                     IN THE COURT OF APPEALS OF IOWA

                                     No. 18-2060
                              Filed November 27, 2019


ANTHONY MARTIN COLLINS, JR.,
    Petitioner-Appellant,

vs.

VERONICA MARIE NATERA, n/k/a VERONICA MARIE LANDALS,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



       Anthony Collins Jr. appeals the district court’s denial of his petition to modify

physical care of the parties’ child. AFFIRMED AS MODIFIED.




       Jaclyn M. Zimmerman of Miller, Zimmerman & Evans P.L.C., Des Moines,

for appellant.

       Diane L. Dornburg of Carney & Appleby, P.L.C., Des Moines, for appellee.



       Considered by Vaitheswaran, P.J., Potterfield, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                             2


MAHAN, Senior Judge.

           Anthony Collins Jr. (Tony) appeals the district court’s denial of his petition

to modify the parties’ paternity decree to order physical care of the parties’ child

with him rather than the child’s mother, Veronica Landals. Upon our review, we

affirm the order entered by the court, but we conclude equity requires that Veronica

pay for the child’s travel costs necessary to facilitate visitation with Tony, and we

modify the order in that regard.

I.         Background Facts and Prior Proceedings

           Tony and Veronica had an “on and off” relationship between 2011 and 2013.

Their child, A.C., was born in 2013, shortly after they separated. Veronica also

has two older children from prior relationships.1

           In 2014, Tony filed a petition to establish paternity and custody, requesting

physical care of A.C., or in the alternative, shared physical care. In 2015, following

a two-day trial, the district court entered an order placing A.C. in Veronica’s

physical care. The court found, “Shared care is not in the best interest of [A.C.]”

because “the parties do not have a history of cooperation with each other and that

is likely to continue.” The court further noted the parties’ “history of allowing other

individuals to influence their interpersonal relationship which only resulted in

further needless turmoil.” The court found, “Veronica more so than Tony has

shown that she is better at caring for [A.C.]” and A.C. “is bonded to her half-sibling”

in Veronica’s home.           The court awarded Tony visitation with the child every




1
     Veronica’s oldest child is an adult.
                                           3


Wednesday overnight and every other Thursday to Saturday. The court ordered

Tony to pay child support in the amount of $552 per month.

       Both parties have since married—Veronica married Jay in 2015 and Tony

married Mindy in 2017. Jay has four children (ages seventeen to twenty-one years

old), and Mindy has two children (ages nine and fifteen). It appears these other

relationships have, whether purposefully or inadvertently, instigated problems

between Tony and Veronica. For example, Tony believed Veronica encouraged

A.C. to call Jay “Dadda,” which Tony objected to, because “there’s only one mom,

and there’s only one dad.” Tony emphasized that he would not encourage A.C. to

call Mindy “mom.” Jay, who had lived with A.C. nearly all the child’s life, had

developed a close bond with the child and openly shared his feelings in that regard

on social media, further fueling Tony’s animosity toward the situation.

       During the summer of 2017, in the midst of discussions between the parties

regarding Tony’s request for an extension of a right of first refusal to care for A.C.

while Veronica was at work, Veronica unilaterally hired Mindy’s ex-husband’s wife

as A.C.’s daycare provider. Veronica was aware the two women had a “very poor”

relationship. Aside from the clearly questionable nature of her daycare-provider

decision, Veronica later acknowledged it was “[p]robably” better for A.C. to be with

Tony rather than at daycare. Veronica acknowledged she was “[p]ossibly” being

difficult to deal with but said it “goes both ways.”

       In September 2017, Veronica emailed Tony advising him she was filing for

modification because she and Jay were planning to move to Texas. According to

Veronica, the decision was “not easy” and was made “after careful thought and

much planning about schools, communities, career opportunities, homes, and
                                          4


future planning.” Veronica requested she and Tony work together to “create our

own terms of agreement” for visitation. Tony responded that he was “shocked and

saddened” by the email, stating, “I do not want you to move and I do not want

[A.C.] to ever have to be without one of us.”

       Veronica then filed a petition for modification, alleging her plan to relocate

to Texas was a substantial change in circumstances warranting modification of

Tony’s visitation. Tony filed an answer and counterclaim, alleging, “It is not in the

best interests of the minor child to move out of state, further diminishing her

relationship with her father and siblings.” He requested the paternity decree be

modified to grant him physical care of the child, set a visitation schedule for

Veronica, and order Veronica to pay child support.

