                     IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1256
                               Filed March 8, 2017


IN RE THE MARRIAGE OF TIFFANY KAY BOUCHARD
AND JEREMY WILLIAM BOUCHARD

Upon the Petition of
TIFFANY KAY BOUCHARD,
      Petitioner-Appellee,

And Concerning
JEREMY WILLIAM BOUCHARD,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cass County, James M.

Richardson, Judge.



       Jeremy Bouchard appeals the district court’s denial and dismissal of his

petition to modify his and Tiffany Bouchard’s dissolution decree to change the

visitation provisions and reduce his child support obligation. AFFIRMED.




       P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs,

for appellant.

       Jonathan Mailander of Mailander Law Office, Atlantic, for appellee.




       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

      Jeremy Bouchard appeals the district court’s denial and dismissal of his

petition to modify his and Tiffany Bouchard’s dissolution decree to change the

parenting time provisions and reduce his child support obligation. Upon our de

novo review of the record, we affirm.

      I. Background Facts and Proceedings.

      In December 2013, the district court approved Jeremy and Tiffany’s joint

stipulation and entered a decree dissolving their marriage. The parties agreed to

joint legal custody of their child, I.B., born in 2011. They also agreed to joint

physical care, with Tiffany having care of their child every Monday beginning at

noon through Friday at noon, and Jeremy having care of the child from noon on

Friday through Monday at noon.          They also agreed to a holiday visitation

schedule.   Jeremy agreed to pay Tiffany $400 per month in child support.

Additionally, the parties agreed Jeremy would be responsible for providing health

insurance for their child should the child become ineligible for Medicaid coverage,

in which case “[c]hild support shall then be adjusted accordingly.”

      In March 2016, Jeremy filed a petition to modify the parties’ dissolution

decree.     His petition stated there had been a substantial change in

circumstances since entry of the original decree warranting modification.

Specifically, he asserted their child would be starting kindergarten in the fall of

2016, which required a new parenting schedule. He maintained it would be in

the “child’s best interest that [he] be awarded the parenting time during the

school week and [Tiffany] be awarded parenting time on the weekends” because

he worked from home and would not have to place the child in the care of others,
                                         3


unlike Tiffany, who worked during the week. Additionally, he advised he was

now providing medical insurance for their child, and he requested his child-

support payment be adjusted accordingly. Tiffany answered and denied there

had been a substantial change in circumstances.

       A hearing on the petition was held in June 2016. The court asked Jeremy

to clarify his requested relief, and Jeremy advised he was seeking a change of

the parties’ shared care visitation schedule1—he was not seeking physical care

of their child. He argued a lower burden would therefore apply, and he would

only need to show a material change in circumstances.

       Following the hearing, the district court entered its ruling denying and

dismissing Jeremy’s modification petition in its entirety.      The court explicitly

concluded that Jeremy failed to establish the necessary proof for modification of

custody and implicitly concluded Jeremy failed to meet his burden of proof to

modify his parenting schedule. See In re Marriage of Brown, 778 N.W.2d 47, 51

(Iowa Ct. App. 2009) (discussing the applicable burden of proof in both

circumstances). The court found that the child becoming school age was not a

significant or substantial change in circumstances, and because the parties

originally agreed Tiffany had custody of the child Monday through Friday, the

court reasoned that Tiffany’s choice of school for the child should prevail. Finally,

the court declined to modify Jeremy’s child support obligation, explaining the

parties previously agreed to the amount of child support, which “was not



1
  In shared- or joint-physical-care cases, the term “visitation” is frequently used
interchangeably with the terms “parenting time,” “parenting schedule,” or “parenting
plan.”
                                            4


supported by financial documentation at the time of the decree,” and it would not

disturb the amount now.

