                  IN THE COURT OF APPEALS OF IOWA

                                 No. 14-1410
                             Filed August 5, 2015

IN RE THE MARRIAGE OF DAWN LEANN SHERIFF
AND JAMES ALEXANDER SHERIFF

Upon the Petition of
DAWN LEANN SHERIFF,
n/k/a DAWN LEANN KENNEDY,
       Petitioner-Appellee,

And Concerning
JAMES ALEXANDER SHERIFF,
     Respondent-Appellant.
________________________________________________________________

     Appeal from the Iowa District Court for Adair County, Randy V. Hefner,

Judge.



     Respondent appeals from an order modifying the parties’ dissolution

decree and denying the respondent’s application for rule to show cause.

AFFIRMED.



     Carmen E. Eichmann of Eichmann Law Firm, Des Moines, for appellant.

     David E. Brick of Brick Gentry, P.C., West Des Moines, for appellee.



     Considered by Tabor, P.J., McDonald, J., and Mahan, S.J.*

     *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                         2



MCDONALD, J.

       James Sheriff appeals from an order granting Dawn Sheriff n/k/a

Kennedy’s petition to modify the visitation provisions of the parties’ decree of

dissolution of marriage and denying his application for rule to show cause. We

affirm the district court.

                                         I.

       The parties married in 1996 and divorced in 2005.           There were two

children born to the marriage: A.S., in 1997, and T.S., in 2004. At the time of the

dissolution of marriage, the family resided in Greenfield, Iowa. The parties were

granted joint legal custody of the children. Dawn was granted physical care of

the children, subject to reasonable and liberal visitation with James. As relevant

here, the decree set forth a co-parenting schedule in which James had the

children every week from Tuesday at 5:30 p.m. until Thursday at 7:30 a.m. and

every other weekend from Friday at 5:30 p.m. until Sunday at 7:00 p.m. In March

2010, after T.S. entered kindergarten, the visitation schedule was modified. The

modification order provided James had the children every week from Tuesday at

3:30 p.m. until Thursday at 7:30 a.m. and every other weekend from Friday at

3:30 p.m. until Sunday at 7:00 p.m.

       In July 2013, Dawn filed a petition to modify the visitation provisions of the

decree. Dawn’s stated reasons for seeking modification of the decree were her

impending marriage; her move to Adel, where her new husband resided; and the

impending enrollment of the children in a new school district.              Adel is

approximately forty-five miles from Greenfield. There is a dispute as to when
                                            3



Dawn officially informed James of these life changes, but it can be fairly said that

it was not timely.

       James filed his answer and counterclaim, seeking joint physical care of

the children. James also filed a nine-count application for rule to show cause.

The substance of each count need not be repeated herein.                 In sum, James

alleged Dawn failed to communicate information and involve him in decisions

regarding the children, particularly the move to Adel. At trial, James amended

his counterclaim to seek only a modification of the parenting schedule.

       The district court granted Dawn’s petition and denied James application

for rule to show cause. The district court found Dawn’s move to Adel constituted

a material change in circumstances.             The district court found the parties’

midweek visitation schedule was impractical.           The district court also found

ongoing midweek visitation was not in the children’s best interests due to

interference   with   the   children’s    extracurricular   activities   and   academic

obligations, among other things.         The district court modified the decree and

eliminated the midweek visitation provision. The district court found, however,

the children should maintain significant and meaningful contact with James and

extended James’s alternating weekend visitations from Thursday after school

until the beginning of school on the following Monday. The district court also

granted James more liberal summer visitation and spring break visitation. The

district court denied the application for rule to show cause, concluding the

evidence fell “far short” of establishing beyond a reasonable doubt that Dawn’s

failure to communicate was willfully and intentionally contrary to a known duty.
                                         4



                                         II.

                                         A.

         “A parent seeking to modify visitation must only establish that there has

been a material change in circumstances since the decree and that the

requested change in visitation is in the best interests of the children.”    In re

Marriage of Brown, 778 N.W.2d 47, 51-52 (Iowa Ct. App. 2009) (internal

quotation marks removed). Our review of the modification order is de novo. See

Iowa R. App. P. 6.907; In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa

2014). We give weight to the fact findings of the trial court, especially when

considering the credibility of witnesses, but are not bound by them. See Iowa R.

