                     IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0282
                              Filed October 11, 2017


JEFFREY J. MCALLISTER,
     Plaintiff-Appellee,

vs.

NICOLE R. POLLARD,
     Defendant-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



        Nicole Pollard appeals the district court’s modification of a decree

establishing custody and visitation for her eight-year-old daughter and dismissal

of    her application for contempt.        CONTEMPT APPEAL DISMISSED;

MODIFICATION APPEAL AFFIRMED.




        Nicole R. Pollard, Dubuque, self-represented appellant.

        Bradley T. Boffeli of Boffeli & Spannagel, P.C., Dubuque, for appellee.



        Considered by Danilson, C.J., and Tabor and McDonald, JJ.
                                         2


TABOR, Judge.

       Nicole Pollard and Jeff McAllister are the parents of C.E.M., who is now

eight years old. After Nicole’s arrest on drug-related charges, Jeff sought to

modify a custody decree to obtain sole legal custody of C.E.M. Nicole filed an

application for contempt, alleging Jeff denied her visitation on several occasions.

The district court dismissed Nicole’s application and granted Jeff’s modification

request. Nicole appeals the district court’s rulings. We are without jurisdiction to

consider the district court’s dismissal of her contempt application because the

notice of appeal is not timely as to that ruling.      And because Jeff met his

substantial burden regarding modification, we affirm the district court’s order

modifying the custody decree.

       I.     Facts and Prior Proceedings

       Nicole and Jeff entered into a relationship in 2007. They had one child

together, C.E.M., who was born in September 2009. The parties separated in

November 2011. In the year leading up to the separation, Nicole struggled with

abusing     substances—both     methamphetamine      and   alcohol.     The    Iowa

Department of Human Services (DHS) intervened and required Nicole to leave

the family home for three months. While Nicole was away, Jeff acted as the

primary caretaker for C.E.M. and Nicole’s son from a prior relationship.

       Jeff filed a petition to establish custody in December 2011. At the time of

trial on October 3, 2012, Nicole had criminal charges pending for operating while
                                            3


intoxicated, third offense,1 and she had missed several visits with C.E.M. At trial,

Jeff asked the district court to award him sole legal custody. In its October 17,

2012 decree, the district court denied Jeff’s request because he had not asked

for sole legal custody in his petition. But the court also reasoned the facts did not

warrant such an award:

       Nicole is receiving counseling for her substance abuse issues and
       appears to be trying to get her life back on track . . . . The [c]ourt
       believes fundamentally that Nicole can be a suitable caregiver for
       [C.E.M.] and that her desire to provide that care and be a part of
       [C.E.M.’s] life is genuine.

Citing Jeff’s greater stability, as well as the poor communication between Jeff

and Nicole, the court awarded physical care of C.E.M. to Jeff.

       On February 19, 2016, Nicole was arrested for driving while barred,

operating while intoxicated, possession of methamphetamine, and possession of

marijuana. C.E.M. was in Nicole’s care that day but was not with her mother at

the time of arrest. Nicole testified she was stopped by the police while driving to

the home of a friend who had agreed to drive C.E.M. home from the roller skating

rink. Jeff found out about the arrest two days later when he picked C.E.M. up

from her visit. The DHS investigated the matter and, although case workers

suspected Nicole was abusing methamphetamine, they concluded C.E.M. had

not been directly harmed or placed at risk of harm by Nicole’s actions. A hair test

indicated C.E.M. had not been exposed to illegal substances.

       Nicole’s arrest prompted Jeff to file an application for custody modification

and an application to suspend visitation in early March 2016. The district court

1
  Following the sentencing hearing, Nicole was placed on probation. In 2013, Nicole
violated the terms of her probation by testing positive for illegal substances; she served
her sentence in a halfway house.
                                          4


held a hearing on Jeff’s application to suspend visitation on April 1. In its ruling

denying Jeff’s request, the court considered the DHS investigation and observed

Nicole “has obtained an evaluation and is participating in counseling. She is

being screened by [the Department of Correctional Services] for alcohol and drug

use and her tests have thus far come back negative.” The court concluded: “This

ruling is not intended to have precedential effect at trial, when [Jeff] will have an

opportunity to present his full case on the merits.”

