                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0092
                              Filed January 9, 2020


IN RE THE MARRIAGE OF BRIAN L. FREIBERG
AND AMANDA J. FREIBERG

Upon the Petition of
BRIAN L. FREIBERG,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
AMANDA J. FREIBERG,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Marshall County, John J. Haney,

Judge.



       Brian Freiberg appeals, and Amanda Freiberg cross-appeals, the district

court’s denial of their respective requests to modify their dissolution decree.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ON APPEAL;

AFFIRMED ON CROSS-APPEAL.



       Eric Borseth of Borseth Law Office, Altoona, for appellant.

       Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown,

for appellee.



       Heard by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
                                           2


VAITHESWARAN, Presiding Judge.

       Brian and Amanda Freiberg divorced in 2016. The district court granted the

parents joint legal custody of their two children, assigned physical care to Amanda,

and prescribed a visitation schedule for Brian in the event the parents were “unable

to agree.” The court later enlarged the visitation portion of the decree. This court

affirmed the decree. See In re Marriage of Freiberg, No. 16-1135, 2016 WL

7394886, at *1–2 (Iowa Ct. App. Dec. 21, 2016).

       The following year, Amanda filed a petition to modify the dissolution decree.

She requested sole legal custody of the children.           Brian counterclaimed for

physical care or, “in the alternative[,] . . . a specific liberal schedule of visitation”

and a concomitant adjustment of child support. Brian also filed several contempt

applications based on assertions that Amanda denied him visitation. The district

court set the matters for a consolidated hearing.

       Following the hearing, the district court denied Amanda’s request for sole

legal custody and Brian’s request for physical care, found Amanda in contempt for

failing to allow midweek visitation during the school year but declined to punish her

for the contempt, modified the visitation schedule and a no-contact order, and

refused to order either parent to pay the other’s attorney fees. Brian appealed,

and Amanda cross-appealed.

       Brian challenges the district court’s refusal to (1) impose punishment for

contempt; (2) adopt his proposed visitation schedule; (3) transfer physical care of

the children to him; and (4) cite evidence “that occurred after the dissolution trial

but before the ruling and decree was entered.” Amanda challenges the district

court’s (1) refusal to grant her sole legal custody of the children and (2) finding of
                                           3


contempt. We will begin with Amanda’s cross-appeal and proceed to the issues

raised by Brian.

I.     Denial of Sole Legal Custody

       “Joint legal custody” affords “both parents . . . legal custodial rights and

responsibilities toward the child” and gives “neither parent . . . legal custodial rights

superior to those of the other parent.” Iowa Code § 598.1(3) (2017). If a court

refuses to grant parents joint legal custody, the court “shall cite clear and

convincing evidence . . . that joint custody is unreasonable and not in the best

interest of the child to the extent that the legal custodial relationship between the

child and a parent should be severed.” Id. § 598.41(2)(b). It follows that joint legal

custody is the preferred legal custodial arrangement.          See In re Marriage of

Bartlett, 427 N.W.2d 876, 878 (Iowa Ct. App. 1988).

       The district court retained joint legal custody after finding that both parents

were actively involved in the children’s lives. Amanda argues the “continued

discord” between the parents warrants a change to sole legal custody. See In re

Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996).

       The record is replete with examples of discord. But discord was nothing

new. The decretal court referenced Amanda’s “bitterness and distrust of Brian”

and stated that her attitude “hinder[ed] effective communication.”           This court

similarly stated, “Amanda and Brian have demonstrated an inability to

communicate effectively.”      Freiburg, 2016 WL 7394886, at *2.          Because the

relationship was marked by conflict from the time of the dissolution proceeding,

Amanda failed to establish that the tension amounted to a substantial change of

circumstances not contemplated at the time of the decree. See In re Marriage of
                                          4

Harris, 877 N.W.2d 434, 440 (Iowa 2016) (“A party seeking modification of a

dissolution decree must prove by a preponderance of the evidence a substantial

change in circumstances occurred after the decree was entered.”).

