                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0942
                             Filed February 24, 2016


IN RE THE MARRIAGE OF DAVID PHILLIP
KOENIG AND KATHLEEN ANN KOENIG

Upon the Petition of
DAVID PHILLIP KOENIG,
      Petitioner-Appellee,

And Concerning
KATHLEEN ANN KOENIG,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.



      Kathleen Koenig appeals the modification of physical care of the children.

AFFIRMED.




      James R. Cook of James R. Cook, P.C., Windsor Heights, for appellant.

      Earl B. Kavanaugh and Jaclyn M. Zimmerman of Harrison & Dietz-Kilen,

P.L.C., Des Moines, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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BOWER, Judge.

      Kathleen Koenig appeals the district court’s order modifying the physical

care of the parties’ two children. Kathleen claims the district court improperly

found a substantial change in circumstances had occurred and improperly

ignored the holding in In re Marriage of Hoffman, 867 N.W.2d 26, 37 (Iowa 2015).

We affirm.

I.    BACKGROUND FACTS AND PROCEEDINGS

      David and Kathleen were married in 1990.        Three children were born

during the marriage, E.K. in 1995, and twins S.K. and O.K. in 2001. S.K. and

O.K. are the focus of the present appeal. The couple separated in 2008 and

divorced in 2009. The parties stipulated to joint custody of the children with

Kathleen receiving physical care.

      Since the entry of the decree, the parties initially communicated well.

They collaborated on the best way to deal with E.K.’s behavioral issues. In 2010,

the parties entered into a stipulated modification of the dissolution decree

granting David physical care of E.K. and modifying his child support obligation.

E.K. lived with David for six months until David could no longer control her

behavior. She then moved to her paternal grandmother’s home

      Both parties remarried. David married Monica Koenig in 2011, and they

live in Des Moines. Monica has two children from a prior marriage. Monica’s

one child lives with the couple fifty-percent of the time. Monica has a positive

relationship with David’s children and is supportive of their relationship with

Kathleen.
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         Kathleen married Todd Anderson in 2014. In March 2014, Todd’s mother

purchased a home for the couple in Sheldahl. Kathleen, Todd, S.K., and O.K.

relocated to Sheldahl (approximately thirty miles from Des Moines) without first

consulting David. Kathleen enrolled the children in the North Polk school system

to start the fall semester after they had attended middle school in Des Moines.

S.K. and O.K. objected to the move and the change in school enrollment.

Further, the twins expressed their dislike and fear of Todd, who struggles with

anger issues. Todd and E.K. had a physical confrontation in the fall of 2014,

resulting in E.K.’s estrangement from Kathleen, Todd, and their extended family.

         In November 2013, Kathleen filed an application to modify David’s child

support and an application for contempt. David filed an answer and counterclaim

requesting physical care of the children. A hearing on temporary matters was

held in March 2014, and the court denied David’s request for temporary physical

care to prevent the children from moving. Also at this time, the parties were

ordered to participate in a custody evaluation. After approximately two months of

observation, the custody evaluator recommended joint physical care or, if that

was not a viable option, David should be awarded physical care.

         In June, David was found in contempt for failing to adjust his child support

obligation once E.K. no longer qualified for support. Subsequently, the court

entered an order in August finding David had satisfied all conditions of the June

order.

         A three-day modification trial began on April 7, 2015. On April 23, the

district court entered its “findings of fact and conclusions of law” determining the
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parties’ custody arrangement should be modified to grant David physical care of

the children.      The court directed David’s counsel to prepare a decree in

conformity with its ruling. On May 15, Kathleen filed an application for additional

time to file an application to reconsider. The court denied the application as

untimely.

          On May 20, the court entered the modified decree consistent with its April

ruling. On May 30, Kathleen filed her notice of appeal. David filed a motion to

dismiss the appeal as untimely. Kathleen filed a resistance. The Iowa Supreme

Court denied David’s motion, on two separate occasions, finding the appeal was

timely.

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 McDermott,

827 N.W.2d 671, 676 (Iowa 2013); see also Iowa R. App. P. 6.904(3)(g).

II.       MERITS

          A.    Error Preservation

          David claims error was not preserved due to Kathleen’s untimely filing of

her appeal. We agree with our supreme court, and find the appeal was timely

and thus error is preserved for our review. See In re Marriage of McCreary, 276

N.W.2d 399, 400 (Iowa 1979) (finding an appeal filed two days before a

“supplemental decree” was entered but after the entering of a “findings of fact,
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conclusions of law, and ruling” providing for the future entering of the decree was

premature as the supplemental decree served as the final judgment for the

purposes of the appeal).

