                       IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0804
                             Filed January 24, 2018


MATTHEW TODD TERRELL,
    Plaintiff-Appellee,

vs.

JOCELYN MAE WEINMANN,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



       A mother appeals the district court’s modification of the physical care

provisions of the custody order affecting the parties’ minor child. AFFIRMED.




       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Christopher R. Barondeau of Goosmann Law Firm, P.L.C., Sioux City, for

appellee.



       Heard by Vogel, P.J., and Potterfield and Bower, JJ.
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VOGEL, Presiding Judge

      Jocelyn Weinmann appeals the district court’s modification decision that

granted physical care of the parties’ minor daughter to Matthew Terrell. Jocelyn

claims the court should have continued with the joint physical care provision under

the original decree.   She also appeals the district court’s calculation of child

support, and she requests appellate attorney fees. Because there has been a

substantial change in circumstances such that it is in the child’s best interest to

eliminate the joint physical care arrangement and for Matthew to have physical

care of the child, and the district court’s calculation of child support was

appropriate, we affirm. We decline to award appellate attorney fees.

   I. Background Facts and Proceedings

      Jocelyn and Matthew are unmarried parties who have one child together,

Z.R.C., born 2011.     Jocelyn and Matthew entered into a “stipulation and

agreement” that was incorporated into a decree on April 22, 2015, which

established joint legal custody and joint physical care of their child on a week-

on/week-off basis. The stipulation also provided that Matthew was obligated to

pay $190.17 per month in child support.

      Disputes eventually arose after the original decree, and Jocelyn filed an

application to show cause on October 25, 2016, claiming Matthew was denying

her communication with the child. Matthew responded by asserting the alleged

denial was an isolated incident and he is highly supportive of regular telephone

communication.    However, on January 13, 2017, Matthew filed a petition for

modification of custody, support, and visitation.     Matthew asserted Jocelyn

consistently made decisions that negatively impacted the health and welfare of
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their child, including a lack of communication regarding the child’s education and

health care, delaying or failing to pursue necessary medical or educational

services, and speaking negatively about Matthew in front of the child.

       After a trial on the matter, the district court, on April 25, 2017, granted

Matthew’s petition, giving him physical care of the child and giving Jocelyn liberal

visitation. The court further ordered Jocelyn to pay child support totaling $216.50

per month and ordered the parties to undergo family counseling.

       Jocelyn appeals.

   II. Scope and Standard of Review

       Because a proceeding to modify the provisions of a custody decree is an

equitable proceeding, we review the district court's decision de novo.            In re

Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). We give weight to

the district court’s factual findings, especially credibility determinations, but we are

not bound by them. Id.

   III. Modification of Physical Care

       Courts can modify the physical care provisions of a prior 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). Discord between parents during joint

physical care arrangements, that has a disruptive effect on children’s lives, can be

a substantial change of circumstances that warrants a modification of the decree

to designate a primary caregiver if it appears that the children, by having a primary
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caregiver, will have superior care. See In re Marriage of Walton, 577 N.W.2d 869,

870 (Iowa Ct. App. 1998).

       Here, it is apparent that both parents, at some point, agreed the joint

physical care was not working.1 Despite Jocelyn’s argument at the modification

hearing that the joint physical care arrangement should continue, she initially filed

a contempt action against Matthew stating the custody decree provisions related

to communication were not followed, and she answered Matthew’s petition for

modification, seeking physical care of Z.R.C., by claiming “the shared care

arrangement in this case has not evolved as either of the parties or court

envisioned.” This sentiment was echoed by the district court, which concluded

“[t]hese two parents are not the type of parents who can successfully and

respectfully cooperate with each other in regards to the issues of the child. Both

parties were of that opinion when the original pleadings were filed in this matter.”

Thus, because the breakdown in communication has affected the child’s health

and dental care, and early childhood education, the discord between the parties is

a substantial change of circumstance that warrants a modification. See Id.

       Where the prior arrangement provides for joint physical care, both parents

have been found suitable to be physical care parents. Melchiori, 644 N.W.2d at

369. However, where the joint physical care arrangement is no longer workable,


1
   Relying on judicial estoppel or “the doctrine of preclusion by inconsistent positions,”
Matthew asserts Jocelyn cannot take the position that the joint physical care arrangement
is still viable because she took the opposite position in response to Matthew’s modification
petition. See Vennerberg Farms, Inc. v. IGF Ins. Co., 405 N.W.2d 810, 814 (Iowa 1987).
“[The doctrine] addresses the incongruity of allowing a party to assert a position in one
tribunal and the opposite in another, thereby creating the perception that at least one court
has been misled . . . . Absent judicial acceptance of the inconsistent position, application
of the rule is unwarranted.” Id. As there was no “judicial acceptance” of Jocelyn’s initial
position, the doctrine is not applicable.
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the court must determine which parent would offer the child superior care. Id. It

is important to place the child in the environment that will advance the child’s

mental and physical health and emotional maturity. In re Marriage of Hansen, 733

N.W.2d 683, 695 (Iowa 2007). Our primary concern is the best interests of the

child. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

      Jocelyn claims many of the issues cited by the district court, including the

child’s overall hygiene, dental hygiene, medical care, vaccinations, speech

therapy, and counseling, were either present at the time of the initial decree, and

thus could not be a substantial change in circumstances, or have been resolved.