       A trial took place over three days in October 2018, at which the district court

received testimony from Veronica, Tony, Jay, as well as Veronica’s ex-husband

and Jay’s sister. Veronica, Jay, and A.C. had moved to Spring, Texas in December

2017. Prior to the move, Jay’s seventeen-year-old son, of whom Jay had physical

care, elected to move to Omaha to live with his mother. And Veronica’s fourteen-

year-old daughter, of whom Veronica had shared care, elected to remain in the

Des Moines area with her father. Modification proceedings with regard to those

children were pending or complete by the time of trial in this matter.

       Veronica works night shifts as an emergency room nurse. She described

an improved work environment at a “magnet hospital, which is pretty much every

nurse’s dream to work in.” Veronica makes $40.50 per hour, as opposed to $29.70

per hour she was making in Iowa. Veronica testified about her research that Iowa

“rank[ed] 50th in pay” for nurses, which “played a role in my wanting to leave Iowa
                                         5


. . . and not be a nurse in Iowa anymore.” Veronica testified the family now lived

in a “safer neighborhood” and A.C. would attend a well-rated school. Jay, who has

worked for FedEx as an airport ramp agent for twenty-one years, testified that in

Iowa he was he was at the “top of the pay scale” and made just under $29 per

hour. Now Jay earns $30.78 per hour, and he testified there are more opportunities

for growth because the Houston airport is a much larger market. He also testified

the warmer climate in Texas was a perk given the outdoor-nature of his job.

       Tony lives in Grimes with Mindy and her two children. He works as a

paramedic in Story County, and he also works part-time for the Bondurant Fire

Department. Mindy works at a medical clinic in Waukee. Tony’s parents live

nearby and spend time with A.C. when she is in Iowa. Tony believed it was in

A.C.’s best interests “to be here with her father and close to her family.” He stated

that he has a “great relationship” with A.C., but he believed Veronica “minimalizes”

him and does not respect him as A.C.’s father. Tony described Veronica as being

“deceitful and manipulative to get her way.” Tony believed “this entire move was

to take [A.C.] away from me.” He pointed out that now A.C. is separated from

Veronica’s daughter, who lives in Waukee with her father, which was “one of the

big reasons [Veronica] wanted primary care” in the first place—to keep the half-

siblings together.

       Tony acknowledged A.C. has been in Veronica’s physical care since she

was born and “it [would] be somewhat of a transition” to change that, but he opined

that A.C. “transitions here extremely well.” Veronica testified she and Jay moved

to provide better opportunities for their family, and she believed she was better

equipped than Tony to provide for A.C.’s long-term best interests.         Veronica
                                         6


testified it “would hurt [A.C.] tremendously” if the child was not able to see her on

a regular, consistent basis.

       A.C., who was five-years-old, was described as a “ball of joy,” “sensitive,”

“inquisitive,” and “intelligent.” A.C. was active, excited “to learn new things,” and

was on track to begin kindergarten in the fall of 2019. Veronica testified A.C. “gets

really excited” when she talks to Tony or “when she gets to come back to Iowa to

visit him.” According to Veronica, “I have no doubt in my mind that he loves her

and that she loves him.” Tony believed Veronica is a “good mom,” and he had “no

doubt” about her ability to care for A.C. Both parties agreed they could “work

together” to parent A.C.

       The district court entered an order granting Veronica’s request to modify the

visitation schedule and denying Tony’s request to modify physical care. The court

concluded the record did not establish a change in circumstances resulting from

Veronica’s relocation, or from Veronica’s alleged lack of support for Tony’s

relationship with A.C., to justify a modification of physical care. The court further

found Tony had not established “that he is in a better position to provide superior

care for the child as compared to [Veronica].” However, the court found Veronica’s

relocation was a change of circumstances warranting modification of the visitation

schedule. The court incorporated each parties’ respective requests for appropriate

visitation and ordered Tony to have visitation with A.C. for six weeks during the

summer (to be exercised in four- and two-week blocks), every spring break, and

half of holiday breaks.    The court also ordered, “Either party may exercise

additional time with the child should that party be in the state where the child is

located.”   The court ordered, “Each party shall be responsible for providing
                                          7


transportation for the child at the beginning of their scheduled time with the child.”

Tony appealed.

II.    Standard of Review

       We review this modification action de novo. Iowa R. App. P. 6.907; In re

Marriage of Johnson, 781 N.W.2d 553, 554 (Iowa 2010). We give weight to the

fact findings of the district court, especially in determining witness credibility, but

are not bound by them. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).

