                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-0123
                              Filed August 19, 2020


IN RE THE MARRIAGE OF LAURA LEIGH DEWHURST
AND BRYAN MATTHEW DEWHURST

Upon the Petition of
LAURA LEIGH DEWHURST, n/k/a LAURA LEIGH IMSLAND,
      Petitioner-Appellant,

And Concerning
BRYAN MATTHEW DEWHURST,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Bethany J. Currie,

Judge.



      A mother appeals the district court order modifying the custodial provisions

of a dissolution decree and granting the father physical care of the parties’ three

children. AFFIRMED.



      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

      Nicole S. Facio of Newbrough Law Firm, LLP, Ames, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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GREER, Judge.

       Laura Imsland, formerly Laura Dewhurst, appeals the district court order

modifying the physical-care provisions of the dissolution decree between her and

Bryan Dewhurst. She also asks for an award of appellate attorney fees. We affirm

the district court order and decline to award appellate attorney fees.

       I. Background Facts and Proceedings.

       A. Background Facts.

       Laura and Bryan married in 2006 and divorced in 2015. They are parents

of three children: a daughter, age twelve, and two sons, ages eleven and seven.

In 2015, the district court entered a decree adopting the parties’ settlement

agreement resolving all the issues in their pending divorce. Laura and Bryan

agreed that they would have joint legal custody of the children, Laura would have

physical care of the children, and Bryan would have visitation every other weekend

and once during the week from 4:00 p.m. to 7:00 p.m. Bryan agreed to pay $1687

in child support. His support obligation was reduced by $600 in October 2017.

       At the time of the modification trial, both Laura and Bryan were thirty-eight

years old. They had each remarried, and Laura had a two-year-old child with her

new husband. According to Laura, the children all have a very close relationship

with their half-sibling. During the marriage the parties lived in Ames, but after the

divorce Laura and the children relocated to her hometown of Hubbard. Bryan

moved from Ames to Hubbard in August 2018 to be closer to the children, and he

now lives three blocks from Laura.

       The parties encountered several issues as they tried to co-parent the

children after the divorce. The overarching concerns were Laura’s dislike and
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mistrust of Bryan, the parties’ communication issues, and allegations of Bryan’s

inappropriate conduct.

      Many of Laura’s concerns about Bryan derive from incidents during and

toward the end of the parties’ marriage. The most significant pre-divorce incident

occurred toward the end of the marriage; Bryan tried to hypnotize Laura, who he

thought was sleeping, to persuade her to perform sex acts on him whenever she

heard a particular trigger word. Because Laura was awake and aware of his

actions, Bryan’s attempted hypnosis traumatized her. She views his actions as a

sexual assault. Laura has spoken with family and church members about the

incident but never sought out formal counseling. Laura also claimed, and Bryan

acknowledged, that Bryan had a pornography addiction during the marriage.

Bryan acknowledged the hypnotization attempt and testified at trial that he

regretted his actions.   Bryan addressed his pornography addiction through

counseling sessions.

      Due in large part to these pre-divorce incidents, Laura sees Bryan’s

attempts to communicate with her and the children as abusive, invasive, and

controlling. Laura feels uncomfortable around Bryan and believes he does not

respect boundaries. Laura will not acknowledge Bryan, his wife, or his family

members in public, and she refuses to speak to Bryan in person. Her caustic

behavior spilled over into how the children react to Bryan and his family when they

are near their mother. At one point in 2018, she blocked his number on her cell

phone. Laura refuses to let Bryan attend the children’s birthday parties, even if

they are in public, and she has refused Bryan’s offers to help pay. Laura refuses

to attend parent-teacher conferences with Bryan. After Bryan’s child support
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obligation was reduced in October 2017, she told the children that she would have

to work more to pay the bills, which led to conflict between the children and Bryan.

Laura often declined Bryan’s requests for more time with the children and testified

that she denied the requests because she views his relationship with them as

unhealthy. She described Bryan as manipulative and controlling.

