                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0471
                           Filed November 27, 2019


IN RE THE MARRIAGE OF CASSIE ROWAN SEMERAD AND AUSTIN JOSEPH
SEMERAD

Upon the Petition of
CASSIE ROWAN SEMERAD, n/k/a CASSIE JORDAN,
      Petitioner-Appellant,

And Concerning
AUSTIN JOSEPH SEMERAD,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.



       Cassie Jordan appeals from the order modifying the decree dissolving her

marriage to Austin Semerad. AFFIRMED IN PART, MODIFIED IN PART, AND

REMANDED.



       Cynthia Ann Bahls of The Law Shop by Skogerson McGinn, LLC, Van

Meter, for appellant.

       Austin Joseph Semerad, Des Moines, self-represented appellee.



       Considered by Bower, C.J., and May and Greer, JJ.
                                         2


BOWER, Chief Judge.

       Cassie Semarad, now Cassie Jordan, appeals from the order modifying the

decree dissolving her marriage to Austin Semerad. Cassie argues the court’s

ruling, which modified not only the visitation provisions of the decree but also the

child-support and legal-custody provisions, went beyond the relief requested by

either party. She also challenges the visitation graduated timeline and the amount

of child support ordered. We affirm in part, modify in part, and remand.

I. Background Facts and Proceedings.

       Cassie and Austin were divorced on April 20, 2015. The dissolution decree

ordered joint legal custody and shared physical care of the parties’ two minor

children; Z.S., born in 2010, and M.S., born in 2011.        Their post-dissolution

relationship has been marked by on-going judicial intervention.

       The dissolution decree was first modified on August 30, 2016. In the

modification ruling, the court found:

                (5) After the decree was entered, [Austin] threatened to
       assault [Cassie] and has harassed her. The parties have had
       difficulty reasonably communicating with each other and
       co-parenting their children since the decree was entered.
                (6) A protective order by consent agreement was entered in
       Polk County which provide[d] that Austin not threaten, assault, stalk,
       molest, harass, other otherwise abuse Cassie, and the order
       restricted communication between the parties to matters affecting
       the parties’ children only and that all communication be sent through
       a third party. [Austin] entered a plea of guilty to a charge of
       harassment in the [second] degree, and received a deferred
       judgment on March 15, 2016.

       The court modified the decree to provide Cassie sole legal custody and

physical care of the children. The order set out a number of specifics concerning

access to information, parental responsibilities, and visitation. Austin’s scheduled
                                         3


parenting time was to be on alternating weekends from Friday at 5:00 p.m. to

Sunday at 5:00 p.m., and every Wednesday overnight from 5:00 p.m. until

Thursday, when Austin would take the minor children to school or return them to

Cassie by 8:00 a.m. Austin was to pay $987.96 monthly in child support.

        On September 21, 2017, the district court entered an order modifying the

protective order, eliminating Austin’s Wednesday overnight parenting time,

providing Wednesday visits would be from after school to 7:30 p.m., and reducing

alternate weekend visits from Saturday at 8:00 a.m. to Sunday at 6:00 p.m. Cassie

and Austin were ordered to participate in joint counseling and treatment to address

parenting communication issues. Austin was ordered to direct his psychiatrist to

prepare and file a report detailing his psychiatric care and treatment for the court.

The protection order was modified in a few respects, including allowing the parties

to text or e-mail each other about the children. The court ordered a review hearing

scheduled for mid-January 2018, which was later rescheduled for February 22,

2018.    The review hearing was then cancelled upon a report by the parties’

counselor that “the parties are making excellent progress in counseling and are

desirous of voluntarily continuing counseling.”

        On March 30, 2018, the parties’ filed a stipulation reducing Austin’s child

support to $800 per month. For reasons not apparent in the record, the court did

not enter a ruling on the stipulation.

        On April 15, Austin had the children overnight and Cassie received a call

from Austin’s paramour, stating she needed to come pick up the children. When

Cassie arrived at Austin and his paramour’s residence, the apartment was in

substantial disarray, and Cassie learned Austin had been arrested. Austin was
                                            4


subsequently charged with harassment, theft, and false imprisonment related to

the April 15 incident with the paramour.

       On April 17, Cassie sought and obtained a temporary domestic-abuse

protective order against Austin. After a hearing was held on May 22, the district

court entered a permanent domestic-abuse protective order and Austin’s visitation

was to be at Cassie’s sole discretion. Cassie informed Austin she would allow

supervised visits after he obtained appropriate treatment for his mental-health

issues.1

       On June 5, Austin filed an application to show cause in the dissolution

proceeding, asserting Cassie was in violation of the decree by not allowing him

visits with the children.

