                     IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1305
                              Filed June 17, 2020


JAMESON MATTHEW LANDON,
    Plaintiff-Appellee,

vs.

DESIREA ISABEL MEYER, n/k/a DESIREA ISABEL TRITZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Harrison County, Craig M.

Dreismeier, Judge.



      Desirea Tritz appeals from a ruling denying her application to modify child

custody. AFFIRMED.




      Amanda Heims, Council Bluffs, for appellant.

      Chad D. Primmer, Council Bluffs, for appellee.




      Considered by Bower, C.J., and Greer and Ahlers, JJ.
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BOWER, Chief Judge.

       Desirea Tritz appeals from a ruling denying her application to modify child

custody.   She contends there has been a material change of circumstances

warranting a change to the shared-care arrangement currently in place for the child

she shares with Jameson Landon. Jameson has not filed an appellate brief.1

       Courts are empowered to modify the custodial terms of a paternity
       decree only when there has been a substantial change in
       circumstances since the time of the decree, not contemplated by the
       court when the decree was entered, which was more or less
       permanent, and relates to the welfare of the child.

Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). The party seeking

to modify custody bears a heavy burden. In re Marriage of Frederici, 338 N.W.2d

156, 158 (Iowa 1983). This is because “once the custody and care of children has

been fixed it should be disturbed only for the most cogent reasons.” Id. The child’s

best interests are the controlling consideration. Id.

       The district court entered an extensive and thoughtful ruling. The court

acknowledged Jameson had a “long history of problems with alcohol”:

       This case is difficult for the court in that one of the primary issues
       relied upon by Desirea centers around Jameson’s drinking.
       Jameson’s drinking predated the birth of M.W.L. It was a reason why
       Desirea broke apart from Jameson. Thereafter, she believed his
       drinking was in check and had no reason to believe he was putting
       M.W.L. in harm’s way. Despite his history of alcohol use, a shared
       parenting arrangement worked and worked well for a number of
       years.      Testimony was provided which referenced poor
       decisions/actions on Jameson’s part in the past. With the exception
       of the November 2018 incident, this court was left with the impression
       that the activity complained about either did not occur while Jameson
       was caring for M.W.L.; or occurred years prior. Generally, there was

1 See White v. Harper, 807 N.W.2d 289, 292 (Iowa Ct. App. 2011) (noting an
appellee failing to file a brief does not require reversal; “we will not search the
record for a theory to uphold the decision of the district court,” and “confine
ourselves to the objections raised by the appellant” (citation omitted)).
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       little detail provide about a majority of the problems complained
       about regarding Jameson, his alcohol consumption and specific
       instances of how this impacted his ability to care for M.W.L.

The trial court noted Jameson’s issue with alcohol predates the original 2013

stipulated joint custody decree and predates the 2015 stipulated modified

parenting plan. Moreover, there are court-ordered safety measures, which were

put in place related to Jameson’s drinking at an emergency temporary hearing after

the modification was filed.2 After the emergency hearing, the district court denied

a temporary change to the 2015 stipulation of shared physical care.

       As noted previously, Desirea’s complaint relates to Jameson’s alcohol

consumption.     Desirea points to Jameson’s two operating-while-intoxicated

convictions. However, these convictions go back to 2010 and 2011. These

convictions and Jameson’s drinking behavior in 2013 were apparently less of a

concern when Desirea agreed to joint legal custody and joint physical care in the

original decree. In her brief, Desirea acknowledges she and Jameson “were very

successful in co-parenting” their child until she filed the petition for modification—

in 2019.

       Desirea emphasizes one incident in November 2018.                    Jameson

acknowledged he had been drinking before picking the child up but stated he was

fine to drive. And despite following Jameson to his house, Desirea left the child in

his care.



2 Jameson was required to have installed an Intoxalock device on the vehicle he
uses to transport M.W.L. in order to detect the presence of alcohol. Jameson is
prohibited from driving M.W.L. in any vehicle without an Intoxalock installed.
Jameson is also prohibited from otherwise consuming alcohol while M.W.L. is in
his care, custody, and control.
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       Our precedent cautions us to exercise care in “judging a parent based on

activities which take place during a particular time frame. . . . Instead, a better

picture of a parent can be found by viewing the total circumstances, and putting

isolated events into perspective.” In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa

Ct. App. 1998).    We have held that a parent’s serious criminal record and

substance abuse after entry of the decree does constitute a substantial change in

circumstances. See In re Marriage of LeGrand, 495 N.W.2d 118, 120 (Iowa Ct.

