda and Jim must necessarily  rely  on  claim  preclusion  in  this  case,
rather than issue preclusion, because issue preclusion  requires  the  issue
to  have  been  actually  litigated,  and  the  constitutionality   of   the
grandparent  visitation  statute  was  not  actually  litigated  before  the
initial visitation order was entered.  See Restatement (Second) Judgments  §
27, at 250 (1982) (“When an issue of fact or law is actually  litigated  and
determined  by  a  valid  and  final  judgment,  and  the  determination  is
essential to the judgment, the determination is conclusive in  a  subsequent
action between the parties, whether on  the  same  or  a  different  claim.”
(Emphasis added.)).
      Our law concerning claim preclusion is well established:


           The general rule of claim preclusion provides a valid and  final
      judgment on a claim precludes a second action on  that  claim  or  any
      part of it.  The rule applies not only as to every  matter  which  was
      offered and received to sustain or defeat the  claim  or  demand,  but
      also as to any other admissible matter which could have  been  offered
      for that purpose.  Claim preclusion, as opposed to  issue  preclusion,
      may foreclose litigation of matters that have  never  been  litigated.
      It does not, however, apply unless the party against  whom  preclusion
      is asserted had a “full and fair opportunity” to litigate the claim or
      issue in the first action.  A second claim is likely to be  barred  by
      claim preclusion where the  “acts  complained  of,  and  the  recovery
      demanded are the same or where the same  evidence  will  support  both
      actions.”  A plaintiff is not entitled to a second  day  in  court  by
      alleging a new ground of recovery for the same wrong.

Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d  315,  319 (Iowa  2002)
(citations omitted; emphasis added).  Thus, the party seeking to invoke  the
doctrine of claim  preclusion  must  establish  three  elements:   (1)  “the
parties in the first and second action were the same;”  (2)  “the  claim  in
the second suit could have been fully and fairly adjudicated  in  the  prior
case;” and (3) “there was a final  judgment  on  the  merits  in  the  first
action.”  Id.; accord 18 Wright § 4405, at 83.
      The first element of claim preclusion  is  beyond  dispute.   Clearly,
the parties in the first action (Wanda and Jim’s  petition  for  grandparent
visitation) and in the second action (Sherry’s petition to  modify,  vacate,
or stay the visitation order) are the same.
      The second element is also fairly straightforward.  Again,  the  issue
is  whether  Sherry  could  have  attacked  the  constitutionality  of   the
grandparent visitation statute  in  the  first  action.   See  Arnevik,  642
N.W.2d at 319 (listing second element as  “the  claim  in  the  second  suit
could have been fully and fairly  adjudicated  in  the  prior  case”).   The
general rule is  that  “[w]hen  a  valid  and  final  personal  judgment  is
rendered in favor of the  plaintiff,  .  .  .  the  defendant  cannot  avail
himself of the defenses he might have interposed, or did interpose,  in  the
first action,” in a subsequent action.  Restatement (Second) of Judgments  §
18, at 151-52; see In re Estate of Boyd, 634 N.W.2d 630, 637-38 (Iowa  2001)
(when party did not raise defense to claim, final judgment was  issued,  and
party did not appeal, party could not  collaterally  attack  the  judgment);
Robbins v. Daniel, 226 Iowa 678, 690, 284 N.W. 793, 798 (1939)  (when  party
did not assert affirmative defense, res judicata barred  raising  the  issue
in later suit); see also Shin v. Portals Confederation Corp., 728 A.2d  615,
619 (D.C. 1999) (where party could have raised fraudulent  misrepresentation
as defense  in  first  action,  he  could  not  bring  a  later  action  for
fraudulent misrepresentation because of res judicata); J.C. v.  Adoption  of
Minor Child  Named  Herein,  797  So.  2d  209,  212 (Miss.  2001)  (“‘[T]he
doctrine of res judicata bars litigation in a second  lawsuit  on  the  same
cause of action “of all grounds for, or  defenses  to,  recovery  that  were
available to the parties [in the first action], regardless of  whether  they
were asserted or determined in the  prior  proceeding.”’”  (quoting  Key  v.
Wise, 629 F.2d 1049, 1063 (5th Cir.  1980))  (emphasis  added));  Ingersoll-
Rand Co. v. Valero Energy  Corp.,  997  S.W.2d  203,  207 (Tex.  1999)  (res
judicata bars “claims or defenses that, through diligence, should have  been
litigated in the prior suit but were not” (emphasis added)).  Sherry  points
to no reason,  and  we  can  conceive  of  none,  why  she  could  not  have
challenged the constitutionality of our grandparent visitation statute  when
Wanda and Jim initially sought visitation under it.   The  constitutionality
of the statute could have been fairly and fully litigated  in  that  action.
Arnevik, 642 N.W.2d at 319.
      The final element of claim preclusion  is  that  “there  was  a  final
judgment on the merits in the first  action.”   Id.;  see  also  Restatement
(Second) of Judgments  §  13,  at  132  (“The  rules  of  res  judicata  are
applicable only when a final judgment is rendered.”).  Whether  the  initial
visitation order was a “final” judgment is the fighting issue in this  case.
 Sherry contends that res judicata  does  not  apply  to  orders  concerning
custody and visitation and that the court always has jurisdiction to  modify
such a decree.
      There  is  no  specific  statutory  authority  for  courts  to  modify
grandparent visitation decrees.  See Iowa Code § 598.35; id. §  598.41;  see
also id. § 600B.31 (stating courts  in  paternity  actions  have  continuing
jurisdiction in paternity actions “to determine the  custody  in  accordance
with  the  best  interests  of  the  child”).   Nevertheless,  the   initial
grandparent  visitation  order  in  this  case  was  a   judgment   granting
continuing relief.  See Restatement (Second) of Judgments § 13  cmt.  c,  at
133 (“A judgment concluding an  action  is  not  deprived  of  finality  for
purposes of res judicata by reason of the fact  that  it  grants  or  denies
continuing relief, that is,  requires  the  defendant,  or  holds  that  the
defendant may not be required, to  perform  acts  over  a  period  of  time.
Judgments of these types are rendered typically in actions for . .  .  child
support and custody.”).  When judgments  concerning  continuing  relief  are
involved and