       II. Standard of Review.

       Jeremy appeals the district court’s ruling on both points. He also asserts

the district court applied the wrong standard of proof in reaching its decision. Our

review on appeal is de novo, which requires that we “make our own findings of

fact.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). This also

means the application of the wrong standard of proof by the district court, if it did

so, is obviated by our de novo review. See Brown, 778 N.W.2d at 54. We do

give   the   district   court’s   fact-findings   weight,   especially   any   credibility

determinations made, though we are not bound by them. See In re Marriage of

Sisson, 843 N.W.2d 866, 870 (Iowa 2014); see also Iowa R. App. P. 6.907. “The

district court has reasonable discretion in determining whether modification is

warranted, and we will not disturb that discretion unless there is a failure to do

equity.” In re Marriage of Maher, 596 N.W.2d 561, 565 (Iowa 1999).

       III. Discussion.

       A. Shared-Care Parenting Schedule.

       “A parent seeking to modify visitation must only establish that ‘there has

been a material change in circumstances since the decree and that the

requested change in visitation is in the best interests of the [child].’” Brown, 778

N.W.2d at 51-52 (citation omitted). This is the burden of proof to be applied in

the modification of a joint-physical-care parenting schedule.            See id. at 53.

Jeremy argues that “[s]ince the decree there has been a change of

circumstances that justifies consideration of a modification of the parenting plan
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or visitation schedule,” citing the following as changes that justify modification:

(1) Tiffany now has an 8:00-5:00 job, so she is no longer a stay-at-home mother

with a flexible schedule without the need for child care; (2) “Tiffany has had some

domestic violence in her household,” and (3) the parties have differences of

opinions concerning which school the now school-aged child will attend. Even

assuming these are all changes that have occurred since entry of the parties’

dissolution decree, we do not find they justify a change in the parenting plan to

which the parties agreed just four years ago.

      The most significant of these “changes” are the allegations of domestic

abuse in Tiffany’s household. Our de novo review of the record shows there was

one incident of domestic violence that occurred at Tiffany’s home in 2014. There

is no evidence that the child was affected by the occurrence or that any

additional events have occurred. While we do not take domestic violence lightly,

Jeremy himself believed shared care remained in the child’s best interests.

Though perhaps a “change,” under the facts of this case, it does not justify

changing the parenting schedule.

      Similarly, Tiffany’s employment status may constitute a “change” since

entry of the decree, but we do not find being employed full-time, working ordinary

hours is something that justifies changing the parenting schedule.         Jeremy

himself admitted that by the time of the hearing, Tiffany had used day care “for a

few years now.” Additionally, considering the child would be enrolled in school

full-time, the child’s time at day care or at an after school program is minimal.

      The heart of this matter was the school-enrollment issue.          Jeremy’s

petition alleged a substantial change in circumstances based only upon the
                                         6


child’s school age, and he admitted that although he did have other concerns, the

school issue was really the only issue. He testified the parties did not discuss the

child’s schooling when they entered into the stipulation, though he admitted he

was represented by counsel when he entered into the stipulation; Tiffany was

not. He also testified he believed Tiffany had “dropped the ball” in not enrolling

the child in preschool, but Tiffany testified she placed their child on the waiting

list, which she told Jeremy. This is simply not enough to justify a reversal in the

parties’ parenting agreement.

       Even considering all three “changes” together, we do not find them

sufficient to justify modification of the parties’ prior parenting schedule

agreement. Nor do these changes establish modification of the parties’ parenting

plan is in the child’s best interests. Consequently, we agree with the district

court’s denial of Jeremy’s petition for modification concerning the parties’

parenting schedule.

