                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1983
                              Filed April 17, 2019


IN RE THE MARRIAGE OF HOLLY JOY LEWIS
AND ERIC WILLIAM LEWIS

Upon the Petition of
HOLLY JOY LEWIS,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
ERIC WILLIAM LEWIS,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Brad McCall, Judge.



      Holly Lewis appeals, and Eric Lewis cross-appeals, the modification of a

dissolution-of-marriage decree.   AFFIRMED ON APPEAL, AFFIRMED AS

MODIFIED ON CROSS-APPEAL, AND REMANDED WITH INSTRUCTIONS.




      Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant.

      Ashley Tollakson of Stamatelos & Tollakson, PLLC, West Des Moines, for

appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       Holly Lewis appeals, and Eric Lewis cross-appeals, the modification of a

dissolution-of-marriage decree. Holly argues the court erred in modifying the

physical-care provisions of the decree or, alternatively, she should have been

afforded additional parenting time as to the children placed in the parties’ shared

physical care. Eric argues the court erred in placing the two younger children in

the joint physical care of both parties rather than in his physical care and the court

erred in its child-support calculation as to the joint-physical-care children.

I.     Background Facts and Proceedings

       Upon our de novo review of the record, we make the following factual

findings. The parties married in 1999. The marriage produced three children: two

daughters, L.J.L. (born May 2000) and L.L.L. (born May 2001); and a son, L.W.L.

(born September 2002).

       In July 2007, Holly filed a petition for dissolution of marriage. The district

court ordered the completion of a custody evaluation. A lengthy evaluation was

completed in April 2008. The evaluator recommended the establishment of a

physical-care arrangement in which the children would spend sixty percent of their

time with Holly and forty percent with Eric.             The evaluator additionally

recommended that Holly participate in mental-health services. A follow up to the

evaluation was completed in September. The evaluator again recommended that

Holly participate in mental-health services and her status as physical caregiver

should depend on continuing treatment. In October, the district court entered a

dissolution-of-marriage decree stipulated to by the parties.        The parties were

granted joint legal custody of the children, with physical care being awarded to
                                          3


Holly. Eric was granted liberal visitation rights. The court ordered that Holly

participate in mental-health services until she reaches maximum benefits as

determined by her therapist. Both parties were ordered to continue to participate

in co-parenting counseling once per month so long as their counselor determined

it necessary.

       Eric maintains a laid-back and easy-going style of parenting. Eric lives with

his girlfriend of more than three years, Heidi, her two children, and L.J.L. Although

there were some blending issues between the children and two of Eric’s previous

girlfriends, and the relationships between Heidi and the children were somewhat

rocky at first, these issues were influenced by Holly’s negative remarks to the

children about Eric’s various girlfriends.    The children currently have positive

relationships with Heidi and her children. Eric is the president of a business owned

and started by his parents. Eric earns gross annual income in the amount of

$164,632.00.    He has a very flexible work schedule.         Eric pays for all costs

associated with the children’s schooling, extracurricular activities, cell phones, and

automobiles. Eric is supportive of Holly’s relationships with the children.

       Holly has served as the primary caretaker for the children. Historically, she

has tended to the children’s medical and dental needs and organized their

extracurricular activities. Holly maintains an intense and supervisory parenting

style. Holly is generally unsupportive of Eric’s relationships with the children. Holly

views any indication of preference for Eric by the children as a sign of disloyalty.

Such indications generally result in Holly becoming upset with the children. Holly

variously accuses Eric of being a drug user and dealer. Her claims are wholly

unsubstantiated. The parties’ co-parenting counselor testified much of the co-
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parenting struggles are largely a result of Holly’s inflexibility, as it always has “to

be her way or no way.” The counselor also testified to her concern, since the entry

of the decree, for Holly’s “constant attempts to sabotage [Eric’s] relationship with

the kids.” Holly works part time at a paint store. The amount of time she works

varies but a review of her pay stubs shows an average gross income in the amount

of $1814.92 per month, which equates to $21,779.04 per year.

