                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1921
                                Filed July 22, 2015


IN RE THE MARRIAGE OF JENNIFER M. VELDE
AND ADAM R. VELDE

Upon the Petition of
JENNIFER M. VELDE,
      Petitioner-Appellee,

And Concerning
ADAM R. VELDE,
     Respondent-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Peter A. Keller,

Judge.



       Adam Velde challenges the district court’s modification order denying his

request to place the parties’ children in his physical care, granting the request of

Jennifer Velde to modify the visitation schedule set in the parties’ dissolution

decree, and awarding Jennifer trial attorney fees.              AFFIRMED AND

REMANDED.



       Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant.

       Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des

Moines, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
                                          2


DOYLE, J.

       Adam Velde challenges the district court’s modification order denying his

request to place the parties’ children in his physical care, granting the request of

the children’s mother, Jennifer Velde, to modify the visitation schedule set in the

parties’ dissolution decree, and awarding to Jennifer trial attorney fees.       We

affirm, and because we find an appellate-attorney-fee award to Jennifer is

appropriate, we remand the matter to the district court to determine the amount

of appellate attorney fees to be paid by Adam and to enter judgment against

Adam in a reasonable amount.

       I. Background Facts and Proceedings.

       Adam and Jennifer Velde married in 2004 and have three children. In

2011, the parties’ marriage was dissolved after their joint stipulation was

approved by the district court. Pursuant to the parties’ stipulation, it was “in the

best interest of the children and the parties [were] in agreement that they [would]

share joint legal custody of the children and that the primary physical care,

custody and control of the children . . . be awarded to [Jennifer].” Adam was

granted liberal and expansive visitation rights.

       In September 2013, Jennifer filed an application for modification of the

decree after the Iowa Department of Human Services (Department) became

involved with the family. Specifically, Adam was arrested for assault causing

injury after he spanked the parties’ six-year-old child to the point of leaving “deep

purple handprint[s] across his buttocks” and grabbed the child by the ear,

causing a bruise.      The Department determined the abuse allegation was

founded, noting the incident was “not considered to be minor due to the severity
                                        3


of the injuries.” Jennifer cited the incident in her application as a material and

substantial change of circumstances warranting modification of the parties’ prior

visitation schedule to limit Adam’s visits. Adam answered Jennifer’s application

for modification and asserted there had been a substantial and material change

of circumstances such that the children’s physical care placement should be

modified to place them in his care.

      As part of the Department’s involvement with the family, safety services

were offered to both Jennifer and Adam after the Department’s workers found the

parents did “not get along [or] demonstrate the ability to co-parent.”     It was

recommended the parties’ three children attend therapy, and family safety, risk,

and permanency services be offered to both parents so Adam could demonstrate

his “ability to discipline his children without causing harm” and Jennifer could

demonstrate her “ability to be firm with her children and set limits with them

without bribing.” Though the parents’ generally participated, their communication

ability did not improve. As one service provider noted, the parents had “little to

no communication,” and both parents had “great concerns with each other

regarding the children and their well-being and emotional standpoint,” and both

parents felt “the other parent emotionally damage[d] the children regarding their

communication with each other.”

      Jennifer’s application proceeded to trial in 2014. At that time, there were

allegations she had grabbed one of the children by his ankles and dragged him

across the floor. Jennifer denied she had dragged the child.

      Following trial, the district court entered its modification order denying

Adam’s request to modify the children’s physical care placement and granting
                                          4


Jennifer’s request to limit Adam’s visitation. The court found that both parents

loved the children and vice versa, but it found the parties’ communication had

“clearly changed since their divorce,” noting it appeared to deteriorate around the

time Adam got remarried. Despite the obvious change in the parties’ ability to

communicate, the court found the change, though significant, did not rise to the

level of a material and substantial change.          It also found Adam did not

demonstrate he could offer care that is superior to that of Jennifer, finding Adam

was often “too aggressive and uncompromising in his demands,” with a “my way

or the highway” mentality. Though it found Jennifer and Adam’s parenting styles

to be very different, it noted Adam stipulated to the original custody arrangement

placing the children in Jennifer’s physical care; the fact Adam had now remarried

and “established a marital home” did not mean he “suddenly became the better

parent.” The court concluded it was in the children’s best interests that Jennifer

