                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1889
                               Filed July 16, 2014


IN RE THE MARRIAGE OF DAREN LEE LAURITSEN
AND DANA MARIE LAURITSEN

Upon the Petition of
DAREN LEE LAURITSEN,
      Petitioner-Appellee,

And Concerning
DANA MARIE LAURITSEN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Shelby County, Timothy O'Grady,

Judge.



      Dana Lauritsen appeals the district court’s modification of the parties’

dissolution decree. AFFIRMED AS MODIFIED.



      Gina C. Badding of Neu, Minnich, Comito & Neu, P.C., Carroll, for

appellant.

      J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck, Swain

& Argotsinger, P.C., Harlan, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.

       Dana Lauritsen appeals from the district court’s denial of her petition to

modify the custodial provisions of the parties’ dissolution decree to grant her sole

legal custody of the parties’ two daughters.       She also challenges the district

court’s grant of Daren’s request for modification of the right-of-first-refusal

provision found in the decree. Finally, she appeals the district court’s order that

she pay $5000 towards Daren’s attorney fees. We affirm as modified, finding the

district court’s findings of fact and the reasoning that justifies its orders are

supported by the evidence.

       I. Scope and Standard of Review

       As to the matters of legal custody and the right of first refusal, both arise in

a proceeding to modify the terms of a stipulated dissolution decree. These are

equitable proceedings, and we review them de novo. In re Marriage of Johnson,

781 N.W.2d 553, 554 (Iowa 2010). We give weight to but are not bound by the

district court’s factual findings. Iowa R. App. P. 6.904(3)(g).

       As to the matter of the attorney fees, the imposition of these fees “rests in

the sound discretion of the trial court and will not be disturbed on appeal in the

absence of an abuse of discretion.” In re Marriage of Romanelli, 570 N.W.2d

761, 765 (1997).

       II. Factual and Procedural Background

       After a thorough review of the record, we find that the district court’s

statement of facts in its October 25, 2013 order is a balanced, temperate, and

thorough representation of the relevant circumstances of this case. We adopt it

by reference and summarize it here.
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       Dana and Daren were married in 2001, had twin daughters in 2006, and

dissolved their marriage in 2012. The daughters are in the joint legal custody of

both parents. One daughter has profound disabilities and is institutionalized.

Both parents may visit her at any time. The second daughter, E.L., is in the

physical care of Dana, while Daren maintains visitation rights. The dissolution

decree provided both parents with a right of first refusal to assume care of E.L. if

the other will be unavailable to do so for forty-eight hours or more.

       Daren is currently co-habiting with Samantha.         Dana objected to the

children’s association with Samantha, and the parents agreed when they

divorced that Samantha would not be present when Daren exercised his

visitation until Samantha had completed a mental health evaluation and had

been found “fit for contact with the parties’ minor children.” Dana claimed that

Samantha may have exposed the daughters to unsafe situations but cited no

current or recent behaviors or incidents that would justify such a concern.

       Tensions mounted between Dana and Daren about E.L.’s care, Daren’s

visitations, and Samantha’s presence during those visitations.          The record is

replete with stories of Dana and Daren’s tense interactions and their disputes

over when, how, or if E.L. should go with Daren during the prescribed visitation

periods.   Daren and Samantha have undertaken or attempted to undertake

several burdensome measures to appease Dana’s protective sensibilities,

including individual therapy, joint therapy, substance abuse evaluations, and

Parent Child Interaction Therapy (PCIT) classes. Notably, the therapists working

with Daren and Samantha have submitted positive reports about the two of them.
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       Ultimately, Dana filed a petition with the district court on April 3, 2013, to

modify the terms of the dissolution decree.         She requested sole legal and

physical custody of the children and additional limitations on Daren’s visitation

rights. In response, Daren countered by requesting expanded visitation and a

modification of the right-of-first-refusal provision. The district court denied Dana’s

requests and granted Daren’s, providing Daren with expanded visitation and

decreasing the time when the right of first refusal of care became effective. The

district court also ordered Dana to contribute $5000 to Daren’s attorney fees.

Dana appeals (1) the denial of her request for sole legal custody; (2) the

modification of the right-of-first-refusal provision; and (3) the imposition of

Daren’s attorney fees.

       III. Analysis

       The first two issues on appeal involve modifications of the dissolution

decree. “Dissolution decrees may be modified upon a substantial change in

circumstances.”    In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).

Substantial changes in circumstances must be established by a preponderance

of the evidence. In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992). The

changes shown must satisfy three requirements to rise to a level permitting

modification. In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996). They

must be (1) “material and substantial, not trivial”; (2) “more or less permanent or

continuous, not temporary”; and (3) “such as were not within the knowledge or

contemplation of the court when the decree was entered.” Id.
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             A. Legal Custody

       The district court ruled Dana had not carried her burden to prove a change

in circumstances sufficient to modify custody. We agree Dana failed to prove a

material change since her complaints against Daren stem from her own behavior,

not his.