       At the time of trial, L.J.L. was seventeen years old and a senior in high

school. She has since reached the age of majority. She is high functioning and

independent. The relationship between Holly and L.J.L. is highly strained. L.J.L.

has made it clear that she will not live with Holly. L.L.L. was sixteen years old and

a junior in high school at the time of trial. She is a people pleaser and is outspoken

and accomplished in both academics and extracurricular activities. L.W.L. was

fifteen years old and a freshman in high school at the time of trial. He is more laid

back and reserved than his older sisters. He struggles somewhat in school but

does well socially and in athletics.

       Since the entry of the decree, Holly has not addressed her mental-health

issues or meaningfully participated in mental-health treatment as ordered. The

children fear Holly, and they find Eric to be more dependable and reliable. Holly

frequently engages in unpredictable behavior and directs hostility toward the

children. Holly screams at the children, throws things, and breaks things during

these episodes. Generally, she blames her behavior on Eric and an issue with her

thyroid. Most of the hostility has been between Holly and the oldest child, L.J.L.

By October 2016, L.J.L., became fed up with Holly’s hostile behavior toward her

and her siblings. At this time, L.J.L. went to stay with Eric for about a week. A
                                          5


fight erupted between Holly and L.J.L. upon her return to Holly’s home, during

which Holly directed L.J.L. to kill herself. L.J.L immediately moved out of Holly’s

home and moved in with Eric permanently. Eric has encouraged L.J.L. to work

things out with Holly.

       Holly shifted her aggression to L.L.L. after L.J.L.’s departure from the home.

In December 2016, Holly had an extensive and aggressive outburst toward L.L.L.

in relation to the child not getting a discount on paint at the store Holly works at.

This incident resulted in a founded child-abuse assessment against Holly for

mental injury. The evidence supports a conclusion that eruptions such as these

on the part of Holly toward the children are fairly common. The guardian ad litem

testified, as a result of Holly’s failure to abide by the decree and receive meaningful

mental-health services, the children’s safety and emotional and mental health are

compromised while in Holly’s care. The co-parenting counselor testified to her

concern for the children’s safety if they remain in Holly’s physical care.

       In December 2016, Eric filed a petition for modification of the decree

alleging numerous developments warranted modification of the custody and

support provisions of the decree.       Holly filed a counter-claim requesting an

increase in Eric’s child-support obligation.

       Following a two-day trial in November 2017, the court concluded Eric met

his burden for modification of the original decree. The court found L.J.L.’s best

interests necessitate her placement in Eric’s physical care while L.L.L. and

L.W.L.’s best interests would be served by being placed in the shared physical

care of the parties. The court entered a written modification ruling in which it

ordered physical care of L.J.L. be placed with Eric while L.L.L. and L.W.L. be in
                                         6


the shared physical care of the parties subject to a specific parenting-time

schedule.     As to L.L.L. and L.W.L., the court ordered Holly’s entitlement to

parenting time every other Thursday evening to Sunday evening and every other

Wednesday evening to Thursday morning on an alternating basis. The court also

ordered Holly to enroll in mental-health therapy and treatment. In a subsequent

order, the court ordered Eric to pay Holly monthly child support in the amount

$1034.00 so long as three children are eligible, $1149.00 so long as two children

are eligible, and $809.00 so long as one child is eligible. As noted, both parties

appeal.

II.    Standard of Review

       An action to modify a decree of dissolution of marriage is an equitable

proceeding, which we review de novo. Iowa R. App. P. 6.907; In re Marriage of

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

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

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

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

N.W.2d at 32.

III.   Analysis

       On appeal, the parties agree L.J.L. reached the age of majority during the

pendency of this appeal and, as such, neither takes issue with the physical care of

that child.   Additionally, Eric only challenges the portion of his child-support

obligation as to the two younger children. We address each issue in turn.
                                           7


       A.     Physical Care

       On appeal, Holly challenges the district court’s modification of physical care

as to the two younger children, L.L.L. and L.W.L., arguing Eric failed to meet his

burden for modification. On cross-appeal, Eric contends the court erred in placing

these children in the shared physical care of the parties rather than in his physical

care. The original decree provided the parties joint legal custody, gave Holly

physical care, and assured Eric liberal visitation rights. Eric’s petition sought

modification of the physical-care provisions of the decree.