App. P. 6.904(3)(g); In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa

2013).

         The mother’s forty-five-mile move to reside with her spouse and the

enrollment of the children in a different school district constitutes a material

change in circumstances. See Marriage of Hoffman (Hoffman II), ___ N.W.2d

___, 2015 WL 2137550, at *9 (Iowa 2015) (remanding for entry of new visitation

schedule where mother moved children to reside with new spouse in different

community); In re Marriage of Deck, 342 N.W.2d 892, 896 (Iowa Ct. App 1983)

(holding a move from Sioux City to Omaha due to employment constituted a

material change in circumstances warranting modification).       James does not

appear to contest whether there has been a material change in circumstances.

         We conclude the preponderance of the evidence showed the modification

to the visitation schedule was in the best interests of the children. See Iowa
                                         5



Code § 598.41(3) (2013) (identifying relevant factors); In re Marriage of Winter,

223 N.W.2d 165, 166-67 (Iowa 1974) (identifying factors). The evidence showed

the children were participating in or were expected to participate in several

extracurricular activities and that midweek visitation would inhibit or at least make

participation in the same more difficult.     The midweek visitation period also

hindered the children’s academic pursuits. A.S. testified the travel time made it

more difficult for her to complete her homework and study. She also testified it

made it more difficult to travel to school early for extra assistance in the

academic areas where she needed assistance.           She also testified the travel

schedule and inconsistency in her home environment made her tired.              The

children also developed new relationships in Adel, and the midweek visitation

limited their social opportunities.    In particular, the evidence showed T.S.

developed a close relationship with his two step-siblings of approximately the

same age and wanted to spend more time with them. See, e.g., In re Marriage of

Thompson, No. 02-1351, 2003 WL 21075904, at *3 (Iowa Ct. App. May 14, 2003)

(affirming care arrangement and noting the maximization of relationship with both

parents and step-sibling was an important consideration).

       James asserts two primary legal arguments against the modification.

First, James appears to contend midweek visitation is mandatory. However, the

case upon which he relies does not support the proposition and can be read to

stand for the contrary proposition. See In re Marriage of Toedter, 473 N.W.2d

233, 235 (Iowa Ct. App. 1991) (ordering midweek visitation “as long as Linda

resides in the same school district as the children”).        Further, there is no
                                        6



independent requirement for midweek visitation. The district court’s objective is

to craft a visitation schedule that maximizes parental contact and that is in the

best interests of the children. See Iowa Code § 598.41(1)(a).

      James also contends that modification should be disallowed because it

was necessitated by Dawn’s unilateral relocation. He contends it would open up

a “Pandora’s Box of abuse which no court could tolerate.” James’s fear of this

court peeking inside Pandora’s Box is misplaced and inapplicable here. This

court, like the district court, is able to distinguish between parental relocation

undertaken with ill will and for the purpose of interfering with the other parent’s

relationship with the children and parental relocation done for some other

legitimate purpose. See generally In re Marriage of Thielges, 623 N.W.2d 232,

238 (Iowa Ct. App. 2000) (providing legitimate reasons for relocation, including

the opportunity to simply get a “fresh start”).      The evidence in this case

established Dawn moved to reside with her spouse and not with the intent to

interfere with James’s relationship with the children.    See In re Marriage of

Hoffman, No. 13-1757, 2014 WL 3511893, at *5 (Iowa Ct. App. July 16, 2014)

(concluding “the decision to live under the same roof as one’s new spouse is a

legitimate reason for relocation”), aff’d, Hoffman II, ___ N.W.2d at ___, 2015 WL

2137550, at *1. James’s argument is also contrary to the concept of physical

care. Dawn, as the parent with physical care of the children, had the final say in

deciding where the children live:

      When, as in this case, joint custodial parents disagree on the
      question of whether their children’s residence should be changed,
      “the parent having physical care of the children must, as between
      the parties, have the final say concerning where [the children’s]
                                         7



       home will be.” [In re Marriage of Frederici, 338 N.W.2d 156, 159
       (Iowa 1983)]. We have noted that “[t]his authority is implicit in the
       right and responsibility to provide the principal home for the
       children. The right would mean little if the other custodian could
       veto its exercise.” Id. at 159–60. And in our “highly mobile
       society”—a characterization we used in Frederici that is surely no
       less true today—periodic relocation is hardly a surprise. Id. at 160.