       In addition to the three requirements discussed above, Dana has an

additional burden when requesting sole custody.       “A parent seeking to take

custody from the other must prove an ability to minister more effectively to the

children’s well being.” In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa

1983). This is a heavy burden on the requesting party. Id. “The legislature and

judiciary of this State have adopted a strong policy in favor of joint custody from

which courts should deviate only under the most compelling circumstances.” In

re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992); see In re

Marriage of Bolin, 336 N.W.2d 441, 445-47 (Iowa 1983) (applying this principle to

modification cases).   Once joint custody has been established, “it should be

disturbed only for the most cogent reasons.” Frederici, 338 N.W.2d at 158.

       The facts of this case present no such cogent reasons or compelling

circumstances. Dana has not provided sufficient evidence for us to find any

substantial change in circumstances that bear upon legal custody or that “joint

custody is unreasonable and not in the best interests of the child.”          Iowa

Code § 598.41(2)(b) (2013). Her request for sole custody is in fact predicated on

her “hope[] the award would ease the tension” between herself and Daren rather

than on any specific change in factual circumstances.          However, “tension
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between the parents is not alone sufficient to demonstrate that [joint custody] will

not work.” Bolin, 336 N.W.2d at 446.

       Further, any change in circumstance since the dissolution decree is at

least in part the result of Dana’s own behavior. The district court noted—and we

agree—that the difficulties arise due to the parties’ mutual disrespect. The court

noted in particular that “Dana has impeded Daren’s visitation with [E.L.] on many

occasions without good reason.” We will not permit a party seeking sole custody

to rely on her own bad behavior to satisfy her evidentiary burden of a substantial

change in circumstances.

       Additionally, we note that Dana has not appealed the expanded visitation

rights granted to Daren, and we are therefore not persuaded by her continued

assertion that Daren’s (and Samantha’s by extension) involvement in E.L.’s life

causes Dana real concern about the child’s safety. Rather, it appears that—in

the words of the district court—Dana would hold sole legal custody of her

daughters as yet another “sword against Daren instead of as a shield for [E.L.].”

We affirm the district court’s denial of sole legal custody to Dana.

              B. Right of First Refusal

       The district court provided sufficient reasoning for its modification of the

right-of-first-refusal provision.   The court found Daren proved a substantial

change of circumstances: Dana’s pattern of denials of Daren’s visitation rights.

We agree with the court’s characterization of these denials.

       Even though Dana’s refusal of Daren’s visitation does not satisfy the

heavy burden attendant a modification of legal custody, “a much less extensive

change of circumstances need be shown in visitation right cases.” Donovan v.
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Donovan, 212 N.W.2d 451, 453 (Iowa 1973); In re Marriage of Jerome, 378

N.W.2d 302, 305 (Iowa Ct. App. 1985).

       The district court found that Dana’s behaviors denying Daren’s visitation

rights are “without good reason,” “frustrating to Daren,” and “emotionally

upsetting to [E.L.].” We agree, and these findings are a sufficient showing of a

change in circumstance to support Daren’s requested modifications.

       The court noted that to serve their best interests, the children should have

the most continuous physical and emotional contact possible with both parents.

See Iowa Code § 598.1(1).        The court modified the decree to address this

concern by expanding Daren’s visitation rights in addition to modifying the right-

of-first-refusal provision. Dana only appeals the right-of-first-refusal modification.

Though we agree that modification of this provision is supported by the facts, we

do not endorse the district court’s specific modified provision.

       Daren requested that the right-of-first-refusal provision be modified to

require he have the option of assuming care if Dana will be away from E.L. for

twelve consecutive hours or more. The district court modified the provision even

beyond what Daren requested, requiring Dana to give Daren that option if she

will be away from E.L. for only eight hours. Such a modification would make it

impossible for Dana to maintain employment without contacting Daren every day

to allow him the option (which he may refuse) to take E.L. for the day. This result

is unreasonable. There is nothing in the record to support the necessity of this

particular modification term. We therefore affirm that the modification of this

provision was proper, but we adjust its terms to match Daren’s request.
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      Daren shall have the right of first refusal to provide child care for E.L. if the

need for child care exceeds twelve hours.

             C. Attorney Fees

      Dana contests the court’s order that she pay $5000 toward Daren’s

attorney fees. As noted above, an award of attorney fees rests in the sound

discretion of the trial court and will not be disturbed on appeal in the absence of

an abuse of discretion. Romanelli, 570 N.W.2d at 765. The controlling factor in

the award of attorney fees is the ability to pay the fees.         In re Marriage of

Muelhaupt, 439 N.W.2d 656, 663 (Iowa 1989).             The court can also award

attorney fees to the prevailing party in a modification proceeding.              Iowa

Code § 598.36. Daren was the prevailing party in this modification action, and

Dana is able to pay the fees awarded. We find no abuse of discretion and affirm

the attorney fee award.

      Dana’s request for an award of appellate attorney fees is denied. Costs

are assessed to the appellant.

      AFFIRMED AS MODIFIED.
