                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1204
                               Filed April 15, 2020


IN RE THE MARRIAGE OF JENNIFER LYNN BEHYMER
AND BUTCH E. BEHYMER

Upon the Petition of
JENNIFER LYNN BEHYMER, n/k/a JENNIFER LYNN SCHUTTINGA,
      Petitioner-Appellant,

And Concerning
BUTCH E. BEHYMER,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Dan Wilson,

Judge.



      Jennifer Schuttinga appeals the modification to the decree dissolving her

marriage to Butch Behymer. AFFIRMED.



      Cynthia D. Hucks of Box & Box Attorneys at Law, Ottumwa, for appellant.

      Heather M. Simplot of Harrison, Moreland, Webber, Simplot & Maxwell,

P.C., Ottumwa, for appellee.



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

       At the time the parties’ marriage was dissolved in 2005, the parties were

given joint legal custody of their minor child, B.B. Jennifer Behymer, now known

as Jennifer Schuttinga, was granted physical care of B.B. One year later, the

decree was modified to place physical care of B.B. jointly with the parents. 1 In

2017, Jennifer filed this modification action seeking physical care of B.B. The

father, Butch Behymer, filed a counterclaim asking that he be awarded physical

care. Following trial, the district court modified the original decree to grant Butch

physical care. Jennifer appeals, arguing placing physical care with Butch is not in

B.B.’s best interest. Alternatively, she argues she should receive more visitation

time. Both parents request appellate attorney fees.

       We review marriage dissolution proceedings de novo. Iowa R. App. P.

6.907; In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). “On appeal,

we give weight to the fact findings of the trial court but are not bound by them.”

Larsen, 912 N.W.2d 448. Further, “[w]]e recognize that the district court ‘has

reasonable discretion in determining whether modification is warranted and that

discretion will not be disturbed on appeal unless there is a failure to do equity.’” In

re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006) (quoting In re Marriage

of Walters, 575 N.W.2d 739, 740 (Iowa 1998)).

       “A party seeking modification of a dissolution decree must prove by a

preponderance of the evidence a substantial change in circumstances occurred

after the decree was entered.” In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa


1 The decree was further modified in 2010, but that modification did not make
substantial changes relevant to the issues in this decision.
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2016). And “[t]he changed circumstances affecting the welfare of children and

justifying modification of a decree ‘must not have been contemplated by the court

when the decree was entered, and they must be more or less permanent, not

temporary.’” Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa

1983)). The party seeking modification of a decree’s custody provisions must also

prove a superior ability to minister to the needs of the child. Id.

         Jennifer does not dispute that a substantial change of circumstances

warranted modifying the custody decree. Instead, she argues placing physical

care of B.B. with Butch is not in B.B.’s best interest. Once it has been determined

joint physical care needs to be modified, “[t]he parent who can administer most

effectively to the long-term best interests of the children and place them in an

environment that will foster healthy physical and emotional lives is chosen as

primary physical care giver.” In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa

Ct. App. 1998).

         On our de novo review of the record, we reach the same conclusion as the

district court that there has been a substantial change of circumstances warranting

modification and Butch having physical care of B.B. is in her best interest. The

record shows Butch has had a stable residence for B.B. Butch has been married

to another woman, Amanda, since B.B. was young, and B.B. has a close

relationship with both Amanda and B.B.’s half-sibling.2 Butch has been actively

involved in B.B.’s life and activities as well as in the community, serving as a

volunteer firefighter and serving as president of the local little league for several



2   B.B.’s half-sibling is the child of Butch and Amanda
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years. He deer hunts with B.B. and has helped coach her sports teams over the

years. He has also been consistent in setting and enforcing rules in his home.

         On the other hand, Jennifer has not been as stable. She has moved

multiple times in the years leading up to the modification action. Most recently,

Jennifer moved out of the school district B.B. has always attended, requiring B.B.

to drive thirty to forty minutes each way to attend school and extracurricular

activities,3 often resulting in traveling late at night and cutting down on B.B.’s ability

to get enough sleep. If Jennifer received physical care, it would require B.B. to

change schools. Jennifer has also had multiple boyfriends over that same period.

Some of the boyfriends have had criminal records and/or had a volatile relationship

with Jennifer. She has obtained a no-contact order against one of her former

boyfriends. Moving into and out of the homes of those boyfriends has been part

of the cause of her frequent moves. Since Jennifer had shared physical care of

B.B., Jennifer’s frequent moves resulted in frequent moves for B.B. The most

recent move to a different school district was so Jennifer could move in with her

boyfriend, now fiancé.

         In addition, Jennifer has struggled with depression and drug use. She has

adequately addressed her depression issues, but still continues to be

overwhelmed by day-to-day life. She also has issues with marijuana usage, which

she continues to minimize. While the modification proceedings were pending,

Jennifer’s previous employer fired her for using her coworker’s credit card at a gas

station without the coworker’s permission. She pled guilty to and received a



3   At the time of trial, B.B. was fifteen years old and had a school permit.
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deferred judgment for a misdemeanor criminal charge as a result.             She also

received a deferred judgment for operating while intoxicated in 2010.