       On June 25, Cassie filed a petition to modify the dissolution decree,

requesting a modification of the visitation and support provisions. On Cassie’s

application, the district court appointed an attorney, Molly McPartland, to represent

the minor children.

       At a July 6 review hearing concerning the domestic-abuse protective order,

the district court ruled that the issue of visitation would be determined in the

modification action. The protective order was to remain in effect until modified in

the modification action.

       A scheduling hearing was held on July 17 in the dissolution modification

proceeding. Austin, who was self-represented, did not participate despite several




1
  Austin has been affected by depression for much of his life, at times being unable to get
out of bed for days on end, and at times subject to bouts of an explosive temper. He was
involuntarily hospitalized twice in early 2018.
                                          5


attempted telephone calls. Trial was set for February 14. The scheduling order

provided: “The only contested issues for trial are: Child Support [and] Visitation.”

       In his July 19, 2018 answer to the modification petition, Austin states:

               While [Austin] agrees with [Cassie’s] opinion that the best
       interests of the minor children would be served by a modification of
       visitation, it is apparent that [Austin] and [Cassie] have opposing
       opinions of how visitation should be modified. [Austin] is requesting
       his visitation schedule to be modifying to align with the liberal and
       reasonable visitation outlined in the court’s Findings of Fact and
       Conclusions of Law in its Ruling and Order Modifying Decree filed on
       August 30, 2016. Furthermore, [Cassie], and the undersigned
       attorney for [Cassie], are lacking the legal standing to make
       assertions about the best interests of the children for the court’s
       consideration. The children are represented by Kids First Law
       Center, which will represent the interests of the children.

       On the morning of trial, February 14, 2019, the parties filed a partial

stipulation agreeing it was in the best interests of the minor children to spend time

with Austin “on a graduated parenting schedule” set out in six phases—phase 1

involved supervised parenting time at a supervised visitation center; phase 2,

Austin would have four hours of unsupervised visitation in a public location;

phase 3, Austin would have unsupervised parenting time from 9:00 a.m. to 5:00

p.m. on alternating Saturdays; phase 4, increased unsupervised parenting time to

9:00 a.m. to 5:00 p.m. on alternating Saturdays and Sundays; phase 5,

unsupervised overnights on alternating weekends; and phase 6, added midweek

visitation after school.

       Cassie’s counsel stated, “The parties have reached a partial stipulation

regarding a phased visitation schedule, a graduated schedule. The parts that we

have not reached an agreement on then, Your Honor, are the length of time for

each phase, and any safeguards or other provisions related to those phases.” The
                                            6


court asked each party to state their proposals. Cassie argued phase 1 should

last a year, or at least twenty supervised visits; four visits or two months under

phase 2; six months under phase 3; three months under phase 4, six months under

phase five; and then phase 6 would be in effect. Austin argued each phase should

last one and one-half to two and one-half months. Counsel for the children asked

that the each transition “occur at such time as the children’s therapist [Megan

Wych] indicates that it’s a good idea.”

       The court approved the partial stipulation of the dissolution decree and

proceeded to hear evidence on the application to modify the decree, as well as on

Austin’s motion for rule to show cause. Following the presentation of evidence

and the parties’ post-trial filings,2 the court entered a ruling in which it stated:

              I am well aware that exposing children to domestic violence is
       harmful to them. But of significance in all of these situations and all
       of these legal proceedings is the absence of any allegation that
       Austin has physically harmed or threatened physical harm to his
       children. As Cassie testified at trial, she has never been concerned
       about the children’s physical safety when in Austin’s care.
              According to Austin, he has suffered from mental illness since
       age nine. Again according to Austin, his primary diagnosis is
       depression. Other secondary diagnoses are not apparent from this
       record. Based on this record, his illness manifests in episodic
       violence or threats of violence. It has never manifested in physical
       violence directed at the children. He has been treated for mental
       health issues by a psychiatrist, Dr. Gaylord Nordine, for several
       years.
              Austin has not seen his children for ten months. Iowa law
       requires that each parent have reasonable liberal access to his or
       her children consistent with the children’s best interest. That has not
       happened.
              The children are currently seeing counselor Megan Wych
       biweekly. Cassie testified that she expects to continue with this
       counseling. Cassie requests that the children attend at least two
       sessions with Ms. Wych before the reunification process begins.