III.   Modification of Physical Care

       As the party seeking modification of A.C.’s physical care, Tony bears a

heavy burden. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). This

is because once the custody and care of a child has been fixed, it should be

disturbed only for the most cogent reasons.         Id.   A.C.’s “best interest is the

‘controlling consideration.’” Cf. Hoffman, 867 N.W.2d at 32 (citation omitted).

       To change a custodial provision of a dissolution decree, the applying
       party must establish by a preponderance of evidence that conditions
       since the decree was entered have so materially and substantially
       changed that the children’s best interests make it expedient to make
       the requested change. The changed circumstances must not have
       been contemplated by the court when the decree was entered, and
       they must be more or less permanent, not temporary. They must
       relate to the welfare of the children. A parent seeking to take custody
       from the other must prove an ability to minister more effectively to
       the children’s well being.

Id. (quoting Frederici, 338 N.W.2d at 158).

       “A decision by a joint custodial parent with physical care of children to move

out-of-state is obviously the kind of decision the other joint custodian has a right to

be consulted about.” Frederici, 338 N.W.2d at 159. However, “the parent having

physical care of the children must, as between the parties, have the final say
                                          8


concerning where their home will be. This authority is implicit in the right and

responsibility to provide the principal home for the children.” Id. “And in our ‘highly

mobile society’ . . . periodic relocation is hardly a surprise.” Hoffman, 867 N.W.2d

at 33 (quoting Frederici, 338 N.W.2d at 160).

       Factors the court considers in evaluating whether a relocation undermines

the best interests of the child, are (1) the “motive for the move”; (2) the “location,

distance, and disruption”; (3) the “child[‘s] preferences”; and (4) “relative

advantages and disadvantages of the [new] residence.” Id. at 33–36. Here, the

district court found A.C. “has not expressed a preference, nor is she old enough to

have her preferences given any weight in the analysis” and “neither party has

offered any empirical data or similar evidence in an effort to evaluate the pros and

cons of living in Texas as compared to Des Moines.” Accordingly, the court

focused its analysis on the first and second factors set forth above to reach its

conclusion that Tony had failed to meet his burden to prove A.C.’s move

constitutes a substantial change of circumstances affecting her best interests.

       Tony challenges the court’s ruling on appeal, claiming “the credible

evidence shows that Veronica’s motivation to move was specifically to

geographically separate” him from A.C. To support his contention, Tony points to

the subpoenaed testimony of Jay’s sister (stating “it was Veronica’s desire to get

out of Des Moines and get [A.C.] away from Tony to avoid any more appearances

in court”) and Veronica’s ex-husband (stating “[Veronica] did point out that a big

reason [for the move] was because she did not want to raise [A.C.] in the same

school district as Tony”). While we acknowledge the record is replete with messy

testimony painting a picture of the various opinions regarding the proper outcome
                                              9


of this case, the district court expressly gave the testimony of Jay’s sister and

Veronica’s ex-husband “no weight” on this point due to their “lack[] of credibility.” 2

We defer to the district court’s ability to see the parties testify in person, and we

give weight to credibility determinations of the district court. In re Marriage of

Eggeling, No. 18-0234, 2019 WL 478818, at *1 (Iowa Ct. App. Feb. 6, 2019).

       In any event, the court noted it was “satisfied that the relocation was

motivated by [Veronica’s] and Jay’s desire to improve their career prospects in that

state.” As the court found:

       The record establishes that the move had been contemplated for
       some time, and the objective criteria analyzed by [Veronica]
       (including the higher pay afforded nurses in Texas, Jay’s increased
       marketability with Federal Express as a result of working at a major
       international airport and the absence of a state income tax) supports
       the ultimate decision to move to Texas. A move to obtain or better
       one’s employment is a legitimate reason to relocate, absent proof
       that the move was more consistent with a desire to defeat the other
       parent’s visitation rights or undermine his relationship with the
       children. . . .
               . . . . This is not a case where [Veronica] and Jay have
       impulsively decided to pull up stakes and move across the country
       for no good reason.

On our de novo review of the record, we agree with the court’s findings.

