                  IN THE COURT OF APPEALS OF IOWA

                                 No. 15-1421
                            Filed August 17, 2016


HEATHER RANAE SMITH,
    Petitioner-Appellee,

vs.

JEFFREY MICHAEL JANSSEN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Jeffrey Janssen appeals the denial of his application for modification

concerning the parties’ minor children. AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.




      Lynne Wallin Hines of Lynne W. Hines Law Office, Des Moines, for

appellant.

      Michael P. Holzworth, Des Moines, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Jeff Janssen appeals the district court’s ruling denying his request to

modify the parties’ paternity decree granting Heather Smith physical care of the

minor children. He also claims the court incorrectly calculated his child support

obligation and visitation schedule. Both parties request appellate attorney fees.

We affirm the denial of Jeff’s request to modify the custodial order and Jeff’s

request to modify the holiday visitation schedule. We reverse and remand the

district court’s calculation of Jeff’s child support obligations and modification of

Jeff’s non-holiday visitation schedule.

I.     BACKGROUND FACTS AND PROCEEDINGS

       Jeff and Heather are the parents of two minor children, J.J. and N.J. The

parties were never married.         In November 2010, an order was entered

establishing paternity, child support, and visitation.    Joint legal custody was

ordered and Heather received physical care of both children.

       Concerning the parties’ backgrounds since the entry of the 2010 custody

order, the district court stated:

              Jeff completed high school. He subsequently obtained his
       undergraduate degree and, as of the conclusion of trial herein, was
       about to obtain his juris doctorate from Drake University Law
       School. Jeff has gotten married to a pharmacist who has stable
       employment with Hy-Vee and earns approximately $130,000.00 a
       year. The two of them live in a nice home in Des Moines owned by
       Jeff. Jeff has found religion and become heavily involved in a local
       church. Jeff has recommitted himself to parenting the parties’ two
       children and receives strong support in that endeavor from his
       spouse, Sarah. Jeff is currently unemployed. However, Jeff will be
       taking the bar examination in 2016 and plans to begin his legal
       career upon successful completion of said exam although his exact
       plans and the profitability of same were unclear as of trial herein.
       While in law school, Jeff has worked as a paralegal at his father’s
       law firm, earning $10.00 an hour.
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               Heather has also stabilized her life considerably. She
       appears to be in a committed relationship with another man and
       they expect to marry, she has stable employment, she has a stable
       residence, and she and her fiancé have another child on the way.
       Heather has also obtained her GED.
               The parties do not trust one another and, as a result, do not
       communicate or cooperate well in the parenting of their children.
       They are both naturally inclined to supply each other with as little
       information as possible regarding the children and to make
       unilateral decisions regarding the children’s parenting. Having said
       that, the parties’ two children are doing well in school and appear to
       be healthy, both physically and mentally/emotionally, and relatively
       well-adjusted.

       Jeff filed a petition for modification on August 19, 2013, claiming a

substantial change in circumstances had occurred since the order establishing

custody was entered.      He requested the court modify the order, grant him

physical care of the children, modify his child support obligation, and establish

visitation for Heather.

       A hearing on Jeff’s petition for modification was held on January 7, 2015.

The district court entered an order on July 1 denying Jeff’s request to modify the

custodial arrangement.     The court, however, found a substantial change in

circumstances had occurred concerning Jeff’s child support obligation, due to

evidence submitted concerning the parties’ income. The court set Jeff’s support

obligation at $497 per month for two children and $395 per month for one child.

The court altered the visitation schedule as follows:

               Jeff’s visitation shall be every other week from Friday after
       school or daycare until 6 PM the following Sunday at which time
       Jeff will return the children to Heather’s residence. In the weeks Jeff
       does have weekend visitation, he shall also receive visitation with
       the children Tuesday from the conclusion of school or daycare until
       8 AM the following morning when he shall return the children to
       school or daycare. In the weeks Jeff does not have weekend
       visitation, he shall also receive visitation with the children Thursday
       from the conclusion of school or daycare until 8 AM the following
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       morning when he shall return the children to school or daycare. If
       neither daycare nor school is in session, Jeff shall return the
       children to Heather’s residence.

