                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0219
                               Filed May 13, 2020


IN RE THE MARRIAGE OF GABRIELLE L. KANE
AND JOHN K. KANE

Upon the Petition of
GABRIELLE L. KANE, n/k/a GABRIELLE L. REHARD,
      Petitioner-Appellee,

And Concerning
JOHN K. KANE,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Randy V. Hefner,

Judge.



      A father appeals the district court order modifying physical care and

dismissing his application for contempt. AFFIRMED.



      David J. Hellstern of Sullivan & Ward, P.C., West Des Moines, for appellant.

      T.J. Hier (until withdrawal), Baxter, for appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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TABOR, Presiding Judge.

       John Kane contends the “unilateral actions and inactions” of his former wife,

Gabrielle Rehard, prompted the district court’s modification of the physical care of

their two daughters. He hopes to return to their shared-care arrangement and

believes Gabrielle should be held in contempt.

       Like the district court, we find Gabrielle showed a substantial change in

circumstances to justify modification. And John did not prove she willfully violated

the original decree. We thus affirm the district court’s order.

       I.     Facts and Prior Proceedings

       Gabrielle and John married in 2003 and divorced in 2013. In early 2017,

Gabrielle petitioned to modify their dissolution decree. They have two daughters:

A.L.K, born in 2005 and H.M.K., born in 2006. The decree outlined shared physical

care with the parents alternating weeks. It also provided for one parent to have

the children on Wednesdays during the other parent’s week.          In response to

Gabrielle’s modification request, John alleged she was in contempt of the decree.

       Back in 2013, after the divorce, Gabrielle moved from the family home in

Des Moines to Indianola. Then both parents provided the children transportation

to school in Des Moines. John’s mother helped him during his physical-care weeks

because of his work schedule at John Deere. Gabrielle remarried and stayed in

Indianola. Helped by her parents, she continued to transport the children to school

in Des Moines. Immediately following the divorce, the parents could communicate

effectively about their children’s education and medical needs.

       In 2017, Gabrielle relocated to Lacona—about thirty-eight miles south of

Des Moines. The location was closer to her new husband’s work in Knoxville and
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they could pay lower rent on a house owned by her parents. Gabrielle worked

part-time at the Hy-Vee in Indianola.

       The most critical development since the decree was the emotional difficulty

experienced by their older daughter, A.L.K. Both children were seeing the same

therapist. But A.L.K. found it harder to cope with John’s parenting style. As time

went by, A.L.K decided she did not want to spend time with her father. By contrast,

her younger sister, H.M.K., maintained a good rapport with John. As the district

court noted: “A.L.K.’s refusal to visit John has caused arguments between the

sisters.” And the different tenor of the girls’ relationships with their father deepened

A.L.K.’s discomfort. A.L.K. started identifying situations when she felt her father

treated her differently than he treated H.M.K.           Meanwhile, A.L.K. suffered

depression.1 She felt bullied at her middle school, she was getting into fights, and

her grades were deteriorating. Gabrielle recalled A.L.K. coming home from John’s

house with “anxiety, crying, not sleeping.” In February 2018, A.L.K. tried to harm

herself. School officials contacted Gabrielle, who took her daughter to the urgent

care clinic. Gabrielle allowed A.L.K. to discontinue interactions with John based

on the child’s reactions to visits.

       At the start of the 2018–2019 school year, Gabrielle enrolled A.L.K. in the

Melcher-Dallas Community School District. She did so without consulting John.

Gabrielle testified she emailed and texted John that summer about possibly

changing A.L.K.’s school but “never got responses.”          Gabrielle defended her

enrollment decision, contending A.L.K. “[h]as been soaring through. She was


1The record shows John didn’t think A.L.K. needed the antidepressant medication
prescribed by her doctor.
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nervous at first being the new kid at school, new people, was scared to ask

questions in the beginning, but now she has no problem asking questions if she

has a problem with something.” According to her mother, A.L.K. now participates

in school activities and is doing better academically.

         In its modification order, the district court determined: “Gabrielle has carried

her burden to prove by clear and convincing evidence that the shared physical

care ordered in 2013 should be terminated.” The district court also decided

Gabrielle was “the parent best able to minister to the daily needs of the children.”