“be awarded final decision-making abilities concerning the educational

development of the minor children, including where they will attend school, and

final decision-making abilities concerning registration of the minor children for

extracurricular activities.”   Additionally, noting the lower burden required to

modify the visitation schedule, the court found Jennifer showed a significant

change in circumstances had occurred since the entry of the decree, and, as a

result, Adam’s visitation schedule should be modified to generally provide him

visitation every other weekend and one night a week.            The court awarded

Jennifer trial attorney fees “since she . . . prevailed on the issue of a modification

of [Adam’s] visitation schedule.”

       Adam now appeals. Jennifer requests appellate attorney fees.
                                         5


         II. Scope and Standards of Review.

         “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).

Nevertheless, “[b]ecause the trial court had the opportunity to observe the

demeanor of the witnesses, we give weight to its findings, particularly with

respect to credibility, but we are not bound by them.” In re Marriage of Murphy,

592 N.W.2d 681, 683 (Iowa 1999); see also In re Marriage of Vrban, 359 N.W.2d

420, 423 (Iowa 1984) (“A trial court deciding dissolution cases ‘is greatly helped

in making a wise decision about the parties by listening to them and watching

them in person.’ In contrast, appellate courts must rely on the printed record in

evaluating the evidence.      We are denied the impression created by the

demeanor of each and every witness as the testimony is presented.” (internal

citations omitted)).   We afford the district court “considerable latitude” in its

determination “and will disturb the ruling only when there has been a failure to do

equity.” In re Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005); see also

Sisson, 843 N.W.2d at 870. We note that prior cases have little precedential

value, “as our determination must depend on the facts of the particular case.” In

re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007).            Our overriding

consideration is the best interests of the child. Iowa R. App. P. 6.904(3)(o).

“Utilizing the best-interest standard provides the flexibility necessary to consider

unique custody issues on a case-by-case basis.” In re Marriage of Hoffman, ___

N.W.2d ___, 2015 WL 2137550, at *4 (Iowa 2015) (internal quotation marks and

citation omitted).
                                        6


      III. Discussion.

      On appeal, Adam contends the district court erred in continuing the

children’s placement in Jennifer’s physical care because there was a significant

and material change in circumstances and he could minister more effectively to

the children’s needs.    Alternatively, he argues the court should not have

decreased his visitation with the children. He also challenges the court’s award

of trial attorney fees to Jennifer. Jennifer requests appellate attorney fees. We

address their arguments in turn.

      A. Physical Care.

      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). To

promote stability in the children’s lives, our courts have concluded that “once

custody of children has been determined, it should be disturbed only for the most

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

Consequently, changing physical care of children is one of the most significant

modifications that can be undertaken.       See 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 first establish “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). That parent must also demonstrate he or she has “the ability to offer
                                          7

superior care.” Id.; see also In re Marriage of Spears, 529 N.W.2d 299, 301

(Iowa Ct. App. 1994) (stating “once custody of a child has been fixed, it should be

disturbed only for the most cogent reasons”). This is a “heavy burden,” and

rightly so, given the disruption in the children’s lives. See Thielges, 623 N.W.2d

at 235–37; In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct. App.

1994). Consequently, physical care issues are not to be resolved based upon

perceived fairness to the spouses or merely choosing which home is better;

rather, the issues must be resolved primarily upon what is best for the children.

See Fennelly, 737 N.W.2d at 101; see also Hansen, 733 N.W.2d at 695; Dale,

555 N.W.2d at 245. In considering what custody arrangement is in the best

interest of the children, the court must weigh the factors set out under Iowa Code

section 598.41(3) (2013).     Relevant here are the questions of “[w]hether the

parents can communicate with each other regarding the child[ren’s] needs” and

“[w]hether each parent can support the other parent’s relationship with the

child[ren].” See Iowa Code § 598.41(3)(c), (e).