2
  Austin’s direct testimony was primarily presented through questioning by the district
court.
                                          7


               Cassie also requests that joint counseling with Mary
       Jankowski be ordered. The parties had participated in joint
       counseling pursuant to the court’s September 27, 2017 order but that
       counseling ended after April 15, 2018. Cassie accuses Austin of not
       being truthful in these sessions, and Austin has expressed distrust
       of Jankowski, evidenced in part by his filing of an application that she
       be held in contempt of court. Though the parties may agree to joint
       counseling voluntarily, I will not order that this continue.
               The parties signed and filed a partial stipulation immediately
       before the commencement of trial. They have agreed to a
       modification of the previous custody order to transition Austin back
       to an overnight visitation schedule. The parties were not able to
       agree upon a tentative timeline for this transition or conditions
       precedent to a transition through the continuum. They left that for
       the court.
               Thus my job is to establish a timeline and conditions for this
       transition consistent with the best interests of the children and
       Austin’s right to see his children. Given the time that has already
       elapsed, and the mandate of Iowa law that parents are entitled to
       reasonable and liberal access to their children, the timeline will
       anticipate a restoration of visitation sooner rather than later.

       The court then specified a schedule for graduated visitation. The first

transition would occur “[a]s soon as the minor children’s therapist indicates that the

children are ready to progress to Phase 2, or after four (4) supervised visits at

Mosaic Family Counseling, whichever occurs sooner.” Then, “[p]hase 2 visits shall

last until such point as the children’s therapist indicates that the children are ready

to advance to phase 3, but in no event shall phase 2 last longer than two (2) months

encompassing four (4) visits under this phase.” Phase 3 would last eight weeks,

i.e., four visits on alternating weekends. Phase 4 would last eight weeks, and

phase 5 would last twelve weeks. At that point, phase 6 would be invoked.

       The court also set out the following “conditions”:

             (1) Austin shall continue with counseling and therapy as
       recommended by his psychiatrist, follow all recommendations, and
       remain med-compliant.
             (2) Austin shall follow all terms of probation until discharged.
                                           8


                (3) Austin shall promptly inform Cassie and the children’s
         attorney of any arrests, hospitalizations, or changes in residence.
                (4) Austin shall continue to exert reasonable efforts to obtain
         employment.
                (5) Austin shall secure a residence suitable for young children
         at least by the time he is exercising overnight visitations.
                (6) Cassie shall not alter the transition schedule without court
         approval or Austin and the children’s attorney’s written consent.
                (7) Cassie shall not withhold the children from the scheduled
         time with Austin absent an emergency directly affecting the safety of
         the children. If this occurs, Cassie must promptly file the appropriate
         motions or pleadings for court review of the alteration of the
         schedule.
                (8) Austin’s status as a joint legal custodian of the minor
         children will be re-established upon certification that phase 5 has
         been completed.
                (9) This order will be filed in [the domestic abuse case], and
         the protective order in that case is hereby modified consistent with
         the terms of this order.

         The court dismissed Austin’s motion for rule to show cause, modified

Austin’s support order to $800 per month retroactively pursuant to the parties’

March 30, 2018 stipulated filing. Effective upon the filing of the modification order,

the court modified Austin’s child support to $50 per month.

         Cassie appeals.

II. Scope and Standard of Review.

         Our review of an order modifying custody is de novo. See In re Marriage of

Sisson, 843 N.W.2d 866, 870 (Iowa 2014). We give weight to the fact-findings of

the district court, particularly concerning witness credibility, but we are not bound

by them. Iowa R. App. P. 6.904(3)(g).

III. Discussion.

         A. Modification of custody. Cassie asserts the district court should not have

modified legal custody where no request to modify legal custody was made. We

agree.
                                         9


       The petition to modify asked that the court “modify the parties’ most recent

ruling and order of September 21, 2017, and order supervised visitation and

parenting time with [Austin] that will ensure the minor children’s health, safety,

welfare and best interests” and order child support in accordance with the Iowa

Child Support Guidelines. In his answer, Austin also asked that the court modify

the September 2017 ruling and “order the visitation and parenting time granted to

[Austin] reflect the court’s ruling and order from August 2016.” Legal custody was

not an issue before the court.3      We therefore eliminate paragraph 8 of the

“conditions” set out verbatim above.4

       B. Graduated Timeline. Cassie contends the court’s graduated timeline

overemphasized the fact that Austin had never physically harmed the children and

gave inadequate weight to the emotional and mental harm the children

experienced.

