                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0350
                            Filed February 24, 2016


IAN GREGORY CHRISTY,
     Petitioner-Appellee,

vs.

ABBEY SUE LENZ, n/k/a
ABBEY SUE BRO,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Jasper County, Richard B. Clogg,

Judge.



      A mother appeals the district court’s modification of the visitation, legal

custody, and child support provisions of a paternity decree. AFFIRMED.




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

      Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellee.




      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
                                        2



MULLINS, Judge.

        Abbey Sue Lenz, now known as Abbey Sue Bro, appeals the district

court’s modification decision that altered the visitation, legal custody, and child

support provisions of the paternity decree. Abbey asserts (1) the district court

erred in finding a change of circumstances exists to justify the modification of

visitation and legal custody; (2) the father, Ian Christy’s, proposed visitation

schedule and proposed language for the legal custody provision are not in the

child’s best interest; (3) the court should not have changed the parent

responsible for carrying health insurance for the child to Ian; and (4) the child

support ordered by the district court does not follow the guidelines. Abbey also

asserts the court abused its discretion in denying her request for trial attorney

fees, and she requests an award of appellate attorney fees. Ian defends the

actions taken by the district court and also requests an award of appellate

attorney fees. Having considered the claims made on appeal, we affirm the

district court’s modification decision and award Ian $2000 in appellate attorney

fees.

I. Background Facts and Proceedings.

        Ian and Abbey are the parents of a six-year-old child. In 2009, the court

entered an original paternity decree, placing the child in Abbey’s care subject to

Ian’s visitation, granting the parties joint legal custody, ordering child support,

and directing Abbey to provide health insurance for the child with an additional

monthly payment from Ian for cash medical support. At that time both Abbey and

Ian were attending school and were minimally employed. Since the decree was
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entered, Abbey has married, changed jobs, moved residences, and given birth to

another child. Ian has graduated college, moved residences, gotten engaged,

and become employed full time with a job that provides health benefits.

       Ian filed a petition to modify the prior decree’s child support amount, the

visitation schedule, the language of the legal custody provision, and the health

insurance requirement. While Abbey agreed some minor changes should be

made, she otherwise objected to the modification action. After hearing from both

parties, the court granted Ian’s modification petition, expanding Ian’s time with

the child during weekly visitation, modifying the holiday visitation schedule,

granting an additional week of summer visitation, ordering Ian to provide health

insurance for the child, increasing the child support amount, and denying both

parties’ request for trial attorney fees. From this order, Abbey appeals.

II. Scope and Standard of Review.

       Our review of a modification proceeding is de novo in light of the fact the

case was heard in equity. In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct.

App. 2009). “We therefore give weight to the fact findings of the trial court,

especially when considering the credibility of witnesses, but are not bound by

them.” Id. We give deference “because the trial court has a firsthand opportunity

to hear the evidence and view the witnesses.” Id.

III. Change in Circumstances.

       Abbey first asserts there was not a change in circumstances sufficient to

justify the change in the visitation schedule or in the language of the legal

custody provision of the original decree.           She maintains the current
                                          4



circumstances were anticipated and planned for in the original decree, and

therefore, Ian failed to satisfy his burden of proof in the modification action.

       As Ian sought the modification of the visitation schedule, he “must

establish by a preponderance of evidence 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 Salmon, 519 N.W.2d 94,

95–96 (Iowa Ct. App. 1994). “[A] much less extensive change in circumstances

is generally required in visitation cases” than the change necessary to modify

child custody. Id. at 96. “The rationale for this lower standard is found in the

prevailing principle that the best interests of children are ordinarily fostered by a

continuing association with the noncustodial parent.” Id.

       The visitation provision of the paternity decree provided for expanded

visitation as the child entered school. However, what was not anticipated when

the original decree was entered was Abbey’s refusal to accommodate Ian’s

reasonable requests for minor departures from the terms of the decree along with

her inability to communicate important information regarding the child to Ian.

Abbey refused to accommodate Ian’s request to switch weekends in May 2014

so that the child could attend Ian’s college graduation and Ian’s brother’s

wedding, despite the fact Ian asked for the accommodation months in advance.

When asked about the reason she refused to accommodate the request for Ian’s

graduation, Abbey testified she originally agreed Ian could have the child for a

few hours that Saturday, but she refused to permit the visit at all when Ian would

not switch with her the day that she wanted. As to Ian’s brother’s wedding,
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Abbey testified it was over Memorial Day weekend and she had “plans,” although

she could not remember what those plans were at the time of the trial. The child

originally was to participate in the wedding but was denied that opportunity. It is

unclear why the parties could not have switched the weekend visitations in May

of that year.

