                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1562
                              Filed July 16, 2014


IN RE THE MARRIAGE OF TRAVIS R. DUGGAN
AND DANIELLE L. DUGGAN

Upon the Petition of
TRAVIS R. DUGGAN,
      Petitioner-Appellant,

And Concerning
DANIELLE L. DUGGAN,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      A father appeals the district court’s refusal to modify the physical care

provision of the decree dissolving his marriage. REVERSED AND REMANDED.



      Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant.

      Stephen J. Banks of Banks Law Firm, P.C., Waukee, for appellee.



      Heard by Vogel, P.J., and Doyle and Mullins, JJ.
                                         2


VOGEL, P.J.

       Travis Duggan appeals the district court’s denial of his petition to modify

the physical care provisions of the decree dissolving his marriage to Danielle

Duggan. He asserts because he can provide superior care, it is in the best

interest of the children to be placed with him, and he has proved a substantial

change in circumstances justifying the modification of the decree. On appeal,

Danielle defends the district court’s decision and seeks an award of appellate

attorney fees.     Because we find Travis has proved a substantial change in

circumstances and that he can provide superior care for the children, we reverse

the district court’s denial of his petition to modify the physical care and remand

the case to the district court to establish a visitation schedule for Danielle and to

set child support.

I. Background Facts and Proceedings.

       The parties separated in 2008 and shared, on a weekly basis, the physical

care of their four boys, born 1998, 2004, 2005, and 2007. In 2011, Travis moved

from Ankeny to Manchester, the town where he grew up, in order to obtain a

higher paying job and reduce his living expenses. In April 2011, the district court

entered a decree of dissolution of marriage, incorporating the parties’ stipulation,

which provided the four boys would be placed in Danielle’s physical care subject

to Travis’s visitation rights.

       In September, 2011, Travis filed a contempt action against Danielle based

on her failure to comply with the visitation transportation provisions of the decree.

As evidence to support the contempt action, Travis submitted a recording of a

voicemail message Danielle had left for him, that stated in part,
                                          3


       I’m not driving and putting up with those f***ing a**hole kids being
       dicks in the car the whole way. I’m not doing it; it’s just retarded. It
       costs me money and time and energy. I’m not f***ing doing it. I
       could care less if they see you or not. To me it doesn’t f***ing
       matter. I would prefer that they didn’t.

In a text message, Danielle wrote to Travis that he could “have the boys. I can’t

do it all anymore. I can’t afford it & I’m sick of how they act/treat me. I’ll pay you

no $ & see them 4 days a month. Let me know when we can get this done.” The

court found Danielle to be in contempt based on her failure to provide

transportation for the children without good cause on at least two occasions. The

court modified the decree to provide that Travis would be responsible for

transportation at the beginning of visitation and Danielle would be responsible for

transportation at the end.

       There was also another voicemail, which occurred in September or

October 2011 from Danielle to Travis and admitted by Travis at the time of the

modification trial. She advised he needed to start looking for a place to take the

boys because she was not “doing this anymore. I’ll pay you $400 per month and

you can do this bullshit. I’m done.” She asked that he call her because she

wanted to switch the kids at semester.

       Also in the fall of 2011, Danielle allowed her then boyfriend, Charles

Turner, to move into the home she was occupying with the children. Turner has

an extensive criminal history involving drug-related offenses.        While Danielle

claims Turner only lived with them for six weeks, she did become pregnant by

Turner with twins in December 2011. By January or February 2012, Danielle and

Turner were no longer romantically involved.
                                          4


       The oldest son was suspended from school late in the 2011 fall semester

for getting in a fight, and Danielle had started to arrange for counseling services

for the children due to the discipline problems she was having. In January 2012,

a department of human services (DHS) investigation was opened with respect to

an incident between Danielle and the parties’ oldest son.          The son reported

Danielle hit him twice during an argument causing a lump/bruise on his forehead.

DHS determined the report was founded and placed Danielle on the abuse

registry. While that investigation was ongoing, a second allegation was made

that Danielle smacked the back of the third son’s head, causing him to trip on a

rug. He then struck his nose on the counter, causing swelling and bleeding. This

report was also determined to be founded.

       Aside from these findings, in the prior two school years leading up to the

June 2013 modification trial, the two oldest boys had been tardy and absent from

school a significant number of times.1        Because of the difficult relationship

Danielle was having with the oldest son, she agreed to allow Travis to have

temporary physical care of him from January 2012 until the school year ended in

May 2012. Travis employed a much stricter form of discipline and a much more

rigid schedule, which the oldest son began to respond to after a few weeks.

During the five months the oldest son stayed with Travis, his grades improved,




1
  The oldest son was absent three days and tardy forty-three times in the 2011-2012
school year while attending school in Des Moines. He was only present at the school
until January 2012 when he went to live with Travis. In the 2010-2011 school year, this
child was absent five days and tardy twenty-four times. The second oldest son was
absent eight days and tardy twenty-two times in the 2010-2011 school year. He was
absent four days and tardy eleven times in the 2011-2012 school year.
                                        5


his attitude improved, and he attended therapy. Travis described that by the end

of the 2012 school year his oldest son had changed like “night and day.”

       In late July 2012, twins were born to Danielle and Turner, and Turner

moved back in with Danielle, the twins, and the four Duggan children. Another

DHS investigation was opened in August of 2012 against Danielle as a result of a

physical altercation she had with her sister, which two of the Duggan boys

witnessed. The DHS investigation determined the report was founded for the

denial of critical care and failure to provide proper supervision. Danielle was

arrested for assault, though she was acquitted of the charge following a jury trial

in February of 2013.