       B.     Modification

       Kathleen claims the district court erred in granting physical care to David

because it did not follow the holding of Hoffman, and a substantial change in

circumstances did not occur justifying the change in placement.

       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

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.”

See 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 also 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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      In deciding to modify the custodial provision of the decree, the district

court found David had the ability to provide superior care to the children. The

court reasoned:

              It is safe to say that while the two parties here were able in
      the past to work together toward the best interests of the children,
      those days are long gone. There is little but distrust and hard
      feelings between [David] and [Kathleen] at this point. The primary
      losers of this atmosphere are, of course, the minor children at the
      center of the present custody battle. At the end of the trial, the
      Court was left with two unpalatable choices: (1) leave the two
      children with [Kathleen], despite the girls’ great unhappiness with
      their present living situation, or (2) reward [David]’s bad behavior
      over the past few years. As will be discussed below, [Kathleen] has
      made her own poor choices since May 2010, the date of the last
      modification. However, her choices have not always been entirely
      voluntary, and [David] has sought to undermine her with the
      children at every turn.
              ....
              [T]he Court concludes that the best interests of the twin girls
      require that they be placed in the primary care of David at this time.
      They do not presently have a positive relationship with either
      Kathleen or her husband. Kathleen continues to have issues with
      alcohol usage, despite her protestations to the contrary. She also
      has improperly involved the girls in the disputes between the
      parents. S.K. and O.K. are unwilling to give the North Polk
      Community School District any further chance. Todd Anderson
      does not have a positive relationship with the twins. However,
      David’s wife, Monica, does have a positive relationship with the
      girls. Equally important, she has a clear understanding of her
      proper role with the twins, and seems far more willing to be
      supportive of the relationship between them and their mother than
      does David.
              In making its determination that David should become
      primary caretaker of S.K. and O.K., the Court is aware of the
      danger of further estrangement of Kathleen and the twins. The
      twins have a close relationship with their older sister, E.K.
      However, E.K. and Kathleen have virtually no relationship at the
      present time, especially because E.K. and Todd Anderson do not
      get along at all, and in fact E.K. is banned from the home where
      Kathleen and Todd live. It is unlikely that E.K. will support her
      sisters’ relationship with Kathleen any more in the future than she
      has in the past. David has in the past enlisted E.K.’s assistance in
      his efforts against Kathleen.
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               Kathleen has work to do to repair her relationship with S.K.
       and O.K. She is going to have to convince the girls that she is
       willing to put their interests first and her own second. She has not
       been willing to do that for some time. While the Court appreciates
       the difficult circumstances under which Kathleen has labored in the
       past, the fact remains that she has failed to distinguish between her
       own needs and wants and what her daughters want. Until S.K. and
       O.K. are convinced that they are Kathleen’s first priority, or until the
       girls mature sufficiently to appreciate what Kathleen has done for
       them, or both, the relationship between the three is not going to
       improve.

       The holding in In re Marriage of Hoffman, does not alter the district court’s

decision.   867 N.W.2d at 37.       Hoffman, focused primarily on whether one

parent’s move to a rural home seventy miles from the other parent’s urban home

constituted a substantial change in circumstances to justify modifying the

dissolution decree. Id. at 28. Both parents and both step-parents were found to

be “caring and attentive” and “suitable home environments for the children.” Id.

at 31. Our supreme court found the move did not constitute a substantial change

in circumstances. Id. at 37. Here, Kathleen’s move was a factor in the district

court’s calculus, but David’s ability to provide superior care to the girls was the

main factor in its decision to modify the decree. As stated above, the district

court found Kathleen’s lingering issues with alcohol, her new husband’s poor

relationship with the girls, the girls’ dislike of their living situation, and E.K.’s

estrangement, to be key factors in detracting from Kathleen’s ability to care for

the girls. The court found the girls’ best interests would be served by granting

David physical care. We agree and affirm the district court’s ruling.
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       C.     Appellate Attorney Fees

       Kathleen requests an award of appellate attorney fees. Such an award

rests within our discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa

2005). “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.’” Id. (citation omitted). Given the

circumstances in this action, we decline Kathleen’s request.

IV.    CONCLUSION

       We find Kathleen has failed to demonstrate the district court improperly

found David could provide superior care to the children. We find that the best

interests of the children warrant the modification ordered by the district court. We

decline Kathleen’s request for appellate attorney fees.

       AFFIRMED.