       On July 11, 2016, Nicole filed a motion asking the court to find Jeff in

contempt of the October 2012 decree, alleging Jeff withheld visitation on multiple

dates between January 2016 and July 2016.2             Jeff denied interfering with

Nicole’s visitation. Instead, he contended Nicole had failed to exercise visitation

and failed to follow the decree and he “had a reasonable belief that [Nicole] was

under the influence of a controlled substance and therefore a danger to the

safety and welfare of the minor child.”

       At the time of trial on January 4, 2017, Nicole’s charges from the February

arrest were still pending.    The record showed she had performed poorly on

pretrial supervision in the months after the visitation-suspension hearing. After

failing to attend several appointments with her probation officer and twice testing

positive for methamphetamine, Nicole was arrested for violating her pretrial-

services requirements in November 2016.

       At the outset of the hearing, the district court announced that the trial

concerned two separate actions and it would first hear evidence regarding


2
 In a supplemental filing, Nicole added more dates to the list, which extended to
November 30, 2016.
                                          5


Nicole’s contempt application.     Immediately following Nicole’s presentation of

evidence, the court denied her application, relying upon the following provision of

the custody decree:

       Nicole shall complete the Children in the Middle program[3] and file
       proof of completion with the Court, as required by statute, within
       [sixty] days. If Nicole fails to do so, visitation will be at Jeff’s
       discretion unless and until the proof of completion is filed and
       furnished to Jeff or his counsel.

The court reasoned that because Nicole had not filed her Children in the Middle

certificate until November 1, 2016,4 “even assuming that Jeff denied visitation on

the dates set forth in the contempt filings, he had the discretion to do so.”

       Both parties presented additional testimony regarding modification, and in

a written ruling issued on January 18, 2017, the court granted Jeff’s modification

request. The court awarded Jeff sole legal custody, terminated Nicole’s midweek

visitation, and allowed visitation to be at Jeff’s discretion in the event Nicole

tested positive for illegal substances or violated the terms of either her probation

or any requirements put in place by the DHS.

       On February 15, 2017, Nicole filed a motion to amend or enlarge findings,

alleging, among other things, she had presented the Children in the Middle

certificate to the court during the April 2016 hearing on Jeff’s petition to suspend

visitation and believed that action satisfied her filing requirement.           Before

receiving a ruling on the motion, Nicole filed a notice of appeal on February 17.

On March 8, the district court entered an order indicating it would take no action


3
  The Children in the Middle program is “a court-approved course to educate and
sensitize the parties to the needs of any child or party during and subsequent to” any
action involving child custody or visitation. Iowa Code § 598.15(1) (2016).
4
  The completion date on the certificate was February 14, 2012.
                                            6


on Nicole’s motion because it was untimely and Nicole’s notice of appeal had

divested the district court of jurisdiction. Jeff filed a waiver of his opportunity to

respond by appellee’s brief.

       II.     Jurisdiction

       Nicole first argues the district court erred in dismissing her application for

contempt because she proved Jeff denied her visitation.              We are without

jurisdiction to review that argument. Jeff has not raised a jurisdictional issue, but

we may consider it on our own motion. See In re M.T., 714 N.W.2d 278, 281

(Iowa 2006).

       The district court filed a ruling dismissing Nicole’s contempt application on

January 4, 2017. On Februry 15, Nicole filed an untimely motion to enlarge or

amend the district court’s findings on both her contempt application and Jeff’s

modification request. See Iowa R. Civ. P. 1.904(3) (“[A] rule 1.904(2) motion to

reconsider, enlarge, or amend another court order, ruling, judgment, or decree

will be considered timely if filed within [fifteen] days after the filing of the order,

judgment or decree to which it is directed.”). She did not file a notice of appeal

until February 17, forty-four days after the district court’s contempt ruling. See

Iowa R. App. P. 6.101(1)(b) (“A notice of appeal must be filed within [thirty] days

after the filing of the final order or judgment.”).5

       Although both the contempt application and the modification application

arose out of the same underlying case, they constituted two separate final orders


