                  IN THE COURT OF APPEALS OF IOWA

                                 No. 14-2049
                            Filed August 19, 2015

IN RE THE MARRIAGE OF THOMAS ALAN MCDERMOTT
AND MISTI D. MCDERMOTT

Upon the Petition of
THOMAS ALAN MCDERMOTT,
      Petitioner-Appellant,

And Concerning
MISTI D. MCDERMOTT,
      Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor,

Judge.



      A father appeals the district court’s decision modifying the shared care

provision of the dissolution decree and awarding the mother physical care.

AFFIRMED.



      J. Drew Chambers of Holleran, Shaw, Murphy & Stoutner, Clinton, for

appellant.

      James D. Bruhn of Farwell & Bruhn Law Firm, Clinton, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.    Tabor, J.,

takes no part.
                                          2



MULLINS, J.

       Thomas McDermott appeals the district court’s modification decision that

struck the shared care provisions of the dissolution decree and placed the

children in Misti McDermott’s care. Thomas claims the court should have kept

the shared care arrangement as it did not find him to be an unfit parent so as to

justify interrupting his constitutional right to his children. He also claims Misti has

alienated the children, particularly the older child, from him. While he agrees the

dissolution decree should be modified to remove the provisions pertaining to the

right of first refusal and the telephone call with the noncustodial parent, he claims

shared physical care should continue.1

I. Background Facts and Proceedings.

       Thomas and Misti were divorced in February 2013. The parties stipulated

to shared physical care of their two children, exchanging the care of the children

on Saturdays and alternating Tuesdays and Wednesdays.                The dissolution

decree provided for a right of first refusal if the custodial parent was unable to

care for the children for more than five hours, and also provided the noncustodial

parent could call the children every day so long as it occurred by 7 p.m.

       Subsequent to the dissolution proceedings, Thomas moved out of town to

a country farm house about a thirty-minute drive from the children’s school.

Problems developed in the parties’ communication. Thomas failed to pay his



1
  On August 5, 2014, we filed a decision in which we affirmed the district court’s
modification order. We subsequently granted Misti’s petition for rehearing to address
her request for appellate attorney fees, and pursuant to Iowa Rule of Appellate
Procedure 6.1204, we vacate our prior decision and this decision replaces it. After
rehearing, we affirm and grant Misti $4500 in appellate attorney fees.
                                          3



share of the uncovered medical expenses or pay Misti her share of the proceeds

of the sale of two of the vehicles owned by the parties as ordered by the

dissolution decree. Thomas also failed to turn over certain personal property

items as ordered by the court. Misti alleged Thomas failed to abide by the right-

of-first-refusal provision, and Misti routinely quizzed the older child during the

daily phone call regarding where the children were located and whether Thomas

was working.

       The older child saw a therapist both during and following the dissolution

decree. The therapist testified at the modification action that after the dissolution

decree the older child became very focused on his anger towards his father and

it was all the child would talk about during sessions. According to the therapist,

the anger had to do with punishments he was receiving from Thomas and being

required to do a lot of work on the farm. The child also reported a high degree of

depression at his father’s house, as compared to his mother’s house. When the

child did not make any progress in therapy over the course of several months,

the therapist recommended to discontinue therapy and referred the family to

another office.

       Misti filed her petition for modification accompanied by an application for

rule to show cause in May 2014, asking that the children2 be placed in her

physical care and asking that Thomas be held in contempt for not abiding by the

right of first refusal, failing to pay his share of the uncovered medical expenses,

failing to permit the daily phone call, failing to pay to her one-half of the proceeds


2
 At the time of the modification trial, their son was almost twelve years old and their
daughter was three.
                                        4



of the sale of the vehicles, failing to provide necessary parts to the wood burning

furnace so that she can sell it in accordance with the decree, and failing to turn

over certain personal property items. Thomas responded with his own petition

for modification and application for rule to show cause, asking that the children

be placed in his physical care and asking that Misti be held in contempt for

making disparaging comments about him in the children’s presence.

      The matter proceeded to a hearing in October 2014, and after hearing

from both parties and the older child’s therapist, the court placed the children in

Misti’s physical care, granting Thomas visitation every other weekend, one

overnight every week, two separate two-week periods during the summer, and

alternating holidays.   The court noted both parties argued the shared care

arrangement and the right-of-first-refusal provision are not working in the best

interests of the children. Both also agreed there were severe communication

issues that were at times hostile. The court concluded,

      It is absolutely clear from the evidence that the shared physical
      care and first right of refusal provisions of the decree have resulted
      in confusion with custodial arrangements, has caused anxiety in the
      children and the parents, and probably never was an appropriate
      option for the parties to agree upon.

In selecting Misti as the parent to receive physical care, the court noted the

younger child routinely came back from Thomas’s house covered in red bumps

that were either bug bites or some type of allergic reaction. Thomas was not

supportive of the younger child’s preschool attendance and objected to the older

child’s extracurricular activities that were scheduled during “his” parenting time,

including Boy Scouts, soccer practice, and after school involvement in a robotics
                                           5



club. While the court agreed it was inappropriate for Misti to involve the older

child in the right-of-first-refusal issue, the court concluded this could be resolved

by the elimination of that provision and did not amount to parental alienation.