      In its ruling, the district court held:

              The court has serious concerns about whether Jocelyn
      understands the importance of obtaining and continuing with
      appropriate treatment for the child. First of all, she decided on her
      own that she was not going to allow the child to be vaccinated
      because she read that some children have a bad reaction. In order
      to implement her desire not to have the child vaccinated, she filed a
      religious exemption to vaccinations. She did not have any religious
      exemption to the vaccination of children. What is even more
      disconcerting is that Jocelyn was advised by medical professionals
      that vaccinations would be in the best interests of the child. . . .
      Matthew immediately took the appropriate steps to get the child the
      appropriate vaccinations. . . .
              ....
              In regards to the dental controversy, it does not appear that
      Jocelyn was interested in addressing the child’s dental problems until
      Matthew made an appointment with his dentist to evaluate the child.
      Jocelyn’s dilatory tactics resulted in the child having pain longer than
      she should have had to endure . . . . The court also notes that
      Jocelyn has not been aggressive in making sure that the child will
      have a space for the kindergarten class at the Sergeant Bluff school.
      It is unclear whether such a spot will be available to the child this fall.
      On the other hand, Matthew has made arrangements so that the
      child can attend kindergarten in Homer, Nebraska.

      The district court found Matthew was the better parent because he was able

to provide superior care for the child. On our review of the record, we agree with
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this conclusion. We have reviewed the evidence and find no reason to disagree

with the district court’s conclusion Matthew is the more mature and better parent.

In addition, the current joint physical care arrangement is not in the child’s best

interest. Because the child will be starting school, changing from one parent’s

home to the other home on a weekly basis pursuant to the 2015 decree is not

suitable.   Matthew’s promptness attending to the child’s various health and

developmental issues and stability in the home environment are in the child’s best

interest.   Weighing the child’s best interest and Matthew’s parenting ability

together, we find Matthew has met the burden of showing he can provide superior

care.

   IV. Child Support

        Jocelyn asserts if the district court’s custody modification ruling is affirmed,

the district court erred in calculating her child support obligation. In determining

the correct amount of child support, the net monthly income of the parties must be

computed. In re Marriage of McCurnin, 681 N.W.2d 322, 328 (Iowa 2004). We

examine the employment history, present earnings, and reasons for failing to work

a regular work week when assessing whether to use the earning capacity of a

parent. In re Marriage of Malloy, 687 N.W.2d 110, 115 (Iowa Ct. App. 2004).

Because the guidelines provide for the consideration of a parent’s state and federal

income tax liability, “the amount of child support ultimately owed . . . is dependent

on the allocation of tax exemptions and credits.” In re Marriage of Wade, 780

N.W.2d 563, 566 (Iowa Ct. App. 2010) (citation omitted).

        The district court held:
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         Jocelyn’s gross income for child support purposes [is] $16,380. The
         Court finds that the cost of health insurance for the child is $1820 a
         year. Using that information and averaging the guideline amount
         based on the alternating dependency deduction [the child support
         amount] is $216.50 per month.

         Jocelyn testified she works anywhere from thirty to thirty-five hours per

week at Target. Jocelyn asserts the district court should have used the amount

stated on her 2016 tax return, $14,700, for her gross annual income; however, her

own testimony revealed she now works more hours than in 2016. The district court

calculated Jocelyn’s gross income by multiplying her hourly rate by the average

hours she worked per week by fifty-two weeks.2             The court conservatively

estimated her earning capacity by using the lesser of the hours worked per week—

thirty—rather than the greater number of hours she testified she worked—thirty-

five. As such, we find no reason to modify the district court’s determination of the

appropriate amount of child support.

      V. Appellate Attorney Fees

         Both parties make a request for appellate attorney fees. Appellate attorney

fees rest in the court’s discretion. Factors to be considered in determining whether

to award attorney fees include: “the needs of the party seeking the award, the

ability of the other party to pay, and the relative merits of the appeal.” In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005) (quoting In re Marriage of

Geil, 509 N.W.2d 738, 743 (Iowa 1993)). Upon our review, we decline to award

appellate attorney fees.




2
    $10.50 x 30 hours per week x 52 weeks per year = $16,380.
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   VI. Conclusion

       Because there has been a substantial change in circumstances since the

initial decree, Matthew can provide superior care, and the district court

appropriately calculated child support, we affirm.

       AFFIRMED.