App. 1992). But substance use that does not endanger the child does not. See In

re Marriage of Montgomery, 521 N.W.2d 471, 474 (Iowa Ct. App. 1994).

       The department of human services (DHS) and law enforcement have been

contacted with reports of Jameson’s drinking and discipline of the child by Kelly,

Jameson’s fiancée.      DHS did not recommend any type of juvenile court

proceedings or a change in placement of the child. The child’s therapist and a

DHS service provider reported no safety concerns with Jameson or Kelly’s care of

the child. Desirea has found support for her gaining custody of the child from

Jameson’s parents. Jameson’s parents are not fond of Kelly and have not been

seeing as much of their grandchild since Jameson’s relationship with Kelly began.

They are not happy with the situation and have sided with Desirea.

       A child custody investigator was appointed on Desirea’s motion.          The

investigator spoke with Jameson’s parents and sister, who reported they noticed

changes in Jameson's behavior and personality and were concerned about his

relationship with Kelly. The investigator recommended physical care of the child

be with Desirea during the week and with Jameson every other weekend.

However, as noted by the district court, this report was written as if the court were
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making an initial placement decision. It was not. We noted above, “once the

custody and care of children has been fixed it should be disturbed only for the most

cogent reasons.” Frederici, 338 N.W.2d at 158. We agree with the district court

the mother has failed to establish the requisites for modification here. After our de

novo review of the record, we agree with the trial court’s conclusion there has been

no showing of a substantial and material change of circumstances such as would

allow the modification of child custody.

       AFFIRMED.

       Ahlers, J., concurs; Greer, J., dissents.
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GREER, Judge (dissenting)

       I respectfully dissent. I would reverse the district court ruling and modify the

shared-care arrangement granting physical care to the mother, Desirea. This

conflict arose after a November 2018 incident where the father, Jameson, arrived

to the meeting point to pick up his young child after consuming alcohol. Desirea

believed Jameson was intoxicated. To protect the child, she refused to allow

Jameson to drive the child that evening. She followed Jameson to his home and

delivered the child to him. Desirea later learned that after she left the child at

Jameson’s home, he drove with the child ten to fifteen miles to his fiancée’s home.

After reporting this incident, the Iowa Department of Human Services (DHS)

confirmed a finding of abuse based on denial of critical care.3 Because of the

drinking-and-driving   incident   and    other matters     discussed below,       DHS

recommended voluntary services to assist Jameson and his fiancée in appropriate

discipline and co-parenting skills and following through with substance-abuse

evaluation and aftercare. I believe the alcoholism concerns4 and issues with the




3 The DHS report detailed the child’s reports of other times Jameson drove with an
open container of alcohol and of an incident where Jameson “almost tipped” the
truck into the ditch. The Child and Family Reporter (CFR) addressed a DHS
meeting with family, attorneys, Jameson, his fiancée, and Desirea, where the
fiancée expressed “that although ‘Jameson can drink excessively and need[s] to
nip that in the butt’ that she would never force him to attend treatment like his family
and DHS has.” Likewise, other family members testified about a deterioration in
Jameson’s behavior related to his alcoholism.
4 Diagnosed with alcohol use disorder-severe dependence, Jameson admitted in

his evaluation that his alcohol use has increased since the “situation with his son
began” and in the last two to twelve months he drank weekly and operated a
vehicle under the influence. His evaluation noted he “lack[ed] insight and judgment
to his current situation.”
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stability of Jameson’s home establish a substantial change in circumstance related

to custody.

      Once the modification application was filed, the district court ordered an

investigation of the parental homes. The CFR recommended that Desirea have

physical care of the child. Citing several mitigating reasons, her report listed

concerns about Jameson’s drinking, the relationship and parenting styles involving

the fiancée, and the necessity for consistency during the school week to help with

the child’s academic struggles.

