                   IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0671
                               Filed February 11, 2015

IN RE THE MARRIAGE OF COURTNEY LYNN BUCKINGHAM
AND JAMES JOSEPH BUCKINGHAM

Upon the Petition of
COURTNEY LYNN BUCKINGHAM,
      Petitioner-Appellant,

And Concerning
JAMES JOSEPH BUCKINGHAM,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Decatur County, Lawrence P.

McLellan, Judge.



      A mother appeals the district court’s ruling denying her request to modify

joint physical care. AFFIRMED.



      Pamela A. Vandel, Des Moines, for appellant.

      Verle W. Norris, Corydon, and Dustria A. Relph of Chambers & Relph Law

Firm, Corydon, for appellee.



      Heard by Danilson, C.J., and Potterfield and Bower, JJ.
                                              2



BOWER, J.

          Courtney Buckingham appeals the district court decision denying her

application for modification of the joint physical care provision in the decree that

dissolved her marriage to James Buckingham. Courtney also challenges the

court’s ruling excluding the rebuttal testimony of one of the children. Finally,

Courtney contends the district court abused its discretion in declining to award

her trial attorney fees.

          After our de novo review, we agree with the district court’s determination

Courtney has not shown a substantial change of circumstances that would justify

modification of the joint physical care provision. We additionally find Courtney

has not met her burden of proving she would provide superior care and find no

abuse of discretion in the court’s exclusion of rebuttal testimony. We affirm the

district court’s denial of an attorney fee award to Courtney and also decline to

award Courtney appellate attorney fees.

I. Background Facts & Proceedings

          Courtney and James married in 2003, and have three minor children. 1

Courtney has completed one year of college and works full time at Casey’s

General Store.       James has a college degree and has worked for the same

employer for eleven years. Earlier, James’s employer frequently required him to

be out of town during the week to work on location.                For the last eighteen

months, James has set his own schedule and not travelled as much.




1
    During the marriage, James adopted Courtney’s son, I.B., at age four or five.
                                         3



         A stipulated decree for the dissolution of marriage was filed on December

19, 2008.     The parties agreed to and were awarded joint legal custody and

shared physical care of their sons. Both parties currently live in the Leon, Iowa

area. James grew up in the area, and Courtney has lived there for about ten

years.

         The decree ordered physical care to alternate every four days. Courtney

and James agree they have never followed that schedule. Rather, James took

care of the children every weekend from Friday after school until he dropped

them off at school on Monday morning. Thus, the children spent three nights

with James and four nights with Courtney each week. Courtney testified she did

not think the four night/three night schedule constituted “shared parenting.”

         After the dissolution, James paid the mortgage on the prior marital

residence for six months to prevent the children from having the additional

upheaval of moving, to allow Courtney to transfer the house into her name, and

to protect his credit rating. James also voluntarily paid for a new transmission for

Courtney’s car.      James has consistently paid child support to Courtney.

Courtney has the children’s medical bills sent to James, and he pays them.

         James has numerous relatives in the Leon area. When James has the

boys they go camping, hunting, and swimming with their cousins and extended

family. At the time of the modification trial, James and Courtney’s children were

fourteen—I.B., ten—G.B., and seven—C.B. James’s grandmother lives across

the street from Courtney, and Courtney testified:

               The boys go over and visit. I send them over to . . . talk to
         her and things like that. And then [James’s] parents are over there
                                          4



       occasionally . . . so they ask to go over and talk to . . . whoever is
       over there, which is fine with me.

       James is now married to Darci, who has three children, two boys near

G.B.’s age and a kindergarten-age daughter. Darci’s children live with James

and Darci part of the time. James and Darci live in a five-bedroom residence in

the country but close to Leon. I.B. and Darci’s daughter each have their own

bedrooms, while G.B. and C.B. share a bedroom and Darci’s two boys share a

bedroom.

