                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1189
                             Filed March 20, 2019


BECKY JANE TRESSEL,
    Plaintiff-Appellee,

vs.

BRANDON R. KUEHL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      A father appeals the district court’s order modifying the physical care

provisions of a custody decree concerning his minor child. AFFIRMED.




      Jennifer M. Olsen of Olsen Law Firm, Davenport, for appellant.

      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
                                         2


MULLINS, Judge.

       Becky Tressel and Brandon Kuehl are the parents of one child, O.J.K., born

in 2015.      Becky and Brandon never married and were in a relationship until

approximately five months after O.J.K.’s birth. On October 3, 2016, the court

entered a decree awarding both parties joint legal custody and shared physical

care of O.J.K. The court noted Becky and Brandon’s troubled relationship and

Becky’s intrusion on Brandon’s parenting time. The court expressed its concern

with Becky’s interference, which was “often over minor and somewhat orchestrated

reasons,” including constantly texting Brandon and needlessly involving the police

without a reasonable basis. Further, the court was concerned about Becky’s denial

of visitation. The court expressed its hope that the situation would change and

found that joint legal custody and shared physical care was in O.J.K.’s best

interests. The court ordered Brandon to pay child support and required the parent

relinquishing custody to provide transportation to the other parent’s residence.

       On October 26, Becky and Brandon entered into a stipulation modifying the

decree as to the days they would have custody in order to work better for the

parties’ schedules.    Further, the parties agreed to deviate from the guideline

amount of child support and that, going forward, Brandon would have no support

obligation.    The stipulation also required Brandon’s name be added as an

emergency contact at O.J.K.’s daycare and preschool. The district court approved

the parties’ stipulation the same day.

       On February 10, 2017, Becky filed a petition for relief from domestic abuse

against Brandon based on an incident which occurred in December 2016. She

alleged that during a custody exchange at Brandon’s house, Brandon sexually
                                          3


assaulted her. The court granted a temporary protective order, halting Brandon’s

visitation with, and custody of, O.J.K. On February 22, 2017, the district court

resumed visitation as previously ordered and required all visitation exchanges to

occur at Brandon’s mother’s house. On March 21, the court entered a protective

order by consent agreement, which continued the custody and visitation

arrangement as previously ordered. For the incident, Brandon was arrested,

ultimately pled guilty, and was granted a deferred judgment to a charge of assault

causing bodily injury. Based upon the assault, the Iowa Department of Human

Services (DHS) initially returned a founded child-abuse assessment against

Brandon for denial of critical care. However, DHS subsequently modified the

finding from founded and placement on the child-abuse registry to confirmed

without placement on the registry.

       In July, Becky filed a custody modification petition. She cited Brandon’s

assault conviction and the parties’ inability to co-parent as substantial and material

changes of circumstances to justify modification. She requested physical care of

O.J.K., child support, and attorney fees. Brandon denied Becky’s application,

stating that Becky was the party to blame for their inability to co-parent. He

requested either the court deny Becky’s application or, if the court determined

there was a change of circumstances justifying a custody modification, physical

care be awarded to him. He also requested Becky pay child support and attorney

fees. The court held a trial in early February 2018. In March, Becky moved to

reopen the evidence to allow evidence of Brandon’s recent arrest for operating

while intoxicated (OWI) to be added to the record. Becky argued that the outcome

of this arrest could potentially affect custody and visitation, as Brandon may be
                                               4


incarcerated and his driving privileges suspended. On April 19, the court filed its

ruling on the modification petition, finding a substantial change in circumstances

had occurred to support modification and found Becky to be the superior parent.1

Based upon these findings, the court continued joint legal custody and awarded

Becky physical care. Brandon appeals the modification, contending the district

court erred in finding a substantial change of circumstances warranting

modification of physical care and that Becky could provide superior care. Both

parties request appellate attorney fees.

       We review petitions to modify custody de novo. In re Marriage of Hoffman,

867 N.W.2d 26, 32 (Iowa 2015). “Although we make our own findings of fact,

‘when considering the credibility of witnesses the court gives weight to the findings

of the trial court’ even though we are not bound by them.” Id. (quoting In re

Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989)). The best interests of

the child is our primary consideration. Iowa R. App. P. 6.904(3)(o). We must

consider and “base our decision primarily on the particular circumstances of the

parties,” and “[p]rior cases have little precedential value.” Melchiori v. Kooi, 644

N.W.2d 365, 368 (Iowa Ct. App. 2002).

