                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0358
                              Filed August 16, 2017


IN RE THE MARRIAGE OF CHRISTIAN A. MARSH
AND SALLY J. MARSH

Upon the Petition of
CHRISTIAN A. MARSH,
      Petitioner-Appellant,

And Concerning
SALLY J. MARSH,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Henry W.

Latham II, Judge.



      Christian Marsh appeals a district court order denying his request to

modify the physical-care provision of the decree dissolving his marriage to Sally

Marsh. AFFIRMED.



      J. Drew Chambers of Holleran, Shaw, Murphy & Stoutner, Clinton, for

appellant.

      James D. Bruhn of Farwell & Bruhn Law Firm, Clinton, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
                                             2


TABOR, Judge.

       He went from being unemployed and living with his parents to holding a

professional job, buying a house, and starting a family with his new wife.

Christian Marsh contends his increased stability constitutes a material and

substantial change in circumstances not contemplated seven years ago when he

and Sally Marsh divorced just four months after the birth of their son, N.J.M.

Christian appeals the district court’s denial of his request to modify the physical-

care provision of the divorce decree. Although Christian’s steady employment,

housing, and family commitment may qualify as a substantial change in

circumstances, we do not find N.J.M.’s best interests would be served by

switching from placement in Sally’s physical care to shared physical care.

Accordingly, we affirm the district court’s order.

       I.      Facts and Prior Proceedings

       Christian and Sally Marsh divorced in 2010.                They have one child

together, N.J.M., who is now seven years old.               At the time of the decree,

Christian did not have a job and stayed with his parents. Sally worked for the

local school district, teaching students with behavior disorders.

       The decretal court awarded the parties joint legal custody of N.J.M. and

Sally physical care.1       The court granted Christian visitation on alternating

weekends, as well as one to two evening visits each week. Over the summers,

Christian was to have one full week of visitation, increasing to two



1
  Christian did not seek either physical care or shared physical care at the time of the
dissolution trial. He testified his attorney told him “it was highly unlikely that that would
happen.”
                                          3


nonconsecutive weeks once N.J.M. turned three. The court ordered Christian to

pay $300 a month in child support.

          In the ensuing years, Christian furthered his education and gained

employment as a registered nurse. Sally continued to work as a teacher. A few

months after the entry of the decree, Sally agreed to allow Christian to exercise

additional visitation, as his schedule allowed, and from that point on, he generally

had N.J.M. for several overnight visits each month. Christian attended N.J.M.’s

school conferences and, when his schedule allowed it, N.J.M.’s medical

appointments and extracurricular activities. Christian never exercised his allotted

two weeks of summer visitation but, on at least two occasions, took N.J.M. on

multiple-day out-of-town trips.

          On May 27, 2016, Christian filed an application for modification of the

decree, alleging “material and substantial changes in circumstances entitling

[Christian] to be named as the person having principle physical care of [N.J.M.]

as well as requiring [Sally] to pay child support for and on behalf of the minor

child.”     Sally filed a counterclaim requesting additional child support from

Christian due to the increase in his income.

          Christian remarried in September 2016, and by the time of the

modification hearing in February 2017, Christian and his new wife were expecting

a baby and in the process of purchasing a home.

          At the modification hearing, Christian revised his request to shared care

rather than physical care, reasoning his visitation with N.J.M. had been

“approaching” 50% of the time. The parties agreed Christian had between eight

and twelve overnight visits with N.J.M. each month leading up to the modification
                                        4


hearing, but the parties disagreed about the amount of visitation taking place

before Christian petitioned the court to modify the decree. Christian contended

Sally had allowed slightly more visitation in the past, while Sally maintained the

amount of visitation had remained steady. Christian did not have documentation

to support his claim.

       Both Christian and Sally testified they believed the other was a good

parent and agreed they were able to communicate well about N.J.M. The parties

lived just a few miles apart, and both had extended family in the area. These

circumstances allowed Christian to exercise a relatively flexible visitation

schedule over the years.

       But Sally did not believe shared care would be in N.J.M.’s best interests.

She explained: “It throws our schedules off. It throws [N.J.M.’s] schedules off.

And it’s just better for him not to be gone for big chunks of time.” Sally also

questioned Christian’s motive for requesting the modification.      She testified

Christian said he desired the change because his child-support-payment

requirement “reflects badly when he looks for a house loan.”

       Following the hearing, the district court denied Christian’s modification

application and increased his monthly child-support obligation to $640.51 per

month. The court reasoned:

              Christian has failed to establish a material and substantial
       change in circumstances since the entry of the decree but for his
       change in income. It was reasonable for the [c]ourt to expect he
       would not be living with his parents for an extended period of time
       and that he would obtain gainful employment. The only material
       issue that could not have been anticipated by the [c]ourt would be
       the level of income which Christian would achieve.
                                          5


The court found “no material and substantial change in circumstances as to the

care arrangement for N.J.M.,” noting “[t]he evidence fails to show there is a

shared care arrangement that has been established in the past or currently” and

“[t]he [c]ourt does not find any credible evidence to substantiate Sally has

withheld visitation as a result of the filing of the pending action.”        The court

commended the parents for their ability to communicate effectively for N.J.M.’s

benefit, opining: “If this communication results in Christian having more time to

spend with his son, that is beneficial for everyone involved.”         But the court

declined to award Christian extraordinary visitation because he did not request it.