       Anticipating this conclusion, Amanda asserts a “substantial and material

change in circumstances in this case is shown not simply by the continued discord

. . . but by the realization due to the continued discord that the communication . . .

will not improve.” We acknowledge perceived communication difficulties that later

become intractable may serve as a basis for modification. See Rolek, 555 N.W.2d

at 677 (“At the time of the 1986 decree, the district court was apparently hopeful

that the parties were capable of cooperating in those matters affecting the best

interests of their children. It is now quite clear that this is not the case.”); In re

Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983) (“When one parent’s

obduracy makes joint custody unworkable, the trial court in a modification

proceeding may find the child’s best interests require sole custody in the other

parent.”). But Amanda is hard-pressed to argue she is the parent who should

benefit from the intractability. She admitted to being charged with “a domestic

assault,” which was later amended to “[s]imple assault.”1 Although she completed


1 The evidence is drawn from Amanda’s testimony on direct examination. We do
not rely on Amanda’s criminal record, which the district court stated was expunged.
See Iowa Code §§ 907.9(4)(b) (authorizing expungement of deferred judgments),
907.1(3) (defining expungement as segregation of criminal record “in a secure area
or database which is exempted from public access”); cf. In re Marriage of Hamoda,
No. 07-1690, 2008 WL 3363834, at *3 n.1 (Iowa Ct. App. Aug. 13, 2008) (“At trial,
Gada’s attorney asked the court to take judicial notice [of] the criminal court file
involving this [assault] incident. The court denied the request after Saadildin’s
attorney informed the court that following the entry of a deferred judgment, the
record had been expunged. Gada now claims on appeal the court erred in refusing
this request. However, even without the criminal file the record contains sufficient
                                           5


the requirements for obtaining a deferred judgment, her conduct precipitated the

imposition of an order prohibiting contact with Brian—an order that, according to

the district court, was used by both parties “as a sword and a shield.” Under these

circumstances, the district court appropriately denied Amanda’s request for sole

legal custody.

II.    Contempt Finding

       Iowa Code section 598.23 states, “If a person against whom a . . . final

decree has been entered willfully disobeys the order or decree, the person may be

cited and punished by the court for contempt. . . .” Willfulness is “conduct that is

intentional and deliberate with a bad or evil purpose, or wanton and in disregard of

the rights of others, or contrary to a known duty, or unauthorized, coupled with an

unconcern whether the contemner had the right or not.” Amro v. Iowa Dist. Ct.,

429 N.W.2d 135, 140 (Iowa 1988) (citation omitted). Our review of the district

court’s finding of willfulness is for substantial evidence. Id.

       Amanda asserts she did not willfully deny Brian visitation.           Her own

testimony belies the assertion.

       Brian was entitled to midweek visitation during the school year on Tuesday

evenings from 6:00 p.m. to 8:00 p.m.           Many of the children’s extracurricular

activities took place on Tuesday evenings. Amanda counted Brian’s attendance

at those activities as visitation time. When Brian asked to change the visitation



evidence regarding the facts of this incident as well as Saadildin’s admission of his
guilty plea. We therefore need not address whether the district court erred in
refusing to take judicial notice of the criminal file.”); In re Marriage of Karagi, No.
05-0342, 2006 WL 929228, at *1 (Iowa Ct. App. Apr. 12, 2006) (noting the absence
of evidence in the record as to whether a deferred judgment “was completed and
expunged”).
                                          6


time to Thursday evenings instead of Tuesday evenings, Amanda refused.

Indeed, she conceded that “every time” Brian gave her “a notice of a midweek

visitation other than a Tuesday,” she “denied it.” Although Amanda argues the

terms of the decree were indefinite, the district court found otherwise and found

her conduct was “intentional, purposeful, and in disregard of Brian’s rights.”

Substantial evidence supports the findings.

III.   Contempt Punishment

       The district court “decline[d] to impose punishment” for Amanda’s contempt

but elected to “modify visitation” as follows:

               a. Midweek visitation shall be modified to provide that Brian
       shall have the children every Thursday evening from after school
       until 8:00 p.m. Brian shall be responsible to pick the children up from
       school and drop them off at Amanda’s driveway at 8:00 p.m. If there
       is no school on Thursday, Brian shall pick the children up from
       Amanda’s driveway at 3:30 p.m. and drop them off at Amanda’s
       driveway at 8:00 p.m. accordingly.
               b. Brian’s alternate weekend visitation shall be modified in that
       said visitation shall begin after school on Fridays during the school
       year. Brian shall be responsible to pick the children up from school.
       Amanda shall pick the children up from Brian’s driveway on Reycliff
       at 6:00 p.m. on Sunday evenings.
               c. Summer visitation exchange, unless otherwise agreed,
       shall require Brian to pick the children up from Amanda’s driveway
       at the start of his parenting time and Amanda to pick the children up
       from Brian’s driveway on Reycliff drive at the start of her parenting
       time.
               d. The provision in the decree as amended and enlarged that
       provides that “the party who does not have the children shall be
       allowed reasonable phone contact with the children on a daily basis
       by phone, text, Skype or other electronic means” is suspended for so
       long as the no contact order remains in effect between the parties.