       Courtney’s house in Leon is within walking distance to both the schools

and the swimming pool, and seven-year-old C.B. walks to school. During the five

years after the dissolution, Courtney has had four friends, including one with

three children, live with her at various times. Also, at one point Courtney had an

intimate partner living with her for one year. Currently, Courtney’s sister lives

with her.

       James testified he did not object to Courtney’s live-in visitors because they

were all “good people.” James did express concern, however, “it seems like a lot

of change for the kids to deal with and roommates with children; and for a three-

bedroom house, it seems kind of crowded.”

       A.   Modification Petition.     Courtney filed to modify physical care in

August 2013. She requested physical care be granted to her with James having

visitation on alternating weekends and three weeks in the summer. Courtney’s

petition stated she “intends to move to Des Moines, Iowa, to expand her

employment opportunities and to provide her children with more educational,

sports, and extracurricular activities.” At trial, Courtney testified she was in court
                                        5



“to obtain the court’s permission to move to the Ankeny area of Iowa” as the

move would expand her and the children’s opportunities. Courtney intended to

work at a Casey’s and continue her education at Des Moines Area Community

College (DMACC).

      Besides moving, Courtney’s petition listed other material and substantial

changes in circumstances: (1) James’s failure to follow the alternating four-day

visitation periods; (2) Courtney having the children on only one Mother’s Day; (3)

the children are not safe in James’s care; (4) James does not allow the children

to contact her when they are in his care; and (5) James does not take the

children to church on weekends.          Courtney requested a corresponding

adjustment in child support.

      Prior to trial, Courtney rejected James’s offer to alternate physical care on

a weekly basis so that Courtney also would have time with the children on

alternate weekends.

      B.    Modification Hearing.     In March 2014 the modification hearing

commenced.     Every witness indicated both Courtney and James were good

parents with courteous, well-behaved children.

      Regarding Courtney’s claim of a lack of time with the children on the

weekends, Courtney admitted James allowed her to take the children out of town

to visit her mother when she asked.      She stated these visits occurred, at a

minimum, one weekend every other month to monthly.                 Courtney also

acknowledged she did have visitation on Mother’s Day one or two additional

times over the one visitation alleged in her petition. Courtney acknowledged her
                                         6



moving-to-Des-Moines proposal would be “significantly diminishing the time

[James] spent with his children.” Further:

              A. . . . But I would like to have the weekend time with my
       children every other weekend, which is not . . . .
              Q. So, if you switched to an alternating week-to-week
       schedule . . . that would give you weekends, wouldn’t it. A. Yes.
              ....
              Q. And would that be acceptable to you? A. No.
              Q. Why not? A. . . . . Because it wouldn’t give me the
       opportunity to provide extra opportunities to my children and
       myself.

       Courtney questioned the education quality and level of activities the

children have in Leon—Central Decatur School District.           James presented

contrary evidence from school employees and testified to the children’s activities.

       On cross-examination concerning her schooling, Courtney admitted

Graceland University is closer than DMACC—only fifteen miles away—and so is

Southwest Iowa Community College—twenty minutes away—“I could attend I’m

sure.” Courtney admitted she had not looked into financial aid that might be

available to her at either of those schools. At first, Courtney stated those schools

did not have classes in the “skills I would like to acquire,” but upon further

questioning, she testified, “Yes, they do.” Courtney also testified: “Q. So you just

would rather move to Des Moines and remove the children from their dad; right?

A. I would like to have custody changed so that I can move to Des Moines and

be able to attend college and provide opportunities for my children, yes.”

       At the time of the hearing, Courtney, age thirty-two, worked at the Casey’s

General Store in Leon.     Courtney’s manager testified Courtney was a good

employee and believed Courtney could transfer to a Casey’s in Des Moines if a
                                         7



position was available. However, the manager also testified to several incident

reports filed against Courtney for rude behavior to customers.