       In order to modify physical care,

       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


1
  The court scheduled a hearing on Becky’s request to reopen the evidence for April 20,
but filed its ruling on the 19th. There is nothing in the court’s ruling that shows that it took
Brandon’s OWI arrest into consideration. Therefore, our consideration of the case will
exclude the arrest. We also note the court subsequently amended and enlarged its ruling
in response to Becky’s motion. Among other things, the court provided more specific
designations regarding visitation and awarded Becky attorney fees.
                                          5


       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.

Hoffman, 867 N.W.2d at 32 (quoting In re Marriage of Frederici, 338 N.W.2d 156,

158 (Iowa 1983)). This places a heavy burden upon the parent requesting the

modification as “once custody of children has been fixed it should be disturbed

only for the most cogent reasons.” Id. (quoting Frederici, 338 N.W.2d at 158).

When determining physical care, our goal “is to place the [child] 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). Quality

interaction “does not occur solely in situations involving joint physical care.” Id.

       First, no party contests the court’s award of joint legal custody of O.J.K.

With regard to the issue of physical care, on our review of the record, we agree

with the district court that both parents love O.J.K. and O.J.K. loves both parents.

However, we also agree that Brandon and Becky have a tumultuous relationship,

to say the least. While the court in the original custody order acknowledged the

poor relationship between Brandon and Becky, it also hoped that shared physical

care would work and “that the parties [could] mature in their dealing with each other

for the sake of O.J.K.” Both parties seem to agree that joint physical care does not

work in this case and the record is replete with evidence that the court’s hopes did

not come to fruition. Instead the relationship has progressively deteriorated to the

point where Brandon and Becky are restricted by court order from communicating

with one another. First, Brandon was arrested and pled guilty to assaulting Becky

while in the presence of the child. While Brandon spends much of his appellate
                                         6


brief accusing Becky of lying and making false accusations regarding the incident

in question, this appeal is not a relitigation of the criminal case against him. The

facts are he was convicted of the assault, DHS investigated the allegation, and

subsequently returned a confirmed child-abuse assessment against Brandon for

denial of critical care based upon the assault. Further, there is now a criminal

protective order in place between Brandon and Becky as a result of his conviction,

which does not expire until 2022.

       Based on circumstances that have developed since the entry of the original

decree, we find the district court’s earlier “confidence in these parties’ ability to

communicate in the best interests of the [child] under a joint physical care

arrangement was misplaced.” See In re Marriage of Harris, 877 N.W.2d 434, 441

(Iowa 2016). The parents’ inflexibility and use of the child as a means to either get

back at the other or for leverage in order to gain something has resulted in issues

during both visitation and medical appointments which have affected O.J.K. Both

parents are quick to blame the other whenever problems arise and their inability to

work together has led to several filings for contempt against each other. There is

nothing in the record which indicates that the animosity between Brandon and

Becky will dissipate or even lessen in the future. Accordingly, we agree with the

district court and conclude there has been a substantial and material change in

circumstances not contemplated by the court, which is more or less permanent

and relates to the welfare of the child. “[T]he shared physical care provisions in

this case have not evolved as envisioned and [O.J.K] will benefit from a

modification that designates a primary physical caregiver.” See id.
                                           7


       The question then “becomes whether [Becky] showed [s]he can render

superior care.” See In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct.

App. 1998). Although Becky is not blameless in the failure of the shared physical

care arrangement, based upon our review of the record, we agree with the district

court that Becky proved she is better suited than Brandon to minister to O.J.K.’s

needs. We therefore affirm the district court’s modification of physical care. We,

like the district court, are concerned for the child as the result of the parents’

behavior toward one another. Both must learn to set aside their differences and

act in the best interest of O.J.K. Further, the award of “physical care of [O.J.K.] to

[Becky] does not deprive [Brandon] of his ‘[r]ights and responsibilities as joint legal

custodian . . . to equal participation in decisions affecting the child’s legal status,

medical care, education, extracurricular activities, and religious instruction.’” See

Harris, 877 N.W.2d at 444 (quoting Iowa Code § 598.41(5)(b)).

       Both parties request an award of appellate attorney fees. Fees “are not a

matter of right, but rather rest in this court’s discretion.” In re Marriage of Okland,

699 N.W.2d 260, 270 (Iowa 2005). We consider “the needs of the party seeking

the award, the ability of the other party to pay, and the relative merits of the appeal.”

Id. (quoting In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993)). Under the

circumstances of this case, we award Becky $5000 in appellate attorney fees.

Costs on appeal are assessed equally between the parties.

       AFFIRMED.