         Although the court ended the alternating weeks of physical care, it advised

John and Gabrielle to be flexible because the new parenting schedule was not “a

statute or commandment.” To resolve the lack of communication between A.L.K.

and her father, the court ordered John to participate in counseling with his

daughter. The court also directed Gabrielle to cooperate in the scheduling and

ensure A.L.K’s attendance for any session.

         On the contempt issue, the court decided John had not carried his burden

to show willful violation of the decree.

         John now appeals the district court’s rulings.2

         II.     Scope and Standards of Review

         We review the record de novo in a proceeding to modify the custodial

provisions of a dissolution decree. In re Marriage of Zabecki, 389 N.W.2d 396,

398 (Iowa 1986). “At the same time, we recognize the virtues inherent in listening

to and observing the parties and witnesses.” In re Marriage of Pendergast, 565



2   Gabrielle’s counsel did not file a final appellee’s brief.
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N.W.2d 354, 356 (Iowa Ct. App. 1997). So, although they are not binding, we give

weight to the district court’s findings of fact. See id.

       Because the modification trial was in equity, the court allowed evidence into

the record subject to John’s hearsay and foundation objections. See In re Marriage

of Anderson, 509 N.W.2d 138, 142 (Iowa Ct. App. 1993). If John challenges the

admissibility of that evidence, we review for the correction legal error. See Garland

v. Branstad, 648 N.W.2d 65, 69 (Iowa 2002). If we find exhibits were inadmissible,

we may decide the case on the remaining record without remand. See O’Dell v.

O’Dell, 26 N.W.2d 401, 417 (Iowa 1947).

       III.   Analysis

       The modification outlined by the district court does not sit well with John.

To begin, he argues the court erred in giving any weight to excerpts from A.L.K.’s

diary and a letter from her treating physician. John next contends Gabrielle did not

prove a substantial change in circumstances warranting modification. He alleges

the court erred in placing physical care with Gabrielle because she created the

issues leading to modification. Last, John argues the court erred in dismissing his

claim that Gabrielle was in contempt.

       A.     Should we give weight to A.L.K’s diary or the doctor’s letter?

       During the modification hearing the district court admitted into evidence—

subject to objection—entries from A.L.K.’s diary chronicling her feelings about

unpleasant exchanges with John.3 The court also conditionally admitted a letter


3 The district court found the diary entries were admissible as present sense
impressions. A present sense impression is an exception to the hearsay rule that
applies to “a statement describing or explaining an event or condition, made while
or immediately after the declarant perceived it.” Iowa R. Evid. 5.803(1); State v.
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written by Dr. Kandace Bass, an urgent care physician who saw A.L.K. in her clinic

in February 2018. John contends the district court erred in considering these

documents because they lacked a proper foundation and contained hearsay.

      Assuming without deciding the disputed evidence was inadmissible, we

review the modification of physical care without considering the diary entries or

doctor’s letter. See In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981)

(noting though district court should have sustained father’s objection to child-

custody report as hearsay; “[b]ecause our review is de novo, we disregard the

report in our consideration of the issues”); Erickson v. Blake, No. 15-0251, 2016

WL 1130578, at *1 (Iowa Ct. App. Mar. 23, 2016) (“To the extent any evidence was

improperly considered by the district court, reversal is not required given our de

novo review of the record on appeal.”).     Our de novo review relies on facts

independent of those exhibits.

      B.     Did Gabrielle prove a substantial change in circumstances?

      As the parent requesting modification, Gabrielle had a heavy burden. See

In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (reiterating “once

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

reasons”).   To change the shared-care provision, she had to show by a

preponderance of evidence that conditions since entry of the decree had so

materially and substantially changed that the children’s best interests required

modification. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).



Thompson, 836 N.W.2d 470, 479 (Iowa 2013). Because A.L.K’s journal entries
seem to be more reflections than contemporaneous recordings, the exhibits do not
fit the hearsay exception. See State v. Leyba, 289 P.3d 1215, 1220 (N.M. 2012).
We do not find the exhibits were admissible as present sense impressions.
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Those changed circumstances must have been outside the court’s contemplation

when it entered the decree. Id. And they must be more or less permanent and

relate to children’s welfare. Id. Once Gabrielle cleared that hurdle, she had to

show she was the parent able to minister more effectively to the children’s well-

being. See id.