       While Courtney presented evidence of her hourly pay at the Casey’s in

Leon, she produced no evidence of her potential wages at a Casey’s store in Des

Moines, no evidence her pay would be greater than her current wage in Leon,

and no evidence she had actually obtained a new job in Des Moines. She also

did not present any evidence showing the present availability of positions at

Casey’s in Des Moines.      Courtney explained she got paid more for working

overnight shifts in Leon. However, she did not work overnight primarily on the

weekend; “I work them during the week.”2 After our de novo review, we agree

with the district court’s finding: “Based on all the evidence, Courtney did not

establish that she would be able to secure better employment in the Des Moines

area that would then allow her to provide superior care for her children.”

       Courtney testified James and C.B. have a good relationship. Courtney

stated G.B. is happy as long as there is an activity to do, and he loves sports.

She also testified to an incident with G.B. and Darci’s boys that caused her

concern. After the incident, Courtney took G.B. to counseling with Mary Hilliard,

and those sessions were completed well before trial. James presented evidence

showing G.B. and Darci’s sons are Facebook friends and take the initiative to

communicate with each other when they are not together. Brian Carson, the

juvenile court school liaison for Central Decatur knows all the boys from school




2
  We note that although there are additional hours available on the weekend, Courtney
elects to work the hours when she has the children.
                                         8



activities and is in the building every day. He testified Darci’s sons are “normal,

typical ten-eleven-year-old boys."

       Once James learned about G.B.’s sessions with counselor Hilliard, he was

supportive and also met with the counselor. As to the issues with G.B., Hilliard

testified James’s actions were shortsighted but the incident “was handled

appropriately,” and James “acknowledged that he learned his lesson from that.”

After our de novo review of the record, we agree with the district court’s

conclusion the “incidents that arose to cause this tension [with G.B.] appear to

have resolved.”

       Courtney testified to incidents between James and I.B. that caused the

parties’ relationship to deteriorate.   Courtney stated that when I.B. was at

James’s house, he was asked to act as the babysitter and he did not like being in

charge. James testified I.B. is no longer acting as a babysitter.

       At some point in 2013, I.B. violated James and Darci’s privacy and

inappropriately shared a picture with Courtney. Instead of contacting James and

acting like a mature parent, Courtney admitted she shared the picture with

friends by email.    When James found out two weeks later, he was angry.

Counselor Hilliard testified James’s anger was “a natural response” to the

“invasion of privacy and then to share that in a public way is not okay.”

       On another occasion James believed I.B. was lying to him and broke I.B.’s

cell phone. I.B. responded by refusing to go to James’s house on the weekends.

Courtney testified James asked for her help to get their relationship back on track

but she and James disagreed on the best way to reestablish James’s visitation
                                          9



with I.B. During the November mediation prior to trial, James suggested I.B.

attend counseling, and counseling with Hilliard then commenced the next month.

James also attended one session with I.B. Courtney testified she “had talked

about getting I.B. counseling. I just hadn’t scheduled anything yet.” Courtney,

James, and Hilliard all testified additional counseling would be helpful to I.B.

       Hilliard testified I.B. feels responsible at both houses and does not like the

increased responsibility placed on him at James’s house in the country. As to

the cause of I.B.’s issues, Hilliard explained: “I think it’s caused by increased

anxiety about this whole custody issue, and kids handle it differently. And he’s

sort of caught in this loyalty struggle, and he’s probably not thinking enough . . .

about school and . . . his own business.”        Hilliard opined James “cared,” in

contrast to other fathers who have “come in at that point and be sort of bullies,

and he didn’t do that.” Hilliard also stated James “sees himself as more as a

disciplinarian,” however, he has “indicated a willingness to learn” to be less

authoritative and more diplomatic/sensitive.

       Hilliard also testified James and Courtney could benefit from counseling to

improve their communication and trust.

       C.   Modification Ruling.     After observing the parties, witnesses, and

hearing the testimony, the district court found: “It was obvious to this court . . .

that Courtney and James love their children and both parents provide quality

care to their children.” The district court found Courtney had not met her burden

to show a material and substantial change of circumstances since entry of the

decree. The court also found “Courtney failed to establish that she could provide
                                             10



superior care to the children.”        The court modified the shared-care-parenting

schedule to a weekly rotation “beginning on Friday evenings of each week after

the end of school on that day.” The court ordered the parties attend additional

counseling sessions that Hilliard testified would be helpful to the family. The

court ordered the parties to pay their own attorney fees and to share equally in

the costs. Courtney now appeals.