       In support of her arguments at trial and on appeal, Jennifer relies heavily on

B.B.’s testimony that B.B. would like Jennifer to have physical care of her. In

determining the weight to be given to a child’s wishes, we consider the following

factors: (1) the child’s age and educational level; (2) the strength of the child’s

preference; (3) the child’s relationship with family members; and (4) the reasons

the child gives for the child’s decision. McKee v. Dicus, 785 N.W.2d 733, 738

(Iowa Ct. App. 2010).      The child’s preference is entitled to less weight in a

modification action than would be given in an original custody proceeding. In re

Marriage of Thielges, 623 N.W.2d 232, 239 (Iowa Ct. App. 2000).

       At trial, Butch and Amanda maintained the decision to change homes, and

then schools, stemmed from B.B.’s desire to be near her current boyfriend. The

district court had the benefit of observing the parties while they testified, including

B.B. Referencing B.B’s “reasonably high maturity level,” the court gave weight to

her preference and the reasons identified for her choice.             Yet even after

considering the “sincere” concerns raised by her, her current preference failed to

trump the district court’s reservations about the proven instability of Jennifer.

Remaining in Butch’s care allows B.B. to maintain her good relationship with her

stepmother and half-sibling as well as staying in the same school system she has

attended her entire life where her long-time best friends go to school and where

she excels. Under these circumstances, B.B.’s preference does not overcome the

other factors weighing in favor of placing physical care with Butch
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       Jennifer’s remaining arguments point to specific incidents she claims show

Butch having physical care of B.B. is not in B.B.’s best interest. Jennifer claims

the following as a basis for granting physical care to her: (1) Butch refused to

provide health insurance cards to her; (2) Butch and/or Amanda changed certain

medical and school forms, or allowed others to change them, so as to exclude

Jennifer from the records; (3) Butch befriended Jennifer’s ex-boyfriends and others

in order to gain information about Jennifer; and (4) Butch allowed a man who had

acted inappropriately toward B.B. to be at Butch’s house after learning of the

incident.

       As for the health insurance card issue, the evidence established that health

insurance is provided for B.B. through Amanda’s employment. The evidence also

established Butch sent Jennifer photos of the insurance cards “[s]everal times.”

We find no significant merit to this criticism.

       In terms of the medical and school records issue, there was no credible

evidence supporting Jennifer’s claim. While there may have been confusion within

the school offices stemming from Butch and Amanda enrolling their child in the

same school as B.B., the evidence established that problems, if any, of Jennifer

not showing in the records as B.B.’s mother was a mistake made by the school

staff and not caused by any action or inaction of Butch or Amanda.

       With regard to the claim Butch befriended others in order to gather

information on Jennifer, Jennifer articulates no compelling reason why this

allegation, even if true, should result in her being awarded physical care over

Butch. Given Butch’s claim Jennifer repeatedly threatened to take him to court

regarding custody, it is not all that surprising that he may contact people that had
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contact with Jennifer, as those people would be potential witnesses in the event

further proceedings were initiated, which they were.

       Finally, regarding the claim Butch allowed a man who had acted

inappropriately toward B.B. to return to Butch’s home, both Butch and Amanda

testified when B.B. reported the event to them, they refused to allow the man back

into their home. When the man recently appeared at their home uninvited, Butch

did not forcefully demand he leave, but he “shooed him out” soon after he arrived.

Under these circumstances, we cannot criticize Butch’s behavior to the extent it

warrants placing physical care with Jennifer rather than Butch.

       With regard to the above-referenced complaints lodged by Jennifer, besides

the unsubstantiated or embellished nature of them as described, we note they are

generally episodic and isolated events. In contrast, Jennifer’s issues of being

overwhelmed by day-to-day life, lack of stability in housing, and moving herself and

B.B. in and out of her boyfriend’s homes are more long-term systemic issues.

While Jennifer appears to have stabilized to some degree in her current

relationship, the fact remains that the shared physical care arrangement is no

longer viable and placing physical care with Butch is appropriate, given that he has

a long history of stability and remaining with Butch will permit B.B. to remain in the

school where she has been her entire school career and where she has done well.

       In the district court’s order, Jennifer was granted visitation every other

weekend, on alternating holidays, and for extended time in the summer. Jennifer’s

request to modify the visitation provisions is denied. The distance between the

parents has already caused disruption to B.B. and is one of the contributing factors

to the modification. Due to that distance, mid-week or other visitation beyond the
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visitation ordered is not warranted. With that said, we, like the district court,

encourage the parties to work together to find a mutually-agreeable visitation

schedule, especially in light of the fact B.B. is now of driving age. An agreed-upon

schedule may exceed or differ from that set forth in the district court’s order.

       Finally, both parties request an award of appellate attorney fees.

       Appellate attorney fees are not a matter of right, but rather rest in this
       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)). Under the circumstances, we decline

to award appellate attorney fees. Costs are assessed to Jennifer.

       AFFIRMED.