       Upon our de novo review of the record, we agree with the district court

that Adam failed to carry the burden of showing a “substantial change” in

circumstances or that he can provide “superior care.” Though the court did not

expressly state it found Jennifer to be more credible than Adam, that finding is

implicit in its ruling. See, e.g., Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 175

(Iowa Ct. App. 1996) (“Although the trial court made no express finding in this

regard, this determination is implicit in the court’s ruling.”). The court did state it

“attempted to reconcile the conflicts in the evidence, but in the final analysis

accepted the evidence it found more believable.” Though we are not bound by
                                          8


the court’s credibility determinations, upon our de novo review of the record, we

find no reason to disturb the court’s findings for the following reasons.

       Here, most of Adam’s criticisms of Jennifer stem from her being a single

mother of three children and her struggle to stay current on various bills. Though

Adam certainly established Jennifer was struggling financially, he did not, as he

advances in his appellate brief, show that she was unable to provide the children

“basic necessities.” Moreover, though Jennifer presently has financial difficulties,

the evidence at trial was that the parents had similarly struggled financially during

their marriage; therefore, Jennifer’s present financial circumstances had to have

been contemplated by the court when the decree was entered. Likewise, the

evidence at trial was that each parent’s parenting style had not changed since

the dissolution of the marriage decree; Jennifer has always been less structured

than Adam. Adam agreed to place the children in Jennifer’s physical care after

their divorce even with her parenting style and financial hardships. He failed to

show that there was a substantial change in circumstances since the time of the

decree not contemplated by the court when the decree was entered.

       Furthermore, Adam’s treatment of Jennifer in his communications shows

he has little-to-no interest in co-parenting the parties’ children. He would only

communicate with her via email or text messages, telling her at one point that he

would not listen to any voice messages left by her. Jennifer attempted to work

with Adam and communicate his way, but his emails and text messages were

regularly derogatory and disrespectful—just a small sampling of those

communications include Adam calling Jennifer dumb, evil, and a liar on multiple

occasions.   If Jennifer did not answer immediately, he “assume[d she was]
                                         9


ignoring [him].” When he did not get his way, he generally threatened to, and at

times did, bring the children into their debates, saying he would “let the kids know

[her] decision” to make her the bad guy or claim Jennifer was punishing them.

When he registered the children for sports closer to where he lived, he did not

even list her as a parent on the form.

       Adam himself testified he was ashamed of how he came across in his

emails and texts, though he claimed he “had no ill intent whatsoever” and that

Jennifer had “cherry-picked” their communications she provided at trial. Yet, he

did not provide any evidence that was the case except his own statement.

Moreover, the messages in the record seem to flow as if there is no content

missing. By the time of trial, Adam’s emails and text messages had become

more pleasant with smiley faces attached, though he admitted at trial his attorney

had told him he was “too direct” and “too black and white” in his communications.

At trial, Adam would initially pay lip service to contributing to the parties’

communication problems, only to go on to blame Jennifer for the problems. We

are not convinced he has made any improvements to his treatment of Jennifer in

his communications.

       Adam argues the children’s best interests demand the children be moved

to his physical care, citing testimony of various counselors concerning the

children’s need for consistency and stability, as well as the request of the parties’

eleven-year-old child to live with Adam. We do not find the testimony or request

rose to the level of a substantial change in circumstances or supported Adam’s

assertion he was the superior caregiver. One of the counselors that first worked

with the parents’ two youngest children—including the one that was spanked to a
                                         10


state of bruising—testified she did not believe the children were being coached

by Jennifer in their statements to her. The children told her of other spankings by

Adam, as well as instances of Adam pulling their hair and ears and making them

eat soap. The children told the counselor they were afraid to return to Adam’s

home. It appears Adam initially told this counselor the child’s bruised buttocks

could have come from the children horsing-around or could have been from

Jennifer, though he admitted to spanking the children to others; in any event, he

denied the hair- and ear-pulling. This counselor ultimately withdrew from the

case because of the high-conflict between Adam, Jennifer, the attorneys, and the

Department. She testified she felt Adam was manipulative and intimidating at

times, and she did not believe, based upon her work with the children, that the

spanking incident was an isolated incident in Adam’s home, though she admitted

she had not seen any other bruising.          She testified she and Jennifer were

concerned Adam was too strict.          She testified she found Jennifer to be

emotionally stable and felt she was very concerned about the children and their

safety.