II. Standards of Review

          This modification action was tried in equity, and our review is de novo. 3

Iowa R. App. P. 6.907. We give weight to the factual findings of the district court,

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

those findings. Iowa R. App. P. 6.904(3)(g). This standard of review recognizes

the fact the district court has an opportunity to view, firsthand, the demeanor of

the parties. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998).

          We review evidentiary rulings for an abuse of the court’s broad discretion.

Horak v. Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002). Reversal is

warranted only if the court clearly abused its discretion to the complainant’s

prejudice. Id.

III. Modification of Physical Care

          Preliminarily, we address Courtney’s claim the parties’ four night/three

night schedule was not shared care and in actuality, she already had physical

care of the boys. Although that schedule did not provide James “with exactly

equal residential time, joint physical care ‘does not require that the residential



3
    We find no merit to Courtney’s claim our review should also be at law.
                                         11



arrangements be determined with mathematical precision.’” In re Marriage of

Brown, 778 N.W.2d 47, 51 (Iowa Ct. App. 2009) (quoting In re Seay, 746 N.W.2d

833, 836 (Iowa 2008)); see In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa

2007) (“Joint physical care anticipates that parents will have equal, or roughly

equal, residential time with the child.”). Here, James shared parenting time with

Courtney, maintained a home for the children, and provided routine daily care for

them. See Brown, 778 N.W.2d at 51. Thus, the care schedule shows the parties

have, in fact, shared physical care of the children over the past five years.

       Courtney contends the district court should have modified the parties’

dissolution decree to grant her physical care of their three children. Specifically,

“sufficient evidence was presented to the court regarding James’s inappropriate

care or supervision while the children were in his custody, I.B. and G.B.’s fear

regarding James, James’s alienation of I.B., [and the] recent strain in

communication and co-parenting between Courtney and James.”

       The objective of physical care “is to place the children in the environment

most likely to bring them to health, both physically and mentally, and to social

maturity.”   In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Changing physical care of children is one of the most significant modifications

that can be undertaken. See In re Marriage of Thielges, 623 N.W.2d 232, 236

(Iowa Ct. App. 2000). The parent seeking to modify the physical care provision

of a dissolution decree must prove “there has been a substantial change in

circumstances since the time of the decree not contemplated by the court when

the decree was entered, which is more or less permanent and relates to the
                                        12



welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.

App. 2004). In addition, the parent seeking to modify physical care has a “heavy

burden” and “must show the ability to offer superior care.” Id.; see In re Marriage

of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once custody of

the children has been fixed, it should be disturbed only for the most cogent

reasons”). The controlling consideration is the children’s best interests. In re

Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).

       Upon our de novo review of the record, we agree with the district court

that Courtney has not met these standards. Courtney has the opportunity to

continue her college education at either of two nearby colleges.        We note,

generally, the children have done well in their current school system, the only

system they have known, and are involved in activities. We also note continuing

the shared-care arrangement will allow the children to develop relationships with

their step-siblings. In the shared-care arrangement, the children benefit from

extended-family activities—including walking across the street to visit their

grandparents and great-grandmother. A further consideration weighing against

modification is the fact Courtney’s proposal would significantly diminish James’s

parenting time, to the children’s detriment. See In re Marriage of Zabecki, 389

N.W.2d 396, 398 (Iowa 1986) (stating the best interests of children include

“opportunity for a continuous relationship with both parents”).     We adopt the

district court’s analysis:

