                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0777
                            Filed January 28, 2015


IN RE THE MARRIAGE OF DAWN R. HEALD
AND TODD R. HEALD

Upon the Petition of
DAWN R. HEALD,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
TODD R. HEALD,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Mary Chicchelly,

Judge.



      Dawn Heald appeals from the district court’s denial of her application to

modify the physical care provision of the parties’ dissolution decree and its

attendant orders. Todd Heald cross-appeals. AFFIRMED AS MODIFIED ON

APPEAL. AFFIRMED ON CROSS-APPEAL.



      Dawn D. Long of Howes Law Firm, P.C., Cedar Rapids, for appellant.

      Stephen B. Jackson Sr. of Lynch Dallas, P.C., Cedar Rapids, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                         2


POTTERFIELD, J.

       Dawn Heald appeals from the district court’s denial of her application to

modify the physical care provision of the parties’ dissolution decree and its orders

regarding child support and a post-secondary education subsidy for the children.

Todd Heald cross-appeals the expansion of Dawn’s visitation and the amount of

her child support obligation.

       I. Factual and Procedural Background

       A trial took place on the parties’ dissolution of marriage in 2009. The

uncertainty pending the lengthy delay in the district court’s ruling and decree was

difficult for the parties. They eventually agreed to stipulate to a number of issues

in order to expedite the issuance of a decree.       Dawn acquiesced to Todd’s

request that he retain physical care of their four children, though she has insisted

throughout the proceedings that both parties understood her concession of

physical care to be temporary while she finished pursuing a degree. 1           The

stipulation also provided that Dawn would forfeit all claim to Todd’s retirement

benefits in exchange for Todd’s waiver of child support.

       The court issued its decree of dissolution integrating the stipulation on

April 28, 2010. The stipulation provided in part, “Each of the parties agree[s] to

work together so that their basic parenting schedule will be flexible in order to

accommodate each other’s schedules and the schedules of the child as they

both will agree.”




1
  Dawn has since acquired her degree and has gained higher-paying employment as a
result.
                                             3


       Both before and since the decree, the parties’ relationship has been

strained. Dawn accuses Todd of using his award of physical care as a sword

against Dawn rather than a shield for the children by aggressively making

visitation an ordeal and constantly refusing requests to accommodate her

schedule.      She accuses him of needlessly abusive language in their

communications.2       Todd characterizes Dawn as a liar whose recount of any

incident is chronically over-exaggerated. He asserts Dawn’s complaints about

his management of her visitation rights are without merit.

       After a year of contentious visitation transfers, Dawn filed an application

for rule to show cause, alleging Todd was in contempt of court for intentionally

violating the visitation provisions of the decree. The application was eventually

voluntarily dismissed after Todd announced his intention that their children take

the witness stand. Dawn decided she would rather dismiss her claim than force

her children into the middle of the proceedings as primary witnesses.

       Though the application was dismissed, the court ordered a family team

meeting.    At that meeting, Dawn and Todd received a recommendation and

referral to co-parent counselling. Dawn inquired whether Todd was interested in

following up on that recommendation. He refused by responding, “The family



2
  On June 25, 2010, he wrote, “It is shocking how easy you were replaced as a wife and
mom. . . . Read the decree . . . I got your input. I make the final decision. I have
primary physical care. I don’t have to do what you say. I [only] have to get your opinion.
You really have nothing . . . .” He also wrote, “Hire [a psychologist] for yourself . . . You
have needed one for years.”
        In July 2012, Dawn had a scheduling conflict with her work that butted up against
her visitation period. She proposed that she pick up the children a few hours earlier than
usual. Todd belligerently refused, described the request as “unacceptable,” and feigned
benevolence by being “flexible” and allowing Dawn to either pick up the children later
than her normal time or not take them at all.
                                            4


team meeting was a complete waste of time and any recommendations coming

out of that meeting are a joke.”

       Since the decree, one of the four children has reached the age of majority.

Dawn petitioned the court to modify the decree and award her physical care of

the three minor children. Two of the three minor children joined Dawn’s request,

while the third asked that the parents share joint care. The oldest child testified

that she believes the minor children should remain in Todd’s care.                  Todd

requested the court leave physical care unchanged, arguing Dawn had failed to

prove a change in circumstances; he also requested the court award him child

support from Dawn, arguing his earlier waiver of support was not intended to be

permanent.