       On appeal, Brian contends the district court should have modified the

decree to a greater extent and should have awarded attorney fees and costs in

connection with the contempt action. Our review is for an abuse of discretion. See
                                          7

Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007) (“A contemner’s sentence

is reviewed for an abuse of discretion.”).

       We discern no abuse. Iowa Code section 598.23 provides alternatives to a

jail sentence upon a finding of contempt, including modification of visitation. See

Iowa Code § 598.23(2)(b). The court’s modification directly addressed Amanda’s

denial of midweek visitation. Additionally, the district court was not obligated to

award attorney fees in connection with the finding of contempt. See id. § 598.24

(stating “the costs of the proceeding, including reasonable attorney’s fees, may be

taxed against that party” (emphasis added)).        We affirm the district court’s

resolution of the contempt application.

IV.    Further Modification of Visitation

       Independently of the contempt application, Brian argues the visitation

schedule, as modified, remains “limited and restrictive.” He contends the district

court should have adopted the schedule proposed in his request for relief.

       In response to questioning by the court during oral arguments, Amanda’s

attorney conceded Brian’s proposed visitation schedule was agreeable to

Amanda. Based on that concession, we reverse the visitation portion of the

modification decree and remand for substitution of Brian’s proposed visitation

schedule set forth in his request for relief filed on October 9, 2018, which provides

the following:

       i. Summer break: Alternating weeks beginning the day school
       excuses for the summer at 9:00 a.m. and ending the day school
       resumes at 9:00 a.m. The parties will exchange the children Friday
       at 9:00 a.m.
                    a. The midweek visits during the summer are vacated.
              There shall be no midweek visits during the summer break
              from school.
                                          8


       ii. School Year:
                     a. Weekends: Alternating weekends beginning Friday
              at 9:00 a.m. and ending Monday at 9:00 a.m. If there is no
              school on Monday then visitation will continue until Tuesday
              at 9:00 a.m.
                     b. Midweek Visit: Every Thursday at 9:00 a.m. and
              ending Friday at 9:00 a.m.

We further remand for recalculation of child support in light of the substitution.

V.     Modification of Physical Care

       Brian argues the district court should have modified the physical care

provision of the dissolution decree to afford him physical care. The district court

concluded Brian failed to satisfy his “heavy burden” of establishing the necessity of

a change in physical care. The court stated, “Sadly, the same communication

problems and power struggles that were occurring during the demise of their

marriage and upon entry of the decree continue today.” On our de novo review, we

agree with the court’s assessment.       We conclude Brian failed to establish a

substantial and material change of circumstances not contemplated at the time of

the decree. See Harris, 877 N.W.2d at 440. We affirm the denial of the Brian’s

request for modification of the physical care portion of the decree.

VI.    Consideration of Post-Trial, Pre-Decree Evidence

       Brian contends the district court should have considered “evidence that

occurred after the dissolution trial but before the ruling and decree was entered.”

In fact, the district court admitted the proffered post-trial evidence subject to an

objection, as our appellate courts have instructed courts to do in equity cases. See

Wilker v. Wilker, 630 N.W.2d 590, 597 (Iowa 2001) (“As this was a trial in equity,

the court did not need to rule on objections, but could hear all evidence subject to

objections.”); In re Marriage of Anderson, 509 N.W.2d 138, 142 (Iowa Ct. App.
                                          9


1993) (stating trial court in dissolution action should receive objections to evidence

but not rule on the objections and allow the evidence in the record). The fact that

the court makes no mention of the evidence does not mean the court failed to

consider it. Cf. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999)

(“Nor, when the agency specifically refers to some of the evidence, should the

losing party be able, ipso facto, to urge successfully that the agency did not weigh

all the other evidence.”). We conclude the district court acted equitably in its

handling of the evidence.

VII.    Appellate Attorney Fees

        Brian and Amanda seek awards of appellate attorney fees. An award rests

within this court’s discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa

Ct. App. 2007). Both parties have the financial ability to pay her own attorney fees.

Accordingly, we decline their requests.

VIII.   Disposition

        We affirm on the issues raised in Amanda’s cross-appeal. On Brian’s

appeal, we affirm all aspects of the modification decree except the visitation portion

of the decree. We reverse and remand for substitution of Brian’s requested

visitation provision, as set forth in this opinion and his October 9, 2018 request for

relief, and for reconsideration of child support in light of the change. Costs of the

appeal are taxed to Amanda.

        AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ON

APPEAL; AFFIRMED ON CROSS-APPEAL.
