                   IN THE COURT OF APPEALS OF IOWA

                                 No. 14-1760
                              Filed May 6, 2015

IN RE THE MARRIAGE OF NEIL JAMES PRUSSMAN
AND KAREN M. PRUSSMAN

Upon the Petition of
NEIL JAMES PRUSSMAN,
      Petitioner-Appellee,

And Concerning
KAREN M. PRUSSMAN, n/k/a
KAREN M. DENISON,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Muscatine County, Stuart P.

Werling, Judge.



      Karen Denison appeals the district court order modifying placement of the

parties’ minor child. REVERSED.



      Robert M. Hogg of Elderkin & Pirnie, P.L.C, Cedar Rapids, and John E.

Wunder of Wunder Law Office, Muscatine, for appellant.

      Robert H. DeKock of DeKock Law Office, P.C., Muscatine, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, J.

      Karen Denison appeals the district court’s order modifying the decree of

dissolution granting Neil Prussman joint physical care of their child, B.P. She

claims the district court should not have modified the decree as Neil failed to

show a “substantial change in circumstances” or that he could provide “superior

care” to B.P. We find Neil has failed to carry his “heavy burden” to meet these

standards. We reverse.

I.    BACKGROUND FACTS AND PROCEEDINGS

      The marriage between Neil and Karen was dissolved by agreement in

2010. Their only child, B.P., was born in 2002 and was seven-years-old at the

time of the divorce. The parties stipulated to joint legal custody of B.P. and

Karen was granted physical care subject to reasonable visitation. The decree

also provided Neil would pay $171.92 in weekly child support.

      We incorporate the district court’s findings concerning the parties since the

dissolution decree was entered:

              B.P. is a remarkable young man. He has been in the
      Talented and Gifted Program at his school shortly after enrollment.
      In fact, he was advanced from the first grade to the third grade due
      to his excellent academic performance. This performance has
      continued throughout his academic career. Currently, B.P. is in the
      sixth grade. He was recently tested at the Belin-Blank Center in
      Iowa City where he was in the 90th percentile of all eight graders
      who took the test at the same time. Again, B.P. was a sixth grade
      student in Muscatine at the time he took this test. The results of
      this test show that B.P. is an excellent academic student as
      compared to his peers. Both parents agree. They describe their
      son as “remarkable.”       Not only is he a superior student
      academically, he is involved in jazz band, concert choir, and
      athletics. Additionally, B.P. is described as a kind, helpful and
      considerate person who is always willing to lend a hand where
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        needed. It is clear to the Court that B.P. is a special young man
        with unlimited potential to achieve a very bright future.
                Mr. Neil Prussman and Ms. Karen Denison both continue to
        live in the same community in which B.P. was born. In fact, they
        live in the same middle school district where B.P. now attends
        school. The parties’ homes are only a few blocks from one
        another, and B.P. cannot only walk to and from school from either
        parent’s home, he can walk to and from each parent’s home as
        well. Further, both parents are active members of the same church
        in Muscatine. Finally, it is clear beyond any question or doubt that
        both the mother and father deeply love B.P. and wish the best for
        him.
                Karen’s employment situation has not changed dramatically
        since the entry of the decree. She continues to work part-time
        hours of about twenty hours per week. Karen testified that she
        limits her employment hours so that she can spend more time with
        her son and Court accepts this testimony as truthful.
                Neil’s employment situation has changed, however. At the
        entry of the decree, Neil was working a swing shift for GPC in
        Muscatine, Iowa. Neil testified that originally his work schedule was
        a swing shift of twelve hours. He would work two twelve hour days
        and then have two days off. He would then work three twelve-hour
        days and have three days off. Then he would work two twelve-hour
        nights followed by three days off. This pattern would then repeat.
        Neil testified that this swing shift made a regular consistent
        schedule of visitation with B.P. very difficult to plan. Therefore, he
        exercised his visitation mainly on the weekends. The Court finds
        this testimony to be truthful as well.
                ....
                Both Neil and Karen have remarried. Karen has no
        additional children in her home other than her son, B.P. However,
        Neil’s new wife has two sons who are close in age to B.P. B.P.
        testified his relationship with his step-brothers is warm and cordial
        and he enjoys being with them and doing the kinds of things that
        young boys do.

        On December 10, 2013, Neil filed an application for modification of the

dissolution decree requesting physical care, or in the alternative, joint physical

care.   In his application, Neil claimed the following constituted a “substantial

change in circumstances to justify a modification: the change in his work

schedule, B.P.’s desire to live with both parents on an equal basis, and Karen
                                             4



and her new spouse’s smoking cigarettes and exposing1 B.P. to second-hand

smoke.

         A hearing was held on September 8 and 9, 2014.               Relying on B.P.’s

request for equal time with his parents, and Neil’s change in work schedule, the

court found joint physical care was in B.P.’s best interest and modified the

decree. The court awarded Karen $1000 in attorney fees (due to the parties’

income disparity), and reduced Neil’s child support obligation to $420.01 per

month. Karen filed a motion to amend or enlarge the court’s ruling, noting the

court did not make specific findings concerning whether Neil had shown the

requisite change in circumstances or that he could provide superior care to B.P.