The court added: “If the parties are able to communicate effectively in the future,

it may be in everyone’s best interest to potentially reach an agreement as to

extraordinary visitation.”

       Christian now appeals the district court’s denial of his custody-modification

request.

       II.    Scope and Standard of Review

       Because proceedings to modify custody are equitable in nature, our

review is de novo. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa

2015). We are not bound by the district court’s fact findings, but we give them

weight, particularly when considering witness credibility. See id. The child’s best

interests are our “controlling consideration.” See id. (citation omitted).

       III.   Analysis

       Custody should only be modified if it will result in the child receiving

superior care. See In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.

App. 1998). Our cases place a heavy burden on the parent seeking modification
                                             6


based on the tenet that “once custody has been fixed it should be disturbed for

only the most cogent reasons.” In re Marriage of Brown, 778 N.W.2d 47, 52

(Iowa Ct. App. 2009). The question on appeal is whether Christian carried the

burden of proving, by a preponderance of the evidence, circumstances since the

entry of the decree had so materially and substantially changed that N.J.M.’s

best interests would now be best served by modifying custody.                    See In re

Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). Christian may only rely

on circumstances that (1) were not contemplated by the court when the decree

was entered, (2) are more or less permanent, and (3) relate to the child’s welfare.

See id.

       Christian argues he met his burden of proving a material and substantial

change in circumstances because “he is now employed, has remarried, has a

child on the way, and has purchased a home.” In addition, Christian asserts

N.J.M. “has been visiting essentially half the time for the last several years.”

Sally contends the milestones Christian identifies “are all reasonable and

ordinary changes which any trial court would contemplate” and, further, do not

warrant modification of custody because Christian has not established a superior

ability to care for N.J.M.2

       The district court decided Christian failed to establish a material and

substantial change in circumstances since entry of the decree “but for his change



2
  Sally also contends Christian failed to preserve his argument for shared physical care
and urges us to consider only Christian’s request for physical care in his application for
modification. Although Christian did not ask for shared care in his initial filing, he raised
the issue to the district court, and the district court decided the issue. We find the issue
properly preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002).
                                             7


in income.” In rejecting his modification request, the district court found it was

reasonable for the decretal court to expect Christian would not be living with his

parents for any extended period of time and that he would find gainful

employment. We disagree the identified changes were all contemplated by the

decretal court.3 Our court has previously found that a parent’s achievement of

greater stability in employment and housing can constitute a material and

substantial change not within the contemplation of the court at the time of the

entry of the divorce decree. See, e.g., In re Marriage of Custer, No. 08-0553,

2009 WL 138454, at *7 (Iowa Ct. App. Jan 22, 2009).

       But we agree with Sally’s further point—Christian’s greater stability does

not compel a switch to shared physical care.              Although Christian achieved

positive changes in his life in the seven years between the entry of the

dissolution decree and the modification proceedings, he has not met his burden

of proving, because of those changes, modification would result in superior care

for N.J.M.    Christian acknowledges Sally is a good mother.              She has been

flexible and generous with Christian concerning visitation, and that outlook has

helped foster a healthy relationship between Christian and N.J.M.               See Iowa

Code § 598.41(1)(a) (2017) (providing the goal of visitation is to “assure the child

the opportunity for the maximum continuing physical and emotional contact with

both parents”). By all accounts, N.J.M. is thriving.

       Moreover, we have reservations about Christian’s motives for seeking the

custody modification. See In re Marriage of Capper, No. 08-0128, 2008 WL

3
  Deferring to the district court’s credibility determinations, we agree Christian failed to
establish a de facto shared care arrangement with Sally or to demonstrate that Sally
restricted his visitation with N.J.M.
                                            8


3917781, at *3 (Iowa Ct. App. Aug. 27, 2008) (finding children’s best interests

would not be served by granting father shared physical care when his motives for

modification were “ambiguous, and at worst punitive”).                We credit Sally’s

testimony that Christian expressed personal financial reasons for seeking to

change N.J.M’s physical-care arrangement and Christian’s child-support

obligation. Overall, we find no reason to disturb the current arrangement.4

       Lastly, Sally requests appellate attorney fees. Such an award lies in our

discretion and is based upon the merits of the appeal, Sally’s needs, and

Christian’s ability to pay. See in re Marriage of Sullins, 715 N.W.2d 242, 255

(Iowa 2006). Having considered these factors, we order Christian to pay $2000

toward Sally’s attorney fees, as well as the costs of this action.

       AFFIRMED.




4
   Because Christian has not raised the issue, we do not consider whether these
circumstances warrant modification of the visitation provision of the dissolution decree.
Nor do we consider whether Christian is entitled to “extraordinary visitation” credit under
the child support guidelines. See Iowa Ct. R. 9.9 (defining “extraordinary visitation” as
court-ordered visitation for a noncustodial parent exceeding 127 days per year).
