                   IN THE COURT OF APPEALS OF IOWA

                              No. 4-062 / 13-1135
                              Filed March 12, 2014


IN RE THE MARRIAGE OF NICHOLE LEIGH SEVERSON
AND RUSSELL NEIL SEVERSON II

Upon the Petition of
NICHOLE LEIGH SEVERSON,
      Petitioner-Appellee,

And Concerning
RUSSELL NEIL SEVERSON II,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Sioux County, Jeffrey L. Poulson,

Judge.



      A father appeals the district court’s denial of his application to modify the

physical care provisions of the decree dissolving his marriage. AFFIRMED.



      Harold D. Dawson of DeKoter, Thole & Dawson, P.L.C., Sibley, for

appellant.

      Timothy J. Kramer of Kramer Law Firm, P.L.C., Sioux Center, for appellee.



      Considered by Vogel, P.J., and Tabor, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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VOGEL, P.J.

          Russell Severson appeals the district court’s denial of his application to

modify the physical care provisions of the decree dissolving his marriage to

Nichole Severson. Russell asserts he should be granted physical care of the

parties’ three children due to the children’s expressed desire to live with him, his

concerns for the children’s safety, Nichole’s occasional failure to provide him his

visitation rights, and Nichole’s failure to communicate information about the

children to him. Because we agree with the district court’s conclusion that there

has not been a substantial change in circumstances and Russell has not shown

he can provide superior care, we affirm the district court’s decision.

I. Background Facts and Proceedings.

          Russell and Nichole settled their dissolution proceeding by filing a

stipulation and agreement, which was approved by order entered by the district

court in April 2011. The stipulation provided the parties would have joint legal

custody with physical care of the parties’ three children1 to be placed with

Nichole. Russell would have visitation every other weekend as well as various

mid-week visitation. Russell was also granted six weeks of visitation during the

summer.

          Following the dissolution, Nichole began living with Daniel Geiwitz.

Russell married Brandie Eben and moved to a neighboring town. Brandie and

Daniel were previously married and have one child together, who now lives with

Brandie and Russell. Nichole has an adult son from a prior relationship, who



1
    The children ranged in age from fifteen to eleven at the time of the modification trial.
                                           3


lives with her, Daniel, and the three children at issue in this modification

proceeding.

       Since the dissolution decree the children have switched from private to

public school in the same town.         The youngest child suffered a depressive

episode requiring hospitalization for two weeks. There have been two founded

child abuse investigations against Nichole. One investigation involved the child

of Brandie and Daniel, while that child was in Nichole’s care.               The other

investigation involved the youngest child of the parties who received bruises on

her leg from Nichole hitting her with a hairbrush.2

       Two of the children have been attending counseling sessions and have

been involved in behavioral intervention services.          Nichole has been solely

responsible for arranging and making sure the children attend their medical and

behavioral therapy appointments. The children are also involved in a number of

extracurricular activities and sports. While Nichole allows the children to select

the activities they want to be involved in, she does insist on them honoring their

commitments.      During Russell’s visitation time, the children regularly miss

attending these commitments. Russell explains that the children do not want to

attend these activities when they are with him or Nichole does not provide him

adequate notice of the activities.

       In addition to the testimony from the parties, the court heard the testimony

of the children in camera during the modification trial. All the children expressed

2
  Prior to the dissolution, Russell also had founded child abuse investigations involving
the youngest child at issue here and involving Nichole’s oldest child from a previous
relationship. The district court described the parties as having had “extensive histories
of founded child abuse complaints,” and the court noted the parties are accomplished at
“gaming” the juvenile court system for their personal advantage.
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a desire to live with Russell due to the names Nichole calls them. They also

wrote statements to the court expressing their desire to live with Russell and their

reasons supporting their desire. The district court noted “the similarity in the

testimony and the letters” and found the children were “susceptible to

manipulation.” It therefore placed limited weight on the children’s preferences.

       The court noted the “very hostile interpersonal relationship” between the

parties, which was aggravated by the previous relationship of the parties’ new

significant others. The court stated neither party seemed capable of placing the

best interests of the children ahead of their animosity toward their former spouse.

This animosity was demonstrated through the parties’ testimony at trial and

through the evidence submitted showing the communication of the parties on

social media websites.

       The court found Russell had failed to show a substantial change in

circumstance where the record was filled with pre-dissolution child abuse

investigations perpetrated by both Russell and Nichole. In addition, the court

concluded that the parties’ inability to put their hostility aside made them both

“less than perfect parents.” But the court stated Nichole had shown an ability to

seek outside assistance and was supportive of the children’s activities.

Therefore, the court found Russell had failed to show he could provide superior

care or would administer more effectively to the children’s needs.3




3
  The court also denied Nichole’s counterclaim seeking to remove Russell’s midweek
visitation, to remove her obligation to provide information to Russell regarding the
children’s special activities, and to require Russell to be current on his child support
before he would be able to claim any tax exemption.
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II. Modification of Physical Care.