      a change  of  circumstances  makes  the  judgment  too  burdensome  or
      otherwise inapposite  as  a  regulation  of  ongoing  conduct,  it  is
      ordinarily possible for the party concerned to apply to the  rendering
      court for a modification of the terms of the judgment.

Restatement (Second) of Judgments § 13 cmt. c, at 133; see also  id.  §  73,
at 197 (“Subject to the limitations stated in § 74, a judgment  may  be  set
aside or modified if:  (1) The judgment was subject to modification  by  its
own terms or by applicable law, and events have occurred subsequent  to  the
judgment that warrant modification of the contemplated kind;  or  (2)  There
has been  such  a  substantial  change  in  the  circumstances  that  giving
continued effect to the  judgment  is  unjust.”);  cf.  In  re  Marriage  of
McCurnin, 681 N.W.2d 322, 329 (Iowa 2004) (stating  divorce  decree  setting
child support obligation, which parties did not  appeal,  was  res  judicata
“until a modification changed its provisions” (citing In  re  Bisenius,  573
N.W.2d  258,  260  (Iowa  1998)));  Iowa  Code  §  598.21(8)  (requiring   a
“substantial  change  in  circumstances”  to  modify  orders  under  section
598.21).[2]  But  see  Restatement  (Second)  of  Judgments  §  74,  at  202
(“Except with regard to judgments referred to in §§ 65-66  [invalid  default
judgments] and 69 [lack of  subject  matter  jurisdiction],  relief  from  a
judgment will be denied  if:   (1)  The  person  seeking  relief  failed  to
exercise reasonable diligence in  discovering  the  ground  for  relief,  or
after such discovery was unreasonably dilatory in  seeking  relief;  or  (2)
The application for relief is barred by lapse of time; or (3)  Granting  the
relief will inequitably disturb an interest of  reliance  on  the  judgment.
When such an interest can be adequately protected by  giving  the  applicant
limited or conditional relief, the relief  will  be  shaped  accordingly.”).
This  is  consistent  with  our  general  view  that  courts  have  inherent
authority to modify decrees concerning custody and  visitation  of  children
based on a substantial change in circumstances.  See Hobson v.  Hobson,  248
N.W.2d 137, 139-40 (Iowa 1976).
      In order to determine whether an order granting continuing relief  has
preclusive effect in a later action (i.e., is a  “final  judgment”  for  res
judicata purposes), we ask “whether  the  issues  in  the  two  actions  are
materially different because of events which occurred  in  the  interim,  in
which case preclusion is to be denied.”  Restatement (Second)  of  Judgments
§ 13 cmt. c, at 134.  In other words, the first judgment  does  not  have  a
preclusive effect  in  the  second  action  if  circumstances  have  changed
sufficiently to warrant modifying the decree.  Wade v.  Hirschman,  903  So.
2d 928, 933 (Fla. 2005) (“To modify such judgments,  the  trial  court  must
decide whether there is a ‘factual basis sufficient to show that  conditions
have become materially altered since the  entry  of  the  previous  decree.’
The degree of change in the conditions and circumstances since the  date  of
the  previous  decree  must  be  of  a  substantial  character.”  (Citations
omitted.)); In re Marriage of McCurnin, 681 N.W.2d  at  329  (“Jennifer  did
not appeal following the entry of the decree.  The decree was therefore  res
judicata as to what was  to  be  considered  in  calculating  David’s  child
support obligation until a modification changed its  provisions.”  (Citation
omitted.)).  This relaxation of the res judicata standard in  child  custody
cases is required because our goal in such cases  is  always  to  serve  the