              To change a custodial provision of a dissolution decree, the
       applying party must establish by a preponderance of evidence that
       conditions since the decree was entered have so materially and
       substantially changed that the children’s best interests make it
       expedient to make the requested change.                 The changed
       circumstances must not have been contemplated by the court when
       the decree was entered, and they must be more or less permanent,
       not temporary. They must relate to the welfare of the children. A
       parent seeking to take custody from the other must prove an ability
       to minister more effectively to the children’s well being. The heavy
       burden upon a party seeking to modify custody stems from the
       principle that once custody of children has been fixed it should be
       disturbed only for the most cogent reasons.

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

              1.      Change in Circumstances

       In light of the concerns raised in the pre-decree custody evaluation, the

stipulated decree ordered that Holly participate in mental-health services until she

reached maximum benefits as determined by her therapist. In its ruling from the

bench, the district court specifically found that Holly has failed to participate in the

required mental-health treatment or otherwise address her mental-health issues,

these failures have resulted in Holly’s emotional outbursts toward the children,

such outbursts have a detrimental impact on the children, and Holly’s failure to
                                          8


follow through with her mental-health treatment during the last nine years is not a

circumstance the court contemplated when the decree was entered and that

change is more or less permanent.

       Holly’s failure to address her mental-health issues as was expected and

contemplated by the district court at the time of the original decree, has resulted in

mental and emotional instability on Holly’s part, which has led to emotional and

aggressive outbursts toward the children. We expressly note our disagreement

with Holly’s characterization of her outbursts as isolated. Rather, the evidence

shows her outbursts toward the children are regular and frequent, and they have

caused the children mental and emotional trauma. Upon our de novo review of

the record, we agree with the district court that Eric met his burden to show the

results of Holly’s failure to address her mental health amount to material and

substantial changes in circumstances, they are more or less permanent and were

not contemplated by the decretal court, and they relate to the welfare of the

children. See id.

              2.     Children’s Well-Being

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

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

434, 440 (Iowa 2016); Frederici, 338 N.W.2d at 158. Our primary consideration in

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

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

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

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

re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995).
                                          9


       The criteria for determining child custody are applied in both dissolution and

modification proceedings. See In re Marriage of Hubbard, 315 N.W.2d 75, 80

(Iowa 1982); In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996).

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

section 598.41(3)” (2016). Courtade, 560 N.W.2d at 37. “Although Iowa Code

section 598.41(3) does not directly apply to physical care decisions, . . . the factors

listed here as well as other facts and circumstances are relevant in determining”

physical care. In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). “In

determining which parent serves the child’s best interests, the objective is to place

the child in an environment most likely to bring the child to healthy physical, mental,

and social maturity.” Courtade, 560 N.W.2d at 38. The following factors are

relevant to the determination of which parent can more effectively minister to the

children’s long-term well-being in this case:

                (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 [decree].
              (e) Whether each parent can support the other parent’s
       relationship with the child.
              ....
              (g) Whether one or both parents agree or opposed to joint
       custody.
              (h) The geographic proximity of the parents.

Iowa Code § 598.41(3)(a)–(e), (g)–(h). We also note our consideration of the

characteristics of the children and parents, the children’s needs and the parents’

capacity and interests in meeting the same, the relationships between the parents
                                             10


and children, the effect of continuing or disrupting an existing physical-care

arrangement, the nature of each proposed environment, and any other relevant

matter disclosed by the evidence. See In re Marriage of Winter, 223 N.W.2d 165,

166–67 (Iowa 1974).1

       In considering whether each parent is a suitable custodian, we note our

acknowledgement of the parents’ dichotomous parenting styles and the pros and

cons that accompany each. Holly’s assertive and strict parenting style has resulted

in the children thriving both educationally and athletically.              Eric’s laid-back

parenting style allows the children freedom to experience life on their terms and

not be the subjects of constant scrutiny while in his home. In this case, however,

we are more concerned with the cons of the parents’ styles in rearing their children.