       Other examples of co-parenting issues include Laura buying the oldest child

a cell phone without telling Bryan. Laura did not provide Bryan with the passcode

for the phone until after a mediation in February 2019. Laura believed it was okay

for her to monitor the child’s text messages with Bryan, but she believed it violated

the child’s privacy for Bryan to do the same because he took screenshots. Bryan

tried to come up with ground rules for the child’s cell phone with Laura, but Laura

refused to engage. She also did not consult with Bryan before allowing the child

to create an Instagram account. The child has three Instagram accounts, one of

which uses her stepfather’s last name. For a time, the child blocked Bryan from

her accounts so he could not see her posts.

       Bryan claims his relationship with Laura deteriorated even more after he

moved to Hubbard in August 2018. Laura and her family members have told

people in the community—including the children’s friends’ parents—that Bryan is

“a creep,” a “pervert,” “not a good guy,” and “a sexual deviant.” The month after

Bryan relocated to Hubbard, Laura posted a Facebook status stating in part, “A

creep has moved into our community and anyone telling me ‘they seem nice’ will

be corrected.” Laura acknowledged at trial that this post was about Bryan. Bryan

feels Laura’s actions have caused issues with Bryan and his wife fitting into the
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community and has caused concerns with the children’s friends’ parents allowing

their children to spend time at Bryan’s house.

       Additionally, Laura resisted informing Bryan of the children’s appointments

and activities, would change their medical providers without telling him, would not

provide Bryan with the copies of the children’s birth certificates or social security

cards, and expected Bryan to get all the information on his own. Bryan asserts he

repeatedly requested that Laura keep him informed.

       Laura also did not tell Bryan about the children’s extracurricular activities.

Bryan learned his daughter was participating in basketball from a social media

post. In another incident, Bryan offered to purchase tickets to a father-daughter

dance for himself, his daughter, and Laura’s husband and to plan a dinner

beforehand. Bryan later learned that his daughter and her stepfather went to a

dinner with other fathers and daughters without him. Bryan was also not informed

of a father-daughter bowling night, but his daughter attended the event with her

stepfather, her stepfather’s father, and Laura’s stepfather. In 2018, the children

participated in a Christmas program at church. The children downplayed their

involvement in the program, and Laura did not tell Bryan about it. Bryan got the

date and time from other church members, and it turned out that the children had

major roles in the program.

       Laura testified she was not fully aware of her responsibilities as a joint

custodian and primary care parent until the parties participated in mediation in

February 2019. She also testified that she did not believe she had an obligation

to keep Bryan informed and that he could find out all the information himself. Bryan

and his wife suggested using an online calendar, but Laura was resistant to it and
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saw it as an invasion into her privacy. After the February 2019 mediation, however,

the parties began using an online calendar, which helped alleviate most of the

communication issues about events. Yet when met with these information hurdles,

Bryan continued pressing respectfully, but firmly, for meaningful involvement in the

children’s lives. Witnesses confirmed Bryan’s strong ability to parent and his good

relationships with each child.

       Several post-dissolution incidents became a focus during the modification

trial. In August 2018, Bryan arrived at Laura’s house to pick up the children. Bryan

got out of his car to talk to his youngest child who was in the yard playing soccer

while he was waiting for the other children to exit the home. Bryan claims he

stayed on the sidewalk, about twenty feet from the house; Laura claims he was

standing in the flower bed close to the home. When the other two children exited

the home, Bryan looked over at them. Laura later accused Bryan of peeping into

her home. After that, Laura refused Bryan access on the property for a time,

requiring him to stay in his car during pickups.

       In a September 2018 incident, which led to Laura’s filing of the modification

petition, Bryan had the children for weekend visitation and he and the children went

to a relative’s house in Nebraska. According to the oldest child, she and one of

her younger brothers were watching television on an air mattress in the basement

when Bryan came downstairs and tried to wrestle with her, which she resisted.

Bryan started to wrestle her anyway, and eventually the child kicked Bryan in the

throat. Bryan grabbed the child’s upper thighs, and the child claimed this caused

bruising. Laura testified she saw the bruising. According to Bryan, he was trying

to get the children to come upstairs for dinner, so tickled his daughter’s feet to get
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her out of bed and she kicked him. After she kicked him, she began to fall off the

bed, so he grabbed her thighs to prevent the fall.