best interests of  the  child,  which  may  require  court  supervision  and
modification throughout the child’s minority.  See In re Marriage  of  Ford,
563 N.W.2d 629, 631 (Iowa 1997)  (primary  consideration  in  child  custody
cases is the best interests of  the  children  (citing  In  re  Marriage  of
Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Guardianship  of  Knell,  537
N.W.2d 778, 780 (Iowa 1995))); accord  Linder  v.  Linder,  72  S.W.3d  841,
850 (Ark. 2002) (“[C]ustody orders are subject to modification in  order  to
respond to changed circumstances and the  best  interest  of  the  child.”).
This standard mirrors the  general  standard  for  modification  of  custody
provisions of a dissolution decree.  See Hobson, 248 N.W.2d at 139-40.
      Ultimately then, the  case  turns  on  whether  Sherry  established  a
substantial change in circumstances warranting modification of  the  initial
grandparent visitation order.  In her petition to modify,  the  only  change
in circumstances Sherry alleged was that we had held some provisions of  the
grandparent  visitation  statute  unconstitutional  in  recent  years.   See
Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003) (section 598.35(3));  In
re Marriage of Howard, 661 N.W.2d at 185  (section  598.35(1));  Santi,  633
N.W.2d at 314 (section 598.35(7)).  We must  determine  whether  this  is  a
sufficient change in circumstances.
      We have  held  that  “[t]he  res  judicata  consequences  of  a  final
unappealed judgment are not altered by the fact that the judgment  may  have
rested on incorrect legal principles.”  In re Bisenius, 573  N.W.2d  at  260
(citing Gail v. W. Convenience Stores, 434  N.W.2d  862,  863  (Iowa  1989);
Mahaffa v. Mahaffa, 230  Iowa  679,  683-84,  298  N.W.  916,  919  (1941)).
However, we have also held that a change in  the  law  occurring  after  the
original  judgment  constituted  a  substantial  change   in   circumstances
justifying modification.  See In re Marriage of  Feustel,  467  N.W.2d  261,
265 (Iowa 1991) (holding change in federal tax law under  which  father  was
no longer allowed to claim children as  dependents  constituted  substantial
change  in  circumstances).   The  Restatement  also  contains   conflicting
statements on the issue.  On one hand, it says it would be “a  very  unsound
policy” to deny preclusion when “a subsequent judicial decision changes  the
law  that  was  applied  in  reaching  an  earlier  judgment.”   Restatement
(Second) of Judgments § 73 cmt. c, illus. 4, at 200.  “On the  other  hand,”
says the Restatement, “when a change of  law  occurs  following  a  judgment
regulating future conduct, that may  be  a  circumstance  justifying  relief
from the judgment.”  Id.  Moreover,  the  general  Restatement  rule  states
that a change in the law would not prevent the application of res  judicata.
 See Restatement (Second) of Judgments § 18 cmt. b, at 153 (“The  fact  that
the judgment was based  on  error  does  not  preclude  the  defendant  from
setting the judgment up as a defense to an action  on  the  original  claim.
If it was erroneous, the plaintiff might have taken steps  to  have  it  set
aside or reversed in the  original  proceeding.”).   However,  there  is  an
exception to the general rule.  Restatement (Second) of Judgments  §  26(1),
at 233-34.  Claim preclusion does not apply  when  “[t]he  judgment  in  the
first  action  was  plainly  inconsistent  with  the  fair   and   equitable
implementation of a statutory or constitutional scheme, or it is  the  sense
of the scheme that the plaintiff should be allowed  to  split  her  claims.”
Id. § 26(1)(d), at 234 & cmt. e, illus. 6, at 240.  That is,