We have little concern for the potential negative effects of Eric’s parenting, and we

find hollow Holly’s efforts to paint him as an absent parent who allows the children

to do what they want whenever they want to. Holly’s parenting style, on the other

hand, has resulted in the children experiencing mental and emotional trauma.

       Due to the age and maturity of the children, the close proximity of the

parents’ homes, Holly’s continuing entitlement to liberal parenting time, and Eric’s

supportiveness of Holly’s relationships with the children, we are unable to say the

children would suffer due to decreased contact with Holly resulting from


1
 We also note our consideration of the factor contained in section 598.41(3)(e)—“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.” Accord Winter,
223 N.W.2d at 167 (listing the “preference of the child, if the child is of sufficient age and
maturity” as a factor). L.L.L. spoke with the court in chambers with neither the parties nor
counsel present. Her testimony was sealed by the district court and has not been provided
to the parties or counsel. Although we consider the child’s statements to the court in our
overall analysis, we honor the child’s request that her relations not be disclosed to the
parties.
                                         11


modification. Although Holly has been the historical caregiver, Eric has not been

an absent parent, and he has assumed a more traditional role as a financial

provider for the children. We also note our consideration of the facts that Holly has

been unsupportive of Eric’s relationship with the children and, due to Holly’s

inflexibility, difficulty in communicating about the children’s needs has persisted.

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

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

available alternative for safeguarding the child’s growth and development.” Winter,

223 N.W.2d at 167. Upon our de novo review of the record and considering the

foregoing matters, we find Eric met his burden to show he has a superior ability to

minister most effectively to these children’s well-being.

              3.     Physical-Care Arrangement

       Having found Eric met his burden for modification of the physical-care

provisions of the decree, we next consider his argument that the court erred in

placing L.L.L. and L.W.L. in the shared physical care of the parties rather than in

his physical care. Holly does not directly respond to Eric’s argument in her reply

brief. “Upon the request of either parent, the court may award joint physical care

unless such an arrangement is not in the best interests of the children.” In re

Marriage of Hansen, 886 N.W.2d 868, 874 (Iowa Ct. App. 2016); accord Iowa Code

§ 598.41(5)(a). Notably, neither parent requested the decree be modified to

provide a joint-physical-care arrangement. As such, the district court had no

statutory authority to order a joint-physical-care arrangement. See In re Marriage

of Cerwick, No. 12-1188, 2013 WL 2370722, at *3 (Iowa Ct. App. May 30, 2013)

(“The legislature could have provided that the district court may consider joint
                                         12


physical care whenever the best interest of the children so required—rather than

upon the request of either parent. It did not do so.” (citations omitted)). In any

event, after a de novo review of the record and consideration of the relevant

factors, see Hansen, 886 N.W.2d at 874, we find a joint-physical-care arrangement

is not in the best interests of these children. The parties are unable to effectively

communicate about the children, the degree of conflict between the parties is high,

and their approaches to daily matters can be described as nothing other than

dichotomous. See id.

       Having concluded the district court improperly ordered joint physical care,

we must determine which party should be awarded physical care.             We have

already concluded, above, that Eric has a superior ability to minister most

effectively to these children’s well-being. Although Holly has historically been the

primary caregiver of the children and her parental characteristics have had positive

results for the children in some areas, in light of recent developments, we are more

concerned for the physical, mental, and emotional health of these children if they

remain in Holly’s physical care. We find placing the children in Eric’s physical care

is in these children’s best interests, which is our primary consideration. See Iowa

R. App. P. 6.904(3)(o). Consequently we modify the district court’s modification

ruling to place L.L.L and L.W.L. in Eric’s physical care.

