                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1701
                              Filed October 28, 2015


IN RE THE MARRIAGE OF ANGELA J. RETTERATH
AND CHAD M. RETTERATH

Upon the Petition of
ANGELA J. RETTERATH, n/k/a ANGELA J. NEUMAN,
      Petitioner-Appellant,

And Concerning
CHAD M. RETTERATH,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Mitchell County, Christopher C.

Foy, Judge.



       A mother appeals from a district court’s modification of a dissolution

decree. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



       Richard N. Tompkins Jr. of Tompkins Law Office, Mason City, for

appellant.

       Judith M. O'Donohoe of Elwood, O'Donohoe, Braun, & White, L.L.P.,

Charles City, for appellee.



       Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

       Angela Neuman appeals a district court order modifying a dissolution

decree to place physical care of the children with her ex-husband, Chad

Retterath.

    I. Background Facts and Proceedings

       Angela and Chad married in 2003, had two children, and divorced in 2010.

Under the dissolution decree, Angela received physical care of the children,

subject to liberal visitation with Chad.

       In the ensuing years, Angela repeatedly alleged that Chad and others

sexually abused the children. The State filed a child-in-need-of-assistance action

in juvenile court. Chad subsequently filed a petition to modify physical care in the

district court.

       The juvenile court adjudicated the children in need of assistance (CINA)

and transferred their custody to the Department of Human Services for

placement in foster care. Meanwhile, the department investigated the allegations

of abuse. No founded reports of child abuse were issued against Chad.1

       The juvenile court later determined one of the children’s “recollections” of

sexual abuse were “a result [of] what he . . . interpreted as what his mother told

him happened to him” and he had “yet to relay one single detail of abuse that he

actually remember[ed].” The court further states, “every treatment professional

involved in this case agrees that the boys do not exhibit the behaviors one would

expect to see in abuse victims.” The court ordered the department to transition


1
  The department issued one founded report, with the perpetrator designated as
“unknown.”
                                          3


the children to Chad’s home and granted the district court concurrent jurisdiction

to address Chad’s modification petition. In a subsequent permanency order, the

court transferred “sole custody” of the children to Chad, ordered visits with

Angela to be supervised, and granted the department discretion to determine the

“time, place, frequency, circumstances, nature and duration of visits.”

       In time, the district court held an evidentiary hearing on Chad’s

modification petition.   Following the hearing, the court made the following

pertinent findings:

       Like any parent, Chad is far from perfect. However, Chad has
       made a sincere effort to improve his parenting over the course of
       the CINA proceedings and has shown he can provide a safe,
       nurturing home for the boys. In contrast, Angela is unwilling to
       acknowledge her responsibility for the behavioral and emotional
       issues that her sons face. . . . The social workers who have
       assisted the family uniformly believe that it is in the best interests of
       the boys to transfer physical care to Chad.

The court found Chad’s testimony “more credible,” reasoning that Angela’s

willingness to “pursue her fantastical and ‘over-the-top’ accusations of sexual

abuse against Chad . . . undermine[d] her general credibility.”             The court

transferred physical care of the children from Angela to Chad, required all

visitation between Angela and the children to be supervised, and vested

discretion with Chad to determine the parameters of visitation.

       Angela filed a motion pursuant to Iowa Rule of Civil Progedure 1.904(2)

for enlarged findings and conclusions, challenging the delegation to Chad of

discretion to conduct visits. The district court denied the motion. This appeal

followed.
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   II. Analysis

       A. Modification of Physical Care

       A party requesting modification must prove (1) a substantial and material

change in circumstances that is more or less permanent and affects the

children's welfare and (2) an ability to provide superior care. In re Marriage of

Frederici, 338 N.W.2d 156, 158 (Iowa 1983). On our de novo review, we are

convinced Chad satisfied this heavy burden.

       Angela leveled horrific allegations of sexual abuse against Chad and

others, some bordering on the absurd. The department and law enforcement

authorities investigated the allegations and found scant support for them. While

Angela maintains she simply conveyed what the children reported, the older child

called this assertion into question when he told his therapist and foster parents

that Angela prompted him to “disclose” the abuse and made him “lie.” See, e.g.,

In re Marriage of McCord, No. 03-0497, 2003 WL 23219961, at *6 (Iowa Ct. App.

Nov. 26, 2003) (stating mother was correct in giving credence to initial statement

of daughter but mother’s credibility was adversely affected by the fact the child

later gave inconsistent statements and said mother told her to say the father was

the perpetrator).

       The children’s reactions to their father also raised doubts about Angela’s

veracity. Visitation supervisors reported the boys were happy to see and interact

with him during supervised visits. The boys’ therapist testified their behaviors

around their father were not typical of sexually abused children.
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      Angela continued to malign Chad even after the sex abuse allegations

failed to gain traction.   For example, she accused him of drug abuse, an

accusation which was quickly refuted.

      Angela’s allegations harmed the children. As a result of the allegations,

the children were moved in and out of three foster homes, including a relative’s

home. The second set of foster parents asked to have the placement curtailed

because they feared Angela would make unsubstantiated allegations of abuse

against them that would jeopardize their foster care license.

      In addition to the instability generated by the repeated moves, the

children’s behaviors changed. The older child evinced “serious perception and

thinking” issues; the younger child sometimes had “lengthy tantrums” in Angela’s

presence. See In re Marriage of Winnike, 497 N.W.2d 170, 173-74 (Iowa Ct.

App. 1992) (noting mother was “strongly committed to pursuing her allegations of

sexual abuse.     However, she seem[ed] oblivious to any harm her public

campaign against [the father] may have on her daughter”); see also, e.g.,

McCord, 2003 WL 23219961, at *8 (noting child “suffered serious emotional

damage as a result of her mother’s posturing”).