      the general  principal  that  changes  of  law  do  not  defeat  claim
      preclusion may be relaxed when the dispute involves matters of special
      sensitivity.  The easiest illustrations are provided by development of
      constitutional principles in cases that challenge  continuing  conduct
      of broad public importance. . . .  A few cases  reject  preclusion  in
      face of evolving constitutional law  principles  although  the  public
      interest may not seem as vital or the  interests  involved  seem  more
      nearly personal than public.  These decisions are  justified  by  many
      factors.  The rights involved  may  be  of  public  importance  at  an
      abstract level, despite the  lack  of  obvious  immediate  importance.
      Often  the  first  actions  were  eligible  for  preclusion  only   on
      principles of representation;  special  care  is  always  required  to
      ensure that nonparties are properly bound  in  such  cases.   Finally,
      ordinary claim preclusion  rules  are  often  strained  by  continuing
      conduct.

18 Wright § 4415, at 372-73.
      The United States Supreme Court  has  dealt  with  the  issue  in  the
context of a statutory change occurring after  the  original  judgment.   In
System Federation No. 91  v.  Wright,  364  U.S.  642,  81  S.  Ct.  368,  5
L. Ed. 2d 349 (1961), a group of nonunion employees entered into  a  consent
decree with a railroad and a number of  unions  representing  its  employees
enjoining the railroad and its unions from discriminating  against  nonunion
employees (i.e., requiring a “union shop”).  Sys. Fed’n No. 91, 364 U.S.  at
644, 81 S. Ct. at 369, 5 L. Ed. 2d at  351.   Afterwards,  Congress  amended
the Railway Labor Act “to permit, under certain  circumstances,  a  contract
requiring a union shop.”  Id. at 644, 81 S. Ct. at 369-70, 5 L.  Ed.  2d  at
352.  The railroad and  the  unions  then  sought  to  modify  the  decree’s
injunction to reflect this change in the law.  Id. at  644,  81  S.  Ct.  at
370, 5 L. Ed. 2d at 352.  In commenting on the res judicata  effect  of  the
original decree, the Court said:


      There is also no dispute but that a sound judicial discretion may call
      for the modification of the terms  of  an  injunctive  decree  if  the
      circumstances, whether of law or fact, obtaining at the  time  of  its
      issuance have changed, or new ones have since arisen.  The  source  of
      the power to modify is of course the fact  that  an  injunction  often
      requires continuing supervision by the  issuing  court  and  always  a
      continuing willingness to apply its powers and processes on behalf  of
      the party who obtained that equitable relief.  Firmness and  stability
      must no doubt be attributed to continuing injunctive relief  based  on
      adjudicated facts and law, and neither the  plaintiff  nor  the  court
      should be subjected to the unnecessary burden of re-establishing  what
      has once been decided.  Nevertheless the court cannot be  required  to
      disregard significant changes in law or facts if it is “satisfied that
      what it has been doing has been turned through changing  circumstances
      into an instrument of wrong.”  A balance must thus be  struck  between
      the policies of res judicata and the  right  of  the  court  to  apply
      modified measures to changed circumstances.

Id. at 647-48, 81 S. Ct. at 371, 5 L.  Ed.  2d  at  353  (citation  omitted;
emphasis added); see also United States v. Swift & Co., 286 U.S.  106,  114,
52 S. Ct. 460, 462, 76 L.  Ed.  999,  1005-06 (1932)  (“The  distinction  is
between restraints that give protection to rights fully accrued  upon  facts
so nearly permanent as to be substantially impervious to change,  and  those
that involve the supervision of changing conduct or conditions and are  thus
provisional and tentative.”  (Citation  omitted.)).   The  Court  ultimately
concluded that the decree could be modified due to the change  in  the  law.
Sys. Fed’n No. 91, 364 U.S. at 652, 81 S. Ct. at 373, 5  L. Ed. 2d  at  355.
The Court explained that “[t]he parties have no  power  to  require  of  the
court continuing enforcement of rights the statute no longer gives.”  Id.
      This principle applies with  equal,  if  not  greater,  force  to  the
visitation order at issue in this case.  If the visitation order has  turned
into “an instrument of wrong,” Sys. Fed’n  No.  91,  364  U.S.  at  647,  81
S. Ct. at 371, 5 L. Ed. 2d at 353, a court should have the power  to  modify
it, particularly because its enforcement is violating  Sherry’s  fundamental
constitutional right to direct the upbringing of her children,  rather  than
a mere statutory right.  Likewise, Wanda and Jim “have no power  to  require
of the court continuing enforcement of rights the  [grandparent  visitation]
statute no longer gives.”  Id. at 652, 81 S. Ct. at 373,  5  L.  Ed.  2d  at
355.
      In sum, the fact that the statute upon which the visitation order  was
based  has  been  declared  unconstitutional  is  a  substantial  change  in
circumstances.  Yet, in the context of child custody  cases,  we  have  also
required the change to “relate to the  welfare  of  the  children.”   In  re
Marriage of Frederici,  338  N.W.2d  156,  158 (Iowa  1983)  (citing  In  re
Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980)).  The district  court
did not discuss whether Paige and James’ best interests were  better  served
by discontinuing the visitation with their grandparents.  However, there  is
a presumption that parents act in the  best  interests  of  their  children.
See In re Marriage of Howard, 661 N.W.2d at 188 (citing Troxel, 350 U.S.  at
69-70, 120 S. Ct. at 2062, 147 L. Ed. 2d at 58-59).   Thus,  the  change  in
circumstances in this case  (the  newly  recognized  unconstitutionality  of
section 598.35(1)) “relate[s]  to  the  welfare  of  the  children,”  In  re
Marriage of Frederici, 338 N.W.2d at 158,  because  it  recognizes  Sherry’s
fitness as a  parent  to  make  decisions  in  the  best  interests  of  her
children, absent a showing that she is unfit or  would  harm  the  children,
and it returns this decisionmaking role to her rather than the State.
      Although res judicata is founded on important  policy  considerations,
those considerations must give way at least when, as  in  this  case,  claim
preclusion  would  result  in  the  State’s  continuing  violation   of   an
individual’s fundamental constitutional rights.  As  previously  noted,  the
Arkansas Supreme Court rejected this conclusion in Hunt  v.  Perry,  holding
that “a change  in  circumstances  that  prevents  the  application  of  res
judicata is a change in the circumstances of  the  parties,  not  the  law.”
Hunt, 138 S.W.3d at 662.  However, we have already held  that  a  change  in
the  law  can  constitute  a  change  in  circumstances  for   purposes   of
modification.  See In re Marriage of Feustel, 467  N.W.2d  at  265  (holding
change in federal tax law under which father was no longer allowed to  claim
children as dependents constituted  substantial  change  in  circumstances).
As the Texas Court of Appeals stated in In re T.J.K.,