       On appeal, Russell claims he should have been granted the physical care

of the children. He claims the district court did not give adequate weight to the

desires of the children who were of a sufficient age to state their preference. He

also claims the recent founded child abuse investigations against Nichole

demonstrate the need to protect the children from Nichole. He claims Nichole

has refused on multiple occasions to provide him with the visitation ordered by

the decree,4 and she refuses to provide him necessary information about the

children as a joint legal custodian. He specifically asserts Nichole failed to give

him information regarding the hospitalization of the youngest child, the

instructions on the proper administration of medication for the children, the

details about the medical and mental health treatment the children are receiving,

and the extracurricular activities the children are involved in.

       Our review of a modification action is de novo as the case was heard in

equity. In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004). We

give weight to the district court’s factual findings, especially its credibility

assessments, but we are not bound by them. Iowa R. App. P. 6.904(3)(g). In

order to modify the physical care provisions of a dissolution decree, a party 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.” Malloy, 687


4
  Russell did file a contempt action against Nichole for her refusal to provide the
visitation. This contempt action was dismissed by the district court prior to the
modification trial. The court concluded the evidence offered was in “equipoise” and
therefore Russell failed to sustain his burden of proof beyond a reasonable doubt.
                                          6


N.W.2d at 113. The party seeking to change the physical care has a heavy

burden and must prove that he has the ability to provide superior care. Id.

       The district court gave the preferences of the children little weight because

it considered them to be susceptible to manipulation. It noted the letters the

children had written and the testimony given in camera were similar to each

other. The behavioral specialist working with the children confirmed the children

were susceptible to manipulation, even engaging in such behavior themselves.

While the children denied being coached or prompted to provide their testimony,

the court was particularly wary to give their preference controlling sway. Iowa

Code section 598.41(3)(f) (2011), provides the court with the ability to consider a

child’s preference as one factor in making a determination of which care

arrangement is in the child’s best interests. The court is to consider the child’s

age and maturity level in considering the child’s preference.            Iowa Code

§ 598.41(3)(f). Generally, the child’s preference is entitled to less weight in a

modification action than in an original proceeding. In re Marriage of Hunt, 476

N.W.2d 99, 101 (Iowa Ct. App. 1991). The district court’s assessment of the

credibility of the children is also entitled to some weight as the court was present

to hear the testimony and view the demeanor of the children. See id. at 102.

       While there were two recent founded child abuse investigations against

Nichole, we note, as did the district court, that the parties are not strangers to the

involvement of the department of human services. Before the parties separated,

Russell had two investigations and Nichole was ordered to have only supervised

visitation with the children for approximately six months during a child-in-need-of-

assistance case.     Despite the difficult history between the parties, Russell
                                           7


stipulated in the dissolution proceeding to place physical care of the children with

Nichole. While the new founded cases against Nichole are concerning, they

certainly do not amount to a substantial change in circumstances in this case. As

the district court noted, “[T]hese parties, with their long familiarity with the juvenile

court system, are accomplished in gaming the system for their personal

advantage.”

       It is important that both parents support the other parent’s relationship with

the children. See Iowa Code § 598.41(3)(e). In this case, the record is clear that

neither parent has supported the children’s relationship with the other party and

the children have all suffered the consequences. Russell claims that Nichole has

regularly denied him visitation, especially his midweek visitation during the

summer.     The district court found the evidence of the denial of visitation

insufficient during the contempt proceeding prior to the modification trial. While

the burden of proof is higher in contempt proceedings, we do not find Russell’s

allegations sufficient to justify a modification of the physical care arrangement.

Russell has received regular visitation under the decree and has not been

completely denied access to his children.         See In re Marriage of Barry, 588

N.W.2d 711, 713 (Iowa Ct. App. 1998).

       Finally, it is clear these parties do not communicate well. In fact, Nichole

sought to modify the decree to relieve her of the obligation to provide information

about the children to Russell, claiming Russell could find out this information on

his own from the school and various healthcare providers. The district court

denied Nichole’s request. Despite this communication problem, Russell failed to
                                          8


show that the communication between the parties would improve if he were

granted physical care.

       He has also failed to prove he would provide superior care. The children

were established in their current schools. A transfer of care would require them

to move to a different school district.       Nichole took an active interest in the

extracurricular activities of the children and ensured their participation once they

committed to attending. The evidence indicated that Russell did not ensure the

children’s participation, though he stated the children often did not want to go or

he had not been adequately informed of the activities.

       Based on all of the evidence in the record, we agree with the district

court’s assessment that Russell has failed to sustain his burden of proof in this

modification action. We therefore affirm the district court’s refusal to modify the

physical care arrangement in the dissolution decree.

III. Appellate Attorney Fees.

       Nichole requests an award of appellate attorney fees in this case.

       Appellate attorney fees are not a matter of right, but rather rest in
       this court’s discretion. 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.”

In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (citation omitted).

Considering the merits of the appeal and the ability of the parties to pay, we

award Nichole $1000.00 in appellate attorney fees.

       Costs on appeal are assessed against Russell.

       AFFIRMED.