       The child reported the incident to Laura and the child’s therapist, and both

Laura and the therapist reported the incident to the Iowa Department of Human

Services (DHS). DHS investigated the incident. During the investigation, Laura

told the investigator that Bryan had “a history of ‘sexual perversion,’” was a “sex

and porn addict,” and recounted the hypnotization incident. The investigator met

with the child the next day. The child explained what happened and told the

investigator that Bryan had never been aggressive with her before that incident.

The investigator met with the middle child who confirmed his sister’s story but

added that he was comfortable with Bryan and the way he treats him and others.

The DHS investigator concluded the allegation of abuse was not confirmed.

       Due in large part to the September 2018 incident, Bryan’s relationship with

his daughter concerned both parties. The child started to see a new therapist in

February 2019. The therapist determined a goal of therapy would be to build a

better relationship between Bryan and the child. The therapist described the child

as not being “comfortable” with Bryan, but the counselor found no evidence of

sexual abuse, trauma, or posttraumatic stress. She did not see any evidence that

Bryan’s behavior was sexually motivated and saw no lingering fear or trauma from

the September 2018 incident. The therapist worked with the child and Bryan on

navigating physical affection, which the therapist described as common with a child

and the opposite-sex parent. The therapist found Bryan “very receptive” and

someone who “wanted to have a good relationship with [his daughter] and so he

was willing to accept those boundaries or limitations in order to earn her trust and
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be in a good relationship with her.” The therapist testified that Bryan seemed like

“a man who was willing to hear his daughter’s issues, limitations, boundaries, and

try to meet her halfway.” Another issue the therapist noted was that the child’s

loyalty to her mother was possibly preventing the child from having a positive

relationship with her father. The child had reported feeling concerned that talking

to her dad in public would upset her mother.

       B. Procedural History. In September 2018, Laura petitioned to modify the

decree and change Bryan’s visitation, alleging that Bryan physically and

emotionally abused the oldest child. At the same time, Laura applied to have

Bryan’s visitation rights immediately suspended. Also in September, in a separate

action, Laura petitioned for relief from domestic abuse, naming Bryan as the

perpetrator, and citing events that happened during and after the marriage as

evidence of abuse. She withdrew the request for immediate suspension and

dismissed her protective order petition in October; she dismissed her request to

modify the decree at trial.

       Bryan denied Laura’s allegations in the modification petition and counter-

claimed to modify the dissolution decree to grant him physical care of the children.

He alleged that Laura’s failure to support his relationship with the children, her

failure to communicate with him before making decisions, and his move from Ames

to Hubbard all required a change in physical care. At trial he alternatively argued

for shared physical care.

       After the three-day bench trial, the district court entered a detailed written

ruling, modifying the decree to grant Bryan physical care of the children and

establishing Laura’s visitation rights and child-support obligation. The district court
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determined, “Laura’s pattern of flagrant behaviors and interference over the past

several years have not only hampered Bryan’s relationship with the children, but

her actions have negatively impacted the children and reflect a total disregard for

their emotional well-being.” The court ordered Laura to have visitation every

Tuesday and Thursday from after school until 8:00 p.m. and every other weekend,

along with more visitation in the summer. The court found her support obligation

should be $302.61 monthly.

       Laura appeals.

       II. Standard of Review.

       Actions to modify the physical-care provisions of a dissolution decree are

tried in equity. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). For

that reason, our review is de novo. Iowa R. App. P. 6.907. We must “examine the

entire record and adjudicate anew rights on the issues properly presented.” In re

Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct. App. 1999). We give weight to,

but are not bound by, the district court’s fact findings, especially with regard to the

credibility of witnesses. Iowa R. App. P. 6.904.