The court also found Thomas to be in contempt for failing to pay his share of the

uncovered medical expenses and for failing to turn over personal property

awarded in the decree. Thomas does not appeal the contempt finding but only

challenges the physical care modification on appeal.

II. Scope and Standard of review.

       Our review of the district court’s modification decision is de novo. In re

Marriage of Brown, 778 N.W.2d 47, 50 (Iowa 2009). We give weight to the

court’s factual findings, especially its credibility determinations, but we are not

bound by them. Id. Our overarching consideration is the best interests of the

children. In re Marriage of Hoffman, ___ N.W.2d ___, ___, 2015 WL 2137550, at

*4 (Iowa 2015).

III. Physical Care.

       Thomas asserts we should order the shared physical care arrangement to

continue because before the court can modify the physical care provisions of the

dissolution decree, it must find that he was an unfit parent.3             We find no

requirement in our statutes or case law that requires finding a parent is unfit in

order to modify the physical care provisions of a dissolution decree.


3
 Misti notes at the modification action Thomas did not request the shared physical care
arrangement continue but instead requested the physical care of the children be placed
with him. Misti asserts Thomas failed to preserve error on the claim he now makes on
appeal. We disagree. We interpret Thomas’s claim on appeal to be focused on whether
Misti satisfied her burden to justify modifying the physical care provision in this case.
We therefore address the claims made based on our de novo review of the record.
                                            6



       As our supreme court recently noted, the applicable standard in

modification actions is well-established:

       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 from the other must prove an ability
       to minister more effectively to the children’s wellbeing.

Hoffman, 2015 WL 2137550, at *5. The parent seeking the modification has a

heavy burden because once custody has been established it should be modified

only for the most cogent reasons. Id.

       It was clear to the district court that the shared physical care arrangement

was not working. The discord and lack of effective communication between the

parents had a disruptive effect on the children leading to anxiety and depression,

particularly with the older child. The parties could not agree on extracurricular

activities for the older child, could not agree on schooling or day care for the

younger child, could not communicate about the health needs of the children,

and could not even exchange personal property that had been the subject of the

dissolution decree. See In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa

2007) (“Factors often of importance in determining the viability of joint physical

care include an overriding interest in stability and continuity, the degree of

communication and mutual respect, the degree of discord and conflict prior to

dissolution, and the extent to which the parties agree on matters involving routine

care.”). Upon our de novo review, we agree with the district court’s assessment
                                           7



that shared physical care “probably never was an appropriate option for these

parties to agree upon.” We also agree that the children will have superior care

by having a primary physical caregiver. See Melchiori v. Kooi, 644 N.W.2d 365,

368 (Iowa 2002).

       In this situation, we must determine which parent will provide superior care

since shared physical care is not in the children’s best interests. Id. In light of

the fact that the parties previously had shared physical care, both parents were

found to be suitable physical care parents.          Id. at 368–69.     The excessive

amounts of red bumps observed on the younger child following time in her

father’s home is concerning particularly in light of the fact that father was unable

to explain these marks and the marks occurred over the course of the entire

year. While it is also concerning that Misti would discuss the legal provisions of

the dissolution decree with the older child, we agree with the district court’s

assessment that this did not amount to parental alienation as alleged by Thomas.

       The court found Thomas’s explanation of his objections to the older child’s

extracurricular activities not credible, and we defer to the district court’s credibility

determinations in light of its ability to observe the witnesses during their

testimony. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (“There is

good reason for us to pay very close attention to the trial court’s assessment of

the credibility of witnesses. A trial court deciding dissolution cases ‘is greatly

helped in making a wise decision about the parties by listening to them and

watching them in person.’” (citations omitted)).        The therapist testified to the
                                          8



anger the older child feels toward Thomas and to the child’s reporting of

depression while at the father’s house.

       We agree with the district court assessment “[t]hat taking the detrimental

characteristics of both parents into account, Thomas’s detriments are greater

than Misti’s.” The inappropriate involvement of the older child in the right-of-first-

refusal argument between the parties should be resolved with the elimination of

that provision. Misti’s house is within blocks of the children’s school, and Misti is

available to care for the children during school breaks in light of her employment

with the school system. We affirm the district court’s modification of the physical

care provisions, placing the children in Misti’s physical care and granting Thomas

visitation.

IV. Appellate Attorney Fees.

       Misti requests an award of appellate attorney fees. “Appellate attorney

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

Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013). We consider “the

parties’ respective abilities to pay,” and “whether a party has been obliged to

defend the trial court’s decision on appeal.”      In re Marriage of Michael, 839

N.W.2d 630, 639 (Iowa 2013). After considering these factors, we determine

Misti is entitled to $4500 in appellate attorney fees.

       AFFIRMED.