       Tony also argues, “The new location, its distance from the noncustodial

parent, disruption for the child[] and relative advantages and disadvantages of the

new residence support an award of primary physical care to Tony.”3 In particular,


2
  Indeed, the court stated, “To the degree the trial testimony offered by [Veronica’s ex-
husband] and [Jay’s sister] supports [Tony’s] position in this regard, the court gives their
testimony no weight as lacking in credibility as a result of the lack of written corroboration
and what the court perceives as their animosity exhibited toward [Veronica] and/or Jay.”
3
  The district court did not analyze the relative advantages and disadvantages of Iowa and
Texas (observing “neither party has offered any empirical data or similar evidence in an
effort to evaluate the pros and cons of living in Texas as compared to Des Moines”), and
Tony does not present any such evidence on appeal to support his claim. Accordingly,
we decline to specifically address that factor.
                                             10


Tony claims the move to Texas “is highly disruptive” to A.C.’s relationships with

him, her extended family, and her half- and step-siblings. There is no doubt the

distance between A.C. and these relatives will affect those relationships. However,

we agree with the district court that “[s]ome of this disruption can be and has been

mitigated by the scheduling of extended visitation over summers and school

breaks, as well as extended contact through such media as FaceTime, Skype,

etc.”

          Both Veronica and Tony testified A.C. is doing well and has a good

relationship with all her family members.           Their testimony also supports the

conclusion that A.C. is happy, well-adjusted, thriving in her home in Texas, and

enjoys her visits to Iowa. Tony testified that he has “struggled” with A.C.’s move

and admitted that he has told the child “it’s not fair that she’s so far away from

[him].” But “[p]hysical care issues are not to be resolved upon perceived fairness

to the [parents,] but primarily upon what is best for the child.” Hansen, 733 N.W.2d

at 695 (emphasis in original). On our de novo review of the record, we agree with

the district court’s finding that “[t]o the degree that [Veronica] was initially chosen

as [A.C.]’s caregiver based on her relative stability, she has been able to maintain

that stability despite the relocation.”        Because Tony has not established a

substantial change in circumstances to warrant modification of physical care,4 we

affirm.




4
 In light of this conclusion, we need not reach Tony’s contention that he “has the ability to
provide superior care to [A.C.]” And Tony does not challenge the modified visitation
provisions ordered by the court.
                                              11


IV.    Transportation Costs

       The district court ordered, “Each party shall be responsible for providing

transportation for the child at the beginning of their scheduled time with the child.”

Tony contends “it is equitable to make Veronica the party responsible for

transportation to facilitate [his] parenting time.” To support his contention, Tony

points to Veronica’s ability to obtain inexpensive airfare for A.C. as a perk of Jay’s

employment with FedEx.5 Tony also points out that Veronica earns significantly

more than he does and is in a superior position to provide transportation for A.C. 6

Tony claims, “[D]ue to Veronica’s access to inexpensive travel, the disparity of

income, and the voluntary nature of her relocation, Veronica should be responsible

for all, or a higher portion, of the cost of facilitating visitation.” Veronica does not

respond to Tony’s claim.

       If a parent who is awarded physical care of a child relocates 150 miles or

more from where the child lived at the time of a decree, the court may consider the

move a substantial change in circumstances, as the court did here in order to

modify the parties’ visitation schedule. See Iowa Code § 598.21D (2017). “The

modification may include a provision assigning the responsibility for transportation

of the minor child for visitation purposes to either or both parents.” Id.




5
  Veronica testified, “Jay receives a benefit through his work since it’s an airline, so through
a web site we get discounted [standby] airline tickets.”
6
  For example, Tony testified, “After receiving notification that my daughter was going to
be taken to Texas, I knew that I would have a fight on my hands and it was going to cost
a lot of money, so I started working a lot at the fire department on my time off from Story
County.” Tony also testified he would have visited A.C. in Texas “every weekend” if he
could have, but had yet to be able to do so due to “[t]ime off work, the expense of hotels,
staying down there, cost of driving and flying down there.”
                                              12


       We conclude the district court’s equal division of transportation costs was

not equitable. Veronica chose to relocate to Texas, and her testimony conveyed

many subjective reasons the move benefited her family. See generally In re

Marriage of Beecher, 582 N.W.2d 510, 514 (Iowa 1998) (concluding that a

downward departure from the child support guidelines was not justified even

though father was bearing eighty percent of transportation costs for the children,

noting that a move to California was for his personal benefit). Indeed, Veronica

testified she and Jay now earn more in Texas, their housing costs have improved,

and she is able to provide low-cost airfare for A.C. With the exception of a few

instances, Veronica testified she has voluntarily agreed to provide for A.C.’s

transportation costs.7 And it seems Veronica realizes her leverage on Tony when

it comes to A.C.’s transportation. The record shows a trend of Veronica displaying

control over A.C.’s travel, and sadly some of Veronica’s actions have been to

A.C.’s detriment.8

       On our de novo review, we conclude equity requires that Veronica pay for

A.C.’s travel costs necessary to facilitate visitation. See In re Marriage of Ginger,