       In addition, when visitations were cut short due to weather, Abbey refused

to cooperate to permit Ian to make up the missing time with the child. Abbey

denied any requests for extra time.     Finally, the evidence established Abbey

manipulated the summer visitation schedule to maximize the time the child was

away from Ian.

       While Abbey claims there has not been a material change in

circumstances to justify the visitation modification, she admitted “some

adjustments” in the schedule would be beneficial to the child. Her proposed

“adjustment” would be to eliminate the midweek visit, which would result in Ian

not seeing the child for nearly two weeks. Abbey conceded she would not like to

have this schedule imposed on her and agreed the child would not like her

proposed schedule either.

       We agree with the district court’s decision to modify the visitation schedule

in light of the change in circumstances brought about by Abbey’s refusal to be

flexible in accommodating Ian’s reasonable requests for minor alterations to the

schedule. The change made by the district court increases Ian’s time with the

child and furthers our “prevailing principle that the best interests of children are

ordinarily fostered by a continuing association with the noncustodial parent.” See
                                         6



id.   Notwithstanding the new visitation schedule—with all its detail—we

encourage the parties to consider the best interests of the child and be flexible in

adjusting visitation times to accommodate special events.

      Abbey likewise maintains there was not a substantial change in

circumstances sufficient to justify modifying the language in the joint custody

provision of the original decree. See Brown, 778 N.W.2d at 51 (“The custodial

terms of a dissolution decree may be modified only when there has been a

substantial change in circumstances . . . .”). While Abbey asserts the higher

burden of proof is applicable to Ian’s request to modify the language in the joint

custody provision, Ian did not seek to change who would be the child’s custodial

parent. Instead, he merely sought for the court to further clarify and define what

the court meant in the original decree when it awarded the parties joint legal

custody. A party need not demonstrate a change in circumstances when the

party seeks only to clarify the terms of the dissolution decree. See In re Marriage

of Russell, 559 N.W.2d 636, 637 (Iowa Ct. App. 1996) (“A decree for dissolution

of marriage is susceptible to interpretation in the same manner as other

instruments.”); see also Orvedal v. Orvedal, 669 N.W.2d 89, 91–92 (N.D. 2003)

(“When a divorce decree fails to specify some particulars, and uncertainties in

the decree arise from subsequent events, clarification of the decree is often

appropriate.”); Lassiter v. Lassiter, Nos. C-020494, C-020370, C-020128, 2003

WL 21034193, at *2 (Ohio Ct. App. May 9, 2003) (noting the parent was not

seeking a modification but rather a clarification of the decree and so the parent

did not have the burden to show a change in circumstances); Rivard v. Rivard,
                                         7



451 P.2d 677, 679 (Wash. 1969) (noting a modification occurs when visitation

rights are extended or reduced but a clarification of the decree “is merely a

definition of the rights which have already been given and those rights may be

completely spelled out if necessary” and a party need not show a change in

circumstances to obtain a “clarification” of the decree). We thus conclude Ian

need not show a change in circumstances, material or substantial, in order for

the district court to clarify the terms of the joint legal custody provision of the

paternity decree.

       The original decree provided:

              CUSTODY: The parties will share joint legal custody of [the
       child]. Joint legal custody means an award of the rights of legal
       custody of a minor child to a parent under which a parent has legal
       custodial rights and responsibilities toward the child. The rights
       and responsibilities of legal custody include, but are not limited to,
       decision making effecting the child’s legal status, medical care,
       education, extra-curricular activities, and religious instruction.

       Ian testified Abbey does not provide him with the needed information

regarding the child, has given him untimely information, and has given him

misinformation as well. Ian was not informed the child had started preschool for

several months and did not know which preschool the child was attending until

he called various preschools in town to locate the correct one. When he did

make contact with the correct preschool, the school had no record of Ian as the

child’s father. Ian was not promptly provided notice of events and activities that

were taking place at the preschool. It was not until a week before the child

started kindergarten that Abbey informed Ian of the school the child would be

attending, and she did not provide Ian with the child’s teacher’s information.
                                          8



       Ian was not made aware that Abbey was moving the child to live in

another town until the day of the move when she directed him to drop off the

child at the new address following his visitation.       Ian testified he has been

informed of only one doctor’s appointment for the child since the child was

born—the child’s six-month check-up—and Abbey gave him the wrong time to

meet at the doctor’s office.

       Abbey disputes this testimony, claiming she has informed Ian of all of the

child’s medical appointments and medications by leaving messages on his voice

mail or sending him text messages. She admitted to providing Ian no information

regarding the school activities for the child because she claimed Ian told her he

would be obtaining that information directly from the school.