       In its ruling, the district court detailed A.L.K.’s “self-destructive behavior”

since the decree. And the court found John’s response to Gabrielle’s efforts to

include him in discussions about A.L.K.’s psychiatric care have been “ambiguous

and perhaps a bit passive-aggressive.” Centering on these issues, the court found

Gabrielle carried her burden to prove shared physical care should end and she

was “the superior care parent.”        In our de novo review, we reach the same

determination as the district court.

       On appeal, John insists Gabrielle “unilaterally created the issues upon

which the court relied to order custody modification.” He contends Gabrielle

“caused the hardship of distance by continually moving” farther away from Des

Moines. He also condemns Gabrielle’s handling of A.L.K.’s situation—including

the change in her therapist, the change in her school, and withholding his parenting

time with her.

       We reject John’s position. It is appropriate to modify custody when shared

custody provisions incorporated into the decree “have not evolved as envisioned

by either of the parties or the court” or when the parents simply “cannot cooperate

or communicate in dealing with their children.” See In re Marriage of Harris, 877

N.W.2d 434, 441 (Iowa 2016) (modifying joint physical-care arrangement when

parents had “discordant perceptions” of their daughter’s need for treatment).
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       When we look at the best interests of the children, we find Gabrielle’s move

for financial reasons and because of her new husband’s job also provided a fresh

start for A.L.K.   In Gabrielle’s view, A.L.K.’s problems and the adolescent’s

insistence that she “did not want to deal” with her father created a situation where

Gabrielle could not both comply with the decree and safeguard her daughter’s well-

being. The change in schools improved A.L.K.’s overall circumstances. We do

not find Gabrielle’s actions were geared toward shutting down the relationship

between John and their daughters. Gabrielle’s willingness to transport H.M.K to

school in Des Moines while living in Lacona demonstrates her dedication to the

shared-care arrangement.

       The record shows Gabrielle is the parent better able to minister to the needs

of both children—but especially A.L.K. as she works to repair her relationship with

John. The district court’s order for family therapy for John and A.L.K. is an

appropriate avenue to rebuild the father-daughter bond. The record shows H.M.K.

is a resilient child and Gabrielle believes she will adapt well to a new school. After

our de novo review, we affirm the modification order.

       C.     Did John prove Gabrielle was in contempt?

       As a final issue, John argues the district court should have held Gabrielle in

contempt for three reasons: (1) she did not allow him to participate in A.L.K.’s

medical treatment; (2) she “unilaterally” moved A.L.K. to the Melcher-Dallas school

without his consent; and (3) she did not allow him visitation as provided in their

dissolution decree.

       Iowa Code section 598.23 (2017) provides if a person against whom a final

decree has been entered “willfully disobeys” the decree, the court may punish the
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person for contempt. John had the burden to prove his contempt allegation beyond

a reasonable doubt. See In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa

1995).      The district court decided John failed to prove Gabrielle’s willful

disobedience of the decree. We review that decision for substantial evidence.

Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988).

         At the heart of our analysis is the word “willfully”.         To prove willful

disobedience, John had to show Gabrielle’s conduct was (1) “intentional and

deliberate with a bad or evil purpose” or (2) “wanton and in disregard of the rights

of others,” or (3) “contrary to a known duty” without concern whether she had the

right. See Jacobo, 526 N.W.2d at 866. We find substantial evidence to support

the district court’s determination that John’s proof did not reach these standards.

         Even if John made the initial case that Gabrielle failed to follow the letter of

the decree as to decisions about A.L.K., Gabrielle produced evidence showing why

she could not perform those duties. See Webb v. Iowa Dist. Ct., 416 N.W.2d 95,

99 (Iowa Ct. App. 1987) (explaining burden of proof in contempt cases). John

retained the burden to show she willfully disobeyed the decree. See id. Here, the

lack of communication between the parents did not rise to the level of willful

disobedience. In his brief, John asserts he filed the contempt action “to try to get

family therapy started.” The court’s order seeks to satisfy that goal—without

holding Gabrielle in contempt.

         We affirm the dismissal of the contempt action.

         AFFIRMED.