7
  This was despite the parties’ mediation agreement “related to some temporary parenting
time and transportation provisions” between December 2017 and April 2018, which
required each parent to provide the transportation necessary to facilitate the exchange of
A.C. at the beginning of his or her parenting time.
8
   For example, in March 2018, the night before a planned exchange of A.C. in Tulsa,
Veronica text-messaged to Tony, “I can save you the trip and fly her to DSM tomorrow if
you agree to have her passport application completed and notarized by the time she return
on April 7th.” When Tony responded, “Per my lawyer’s advice, I am not signing the
application at this time . . . . ,” Veronica stated, “See you in Tulsa.” Veronica later admitted
it would have been better for A.C. to fly rather than drive.
         On another occasion, Veronica failed to notify Tony when she and A.C. were
unable to get on a flight to Texas and stayed an extra night in Des Moines; Veronica waited
until they were back in Texas to notify Tony. Veronica agreed that in hindsight she should
have let him know sooner.
                                          13


No. 13-1908, 2014 WL 5478145, at *3 (Iowa Ct. App. Oct. 29, 2014) (“Though we

understand the need to relocate for one’s career, the move was nonetheless

Tracy’s sole decision, and given the parties’ relative income, the resulting cost of

transporting the children should not fall on Tanya. We therefore conclude the

district court failed to do equity when it ordered Tanya to pay for the children’s

transportation costs when the children travel from Georgia back to Iowa.

Consequently, Tracy will be responsible for all transportation costs regarding the

children’s visits to Georgia.” (citation omitted)); see also In re Marriage of Yazigi &

Nahra, No. 13-1553, 2015 WL 1046129, at *3 (Iowa Ct. App. Mar. 11, 2015) (“[W]e

conclude the district court’s equal division of the transportation costs was not

equitable. Relocating the children to Canada is wholly Tony’s choice. Tony has

income of approximately $84,000 per year, and he testified at trial that he expects

to earn substantially more in Canada while also having significantly less living

expenses. Rima has negligible income and is required to pay Tony $445 per

month in child support. Tony will be required to pay for all of the children’s travel

costs necessary to facilitate visitation.”); In re Marriage of Worzala, No. 09-1191,

2012 WL 2757127, at *1–2 (Iowa Ct. App. July 14, 2010) (affirming court’s order

holding the father entirely responsible for transportation costs after his move to

Georgia, stating, “Andrew elected to move for his personal benefit. There is no

evidence that the company he worked for insisted on or even encouraged the

move as a condition of continued employment. Rather, Andrew made a lateral

transfer to Georgia hoping the new position would eventually reap monetary

benefits”).
                                          14


       We note a concern that if Veronica is responsible for all transportation

expenses—and scheduling, to the extent that she described standby travelers as

needing to be “very flexible”—that Veronica will have no incentive to cooperate

with Tony on the dates and times of visits. Cf. In re Cariaso, No. 03-1174, 2004

WL 360546, at *3 (Iowa Ct. App. Feb. 27, 2004) (“Both parents are charged with

maintaining the best interests of the child, and thus with cooperating with

visitation.” (citing In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App.

1991)). Unfortunately, the record substantiates this concern. However, we believe

Veronica is capable of acting in the child’s best interests going forward to facilitate

visitation with Tony. See In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct.

App. 1994) (stating liberal visitation rights is generally considered to be in a child’s

best interests); In re Marriage of Ruden, 509 N.W.2d 494, 496 (Iowa Ct. App. 1993)

(holding a child should be assured the opportunity for the maximum continuing

physical and emotional contact with both parents). Accordingly, we modify the

court’s order with respect to transportation costs, as set forth above.

V.     Appellate Attorney Fees

       Both parties seek an order requiring the other to pay their appellate attorney

fees. An award of appellate attorney fees is not a matter of right but rests within

this court’s discretion. Markey v. Carney, 705 N.W.2d 13, 25-26 (Iowa 2005). We

consider the needs of the party making the request, the ability of the other party to

pay, and whether the party making the request was obligated to defend the district

court’s decision on appeal. Id. at 26. We decline to award appellate attorney fees

to either party.

       AFFIRMED AS MODIFIED.