      If a statute that authorized a term  or  condition  of  visitation  is
      declared unconstitutional, that change should operate like  any  other
      change in circumstances that potentially makes the order unworkable or
      inappropriate.  There is nothing in the statute that limits the change
      in circumstances to factual changes rather than changes in law.

In re T.J.K., 62 S.W.3d at 832; cf. Iowa Code § 598.21(8)(k) (listing  as  a
factor to be considered  in  determining  whether  there  is  a  substantial
change  in  circumstances  “[o]ther  factors  the  court  determines  to  be
relevant in an individual case”).  We find the Texas  court’s  reasoning  to
be more consistent with our law concerning res  judicata  than  the  court’s
reasoning in Hunt.  Therefore, we conclude the district  court  was  correct
that res judicata did not bar Sherry’s petition to modify.  The  court  also
correctly concluded that the unconstitutionality of  section  598.35(1),  as
pronounced in In  re  Marriage  of  Howard,  was  a  substantial  change  in
circumstances that justified terminating the grandparent visitation order.
        B. Other Arguments
      Wanda and Jim next argue that even if section  598.35(1),  upon  which
the visitation order is based, would normally  be  unconstitutional,  it  is
constitutional as applied in this case  because  Sherry  stipulated  to  the
visitation.  Wanda and Jim argue  Sherry’s  stipulation  to  visitation  was
“tantamount to a consent decree.”  In re Marriage  of  Ask,  551  N.W.2d  at
645 (citation omitted).
      This argument does not alter our res judicata analysis.  The  judgment
in System Federation No. 91 was also a consent decree.  Sys. Fed’n  No.  91,
364 U.S. at 644, 81 S.  Ct.  at  369,  5  L.  Ed.  2d  at  351.   The  Court
explained:


           “The result is all one whether the decree has been entered after
      litigation or by consent.  In either event, a court does not  abdicate
      its power to revoke or modify its mandate, if satisfied that  what  it
      has been doing has been turned through changing circumstances into  an
      instrument of wrong.  We reject the  argument  for  the  interven[o]rs
      that a decree entered upon consent is to be treated as a contract  and
      not as a judicial act. . . .  But in truth what was then adjudged  was
      not a contract as to [anyone].  The consent is to be read as  directed
      toward events as they then were.  It was not  an  abandonment  of  the
      right to exact revision in  the  future,  if  revision  should  become
      necessary in adaptation to events to be.”

Id. at 650-51, 81 S. Ct. at 373, 5 L. Ed. 2d at 355 (quoting  Swift  &  Co.,
286 U.S. at 114-15, 52 S. Ct. at 462, 76 L. Ed. at 1006)).  Thus,  the  fact
that the visitation order was based on  a  stipulation  does  not  mean  the
court cannot modify it if circumstances change.  We have said:


      [U]nder our decisions  the  binding  force  of  a  stipulation  as  to
      alimony, child support and custody depends  on  the  approval  of  the
      court.  It is the decree and not the contract  that  becomes  binding.
      The stipulation becomes merged in  the  decree.   And  the  court  may
      disregard the stipulation entirely.