       III. Analysis.

       A.   Modification Decision.      The law for custody modifications is well

settled:

       To change a custodial provision of a dissolution decree, the applying
       party must establish by a preponderance of evidence that conditions
       since the decree was entered have so materially and substantially
       changed that the children’s best interests make it expedient to make
       the requested change. The changed circumstances must not have
       been contemplated by the court when the decree was entered, and
       they must be more or less permanent, not temporary. They must
       relate to the welfare of the children. A parent seeking to take custody
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         from the other must prove an ability to minister more effectively to
         the children’s well being.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).           The parent

requesting the modification has a “heavy burden” to prove that a modification is

warranted because “once the custody of children has been fixed it should be

disturbed only for the most cogent reasons.” Id. The paramount consideration is

the best interests of the child. In re Marriage of Leyda, 355 N.W.2d 862, 865 (Iowa

1984).

         At the outset, we acknowledge that these children have two parents who

love them and two stepparents who want to be actively involved in the children’s

lives. That said, after considering the evidence and testimony, we agree with the

district court that Bryan has shown by a preponderance of the evidence that

Laura’s actions constitute a material and substantial change in circumstances.

Bryan has also shown that he can minister more effectively to the children’s needs.

         The district court, in a detailed opinion, listed pages of examples showing

how Laura failed to support Bryan’s relationship with the children. Then, the court

concluded that Laura’s actions harmed Bryan’s relationship with the children,

constituting a material and substantial change in circumstances.         See In re

Marriage of Downing, 432 N.W.2d 692, 694 (Iowa Ct. App. 1988) (noting that our

court has previously “held the custodial parent[’s] lack of cooperation with the

noncustodial parent’s efforts to maintain satisfactory visitation and communication

with the children evidenced a substantial change in circumstances warranting

modification of the dissolution decree”).       The court found these changed

circumstances were not contemplated at the time of the decree and are more or
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less permanent. See id. (“When entering the original decree, the court no doubt

understood certain natural animosities exist during a divorce, however it strains

credulity to believe the trial court did not contemplate the parties, mature adults,

overcoming these feelings to concentrate on the best interests of their [children].”).

While the parties’ communication about scheduling improved once they began

using the online calendar, Laura made no efforts to improve her co-parenting

relationship with Bryan, and we agree with the district court that “Laura appears

oblivious of any harm her public campaign against Bryan may have on her

children.”

       The court found that while the children are physically healthy and doing well

in school, Bryan offered superior care to the children because he is better able to

facilitate a relationship between the children and both parents and he is willing to

co-parent with Laura and set aside any negative feelings he has about her to focus

on the children’s wellbeing. See In re Marriage of Grantham, 698 N.W.2d 140,

146 (Iowa 2005) (“Even though the parents are not required to be friends, they

owe it to the child[ren] to maintain an attitude of civility, act decently toward one

another, and communicate openly with each other. One might well question the

suitability as custodian of any parent unable to meet these minimum

requirements.” (citation omitted)). Bryan has shown a willingness to work through

conflict and improve his relationships with his children, and he remains open to

improving his co-parenting relationship with Laura.

       With extensive evidence of Laura’s disdain for Bryan and her efforts to

undermine his relationship with the children on one hand and Bryan’s mature and

sensitive responses to stay engaged with the children on the other, we agree with
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the district court’s detailed analysis. For these reasons, we affirm the trial court’s

detailed and well-reasoned modification order.

       B. Appellate Attorney Fees. An award of appellate attorney fees is not a

matter of right but rests within the court’s discretion. See In re Marriage of Benson,

495 N.W.2d 777, 779 (Iowa Ct. App. 1992); see also Iowa Code § 598.36 (2018)

(“In a proceeding for a modification of an order or decree under this chapter the

court may award attorney fees to the prevailing party in an amount deemed

reasonable by the court.”). We will “consider the needs of the party making the

request, the ability of the other party to pay, and whether the party making the

request was obligated to defend the district court’s decision on appeal.” Ales, 592

N.W.2d at 704. After considering the relevant factors and noting Laura has not

prevailed on appeal we decline to award Laura appellate attorney fees.

       IV. Disposition.

       We affirm the district court modification order.

       AFFIRMED.