          The children’s current therapist testified Jennifer and Adam were both

good parents who love their children. She testified she believed the children

needed structure which Adam could better provide, but she admitted Jennifer

would have an easier time parenting if she had a cooperative co-parent. She

testified the children were more emotionally connected to Jennifer than Adam.

          Perhaps most telling are the ear-pulling incidents. While this may or may

not be an appropriate form of punishment, Adam adamantly denied at trial he

had ever pulled the children’s ears or hair. This is notwithstanding the youngest
                                          11


child’s bruised ear at the time of the bruised-buttocks incident, all of the children’s

reports after the butt-spanking incident that Adam had also pulled the child’s ear,

and another report by the same child to his current therapist in February 2014

that Adam had pulled his ear. The therapist testified she talked to Adam about it

after the child mentioned it in 2014, and Adam “said that was pre the time when

he was held accountable for a child abuse incident and that he has since not had

any physical contact like that.” Yet, Adam testified at trial he had never pulled

the child’s ears. We are not convinced; rather, this appears to be the type of

structure and consistency Adam will provide.

       Finally, though we consider the oldest child’s request to live with Adam in

our analysis, taking into account her age and maturity, we do not find this is in

her best interests. See Iowa Code § 598.41(3)(f); see also Hansen, 733 N.W.2d

at 696 (stating although section 598.41(3) does not expressly apply to physical

care decisions, the factors in the statute are relevant considerations); Jones v.

Jones, 175 N.W.2d 389, 391 (Iowa 1970) (“[W]hen a child is of sufficient age,

intelligence, and discretion to exercise an enlightened judgment, his or her

wishes, though not controlling, may be considered by the court, with other

relevant factors, in determining child custody rights.”).      Although the preteen

daughter’s preference is significant in our view, it is entitled to less weight in this

modification action than it would be given when allocating physical care in an

original custody proceeding. See In re Marriage of Zabecki, 389 N.W.2d 396,

399-400 (Iowa 1986); Smith v. Smith, 133 N.W.2d 677, 681 (Iowa 1965).

       We do not find Jennifer to be the perfect parent. No such parent exists.

But the overwhelming evidence at trial was that Adam was generally unwilling
                                         12


and unable to support Jennifer’s relationship with the children or to communicate

with her regarding the children. While we hope the spanking incident was indeed

isolated, given Adam’s denial of the ear-pulling incidents, we do not find the

children’s best interests require placement with Adam. Upon our de novo review

of the record, we agree with the district court that Adam failed to show there had

been a “substantial change” of circumstances not contemplated at the time of

entry of the decree or that he was the superior caregiver. Accordingly, we affirm

on this issue.

       B. Visitation.

       Adam alternatively argues that the district court should not have restricted

his visitation schedule with the children, and, if anything, it should have given him

more visitation time. A parent seeking to modify the visitation provisions of a

dissolution decree must show a material change in circumstances since the

decree and that the requested change in visitation is in the best interest of the

children. In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa Ct. App. 1994).

This burden is less demanding than the burden required to modify a custodial

provision in a dissolution decree. See In re Marriage of Brown, 778 N.W.2d 47,

51 (Iowa Ct. App. 2009).

       Generally, liberal visitation rights are in the children’s best interests. In re

Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App. 1992). The noncustodial

parent should have “liberal visitation rights where appropriate” to “assure the

child the opportunity for the maximum continuing physical and emotional contact

with both parents.” See Iowa Code § 598.41(1). However, it is the children’s

best interests that must prevail. Stepp, 485 N.W.2d at 849. Consequently, the
                                       13


court must fashion a visitation schedule that serves the best interests of the

children. In re Marriage of Gensley, 777 N.W.2d 705, 718 (Iowa Ct. App. 2009).