Brin v. Brin, 240 Iowa  659,  664,  37  N.W.2d  261,  264 (1949)  (citations
omitted); see also Holland v. Holland, 260 Iowa 248, 250,  149  N.W.2d  124,
125 (1967) (“The fact the parties made an agreement for support of  children
and the court approved it in the original decree does not affect  the  power
to modify the decree.” (Citations omitted.)); 24A Am. Jur.  2d  Divorce  and
Separation § 999, at 383-84 (1998) (“The  fact  that  the  parties  made  an
agreement for the custody  and  support  of  children  and  that  the  court
approved it in the original decree does not affect the power to  modify  the
decree.”); cf. id. § 817, at 197 (“Where a court has the  general  power  to
modify a decree for alimony or support, the exercise of that power  normally
is not affected by the fact the  decree  refers  to,  or  is  based  on,  an
agreement of the parties.”).
      We also observe that this approach  is  consistent  with  our  general
approach in Lynch v. Uhlenhopp, 248 Iowa 68, 83, 78 N.W.2d 491, 500  (1956),
where we refused to permit contempt powers of courts to be used  to  enforce
a stipulated provision of a dissolution decree that required  the  custodial
parent to raise the child of the parties “in the Roman  Catholic  Religion.”
Instead, we found that such a provision in a dissolution  decree  interfered
with  the   constitutional   restrictions   forbidding   interference   with
individual religious beliefs, and we refused to  permit  the  courts  to  be
used to affirmatively enforce the provision.  Lynch,  248  Iowa  at  83,  78
N.W.2d  at  500.   Accordingly,  we  reject  Wanda  and  Jim’s   contractual
argument.  We also note that we need not  consider  Sherry’s  argument  that
she did not “‘voluntar[il]y, knowingly and  intelligently,’”  Lamberts,  670
N.W.2d at 135 (citation omitted), waive her parental caretaking interest  in
the visitation stipulation with Wanda and Jim.   Even  if  she  had  validly
waived her interest, the district court was still empowered  to  modify  the
decree upon a substantial change in circumstances.
      Moreover, we also reject  Wanda  and  Jim’s  constitutional-as-applied
argument because we have already held section 598.35(1) is  unconstitutional
on its face.  In re Marriage of Howard, 661 N.W.2d at 192.  If a statute  is
unconstitutional on its face, by definition, it cannot be constitutional  as
applied because a finding that a statute is  unconstitutional  on  its  face
means that it cannot be constitutionally applied under any  conceivable  set
of circumstances.   In  re  Lewis, 257  N.W.2d  505,  510 (Iowa  1977)  (“‘A
statute is not unconstitutional on its face unless  it  is  unconstitutional
in every conceivable state of facts; it is ordinarily  not  unconstitutional
as applied unless it is unconstitutional as applied in the specific  factual
situation before the court.’” (Citation  omitted.));  accord  3  Chester  J.
Antieau & William J. Rich, Modern Constitutional Law § 50.03, at 711  (1997)
(stating a holding that a statute is  unconstitutional  on  its  face  is  a
determination that the legislation is  always  unconstitutional  in  “‘every
conceivable situation which might possibly arise’”).
      Finally, Wanda and  Jim  argue  that  the  district  court  never  had
jurisdiction to modify the visitation order because Sherry did not file  her
petition within the  time  required  by  rule  1.1013,  our  rule  governing
petitions to vacate or modify final judgments.  This argument fails  because
Sherry’s failure to comply with our rule governing  modifications  of  final
judgments does not deprive the court  of  its  common-law  power  to  modify
judgments granting continuing relief and regulating future  conduct  upon  a
substantial change in circumstances.  See Restatement (Second) of  Judgments
§ 73, at 197 (“[A] judgment may be set aside or modified if:  . . .  [t]here
has been  such  a  substantial  change  in  the  circumstances  that  giving
continued effect to the judgment is unjust.”).
      C.    Sherry’s Request for Appellate Attorney Fees
      The final issue in this  appeal  is  Sherry’s  request  for  appellate
attorney  fees.   An  award  of  appellate  attorney  fees  is  within   the
discretion of the appellate court.  In re Marriage of  Ask,  551  N.W.2d  at
646 (citing In re Marriage of  Gaer,  476  N.W.2d  324,  326  (Iowa  1991)).
Whether such an award is warranted is determined by considering  “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  trial
court’s decision on appeal.”  Id.  (citing  In  re  Marriage  of  Gaer,  476
N.W.2d at 326).  Because we  do  not  have  any  evidence  of  the  parties’
respective ability to pay, we remand the  case  to  the  district  court  to
determine Sherry’s entitlement to fees and  the  amount,  if  any,  thereof.
See Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d  11,  23  (Iowa  2001)
(“[U]nder our current practice, the issue  of  appellate  attorney  fees  is
‘frequently determined in the first instance in the district  court  because
of the necessity for making a record.’” (quoting Lehigh  Clay  Prods.,  Ltd.
v. Iowa Dep’t of Transp., 545 N.W.2d 526, 530 n.2 (Iowa  1996)));  see  also
Markey v. Carney, 705 N.W.2d  13,  27 (Iowa  2005)  (remanding  to  district
court to determine appellate attorney fees); GreatAmerica Leasing  Corp.  v.
Cool Comfort Air Conditioning & Refrigeration, Inc.,  691  N.W.2d  730,  734
(Iowa 2005) (same); In re Marriage of McCurnin, 681 N.W.2d at 333 (same).
       IV. Conclusion
      Res judicata does not bar Sherry’s petition to modify  or  vacate  the
visitation  order  because  the  change   in   the   law   recognizing   the
unconstitutionality  of  section  598.35(1)  is  a  substantial  change   in
circumstances justifying modification of  the  order.   “[G]iving  continued
effect to  the  [visitation  order]  is  unjust,”  Restatement  (Second)  of
Judgments § 73(2), at 197, because it constitutes a continuing violation  of
Sherry’s constitutional right as a mother to make  decisions  regarding  her
children’s well-being absent a showing of harm to  them  or  her  unfitness.
The fact that the order was based on a stipulation of the parties  does  not
alter this result.  The district court was  therefore  correct  in  vacating
the visitation order.  We affirm the district court judgment and remand  for
determination of Sherry’s request for appellate attorney fees.
      AFFIRMED AND REMANDED.
-----------------------
      [1] Both parties reference the “law of the case”  doctrine,  but  that
doctrine is inapplicable.  The law of the case doctrine says:


