                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0303
                            Filed November 26, 2014


JOHN LEMKE,
     Plaintiff-Appellant,

vs.

MANDI LEMKE,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.



       John Lemke appeals from the district court’s award of physical care of the

parties’ children in its modification of the decree dissolving his marriage to Mandi

Lemke. AFFIRMED.



       Joel Walker, Davenport, for appellant.

       Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for

appellee.



       Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

       John Lemke appeals from the district court’s modification of the decree

dissolving his marriage to Mandi Lemke.          The parties were married in 2004.

They divorced in 2007 but did not separate. In 2008, after they separated, John

persuaded Mandi to join his petition to modify the joint physical care provision in

their dissolution decree to award John physical care of their four children. Both

parents have shared joint legal custody since the dissolution. The parties agree

that the children have spent approximately half of their time with each parent

since the parties separated.

       Mandi petitioned the district court for modification of the physical care

provisions of the modified decree on April 1, 2013. After trial, the court issued a

modification order on January 27, 2014. The order grants physical care to Mandi

but leaves joint legal custody unchanged. It establishes a physical care schedule

in which the care of the children alternates between the parents each week.1

John appeals.

       “We review an order modifying a decree for dissolution of marriage de

novo.” In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). Though they

are not binding on us, we give weight to the factual findings of the district court.

Id. We give particular weight to its findings regarding the credibility of witnesses.

Id. We will affirm the district court unless it has failed to do equity. Id.




1
  The modification also changed the child support arrangement. Previously John had
been awarded child support from Mandi in a default order in September 2010. The
district court’s modification order now requires John to pay Mandi $50 per month in child
support.
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       John first argues Mandi did not demonstrate a substantial and material

change in circumstances to support her request for modification of physical care.

See In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa 2005) (“[C]ourts

should only modify the custodial terms of a dissolution decree if it has been

established that conditions since the decree have so materially and substantially

changed that the children’s best interests make it expedient to make the

requested change.”). We agree with the district court that Mandi has shown such

a change in circumstances.

       Many of the troubling issues between Mandi and John predate the 2008

modification granting John physical care, and those issues—of which Mandi

certainly had prior knowledge—may not serve as a basis for Mandi’s proposed

modification.     However, between the 2008 modification and this present

modification action, John’s cooperation with Mandi in managing her visitation

rights degenerated to such a degree that the children have been affected, and

Mandi has therefore proved a change in circumstances. The precipitous decline

of John’s ability to work civilly together with Mandi to balance physical care and

visitation rights could “not have been contemplated by the court when the decree

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

       The district court cites to a litany of John’s statements from early 20132

demonstrating the level of aggression with which John now tries to control Mandi


2
  The district court specifically noted several statements—primarily derived from text
messages—John made to Mandi in February and March of 2013, which were the
impetus of her petition to modify. The statements indicate John’s unwillingness to work
together with Mandi and to control her visitation rights. Some of his statements include:
“Shut up now or your [sic] not going to have them tomorrow. Shut up.” “Stop now or you
won’t have them tomorrow.I [sic] told you what would happen but u [sic] couldn’t shut up,
now its donepush [sic] me some more.” “Ur [sic] an idiot. . . . I don’t care about ur [sic]
                                            4


and his children. That heightened animosity, including name-calling, renders it

contrary to the children’s best interests for him to retain physical care.

       In 2013, he attempted to create trouble for Mandi by reporting her to the

department of human services (DHS) for allowing the children access to a gun.

Mandi fully cooperated with the investigation, and DHS found the accusation was

baseless. Additionally, John had prior knowledge of the gun in Mandi’s house,

which indicates his complaint may have been strategically timed to interfere with

Mandi’s relationship with the children rather than to protect them.              Credible

testimony before the district court indicates that John manipulated his children

into providing false statements to DHS in order to cast Mandi in a bad light with

investigators.   His recent interference with the children’s ability to maintain

healthy relationships with both parents is evident from the record.

       These developments have occurred since the 2008 modification awarding

John physical care. They constitute a substantial and material change in the

circumstances of the children’s physical care that supports the district court’s

modification.

       John also claims Mandi has not shown “she can parent more effectively”

than he can. We agree with the district court that Mandi has established she has

“an ability to minister more effectively to the children’s well[-]being.” Id. The

record demonstrates John’s manipulation of the children to make falsified

statements to DHS, heavy student loan debt, bankruptcies, and lack of gainful



diatribe.” “Pray I don’t hear you were saying stupid shit.” “If u [sic] say anything to her
remotely stupid . . . About me [ . . . ] or anyone one you won’t like what happens.
Consider yourself warned.” These excerpts are from only a one-week period between
February 22 and 28, 2013. Similar statements continue throughout March of that year.
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employment render him unable to provide superior care to that provided by

Mandi. While John argues Mandi’s balance of unpaid child support and changes

of residence disqualify her from providing superior care, his own financial and

emotional instability have created a hostile environment for the children in the

recent past. Mandi has shown she can minister more effectively to the children.

       John lastly claims the best interests of the children, which are “[t]he first

and governing consideration,” were not satisfactorily considered by the trial court.

In re Marriage of Melton, 256 N.W.2d 200, 206 (Iowa 1977). However, the trial

court’s order was primarily driven by the best interests of the children. In fact, the

trial court found that Mandi, in her petition for modification, “place[d] the needs of

the children above any understandable impulse to retaliate” against John, whose

behavior the district court criticized. The district court stated, “Life for the children

and the parties would be enhanced if the visitation arrangement was simple and

predictable.” It issued an order creating just such an arrangement. The district

court properly considered the best interests of the children.

       AFFIRMED.