       Ian testified that laying out the obligations of a joint legal custodian in more

detail would help the parties understand what it means and would provide the

parties direction as to what information must be provided. The new joint legal

custody provision provides:

              Joint Legal custody means the following:
              a. Both parties shall have legal access to information
       concerning the children including, but not limited to, medical,
       educational, and law enforcement records.
              b. Both parties shall participate equally in the rights and
       responsibilities of legal custodians including, but not limited to,
       decisions affecting the children’s legal status, medical care,
       education, extracurricular activities, and religious training.
              Specific discussion and agreement involving medical matters
       include, but are not limited to, both parents providing notice and an
       opportunity for discussion to be involved in all medical treatment of
       the minor children. Both parties will be notified of all pre-planned
       appointments as soon thereafter as the appointment is made. Both
       parties will be notified of any emergency medical needs as soon as
       possible.
                                            9



              Involvement in educational matters will include notice and an
       opportunity to consult and discuss all matters of educational
       interest. Both parties will be notified by the other of school
       conferences, programs, open houses, and other school sponsored
       events and programs. The primary care parent will provide the
       non-physical care parent with a calendar of events and copies of all
       notices, report cards, and other progress reports from the school.
              Involving extracurricular activities, the parties will notice each
       other and provide an opportunity for discussion and consulting in
       enrollment and participation of all extracurricular activities.
              c. As a general rule, both parties will be named on all legal
       notices, including school, medical, and extracurricular activities
       wherein it is required to note a parent or other individual as a
       person to notice in the event of an emergency. Such notice will
       include their name, address, and telephone number.

In light of Abbey’s admitted failure to provide Ian with information concerning the

child’s medical and educational well-being, we agree the district court was

justified in providing a more detailed definition of the parties’ obligations as joint

legal custodians.

IV. Best Interests of the Child.

       Next, Abbey claims the changes made to the visitation schedule are not in

the child’s best interests.     She contends the new schedule is complicated,

contradictory, and results in constant modifications, which will result in the child

feeling confused and unstable.1 Upon our review of the new visitation schedule,

we do not see its complexity or contradictory nature. Abbey claims the new

holiday schedule complicates the entire visitation routine and creates a conflict


1
  She also faults the district court for adopting Ian’s proposed visitation schedule “word
for word.” We note the modification decision is not a “whole sale” adoption of a party’s
proposed decision but contains only selected portions of Ian’s modification request
pertaining to the visitation schedule and joint legal custody language. See In re
Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct. App. 1996). Even if the district court
copied from Ian’s modification request, “[w]e do not apply a separate standard of review
on appeal from a decree prepared by counsel. Moreover, in equity actions such as this
we review the evidence anew, disconnected, ultimately, from the trial court findings.” Id.
                                        10



for every weekend. We disagree. A simple application of the schedule to a

calendar will provide the parties and the child the prediction they need for

planning purposes. Abbey’s proposed elimination of the midweek visitation is

inequitable to Ian and not in the child’s best interests as this would result in the

child not seeing Ian for up to two weeks at a time—a schedule Abbey conceded

at trial she would not like to have imposed on her and a schedule the child would

not like either.

       Abbey likewise asserts the change to the joint custody language is not in

the best interests of the child. She maintains Ian should just be happy with the

information she has provided him over the years, and she claims it is his

expectations and attitude that are the problem with the parties’ lack of

communication. She claims there was not a problem with complying with the

spirit and intent of the original language regarding joint legal custody.       We

disagree. Based on the evidence presented, it is clear Abbey does not think Ian

needs or deserves information regarding the child’s education, medical

appointments, or living arrangements.        We agree with the district court’s

conclusion that Abbey needed a further explanation of her obligations to provide

information on a timely basis as the physical care parent.

V. Health Insurance.

       Abbey next asserts the court should not have modified the provision

requiring her to provide health insurance for the child. She notes the child’s

health insurance is currently provided through her new husband’s employer.

This coverage encompasses her entire family of four, and the amount they pay
                                        11



for the coverage will not change whether the child at issue is covered by the plan.

Thus, she claims the most economical way to provide coverage for the child is for

the child to remain on her family plan and for Ian to pay her cash medical support

in the amount permissible under the child support guidelines. At trial, Abbey

testified the only reason she wanted to cover the child on the insurance provided

by her new husband’s employer—coverage that is more expensive than what is

available to Ian—is so that she will continue to receive the explanation of benefits

documents that come from the insurance company after the services are

rendered.