5
  In that notice, she mentioned only the district court’s modified decree, making no
reference to the earlier contempt ruling. See Iowa R. App. P. 6.102(1)(a)(1) (requiring
notice of appeal to “specify . . . the decree, judgment, order, or part thereof appealed
from”). Accordingly, it is not clear she intended to appeal the contempt ruling.
                                         7

on two distinct issues. See Lyon v. Willie, 288 N.W.2d 884, 887 (Iowa 1980)

(“Two final orders are possible in a single case, one putting it beyond the power

of the court to put the parties in their original positions in relation to a specific

issue, and the other adjudicating remaining issues in the case.”). As such, to

properly appeal the contempt ruling, Nicole was required to file a notice of appeal

within thirty days of that ruling (or had she filed a timely 1.904(2) motion, within

thirty days of the district court’s ruling on that motion).    She did not do so.

Accordingly, we lack jurisdiction to consider Nicole’s arguments on the contempt

issue. See Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 771 (Iowa

2009) (“A failure to file a timely notice of appeal leaves us without subject matter

jurisdiction to hear the appeal.”).

       III.   Scope and Standards 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). Although we give weight to the

fact-findings of the district court, particularly concerning witness credibility, we

are not bound by them. See In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa

Ct. App. 2009). “Even though we engage in a de novo review, we will not disturb

the trial court’s conclusions unless there has been a failure to do equity.” In re

Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995).                Our paramount

consideration is the best interests of the child. See In re Marriage of Hoffman,

867 N.W.2d 26, 32 (Iowa 2015).

       We review the court’s assessment of court costs for abuse of discretion.

See Wymer v. Dagnillo, 162 N.W.2d 514, 519 (Iowa 1968).
                                            8


       IV.     Analysis

       A.      Modification of Custody Nicole argues the district court should

not have modified the decree to grant Jeff sole legal custody of C.E.M. As the

party seeking modification of the decree, Jeff had the burden to demonstrate by a

preponderance of the evidence that “conditions since the decree was entered

have so materially and substantially changed” that it would be in C.E.M.’s best

interests to alter the custody arrangement. Hoffman, 867 N.W.2d at 32 (citation

omitted). These changes “must not have been contemplated by the court when

the decree was entered,” “must be more or less permanent,” and “must relate to

the welfare of the child[].” Id. (citation omitted). In addition, Jeff was required to

demonstrate he could more effectively minister to C.E.M.’s long-term needs. See

id.

       In its decision to modify legal custody, the district court reasoned that at

the time of the original decree, it had anticipated Nicole would continue on her

path of substance-abuse recovery and become a more stable parent for C.E.M.,

but instead, “her issues appear to be getting worse as opposed to better.” Nicole

disagrees and contends there has not been a substantial change of

circumstances warranting modification.6         She also asserts the court failed to

consider C.E.M.’s best interests.




6
   Relying largely on her allegations in the contempt action that Jeff had withheld
visitation, Nicole also argues the district court erred in not modifying the custody decree
to award physical care to her. Assuming Nicole preserved error on this issue, we
conclude a change in physical care would not be appropriate here. Not only do we
disagree with Nicole’s assertion that Jeff unreasonably withheld visitation, but we also
find no evidence in the record Nicole was the superior caregiver. See Hoffman, 867
N.W.2d at 32.
                                          9


       We agree with the district court that Jeff proved a material and substantial

change in circumstances warranting modification. As the court noted:

       [Nicole] has continued to commit crimes that result in her being
       incarcerated. If she is convicted of the charges pending against her
       at the time of trial, she will face up to seven years of incarceration.
       She has not maintained a stable residence and has become even
       more nomadic. She has not worked or earned wages, and has
       paid only $120 in child support over the last four-plus years.
       Essentially, she has chosen to do nothing with the opportunity the
       [c]ourt gave her in October of 2012 to be a significant part of
       C.E.M.’s life—a joint custodian with normal visitation rights.