              4.     Visitation

       We turn to visitation. “A noncustodial parent should be awarded liberal

visitation in order to afford the children the opportunity to maximize continuing

physical and emotional contact with both parents.” In re Marriage of Farrell, 481

N.W.2d 528, 531 (Iowa Ct. App. 1991); accord Iowa Code § 598.41(1)(a).
                                           13


“Although liberal visitation is the benchmark, our governing consideration in

defining visitation rights is the best interests of the children, not those of the parent

seeking visitation.” In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App.

1994). On our de novo review, we see no reason to modify the weekly visitation,

but we modify the extended summer visitation schedule imposed by the district

court’s modification decree to entitle Holly to the same visitation rights Eric was

entitled to under the original decree. The parties’ rights under the original decree

as to spring break, holidays, and birthdays shall remain intact.

        B.     Child Support

        Finally, Eric argues the court erred in its child-support calculation as to the

children the court placed in the parties’ joint physical care. He contends, although

the children were placed in the joint care of the parties, because the court awarded

him more parenting time, he should be entitled to more child support. As such, he

argues the district court’s apparent use of the “offset” method of calculation, see

Iowa Ct. R. 9.14(3), results in an inequity between the parties. To prevent this

alleged inequity, he maintains the court should have varied from the guidelines

after entering a written finding application of the guidelines would be unjust or

inappropriate. See Iowa Ct. R. 9.11. Eric also seems to take issue with the court’s

equal division of expenses relating to the children’s schooling and extracurricular

activities.

        There is a rebuttable presumption the amount of child support resulting from

application of the child support guidelines is the correct amount. Iowa Ct. R. 9.4.

“The court shall not vary from the amount of child support that would result from

application of the guidelines without a written finding that the guidelines would be
                                          14


unjust or inappropriate” because it would result in “substantial injustice” or because

adjustments are necessary “under the special circumstances of the case.” Iowa

Ct. R. 9.11(1)–(2). Although the modification decree provided Eric with more

parenting time, both parents have had the responsibility to maintain a home and

provide routine care for children. Hansen, 733 N.W.2d at 691. Given the great

disparity in the parties’ incomes, we find strict application of the guidelines does

not result in a substantial injustice to Eric or the children, nor are adjustments

necessary to provide for the needs of the children or do justice between the parties,

during the pendency of this appeal.            We likewise find the district court’s

assessment of expenses relating to the children’s schooling and extracurricular

activities to be equitable.

       As neither party has applied for a stay of the modified decree pending

appeal, see Iowa R. App. P. 6.604, we assume the parties have been following the

physical-care arrangement and abiding by the child-support obligations outlined in

the modified decree and order for support.           Having rejected Eric’s support

arguments, the support obligations imposed in the order for support shall remain

effective from the time it was entered until the time of the filing of this opinion. See

In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994).

       However, the record before us does not reveal child support calculations

worksheets that show how the court determined the current support obligations,

nor is there disclosure of various assumptions used in such determination.

Consequently, we are hampered in our ability to determine the propriety of the

current support orders. In light of the physical-care arrangement ordered in this

opinion, we remand the matter to the district court for determination of future
                                        15


support obligations, and direct that the record include child support calculation

worksheets or a listing of assumptions used in making such determination. See

Hoffman, 867 N.W.2d at 37 (noting child support obligations should be “based on

the present financial circumstances of the parties”); Smiley, 518 N.W.2d at 380.

IV.   Conclusion

      We conclude Eric met his burden for modification. We affirm the district

court’s finding of the same, but modify the modification decree to place the two

younger children in Eric’s physical care. We also modify the district court’s summer

visitation schedule, and affirm the remainder of the visitation schedule. We reject

Eric’s challenges to his support obligations. We remand the matter to the district

court for determination of future support obligations under the physical-care

arrangement ordered herein. Costs on appeal are assessed to Holly.

      AFFIRMED ON APPEAL, AFFIRMED AS MODIFIED ON CROSS-

APPEAL, AND REMANDED WITH INSTRUCTIONS.