       Iowa Code section 252E.1A(2) (2013) requires the court to order a parent

to cover the child with a health benefit plan if the plan is accessible and the cost

of the plan is reasonable. The prior decree provided that Ian to pay Abbey

$11.00 per month for cash medical support because neither party had health

insurance available through their respective employers.         Thus, Abbey was

required to provide the health insurance. That situation has changed, and now

both parties have access to health insurance for the child. However, the cost of

Abbey’s plan is unreasonable in light of Ian’s gross income.2 The cost of Ian’s

plan is reasonable as provided by section 252E.1A(2)(a)(1)—the premium cost

for the child does not exceed five percent of the parent’s gross income. There

was no evidence regarding the adequacy of the specific benefits provided for the

child under either plan. In light of availability of health coverage for the child

through Ian’s employer’s plan at a reasonable cost, we determine the district

2
  Abbey conceded her husband’s plan’s cost remains the same whether there are two or
an unlimited number of people covered. We conclude the guidelines do not require Ian
to subsidize Abbey’s family coverage for herself and her other child.
                                              12



court correctly applied the child support guideline provisions, and we affirm the

district court’s modification.3

VI. Child Support.

       Abbey also claims the court was wrong to impute to her income in the

amount of $17,320.68 in the child support calculations because she claims

evidence shows she actually earns $14,560, annually. Abbey testified she works

between twenty and twenty-four hours per week at her step-father’s business

earning $14.00 per hour. At twenty hours per week, Abbey would earn an annual

income of $14,560. However, at twenty-four hours per week, Abbey would earn

an annual income of $17,472. Six months before trial, Abbey filed a child support

worksheet indicating she earned $17,320.68 while working part time (twenty to

twenty-four hours per week) for the State of Iowa. Abbey quit working for the

State of Iowa and started working for her step-father at a slightly decreased

hourly wage shortly before trial.       She testified she made the career move

because of greater flexibility in hours and the ability to bring her youngest child to

the office, saving daycare costs.

       In calculating child support, the district court used an annual income equal

to her prior earnings with the State—$17,320.68—which is in line with what she

claimed her earnings will be at her new employment. We discern no error in the

district court’s child support calculation.

       Abbey also requests we make the child support modification retroactive.

See Iowa Code § 598.21C(5) (noting a court may make an increase in support


3
 Neither party raised at the district court or briefed on appeal a possible proration of
health insurance premium as allowed under Iowa Court Rule 9.14(5).
                                        13



retroactive “only from three months after the date of the notice of the pending

petition for modification is served on the opposing party”). The trial court made

the support modification effective beginning in February 2015, when the

modification decree was filed.      Abbey notes Ian initiated the modification

proceeding in March 2014. She filed her answer in April 2014. Therefore, she

claims the child support should be retroactive to August 2014.

       Ian did not start his new job until September 2014. It was the change in

Ian’s income that justified the change in the child support. In addition, at trial

Abbey did not request the support be retroactive to August or September 2014;

instead, in her pretrial filing she requested the obligation be changed beginning in

January 2015.      Making a support award retroactive is permissible, not

mandatory, and the district court has discretion in determining whether such

retroactive application is warranted. In re Marriage of Ober, 538 N.W.2d 310,

313 (Iowa Ct. App. 1995).      We conclude the district court did not abuse its

discretion when ordering the increase in child support to be effective as of

February 2015.

VII. Attorney Fees.

       A. Trial Attorney Fees. Finally, Abbey claims the court should have

awarded her trial attorney fees. We review the district court’s decision to award

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

respective abilities of the parties to pay.” In re Marriage of Sullins, 715 N.W.2d
                                         14



242, 255 (Iowa 2006). We find no abuse of discretion in the district court’s

decision not to award Abbey trial attorney fees.

       B. Appellate Attorney Fees. Both parties request an award of appellate

attorney fees. “Appellate attorney fees are not a matter of right, but rather rest in

this court’s discretion. In determining whether to award appellate attorney fees,

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.” In re Marriage of McDermott,

827 N.W.2d 671, 687 (Iowa 2013).         We also consider whether a party was

obligated to defend the district court’s decision. In re Marriage of Berning, 745

N.W.2d 90, 94 (Iowa Ct. App. 2007). Upon our consideration of these factors, we

award Ian $2000 in appellate attorney fees.

VIII. Conclusion.

       Upon our de novo review, we conclude the district court’s modification of

the visitation schedule and clarification of the parties’ obligations as joint legal

custodians was in the best interests of the child at issue. Because Ian has health

coverage available through his employer at a reasonable cost, we determine the

district court correctly modified who would be responsible for providing health

insurance for the child. Finally, we discern no error in the district court’s child

support calculation. Abbey is responsible for $2000 of Ian’s appellate attorney

fees and for the costs of this appeal.

       AFFIRMED.