       The district court held a trial on the parties’ modification requests. After

the trial it determined that a modification of physical care was not warranted

because there had been no substantial change in circumstances to support such

a change. However, it held there was a sufficient change in circumstances to

modify both the visitation and child support provisions of the decree. Pursuant to

the parties’ post-trial motions, the court modified its order as to visitation and

child support.3

       Dawn now appeals, claiming the district court improperly denied Dawn’s

modification request regarding the physical care of the children.              She also

appeals the award of child support to Todd and the court’s order that she

contribute to a post-secondary education subsidy for the children. She lastly


3
  The court modified visitation and child support in a March 27, 2014 post-trial order. It
further modified child support in an April 9, 2014 post-trial order.
                                          5


appeals the district court’s refusal to award her attorney fees and requests

appellate attorney fees from this court.      Todd cross-appeals, challenging the

district court’s post-trial modifications of visitation and child support. He further

appeals the district court’s failure to award child support retroactively.

       II. Standard and Scope of Review

       We review modifications of a dissolution decree de novo, giving weight to

the district court’s findings of fact, though those findings are not binding on us. In

re Marriage of Mihm, 842 N.W.2d 378, 381 (Iowa 2014).

       We review the district court’s determination on the retroactivity of child

support for an abuse of discretion. See In re Marriage of Thede, 568 N.W.2d 59,

62–63 (Iowa Ct. App. 1997). We review the court’s disposition on the parties’

attorney fees for an abuse of discretion.       See In re Marriage of Maher, 596

N.W.2d 561, 568 (Iowa 1999).

       III. Discussion

       A. Physical Care

       Dawn first claims the district court incorrectly denied her request to modify

the physical care provision of the decree. In order to modify such a provision,

Dawn must establish that “conditions since the decree have so materially and

substantially changed that the children’s best interests make it expedient to make

the requested change.” In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa

2005) (citing In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). The

change in circumstances must be permanent, it must be related to the welfare of

the children, and it must not have been within the contemplation of the court

when the decree was entered.         Frederici, 338 N.W.2d at 158.           All of these
                                         6


conditions must be proved by a preponderance of the evidence, and this burden

on the applicant is a heavy one. Id.

       We agree with the district court that Dawn has not established that a

substantial change in circumstances has occurred since the entry of the decree

that would support a change of physical care.          The poor communications

between the parties pre-dates the decree. Todd’s rigid enforcement of the terms

of the original decree are not a change in circumstance—the court and Dawn

should reasonably have contemplated the continuation of this behavior at the

time of the decree given Todd’s similar behavior prior to the decree.

       Todd’s remarriage and the children’s relationship with their step-mother

are also not a substantial change in circumstances that would necessitate such a

modification. The well-being of the minor children does not appear to have been

adversely affected. They are, by all accounts, well-rounded and loving to both

parents. We also note that Dawn appears to be equally able but not more able to

minister to the children’s needs. See id.

       We affirm the district court’s finding that there has not been a substantial

change in circumstance to support modification of the physical care provision of

the decree. Our affirmance also obviates Dawn’s alternative request for joint

physical care.

       B. Child Support & Post-Secondary Education Subsidy

       Dawn next appeals the district court’s award of child support to Todd. The

dissolution decree via the parties’ stipulation provided, “[B]ased upon the parties’

current income and financial circumstances and, pursuant to the parties’

agreement, the parties agree that good cause exists to deviate from the Child
                                           7


Support Guidelines, so as to do justice between the parties. Accordingly, no

child support is due from Dawn to Todd.” The district court held it could not

“assume that this lack of support was meant to last indefinitely.” It awarded Todd

child support.

       For the district court to modify the child support provisions of the decree,

Todd must demonstrate that there has been a substantial change in

circumstances. See In re Marriage of Reitz, 585 N.W.2d 226, 229 (Iowa 1998).

Dawn argues there has been no such change. We disagree. The district court

relied on Iowa Code section 598.21C(2)(a) (2013), which provides there is—per

se—a substantial change in circumstances “when the court order for child

support varies by ten percent or more from the amount which would be due

pursuant to the most current child support guidelines.”4 The modification of child

support to match the guidelines was proper.

       However, Dawn asserts the district court’s modification deviated from the

guidelines without sufficient written findings to support them. See Iowa Ct. R.