      The following principles apply to modification of the physical-care provisions

of a custody decree:

      [T]he applying party must establish by a preponderance of evidence
      that conditions since the [custody order] was entered have so
      materially and substantially changed that the [child’s] best interests
      make it expedient to make the requested change. The changed
      circumstances must not have been contemplated by the court when
      the [custody order] was entered, and they must be more or less
      permanent, not temporary. They must relate to the welfare of the
      child[]. A parent seeking to take custody from the other must prove
      an ability to minister more effectively to the [child’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).

      I believe Desirea met her burden to show a substantial change in

circumstances. Likewise, she established her superior ability to minister to the

child’s well-being. See In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016);

Frederici, 338 N.W.2d at 158. Because our primary consideration in making this

determination is the long-term best interests of the child, given Jameson’s failure

to address the alcoholism that continues to plague him, especially in times of
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stress, Desirea should have physical care of their child. See In re Marriage of

Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). “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.” In re

Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996). Given the safety

concerns related to the alcohol usage, the difficulties adjusting to the relationship

with Jameson’s fiancée, and the child’s educational challenges, physical care with

Desirea instead of an equal shared-care arrangement is preferred in my view.

       Issues with Jameson’s fiancée are concerning. “Giving [this child] soap”

and spanking him because the child “pooped” his pants reflects a lack of empathy

and understanding about childhood behaviors. There are also documented issues

related to the child’s stress with the fiancée’s homework protocol.5 Likewise,

testimony indicated the status of the fiancée’s and Jameson’s relationship

impacted the child and Jameson’s other family relationships. Desirea testified in

January 2019 Jameson called asking for her to take the child because he was

ending the relationship with the fiancée and he was afraid how she would react.

Desirea took over care, as did Jameson’s parents, and he left on a snowmobile

trip. When he returned, Jameson’s mother observed Jameson to be intoxicated

and refused to allow the child to leave with his father. From January 2019 until

March 2019, Desirea assumed weekly care and, on Jameson’s weekends, his

parents took care of the child.      Angered with his mother, Jameson did not

participate in any weekend visitation during this time but did go on yet another


5 The child struggles with reading and math and many witnesses, including the
teacher, described the child’s dislike of doing homework with his father’s fiancée.
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snowmobile trip.    Although separated from January until March, the fiancée

reported seeing Jameson and offering that he looked “terrible” and like he had

been drinking. The couple reunited in March, and Jameson demanded his regular

custody schedule.       Desirea moved for an emergency hearing, and the court

ordered a substance-abuse evaluation and required the collateral affidavits

detailing alcohol concerns be shared with the evaluator. Jameson attended the

evaluation but failed to share the collateral information. Likewise the court required

installation of an Intoxalock device on any vehicle of Jameson’s used to transport

the child and to not drink while caring for the child.6 He violated those conditions

by drinking on one occasion at a party in his home with the child present. Desirea

testified she observed Jameson driving with the child in a vehicle without an

Intoxalock installed.

       While the majority notes Jameson’s long history of problems with alcohol

predate the stipulated parenting plans, it is significant to me that, given the

previous open custodial arrangement where these parents had ongoing contact,

there were no previous observations or concerns about Jameson’s alcoholism or

the child’s stability. While his alcoholism was a known condition before the child’s

birth, alcoholism is a disease that does not go away but can be addressed with

appropriate behavior.      Desirea was aware of Jameson’s alcohol history but

believed he had “cleaned it up.” As Desirea learned by observation and then

through conversations with Jameson’s family members, Jameson’s check on his



6 Jameson maintained that drinking coffee with creamer caused the breathalyzer
to malfunction and, because it was installed on a truck that was breaking down, he
was not consistently using it.
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condition deteriorated.    A family intervention occurred, ending with Desirea,

Jameson’s family, and his fiancée recommending Jameson get “help” with his

drinking.     Desirea and Jameson’s mother testified even the fiancée raised

concerns about Jameson’s wellbeing before relationships became tense. Yet with

this issue in the forefront during these proceedings, Jameson continued to drink

alcohol and violate the court’s conditions, blaming his mother and Desirea for his

stress. These behaviors do not bode well for the child and based on the CFR’s

very detailed report, circumstances have changed, favoring a change in custody

to Desirea.

       Given these concerns, I would grant physical care to Desirea and remand

for entry of child support and liberal terms of visitation for Jameson with protections

in place related to his use of alcohol.