              Courtney failed to establish that the best interests of the
       children would be served if they were moved from Leon to the Des
       Moines area. See, e.g., In re Marriage of Engler, 503 N.W.2d 623,
       625 (Iowa Ct. App. 1993) (“We do not award custody by
                                        13



      determining whether a rural or urban Iowa upbringing is more
      advantageous to a child.”).        While there may be more job
      opportunities for Courtney in Des Moines, although she failed to
      present any evidence of jobs she sought, the court’s role is not to
      decide custody issues based upon the best interests of the parents.
      York v. York, 67 N.W.2d 28, 31 (Iowa 1954) (“[T]he welfare of the
      children is the controlling consideration and its superior to the claim
      or convenience of either parent.”). The court’s role is to make
      custody decisions based upon what is in the best interests of the
      children. In this regard, Courtney failed to establish a move to Des
      Moines at this time was in the best interests of the children.

      In addition, we conclude the record does not establish Courtney met her

burden to show she can render superior care. Our review of the record shows

both parents to be loving and caring. James has maintained steady employment

for eleven years with the same employer. The children have many relatives

living in the area. Courtney’s living arrangements have changed several times

since the dissolution with different people moving in and out of her three-

bedroom home.

      The incident causing tension between James and G.B. has resolved. It

was James, not Courtney, who sought out counseling for I.B., and the district

court ordered James to pay for additional, post-ruling counseling. We recognize

parents have some difficulties while their children navigate through their teenage

years. We agree with the district court’s statement that “the issue with I.B. may

be resolved with additional counseling.”

      Finally, while Courtney and James have strained lines of communication,

developed only recently, the record does not cause us to conclude their

“relationship is so volatile that shared physical care should be modified.” Thus,
                                          14



we affirm the decision of the district court denying Courtney’s request to modify

the physical care provision of the parties’ dissolution decree.

IV. Rebuttal Witness

        Courtney claims the district court abused its discretion when it denied

Courtney’s request to have I.B. testify as a rebuttal witness.

        At trial, James resisted Courtney’s effort to have I.B. testify, stating he had

applied “for a guardian ad litem to be appointed to these children to be an

objective person to . . . present their view to the court.” Courtney had then

resisted, claiming Hilliard “would be a far more appropriate person to testify on

behalf of the children.” As a result, no guardian was appointed, and Hilliard

testified.

        In denying Courtney’s request to have I.B. testify, the court noted her

resistance to and the resolution of the guardian-ad-litem issue. The court also

found Hilliard had already testified about many of the subjects Courtney listed as

the reasons necessitating I.B.’s testimony. The court concluded: “I don’t feel it’s

in [I.B.’s] best interest to have to testify in these proceedings in a dispute that

essentially is between his parents.”

        We find no abuse of discretion and agree with the district court’s analysis.

Hilliard testified I.B.’s issues are “caused by increased anxiety about this whole

custody issue.”    Further, the district court has the inherent power to protect

children in custody proceedings and not allow them to testify. In re Marriage of

Abkes, 460 N.W.2d 184, 186 (Iowa Ct. App. 1990).
                                           15



V. Attorney Fees

         Courtney first challenges the district court’s order requiring each party to

pay their own attorney fees.

         Iowa Code section 598.36 (2013) states, in a modification proceeding, the

court “may award attorney fees to the prevailing party.” We review the district

court’s denial of attorney fees for abuse of discretion. In re Marriage of Sullins,

715 N.W.2d 242, 255 (Iowa 2006). This means we only reverse if the court’s

ruling rests on grounds that are clearly unreasonable or untenable.             C & J

Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 73 (Iowa 2011). Courtney was

not the prevailing party at trial. Accordingly, we find no abuse of discretion.

         Second, Courtney requests an award of appellate attorney fees,

emphasizing James’s superior ability to pay. James responds he was forced to

defend the district court’s decision on appeal.

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

our sound discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa

2005). “We consider the needs of the party making the request, the ability of the

other party to pay,” and the relative merits of the appeal.         In re Marriage of

Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). Courtney has not prevailed on

appeal.     Considering the foregoing factors, we decline to award Courtney

appellate attorney fees. Costs of this appeal are assessed one-half to each

party.

         AFFIRMED.