       We are not persuaded the court’s ruling does not adequately consider the

children’s best interests. See Iowa R. App. P. 6.904(3)(o) (“In child custody cases,

the first and governing consideration of the courts is the best interests of the

child.”). The court acknowledged domestic abuse posed the threat of harm to

children, acknowledged the children were in therapy, and provided for input from

their therapist. The mother testified the children were in therapy. However, she

also stipulated visitation with their father was important. The structured transition

and conditions placed upon Austin evince the court’s consideration of the




3
 The August 2016 modified decree placed the children in Cassie’s sole legal custody.
4
 Because we strike the provision, we need not address Cassie’s additional argument
concerning modification of legal custody.
                                            10

children’s well-being. We find no failure to do equity. See In re Marriage of

McKenzie, 709 N.W.2d 528, 531 (Iowa 2006) (“We 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.’”

(citation omitted)).

          C. Child support modification. “In Iowa, child support is calculated using the

child support guidelines.” In re Marriage of Erpelding, 917 N.W.2d 235, 245 (Iowa

2018); see Iowa Code § 598.21B; Iowa Ct. R. 9.2. “To compute the guideline

amount of child support,” the district court must first compute the adjusted net

monthly income of each parent. Iowa Ct. R. 9.14. That amount is ascertained by

first determining each parent’s gross monthly income and then subtracting

specified taxes and deductions. See Iowa Ct. R. 9.14(1). Gross monthly income

is the “reasonably expected income from all sources.” Iowa Ct. R. 9.5(1).

          The guidelines “provide for the best interests of the children by recognizing

the duty of both parents to provide adequate support for their children in proportion

to their respective incomes.”         Iowa Ct. R. 9.3(1).     There is a “rebuttable

presumption that the amount of child support which would result from the

application of the guidelines prescribed by the supreme court is the correct amount

of child support to be awarded.” Iowa Code § 598.21B(2)(c); Iowa Ct. R. 9.4. The

child support award “may be adjusted upward or downward, however, if the court

finds such adjustment necessary to provide for the needs of the children or to do

justice between the parties under the special circumstances of the case.” Iowa Ct.

R. 9.4.
                                        11


       The district court’s ruling provides: “Austin is not currently employed. The

evidence does not establish that he is voluntarily unemployed or under-employed.

He is not currently able to pay significant child support. His current child support

will [be] established consistent with these findings.” The court ordered his child

support obligation to be set at $50 per month for two children.

       The court’s ruling does not specifically determine Austin’s income but infers

it is nonexistent. We are not convinced the inference is warranted. In answering

the court’s questions, Austin stated he was unemployed and was not receiving

unemployment. On cross-examination, Austin testified he left work at Bankers

Trust to work for Casey’s, where he was employed from November 25, 2015, to

May 20, 2016. He was unemployed until November 2016, and then went to work

for Wells Fargo.    His employment there was terminated in March 2017 for

absenteeism. Austin worked at a restaurant for about two months beginning in

June 2017 and supplemented his income driving for Lyft. In January 2018, Austin

obtained employment with Principal where he was earning an hourly wage “but it

worked out to $47,500 per year.” He testified he was fired for tardiness on

August 21. Yet, in completing his October 10, 2018 guidelines worksheet, Austin’s

calculations would call for his child support obligation to be set at $739.79 per

month. The record also includes Austin’s application materials to Principal in which

Austin asserted he provided independent consultation to businesses.

       Cassie contends the court’s child support order is inequitable. She asserts

the court failed to consider Austin’s earning capacity in setting his child support

obligation. Cassie argues, “Austin is capable of earning a decent living when he
                                             12


is in control of his mental health issues.”5 For child support purposes, however,

the court is not to use earning capacity rather than actual earnings “unless a written

determination is made that, if actual earnings were used, substantial injustice

would occur or adjustments would be necessary to provide for the needs of the

children or to do justice between the parties.” Iowa Ct. R. 9.11(4).

       Here, the district made no finding as to Austin’s gross monthly income,

which is the “reasonably expected income from all sources.” We remand for the

district court to make the findings necessary to determine the parties’ child support

obligations under the guidelines considering actual earnings, or earning capacity

if appropriate.

       D. Appellate attorney fees. We decline Cassie’s request to award her

appellate attorney fees. See In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa

2005) (noting appellate attorney fees are discretionary).

       AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED.




5
  Austin does not challenge Cassie’s statement as to his earning capacity.
         Austin has two bachelor of science degrees in mathematics and statistics and has
worked for several years in the financial industry. He appears capable of earning income.
And a condition of the modified decree includes that Austin “continue to exert reasonable
efforts to obtain employment.” Nonetheless, Cassie’s argument as to the graduated
visitation appears to be based on her acknowledgement that Austin is not currently “in
control of his mental health issues.” These issues are best determined by the district court.