       In all other respects, the court affirmed the provisions of the 2010 custody

order. Jeff now appeals.

II.    STANDARD OF REVIEW

       This modification action was tried in equity, and our review is de novo.

Iowa R. App. P. 6.907; In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).

However, we give weight to the trial court’s findings because it was present to

listen to and observe the parties and witnesses. In re Marriage of McDermott,

827 N.W.2d 671, 676 (Iowa 2013); see also Iowa R. App. P. 6.904(3)(g).

III.   MERITS

       A.     Modification

       Jeff claims he demonstrated a “substantial change in circumstances” not

within the contemplation of the district court when it entered the original decree,

and he is the parent best suited to care for the children.

       The objective of physical care “is to place the children in the environment

most likely to bring them to health, both physically and mentally, and to social

maturity.”   In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Changing physical care of children is one of the most significant modifications

that can be undertaken. In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa

Ct. App. 2000). The parent seeking to modify the physical care provision of a

paternity decree must show “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
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welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.

App. 2004). In addition, the parent seeking to modify physical care “has a heavy

burden and must show the ability to offer superior care.” Id.; see also In re

Marriage of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once

custody of the child[ren] has been fixed, it should be disturbed only for the most

cogent reasons”). The controlling consideration is the children’s best interest. In

re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).

      Jeff claims a number of substantial changes have occurred since the entry

of the custody order, including Jeff’s marriage and stable relationship with his

wife, and Heather’s exclusion of Jeff from decision-making concerning changing

the children’s school district and daycare provider. Jeff claims he can provide

superior care to the children given his involvement with the children’s schooling,

their daycare, their extracurricular activities, and his willingness to watch the

children when Heather is unable to do so.

      Upon our de novo review of the record, we conclude Jeff has failed to

prove a substantial change in circumstances occurred. We adopt the district

court’s reasoning:

               In this case, the court concludes that respondent has failed
      to carry his burden and declines to modify the custody provisions of
      its November 19, 2010 order. The parties still have the same
      difficulties communicating, cooperating, sharing information, and
      resisting the urge to make unilateral parenting decisions. This is
      not surprising and, in fact, is to be expected. See In re Marriage of
      Ellis, 705 N.W.2d 96, 103 (Iowa Ct. App. 2005) [abrograted on
      other grounds by Hansen, 733 N.W.2d at 692]. Both parties have
      substantially improved the stability of their respective lives since the
      entry of that order, Jeff arguably more so than Heather. However,
      to the extent Jeff has accomplished more (in terms of stabilizing his
      life) than Heather, that has been negated by Jeff’s destabilization of
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      his life through the introduction of his wife’s four nephews and
      nieces.
              An inordinate amount of time was spent by the parties at trial
      introducing evidence concerning the events of this past December,
      namely, the alleged inappropriate physical/sexual conduct and/or
      behaviors involving the parties’ two children and Sarah’s four
      nieces and nephews occurring at Jeff’s home. At the conclusion of
      the trial, the court was no closer to determining what had
      happened, if anything, or who the perpetrator was, if anyone. All
      the court can say is that, apparently and thankfully, there are no
      lasting effects with regard to the children. However, it leads the
      court to conclude that Jeff has not shown that there has been a
      substantial change in circumstances warranting a change in
      custody. Stated differently, the net result is that there has been no
      substantial change in circumstances, relatively speaking,
      concerning the stability of the parties’ respective lives. And, even if
      one assumes there has been, Jeff has not demonstrated the ability
      to offer superior care.

      We affirm the district court’s ruling.

      B.     Child Support

      Jeff claims the district court erred in determining his child support by

incorrectly calculating his income. Even though a support obligation is based

upon a stipulation, it may still be subject to modification.    In re Marriage of

Wilson, 572 N.W.2d 155, 157 (Iowa 1997). Under Iowa Code section 598.21C(1)

(2013), a court may modify a child support order when the parent seeking

modification is able to show “a substantial change in circumstances,” including

“changes in the employment, earning capacity, income or resources of a party.”