      [A]n appellate decision becomes the law of the case and is controlling
      on both the trial court and on any further appeals in the  same  case.
      Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632  (Iowa  1991).   Like
      res judicata, the law of the case doctrine  is  founded  on  a  public
      policy against reopening matters which have been  decided.   Wolfe  v.
      Graether, 389 N.W.2d 643, 651 (Iowa  1986)  (citing  46  Am.  Jur.  2d
      Judgments § 400, at 568 (1969)).  Thus, issues decided by an appellate
      court generally cannot be reheard, reconsidered, or relitigated in the
      trial court.  5 C.J.S. Appeal and Error § 975, at 476-77 (1993).   The
      appellate court decision is final as to all questions decided and  the
      trial court is obligated to follow that decision.  Id.


United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101,  103 (Iowa  2000);
accord In re Lone Tree Cmty. Sch. Dist., 159 N.W.2d  522,  526 (Iowa  1968).
However, this is the first time  the  Spikers’  case  has  been  before  any
appellate court, so it is clear the applicable  doctrine  is  res  judicata,
not law of the case.
      [2]In addition, Iowa Rule  of  Civil  Procedure  1.1012  provides  for
modification of judgments under certain circumstances listed  in  the  rule.
See Iowa R. Civ. P. 1.1012 (grounds for modifying  or  vacating).   However,
petitions for relief under that rule must be filed within one  year  of  the
entry of the judgment or order involved.  Id. r.  1.1013(1).   Here,  Sherry
did not file her petition to modify  until  April  27,  2004—two  years  and
eight months after the visitation  order  was  filed  on  August  21,  2001.
Therefore, even assuming one of the grounds listed in  rule  1.1012  applied
to Sherry, she could not modify the judgment under that rule.