Karen claimed the change in Neil’s work schedule could justify a change in

visitation, but not a modification to the custody provisions in the decree. The

district court denied Karen’s motion. Karen now appeals

II.      STANDARD OF REVIEW

         This modification action was tried in equity, and our review is de novo.

Iowa R. App. P. 6.907; In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).

However, we give weight to the trial court’s findings because it was present to

listen to and observe the parties and witnesses. In re Marriage of Zebecki, 389

N.W.2d 396, 398 (Iowa 1986); see also Iowa R. App. P. 6.904(3)(g). As a part of

our de novo review, we give little precedential value to past cases and instead

focus on the particular circumstances of this case. In re Marriage of Kleist, 538

N.W.2d 273, 276 (Iowa 1995).


1
    Karen testified that any smoking is done outside away from B.P.
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III.   ANALYSIS

       A.       Modification

       Karen claims the district court ruling should be reversed as Neil’s change

in work hours and B.P.’s preference is not a “substantial change in

circumstances.” Karen also claims Neil failed to show he could provide superior

care to B.P.

       The objective of physical care “is to place the children in the environment

most likely to bring them to health, both physically and mentally, and to social

maturity.”     In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Changing physical care of children is one of the most significant modifications

that can be undertaken. In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa

Ct. App. 2000). The parent seeking to modify the physical care provision of a

dissolution decree must prove “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 is more or less permanent and relates to the

welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.

App. 2004). In addition, the parent seeking to modify physical care has a “heavy

burden” and “must show the ability to offer superior care.” Id.; see In re Marriage

of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once custody of

the children has been fixed, it should be disturbed only for the most cogent

reasons”).     The controlling consideration is the child’s best interest.   In re

Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).
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      Upon our de novo review of the record, we agree with Karen that Neil

failed to carry the burden of showing a “substantial change” in circumstances or

that he can provide “superior care” to B.P. Based on the testimony presented,

the change in Neil’s work schedule does not constitute a “substantial change in

circumstances” to justify altering the custody arrangement. While the change in

Neil’s schedule allows him to spend more time with B.P., this is a change that

was within the contemplation of the court when it entered the decree.           “The

original decree is entered with a view to reasonable and ordinary changes that

may be likely to occur in the relations of the parties.       Any changes in the

circumstances that are ‘natural occurrences and as such could be foreseen by

the [c]ourt’ will not justify modification.” In re Marriage of Chmelicek, 480 N.W.2d

571, 574 (Iowa Ct. App. 1991) (citing Mears v. Mears, 213 N.W.2d 511, 514

(Iowa 1973)).     Neil’s new work schedule is a natural occurrence and not a

substantial change. In fact Neil testified the change in his schedule was done by

his employer without Neil’s input and could be changed again if his employer

chose to do so.

      Neil also failed to show, and the district court failed to make a finding, that

Neil could provide superior care to B.P. Most of the testimony at the hearing

focused on B.P.’s accomplishments and talents.          The record shows B.P.’s

success can be primarily attributed to Karen’s conscientious parenting and the

fostering of B.P.’s unique abilities.   While Neil has taken a larger interest in

parenting B.P. since the entry of the decree, a desire to spend more time with a

child is not the same as demonstrating the ability to provide superior care. Given
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the fact B.P. has excelled in his mother’s care, Neil has a heavy burden to show

he can improve on Karen’s great effort. Neil has not met this burden.

       Finally, we note B.P.’s preference to spend equal time with both parents

does not constitute a “substantial change” to warrant modifying the decree. We

give less weight to B.P.’s preference in this modification action than we would if

this were the original custody decision. In re Marriage of Jahnel, 506 N.W.2d

473, 475 (Iowa Ct. App. 1993). However, a minor child’s preference as to which

parent he wishes to live with, although not controlling, is relevant and cannot be

ignored. Iowa Code § 598.41(3)(f) (2013) (“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.”). B.P. is highly intelligent

and mature for his age. However, he is an eleven-year-old child. His testimony

establishes he is happy with this mother’s care, and with his step-father.2 The

evidence shows the physical care arraignment should not be modified.

       B.     Appellate Attorney Fees

       Karen requests appellate attorney fees. An award of attorney fees is not a

matter of right and rests within our discretion. In re Marriage of Okland, 699

N.W.2d 260, 270 (Iowa 2005). We determine whether an award is appropriate

considering the needs of the party seeking the award, the other party’s ability to

pay, and whether the appeal required a party to defend the district court’s

decision. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).




2
 Much of B.P.’s testimony discussed his enjoyment in spending time playing with his two
step-brothers at his father’s house.
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With these considerations in mind and the large disparity in the parties’ incomes

we award Karen $4000 in appellate attorney fees.

IV.    CONCLUSION

       Based on the facts presented, the change in Neil’s work schedule and the

preferences of B.P., an eleven-year-old child (no matter how intelligent or

mature), do not constitute a “substantial change in circumstances” to meet the

“heavy burden” necessary to modify a child custody arrangement. Additionally,

Neil has failed to show he could provide “superior care” to B.P. We reverse the

district court’s order modifying the placement of the parties’ minor child.

       REVERSED.