       B. Child Support.

       Jeremy also challenges the district court’s denial of his request to modify

his child support obligation. Though he stated in his petition that modification of

his support award was justified based upon his provision of insurance for their

child, he submitted at the hearing his “requests” to the court, including a request

that his child support obligation be reduced to $128.11 based upon Tiffany’s

increased income and the child-support guidelines. Now on appeal, he asserts

there was a substantial change in circumstances “because the child support

varied by ten percent or more comparing the decree amount and the current child

support guideline amount.”
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       Although it is, perhaps, mathematically apparent that there possibly was a

ten-percent variance, we can find no evidence in the record that Jeremy

specifically requested his support obligation be modified for that reason, as he

argues here. In his brief, Jeremy does not direct us to where the ten-percent-

variance claim was preserved; rather, he merely asserts he preserved error by

timely appealing from the district court’s ruling.     However, a timely notice of

appeal “has nothing to do with error preservation.” State v. Lange, 831 N.W.2d

844, 846-47 (Iowa Ct. App. 2013); see also Thomas A. Mayes & Anuradha

Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on

Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (footnote omitted)

(explaining that “[a]s a general rule, the error preservation rules require a party to

raise an issue in the trial court and obtain a ruling from the trial court”).

Additionally, no Iowa Rule of Civil Procedure 1.904(2) motion was filed to request

the court rule on that claim to preserve error for appeal. See Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002); see also State Farm Mut. Auto. Ins. Co. v.

Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984) (“It is well settled that a rule

[1.904(2)] motion is essential to preservation of error when a trial court fails to

resolve an issue, claim, defense, or legal theory properly submitted to it for

adjudication.”).   We do not find Jeremy preserved the-substantial-change-in-

circumstances-based-upon-a-ten-percent-variance issue for our review. See Top

of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (holding

appellate court may consider error preservation on its own motion).

       The only basis for modification of his child support obligation asserted in

his petition was that he was now providing insurance for the child. However, he
                                          8


testified the child was still covered by Medicaid. He also testified the insurance

was provided through his employer at “little or no cost” to him. This does not

constitute a substantial change in circumstance.

       Finally, assuming he preserved the issue of Tiffany’s increased income as

evidence of a substantial change in circumstances by mentioning it in his

“requests” at trial, we cannot say the district court erred in declining to modify

Jeremy’s child support obligation on this basis. It is clear the parties agreed to

the original award even though it deviated from the guidelines. As our supreme

court recently stated:

       If the parties want the district court to deviate from the child support
       guidelines, and also want to avoid subsequent modification of that
       award based on an evaluation of changed circumstances or the ten
       percent deviation, counsel and the district court need to insure that
       the dissolution decree explains the reasons for the deviation and
       that those reasons are factually and legally valid.              Absent
       compliance with the statute and our rules, there is no reason to
       assume that the initial child support amount set forth in the decree
       has any proper basis, or that it should be used as the basis for
       subsequent modification proceedings.

In re Marriage of Mihm, 842 N.W.2d 378, 385 (Iowa 2014) (internal citations

omitted).   Like in Mihm, there is nothing in the record that evidences the

dissolution court was advised that the child support deviated from the child

support guidelines. See id. And, as noted above, Tiffany was not represented at

that time. But unlike Mihm, there is no evidence here that continued enforcement

of the decree would result in injustice to the child. 842 N.W.2d at 384. Given the

original deviance from the guidelines without explanation, or, as the district court

pointed out, any financial documentation, we cannot say the change constitutes a
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substantial change in circumstances since the entry of the underlying decree

warranting modification of Jeremy’s child support obligation.

       C. Appellate Attorney Fees.

       Tiffany requests an award of attorney fees. Awarding appellate attorney

fees in dissolution cases rests within our discretion, and we consider the

requesting party’s needs, the other party’s ability to pay, and whether the party

was required to defend the district court’s decision on appeal. See In re Marriage

of McDermott, 827 N.W.2d 671, 687 (Iowa 2013). After carefully considering

these factors, we award Tiffany $2000 in appellate attorney fees. Costs are

assessed to Jeremy.

       IV. Conclusion.

       Because we agree with the district court’s denial of Jeremy’s petition for

modification of the parties’ parenting schedule and his child support obligation,

we affirm its ruling denying and dismissing his petition.

       AFFIRMED.