Hoffman II, ___ N.W.2d at ___, 2015 WL 2137550, at *5.

       On de novo review, we affirm the modification decree.

                                        B.

       We next address James’s application for rule to show cause. Because

Iowa Code section 598.23 grants the district court discretion to not hold a party in

contempt even if the elements have been established, our review of the district

court’s denial of the application for rule to show cause is for an abuse of

discretion. See Iowa Code § 598.23 (providing a person “may” be cited and

punished for contempt); In re Marriage of Swan, 526 N.W.2d 320, 326–27 (Iowa

1995) (stating “a trial court is not required to hold a party in contempt even

though the elements of contempt may exist”); In re Marriage of Parker, No. 14-

0544, 2015 WL 3623650, at *2 (Iowa Ct. App. June 10, 2015) (applying abuse of

discretion standard). Generally, the district court’s denial of an application for

rule to show cause will not be disturbed absent a gross abuse of discretion. See

Swan, 526 N.W.2d at 327. “An abuse of discretion will be found only when such

discretion was exercised on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.” Ballanger v. Iowa Dist. Ct., 491 N.W.2d 179, 181

(Iowa Ct. App. 1992).
                                         8



         As stated above, James filed a nine-count application for rule to show

cause.     Among other things, the causes generally related to Dawn’s alleged

failures to provide information and involve James in decision making.           We

recognize Dawn could and should have communicated more often with James.

As the district court noted on the record at the end of trial, however, both parties

share responsibility for failing to communicate about the children. Other than

asserting his disagreement with the district court, James has not identified how or

why the district court grossly abused its discretion in denying his application. We

conclude the district court did not grossly abuse its discretion in denying James’s

application for rule to show cause.

                                         C.

         James raises several issues related to fees and costs. First, he contends

the district court should have awarded him attorney’s fees. “We review a district

court’s decision on attorney fees for abuse of discretion.”      In re Marriage of

Michael, 839 N.W.2d 630, 635 (Iowa 2013). Whether attorney fees should be

awarded depends on the parties’ respective abilities to pay, see In re Marriage of

Sullins, 715 N.W.2d 242, 255 (Iowa 2006), and fees awarded must be fair and

reasonable, see In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). Jim

has maintained steady employment for a number of years and has a solid

income, earning significantly more than Dawn. We cannot conclude the district

court abused its discretion.

         James next contends the district court should not have assessed costs

against him. The assessment of court costs in equity cases is within the sound
                                         9



discretion of the district court. See Wymer v. Dagnillo, 162 N.W.2d 514, 519

(Iowa 1968) (“The rule is well established that in an equity action the trial court

has a large discretion in the matter of taxing costs and we will not ordinarily

interfere therewith.”). James has not identified any abuse of discretion, and we

find none.

       We address the issue of appellate attorney’s fees. An award of attorney

fees on appeal is not a matter of right, but rests within the court’s discretion and

the parties’ financial positions. See In re Marriage of Berning, 745 N.W.2d 90, 94

(Iowa Ct. App. 2007); In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.

App. 1983). “We consider the needs of the party making the request, the ability

of the other party to pay,” the relative merits of the appeal, and whether the party

making the request was obligated to defend the district court’s decision on

appeal. See Berning, 745 N.W.2d at 94. We conclude that the parties shall be

responsible for their respective appellate attorney fees.

       With respect to appellate costs, “[a]ll appellate fees and costs shall be

taxed to the unsuccessful party, unless otherwise ordered by the appropriate

appellate court.”   Iowa R. App. P. 6.1207.      Appellate fees and costs do not

include appellate attorney fees. See Englund v. Younker Bros., Inc., 142 N.W.2d

530, 531 (Iowa 1966). We direct that all appellate fees and costs be taxed to

James. See Lewis Elec. Co. v. Miller, 791 N.W.2d 691, 696 (Iowa 2010) (stating

that it was an “abuse of discretion to divide costs equally between the parties

when one party was fully successful on appeal”).
                                       10



                                       III.

       We have considered each of the parties’ respective arguments, whether or

not set forth in full herein. For the above-stated reasons, we affirm the judgment

of the district court.

       AFFIRMED.