Again, we give deference to the district court’s opportunity to view the witnesses

and determine the facts, see Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa

Ct. App. 1994), and, recognizing that court’s discretion, we “will not disturb its

decision unless the record fairly shows it has failed to do equity.” Salmon, 519

N.W.2d at 95.

      Here, having reviewed the record de novo, we agree with the district court

that, for essentially the same reasons as stated above, Jennifer established that

a material change in circumstances existed and that the children’s best interests

warranted modification of Adam’s visitation schedule.        The record clearly

evidences that the parties continue to have communication issues and that the

children need a more structured and stable schedule. Modifying the schedule so

that they are predominantly in one home with one parent will help stabilize their

schedules and continuity in their lives.       Jennifer has supported Adam’s

relationship with the children and has tried to communicate effectively with Adam.

Upon our de novo review of the record, we find no reason to disturb the court’s

modification of Adam’s visitation schedule.

      That being said, this court expects the parties will follow through with the

current court-ordered parenting schedule and facilitate a healthy and nurturing

environment for their children. We remind the parents that “[e]ven though [they]

are not required to be friends, they owe it to [their] child[ren] to maintain an

attitude of civility, act decently toward one another, and communicate openly with

each other.” In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa 2005); see
                                          14

also In re Marriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct. App. 1998) (“Iowa

courts do not tolerate hostility exhibited by one parent to the other.”). It is time for

the parents to put their children first and work together as grownups for the best

interests of everyone, and we trust they understand the importance of showing

respect for one another as they continue their joint-parenting venture.

       C. Trial Attorney Fees.

       Adam also challenges the district court’s award of trial attorney fees to

Jennifer in the amount of $3000. An award of trial attorney fees rests in the

sound discretion of the district court, and, to overturn the award, a party must

establish the district court abused its discretion. In re Marriage of Guyer, 522

N.W.2d 818, 822 (Iowa 1994). An award of attorney fees depends on the parties'

ability to pay and the reasonableness of the fees. Id. We find no abuse of

discretion in the court’s award of trial attorney fees to Jennifer.

       D. Appellate Attorney Fees.

       Finally, Jennifer requests appellate attorney fees. Such an award rests in

our discretion and is based on the merits of the appeal, the parties’ needs, and

their ability to pay. See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa

2006). In arriving at our decision, we consider the parties’ needs, ability to pay,

and the relative merits of the appeal. Id. Here, Jennifer has not provided an

affidavit of attorney fees with documentation to support her request.

Nevertheless, considering the relevant factors as applied to the facts of this case,

we find an award of appellate attorney fees to Jennifer is appropriate.             We

accordingly remand the case to the district court to determine the amount of

appellate attorney fees to be paid by Adam and to enter judgment against Adam
                                         15

in a reasonable amount. See, e.g., Markey v. Carney, 705 N.W.2d 13, 26 (Iowa

2005) (“[U]nder our current practice, the issue of appellate attorney fees is

frequently determined in the first instance in the district court because of the

necessity for making a record.” (quoting Lehigh Clay Prods., Ltd. v. Iowa Dep’t of

Transp., 545 N.W.2d 526, 528 (Iowa 1996)).

       IV. Conclusion.

       Upon our careful de novo review of all of the evidence presented,

weighing the best interests considerations set forth above, and giving weight to

the district court’s fact and credibility findings, we agree with the court’s

determinations that Adam failed to show there had been a “substantial change”

of circumstances not contemplated at the time of entry of the decree or that he

was the superior caregiver and that Jennifer established her burden to modify the

visitation schedule. We also find no abuse of discretion by the district court in its

award of trial attorney fees to Jennifer. We therefore affirm its modification order

in all respects. However, we remand the matter to the district court to determine

the amount of appellate attorney fees to be paid by Adam and to enter judgment

against Adam in a reasonable amount. We do not retain jurisdiction. Costs on

appeal are assessed to Adam.

       AFFIRMED AND REMANDED.