9.11. First, she claims the court should reduce its calculation based on the fact

that there is a cheaper health benefits package Todd could enroll in. We find the

district court’s reliance on the actual cost of the family’s health care is proper and

not a deviation.




4
  This is a statutory alternative to a finding of a substantial change in circumstances
under section 598.21C(1). See Mihm, 842 N.W.2d at 386. Dawn’s supporting facts for
her argument that there is no substantial change in circumstances relate only to section
598.21C(1). Though we agree there has been no change that was not contemplated by
the parties or the court, section 598.21C(2)(a) establishes a substantial change upon
which modification is proper notwithstanding the plain language of the stipulated decree.
                                          8


       Second, she argues the district court’s order that she contribute fifty

percent of the costs of “extracurricular activities and extraordinary expenses”

during the summer months renders her doubly liable for those costs since they

should be paid out of her child support payments. We agree. Extracurricular

activity expenses and costs of recreational activities “fall squarely within the

realm of childrearing expenses contemplated by our guidelines.” In re Marriage

of McDermott, 827 N.W.2d 671, 686 (Iowa 2013). This portion of the district

court’s order is a deviation from the guidelines that was not necessary to avoid

injustice to the parties.   We modify the order to reflect that Dawn need not

contribute to the costs of “extracurricular activities and extraordinary expenses”

during the summer or the school year. Her child support payments provide for

those expenses.

       In all other respects, the district court’s child support order is supported by

a statutorily-established substantial change in circumstances and comports with

the guidelines to achieve the best interests of the children.          We affirm as

modified.

       Dawn briefly contests the district court’s order that she contribute to a

post-secondary education subsidy for her children. See Iowa Code § 598.21F

(“The court may order a postsecondary education subsidy if good cause is

shown.”). However, the district court’s order is consistent with the requirements

of section 598.21F. We affirm.

       C. Post-Trial Modifications

       Todd cross-appeals, claiming the district court’s rulings on two post-trial

motions were improper. He claims the district court relied upon facts not in
                                             9


evidence to extend additional summer visitation to Dawn.5 However, on our de

novo review, we consider only relevant facts in evidence and conclude that the

district court’s summer visitation schedule is proper and in the best interest of the

children. Todd’s assertion that “[b]oth parties admit that their relationship will not

support such a schedule” intentionally misstates Dawn’s position and is not

persuasive. We decline to disturb the trial court’s post-trial rulings on visitation.

       Todd also challenges the district court’s post-trial modifications of child

support calculations. As discussed above, we find the calculations relied upon to

be proper, and we will not disturb them. We affirm the trial court’s post-trial

modifications to visitation and child support.

       D. Retroactive Child Support

       Todd further claims on cross-appeal that the district court abused its

discretion in failing to award him maximum retroactive child support. See Iowa

Code § 598.21C(5) (“[C]hild support awards . . . which are subject to a

modification proceeding may be retroactively modified.”). Awarding child support

retroactively is permissive, not mandatory, and a district court has great

discretion is determining whether it should issue such an order. See Iowa Dep’t

of Soc. Servs. ex rel. Welter v. Kitner, 512 N.W.2d 309, 313 (Iowa Ct. App.

1993). There are no circumstances in this case that persuade us such an award

was necessary. The district court did not abuse its discretion.




5
  More precisely, he claims the district court failed to provide any factual or legal basis
for its modification of visitation and therefore we should presume it relied on facts not in
evidence.
                                       10


      E. Attorney Fees

      Dawn lastly asks for trial and appellate attorney fees. The district court

ordered both parties to bear their own legal costs.         It holds considerable

discretion to do so. See In re Marriage of Schenkelberg, 824 N.W.2d 481, 488

(Iowa 2012). Nothing in the record indicates the court’s order was an abuse of

that discretion. We affirm. We exercise our own discretion to order each party to

bear its own appellate attorney fees and costs on appeal.

      IV. Conclusion

      The district court’s orders regarding physical care, the post-secondary

education subsidy, attorney fees, and retroactive child care are proper, and we

affirm them. Its orders regarding the modification of child support payments was

proper except insofar as it requires Dawn to make additional contributions to

expenses that the guidelines already sufficiently contemplate. We modify the

order to ensure Dawn is not doubly responsible for these expenses. In all other

respects, we affirm.

      AFFIRMED AS MODIFIED ON APPEAL.                 AFFIRMED ON CROSS-

APPEAL.