Section 598.21C(2) provides “a substantial change of circumstances exists when

the court order for child support varies by ten percent or more from the amount”

that would be due under the child support guidelines. The district court may also

consider whether the change in circumstances is permanent and not merely

temporary. In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983). The
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parent “seeking modification must prove the change in circumstances by a

preponderance of the evidence.” In re Marriage of Rietz, 585 N.W.2d 226, 229

(Iowa 1998).

       In determining the parties’ income for child support purposes, the district

court stated: “Finally, for purposes of computing child support, the court adopts

Heather’s computations contained in her Exhibit 1 which assumes annual income

to her of $17,200 and annual income of $24,000 to Jeff based upon his earnings

from his employment with his father’s law firm.” However, when Heather was

asked at the modification hearing how she determined Jeff’s income for 2014

was $24,000, Heather replied she did not know.          After further questioning,

Heather admitted the amount could be adjusted based upon information received

since the filing of the exhibit. The evidence shows Jeff worked at his father’s law

firm while he attended law school. A pay stub shows Jeff’s 2014 income was

$11,133. At the modification hearing, Jeff stipulated that his 2014 income was

$16,302; a child support guidelines worksheet reflects the same number. The

record before us supports the use of $16,302 for Jeff’s income for the purpose of

calculating his child support obligation. We find the district court erred in solely

relying on Heather’s exhibit in calculating Jeff’s gross income for child support

purposes. We remand to allow the district court to make finding on whether a

change in circumstances has occurred concerning Jeff’s income based on the

existing record and/or whether a deviation from the amount established by the

guidelines should be made.
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       C.     Visitation

       Jeff claims the court erred in modifying his weekly visitation schedule and

failing to modify the holiday visitation schedule.       “The burden to change a

visitation provision in a decree is substantially less than to modify custody.”

Malloy, 687 N.W.2d at 113. “[T]o justify a modification of visitation rights, the

plaintiff must show there has been a change of circumstances since the filing of

the decree.” Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct. App. 1994).

Our focus is always on the best interests of the children. Id.

       The original order granted Jeff visitation consisting of every other weekend

from Friday after school or daycare until Monday morning when he was to return

the children to school or daycare. The district court modified the schedule and

required Jeff to return the children to Heather’s residence on Sunday at 6:00 p.m.

The district court did not elaborate on the change in circumstances justifying the

modification. Upon our de novo review of the record, we find the evidence does

not show a change in circumstances has occurred to justify a change in the

visitation schedule, and we reverse and remand the modification concerning the

visitation schedule for an appropriate finding.

       Similarly, Jeff has not carried his burden in demonstrating a change in

circumstances has occurred to justify a change in the holiday visitation schedule.

We affirm the district court’s denial of this request.

       D.     Appellate Attorney Fees

       Both parties request an award of appellate attorney fees. An award of

appellate attorney fees is not a matter of right but rests within our discretion.
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Iowa Code § 600B.1 (2013); Markey v. Carney, 705 N.W.2d 13, 25 (Iowa 2005).

We deny both parties’ requests for attorney fees and split the court costs equally.

IV.    CONCLUSION

       Jeff has failed to show a substantial change in circumstances has

occurred to justify a change in the custody arrangement.              The evidence

concerning Jeff’s child support obligation is unclear, and we are unable to

determine if a change in circumstances has occurred to justify altering Jeff’s child

support obligation. We find the district court erred in solely relying on Heather’s

exhibit in calculating Jeff’s gross income for child support purposes. We remand

to allow the district court to calculate, based on the existing record, Jeff’s support

obligation based on the guidelines or a deviation from the guidelines.           The

evidence does not show a change in circumstances has occurred to justify

altering Jeff’s regular visitation schedule, therefore we reverse the modification to

Jeff’s visitation schedule and affirm the denial of Jeff’s request to modify the

holiday visitation schedule.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