      Meanwhile, Chad did his best to address the allegations and nurture the

children. He cooperated with the multiple investigations, preserved the children’s

relationship with Angela’s family members despite Angela’s estrangement from

them, and engaged appropriately with the children during visits and after the

juvenile court granted him sole custody. See, e.g., In re Marriage of Gooley, No.

05-0551, 2008 WL 5412287, at *3 (noting father cooperated with investigations,
                                         6


interacted well with his daughter and provided a suitable and stable home for his

daughter).

      We conclude Angela’s sustained attacks against Chad and her

involvement of the children in those attacks constituted a material and substantial

change of circumstances affecting the welfare of the children. See Winnike, 497

N.W.2d at 174 (“In determining custody we can give great weight to a parent's

attempt to alienate a child from her other parent if evidence establishes the

actions will adversely affect a minor child.”); see also, e.g., Gooley, 2008 WL

5412287, at *3 (affirming modification of physical care where mother

“systematically attempted to destroy the relationship between father and

daughter” by making “numerous allegations of abuse to the DHS,” subjecting

child “to at least four genital examinations . . . with none finding there was

conclusive evidence of sexual abuse,” and taking other actions against the best

interests of the child). We further conclude Chad showed himself to be the

superior caretaker notwithstanding Angela’s historic role as primary caretaker.

We affirm the district court’s modification of the physical care provision in the

dissolution decree.

      B. Visitation

      The district court entered a visitation order as follows:

      So long as the CINA cases involving [the children] remain open, the
      Department of Human Services shall have sole discretion to
      establish the time, place, frequency, circumstances, nature, and
      duration of any communication or visitation between [Angela] and
      the children. If the parties are unable to agree on the specifics of
      visitation once the CINA cases involving [the children] are closed,
      then [Chad] shall have sole discretion to establish the time, place,
                                              7


       frequency, circumstances, nature, and duration of any
       communication or visitation between [Angela] and the children.[2]

       Angela argues the court (1) should not have required the visits to be

supervised and (2) should not have granted Chad discretion to control visitation.

       On the first point—the requirement of supervision—we agree with and find

evidentiary support for the following analysis by the district court:

       In this case, the Court is satisfied that the imposition of certain
       restrictions on the right of Angela to visitation with her children is
       necessary to ensure their safety and welfare. During supervised
       interactions with H over the past two years, Angela has confronted
       her son many times about what she perceived as his lack of
       honesty. She continued to pursue these confrontations, even after
       being told many times previously to avoid arguing with H about his
       honesty due to the negative effect these arguments have on him.
       Given the poor judgment exhibited by Angela in supervised
       settings, the Court does not believe that she could maintain
       appropriate boundaries in dealing with the boys if her visitation was
       not supervised.       The Court also believes allowing Angela
       unrestricted visitation at the present time would soon lead to
       additional false accusations against Chad.

We affirm the district court’s visitation order to the extent it required visits

between Angela and the children to be supervised.

       On the second point—delegation of supervision authority to Chad—

Chad’s attorney conceded error at oral arguments.                 See In re Marriage of

Stephens, 810 N.W.2d 523, 530 (Iowa Ct. App. 2012); see also, e.g., Schleis v.

Keiner, No. 14-1258, 2015 WL 2089690, at *2 n.2 (Iowa Ct. App. May 6, 2015);

In re Marriage of Schmidt, No. 13-0675, 2014 WL 2432549, at *7-8 (Iowa Ct.


2
  Our record does not reveal whether and when the CINA case closed. For purposes of
this opinion, we will assume the CINA is closed and we will address that portion of the
visitation order addressing post-closure visitation. See A.B. v. M.B., 569 N.W.2d 103,
104-05 (Iowa 1997) (stating “[c]ustody or visitation orders entered by a court granted
‘concurrent jurisdiction’ . . . are only determinative of the rights of the parents inter se if
and when the juvenile court’s placement of the children during their CINA status has
been rendered of no further effect by orders of the juvenile court”).
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App. May 29, 2014); In re Marriage of Vidal, No. 09-1608, 2010 WL 3324939, at

*7 (Iowa Ct. App. Aug. 25, 2010). As Chad’s attorney correctly pointed out, a

district court may not delegate its authority to determine the parameters of

visitation to a third party.   See Stephens, 810 N.W.2d at 530 (“It is well

established that the district court is the only entity that can modify a custody or

visitation order, subject to the review of the appellate courts. This obligation to

modify a decree cannot be delegated to any person or entity because that person

or entity has no jurisdiction to render such a decision.” (citations omitted)).

Delegation of visitation parameters to the opposing party is of particular concern.

As the Iowa Supreme Court stated, a district court should not

       make the right of visitation contingent upon an invitation from the
       party having the custody of the child, or require the consent of one
       parent for the other to visit the child, . . . thereby leaving the
       privilege of visitation entirely to the discretion of the party having
       the child in custody.

Smith v. Smith, 142 N.W.2d 421, 425 (Iowa 1966) (citation omitted).

       In light of this authority, we reverse the portion of the district court’s

visitation order delegating supervisory and other authority over visitation to Chad

and remand for entry of an order by the district court assigning a visitation

supervisor other than one denominated by Chad and defining the parameters of

visitation.

   III. Appellate Attorney Fees

       Angela requests appellate attorney’s fees.        An award rests in our

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

Because Angela did not prevail on the physical care issue, we decline her

request.
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Costs on appeal are taxed equally to the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
