                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0120
                               Filed March 8, 2017


CHAD MICHAEL CARLSEN,
    Plaintiff-Appellant,

vs.

RACHAEL RENEE NOBLE,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Monona County, Jeffrey A. Neary,

Judge.



      A father appeals a district court decision that modified a paternity decree

to place physical care of the parties’ children with the mother. AFFIRMED.



      William H. Larson of Klass Law Firm, L.L.P., Sioux City, for appellant.

      Steven C. Kohl of Nymann & Kohl, Sioux City, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

      Chad Michael Carlsen appeals from the decree of modification transferring

physical care of the parties’ three minor children from Carlsen to the children’s

mother, Rachael Renee Noble.

      I.     Factual Background

      Carlsen and Noble were never married but lived together from February

2004 until October 2009.       Three children were born as the result of the

relationship. They are M.C., a boy, born in 2004, and twin girls, C.C. and C.C.,

born in 2005. Noble moved out of the family home, and after two weeks, she

returned the three children and left them with Carlsen. In addition, Noble left her

older daughter, M.N., a child from a previous relationship, with Carlsen.

      Noble felt Carlsen might become violent and, to memorialize the

separation and custody arrangement, filed a request for a no-contact order.

Carlsen consented to the no-contact order, and no evidence of physical abuse

was presented.     The no-contact order confirmed the custodial relationship

adopted by the parties and granted Noble visitation rights.

      Later, Carlsen filed a formal petition requesting custody and support for

the children. A trial was held on November 8, 2011, and on January 17, 2012, a

formal order was entered granting physical care of the parties’ minor children to

Carlsen, granting visitation rights to Noble, and providing for support.    Noble

appeared and participated in the trial but did not have counsel.

      At the time of the November trial, Carlsen was living with Karen Bartelson,

a divorcee who had custody of four children born to her during a prior marriage.

Bartelson was a fourth-grade teacher at the time and testified on Carlsen’s behalf
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at the trial. The court gave weight to her testimony and noted she had testified

that Carlsen was “a caring parent . . . patient, mindful, and respectful” and

ministered to the children’s physical needs. The court also noted “the children

were doing very well and their report cards and progress reports seemed to

indicate that they have adjusted well to the current living situation.” It was noted

that “Ms. Bartelson is a positive influence on Chad and the children.”

       At the time of the November 2011 trial, Noble was living with Ryan

Shepard in a town nearby to Carlsen, and had given birth to two more children as

the result of the new relationship. One son had been born in 2010 and the

second in 2011. Noble had not exercised all the visitation set out in the no-

contact order, and the court stated, “Rachael has not stepped up to the plate as a

parent relative to her visitations, school, medical or any of the other major factors

that a court might look to to pick an appropriate custodian.” Noble expressed an

interest in moving to Idaho, which was interpreted by the court to be her intent,

and visitation was designed to accommodate her move.

       On August 26, 2013, Noble filed an application to modify the physical care

provision of the paternity decree. Since the November 2011 trial, Bartelson and

Carlsen separated. Bartelson was found to have possession of marijuana and

methamphetamine and was prosecuted accordingly. Her children are no longer

living with her. She has resigned her teaching position. She testified at the

current trial that she and Carlsen had smoked pot together, that Carlsen had

become short tempered, and that she thought he was an alcoholic.

       When Carlsen and Bartelson separated, the children were with Noble for

two or three weeks.     Then Carlsen moved the children to South Sioux City,
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Nebraska, and then to Coon Rapids, Minnesota. He made efforts to have his

mother appointed guardian before the move to Minnesota, and they lived with her

while in Minnesota. It appears Carlsen did not always live with the children when

they were residing in Minnesota.      Noble’s visitation with the children was

arranged by Carlsen’s mother during that period.

       In October 2013, Carlsen and the children moved to the state of

Washington for the purpose of Carlsen obtaining a better job.          Carlsen is

presently unemployed.      When he first went to Washington, he was making

sixteen dollars per hour as a welder but has voluntarily quit his employment. He

is presently living with Nancy Rosenbaum and her three children, ages six, nine,

and thirteen. The Carlsen children have no extended family presently living in

the vicinity of Monroe, Washington, where they were residing at the time of trial.

Rosenbaum is employed full time at Boeing but works irregular hours. Carlsen

provides child care for the children when Rosenbaum is at work.

       Carlsen was arrested and convicted of operating while intoxicated, third

offense, while in Iowa. His driver’s license was suspended, he was ordered to

receive treatment for alcohol addiction, and he was otherwise placed on

probation and assessed financial obligations.      He has not complied with his

probation requirements, and an application for a revocation of his probation was

filed. His probation has been revoked, and a warrant for his arrest has been

issued. Carlsen did not appear in person for the modification trial but appeared

by Skype. In obtaining the court’s permission to use Skype, Carlsen did not

initially mention the warrant.
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       Noble has full-time employment and continues to live in Danbury, Illinois,

with her boyfriend, Shepard, and they have a third child. Shepard is on social

security disability and is a stay-at-home parent. Noble has substantial extended-

family support in the vicinity where she resides.