       Joint legal custody requires Jeff and Nicole to agree about basic decisions

related to C.E.M.’s upbringing. See In re Marriage of Miller, 390 N.W.2d 596,

601–02 (Iowa 1986).       Although “[o]ur statutes express a preference for joint

custody over other custodial arrangements,” In re Marriage of Bartlett, 427

N.W.2d 876, 878 (Iowa Ct. App. 1988), modification to sole legal custody is

appropriate “if the actions of the parties indicate that they are no longer able to

cooperate,” In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996); see also

In re Marriage of Gensley, 777 N.W.2d 705, 715 (Iowa Ct. App. 2009) (“The

overriding factor weighing against joint legal custody is the parties’ utter inability

to communicate with each other, which is a result of their toxic relationship.”).

       Due to Nicole’s continuing instability since the entry of the original decree,

Jeff already has been engaging in many of the decision-making tasks that come

with the role of sole legal custodian. See Iowa Code § 598.1(5) (defining “rights

and responsibilities” of “legal custody” as including decision making affecting

child’s legal status, medical care, education, extracurricular activities, and

religious instruction).   For instance, Nicole did not attend C.E.M.’s school

conferences for four years, nor did she attend C.E.M.’s medical appointments.
                                          10


According to Jeff, Nicole had missed between fifty and one hundred visits since

the entry of the decree and often placed C.E.M. in the care of others when she

did exercise visitation.

       At trial, Jeff described his communication with Nicole as “almost

nonexistent.” Jeff acknowledged “a lot of times [Nicole] doesn’t put up a fight

over school and doctor, stuff like that, since she . . . doesn’t show up to [C.E.M.’s]

events.” But when the parties needed to make joint decisions, they floundered.

Jeff testified: “There is no compromise with her. Unless it’s her way, there’s no

way at all.” Nicole similarly criticized Jeff’s rigidity, claiming: “Anything that would

make it more difficult for me to see [C.E.M.], he’s done.” Nicole’s actions leading

up to the trial—unilaterally attempting to enroll C.E.M. in a different school and to

change    her   health     insurance—demonstrate      the   extent   of   the   parties’

communication breakdown. See In re Marriage of Bloss, No. 98-2177, 2000 WL

63192, at *4 (Iowa Ct. App. Jan. 26, 2000) (“Joint legal custody presupposes

some ability to exchange information and assumes at least a minimum of respect

for the other parent’s role. When those qualities are not present, the concept of

joint custody exists in name only.”). Because of Nicole’s minimal involvement in

C.E.M.’s life as well as the parties’ increasingly acrimonious relationship, we

agree with the district court that Jeff, who has demonstrated his superior ability to

minister to C.E.M.’s needs, should be awarded sole legal custody of C.E.M.

       We also find the district court considered C.E.M.’s best interests by

applying the guidelines of Iowa Code section 598.41(3). Jeff provides stability for

C.E.M., and she is thriving in his care. Nicole’s continued substance abuse and

criminal activity has hindered her ability to fulfill the role of C.E.M.’s joint legal
                                           11


custodian. Accordingly, we agree modification is in C.E.M.’s best interests and

affirm the district court’s order.7

       B.      Assessment of Costs

       Nicole next argues the district court erred in its “award of court costs,

attorney fees, and monthly child support.” In its modification order, the district

court did not award Jeff attorney fees and did not address the issue of child

support. Accordingly, we consider only the assessment of court costs. Nicole

contends it would be “more equitable to base the assessment in this case on the

parties’ incomes, which are not equal.” While it is true that Jeff currently earns

more than Nicole, as the district court noted, Nicole is capable of working and

presented no evidence to explain her lack of employment. Moreover, Nicole was

unsuccessful in the underlying proceedings. See Iowa Code § 625.1 (“Costs

shall be recovered by the successful against the losing party.”). We conclude the

district court did not abuse its discretion in ordering Nicole, the unsuccessful

party, to pay court costs. See Wymer, 162 N.W.2d at 519 (“The rule is well

established that in an equity action the trial court has a large discretion in the

matter of taxing costs and we will not ordinarily interfere therewith.”).

       CONTEMPT          APPEAL       DISMISSED;         MODIFICATION         APPEAL

AFFIRMED.




7
   W e note Nicole also generally alleges violations of various constitutional rights. We
find Nicole has failed to preserve these arguments for our review and decline to address
them. See State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999) (noting “we require error
preservation even on constitutional issues”).