       We have not been provided appreciable information about the well-being

of the children, their advancement in academics, their interest in extracurricular

activities, or how well they have adjusted to the new living situation or frequent

moves. There was considerable evidence about Noble’s visitation attempts and

telephone calls, or lack thereof. The parties did not cooperate well in arranging

visitation, but recently, Carlsen’s arrest warrant and the distance involved has

made visitation difficult.   At the time of trial, both parties appeared to have

adequate physical facilities to care for the children. The trial court questioned

Carlsen’s credibility and, based on Carlsen’s disregard of the sentencing court’s

order, questioned whether Carlsen would follow a court order regarding visitation

or otherwise.

       After a modification hearing on November 5, 2015, the court entered a

ruling on December 30, 2015. The court concluded the changes were material

and substantial and Noble would be the better parent. The court modified the

paternity decree to place physical care of the children with Noble. The court

gave Carlsen visitation rights and ordered him to pay child support.

       Carlsen appeals, claiming the changes in circumstances were not material

or substantial enough to warrant a change in physical care and, further, Noble

failed to prove she could provide superior care.
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         II.    Issue Preservation

         Error preservation is generally considered present when the issues to be

reviewed have been raised and ruled on by the district court. Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002). The issue of physical care of the minor

children of the parties was raised by the petition to the court, considered by the

court, and ruled on by the court.

         III.   Scope of Review

         Our review is de novo. See Iowa R. App. P. 6.907. Especially when

considering the credibility of witnesses, we are to give weight to the findings of

fact of the district court, but are not bound by them. Iowa R. App. P. 6.904(3)(g).

         IV.    Discussion

         A change in the physical care of minor children, as established by a

previous order or decree, requires proof of a material and substantial change of

circumstances and that it is in the best interest of the children to make the

change requested.      In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa

1983). The burden of a party requesting a change in physical care is heavy. In

re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). It is Noble’s

burden to establish she can offer superior care to Carlsen.         See id.   Once

custody is determined, it should not be changed except for the most cogent

reasons. Id. Children deserve the security of knowing where they will grow up.

Id. Custody of children of unmarried parents is determined by the same rules as

if the parents had been married. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa

1988).
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       Noble clearly established a material and substantial change of

circumstances. The district court set out the changes in detail. Since the original

degree was entered, Noble has demonstrated a degree of stability. She is still

living with Shepard and she has apparently been gainfully employed. Shepard

appears to be capable of caring for the children when she is absent. Carlsen has

a drinking problem, which does not appear to have been present or recognized at

the November 2011 trial. He has apparently smoked marijuana at a time when

he was caring for the children. He has moved numerous times since custody

was initially determined.    He has had periods of unemployment because of

choice or otherwise.     He has made an effort to have his mother appointed

guardian of the children and, apparently, did not live with them for a period of

time. Carlsen and Bartelson have separated, and he has blended his family with

Rosenbaum and her family.

       Carlsen’s actions since the decree was entered have demonstrated a

great deal of instability. The district court felt, and we agree, it is significant that

there is a felony warrant outstanding against Carlsen in Iowa, making a return to

Iowa to facilitate the children’s visitation with Noble and her extended family

highly unlikely. Further, the possibility of a prison sentence for Carlsen is clearly

present.

       Unfortunately, the district court did not have information as to how or

whether the children have progressed since the original paternity order was

entered, nor do we. What is in the best interest of the children is the first and

governing consideration in determining physical care of children. Iowa R. App. P.

6.904(3)(o). Custody determinations are factually driven in each case and turn
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almost exclusively on the facts of the case. Stevenson v. McMillan, 95 N.W.2d

719, 721 (Iowa 1959). Since the initial paternity order was entered in 2012, we

can assume the children have lived in four different homes. Those who were of

school age have attended four different schools. The children have been

introduced to two different step-mothers and were directly or indirectly exposed

to marijuana, methamphetamine, excessive use of alcohol, and the examples

those present. In addition, the children have had to bear disputes between the

natural parents concerning visitation, their availability for telephone calls, and the

frequency of those calls. We are left to assume how the children have been

affected and that it cannot be good.

       The trial court made detailed findings of fact and discussed how the facts

applied to the applicable law. We see no basis to overrule the findings of fact or

the conclusions drawn.

       V.     Attorney Fees

       Noble requests attorney fees for this appeal. “Appellate attorney fees are

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

Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We consider the needs of the party

seeking the award, the ability of the other party to pay, and the relative merits of

the appeal. Id. We deny the request for appellate attorney fees.

       We affirm the decision of the district court.

       AFFIRMED.