       In September of 2012, Danielle separated from Turner again, and she had

limited contact with him until March 2013. The record indicates Turner served

time in jail in late 2012 on drug-related convictions. In February 2013, Danielle

drafted a lengthy letter to Turner. The letter was never sent to Turner, and

Danielle stated she wrote the letter as a form of therapy for her to vent her

feelings as to their chaotic relationship. Danielle did not portray Turner in a

positive light, stating repeatedly, in rather crude terms, he was not a good person

and that her children had witnessed some of Turner’s negative behavior when

Danielle was not present. She stated she never should have had him in her life

or around her children because he was a liar, a drunk, a hustler, a drug dealer,

and a drug addict. She described how the youngest son cried himself to sleep

after Turner left.

       Danielle suspected Turner was not faithful to her during their relationship,

possibly getting other women pregnant at the same time she was carrying the
                                            6


twins. While Turner was with other women, Danielle had a physical relationship

with another man named Al, and the children had been introduced to him.

Danielle wrote that she would have been better off with Al. By the time of trial, Al

was in a federal penitentiary. Danielle testified she could not remember Al’s last

name.

        Professing her deep love and commitment to Turner, Danielle wrote how

she regularly defended him including “beating the f*** out of my sister when she

tried to come at you.” Nonetheless Danielle described how Turner made her feel

so bad about herself that at one point she was almost suicidal. The letter also

reveals that Turner’s drug use was not confined to himself, as Danielle wrote

about the occasions that she and Turner “smoked numerous blunts.” At trial, she

backed away from that, testifying that “blunts” referred to cigars, not to

marijuana.2    Danielle wrote about talking to Turner while he was in jail and

making plans for their future together as a family. However upon his release,

Danielle was disappointed that Turner chose to “party” rather than being a

responsible father. Danielle stated she would not have him around the children if

he was selling drugs and hanging around people who would make fun of the

children or treat them badly. She ended the letter proclaiming that Turner was an

excellent father when he wanted to be but that he made bad decisions and

surrounded himself with people who also made bad decisions.



2
   In the first DHS investigation report of the incident occurring in January 2012, the
oldest child reported Danielle and Turner would “smoke something that does not smell
like cigarettes.” The child also stated he observed “a bag with a green substance in it on
his mother’s desk.” Another child stated his mother and Turner smoke “cigars and
cigarettes” in the basement. DHS requested Danielle submit to a drug screen, which
came back negative for all substances.
                                         7


       In March 2013 Danielle started to open up communication again with

Turner and allowed him back into her life for the benefit of the twins.           She

reported at the June 2013 trial that her recent interactions with Turner had been

positive. Despite their tumultuous relationship and his criminal history, Danielle

described Turner as “an excellent role model and excellent person to be around

the children given the right circumstances.”

       In May 2013, just before the modification trial, Danielle had a third DHS

investigation against her as a result of one of her twins ingesting Adderall that

was prescribed for one of the older children. Danielle explained one of the older

boys was hiding the Adderall in the heating register vents and the nine-month-old

must have found a pill and ingested it while in the care of Danielle’s parents.

       In June 2013, Travis’s petition to modify the physical care provisions of the

dissolution decree came on for trial. Danielle was then living in Ankeny with her

parents, the four boys from her marriage to Travis, and the ten-month-old twins

fathered by Turner. Travis lived in Manchester with his fiancée, Tanya, and the

couple’s two young sons. Travis stated he was currently living in a two-bedroom

home but was in the process of purchasing a larger four-bedroom home.

       Travis was working the overnight shift, from 6:00 p.m. until 6:00 a.m. on a

rotating two week schedule, earning approximately $45,000 per year. Travis felt

his overnight schedule would give him more time with the children as he would

be home in the morning to get them ready for school and home when they got

home from school. He also stated he has extended weekends and days off

during the week due to the rotating weekly shift. When he would be working, his
                                         8


fiancée Tanya could care for the children, and she does an “excellent job” with

them according to Travis.

       Danielle remained unemployed at the time of trial, having last been

employed in September 2012. While she was searching for a job, she testified

she needed to make at least $45,000 per year to meet child care expenses and

be able to support herself.     She had no immediate plans to move from her

parents’ home.     Her father receives disability due to an automobile accident

during his military service, and her mother works full time at a doctor’s office as

an x-ray technician. Both of her parents help care for the children and provide

financially for the family’s needs.

       In addition to the testimony of the parties and Danielle’s parents, the court

heard from the DHS investigators who authored the reports of the January 2012

and August 2012 incidents. The court also heard from the children’s therapists.

       Kerri Collins provided counseling service to the oldest child while he was

in Travis’s care. She had approximately six sessions with him in April and May

2012, which terminated when the child returned to Danielle’s home.           Collins

described the child as a fairly anxious boy, and she worked with him on feeling

secure in his home environment. She testified he was anxious about school,

rules at home, friendships, and typical teenager issues that seemed to be

paralyzing him a little bit.   He expressed concern to her about his younger

brothers remaining in his mother’s care since he was not there to make sure they

were okay. He was also anxious about returning to his mother’s home, where he

would be going to school the following year, and what would happen when his

mother’s twins were born.
                                          9


         Collins provided him with some relaxation and stress reduction

techniques.     She also taught him some communication skills especially with

respect to being disciplined and how to respond when he felt something was not

fair. She testified she did see improvement in him from when she started until

her last session with him. He expressed to her a desire to stay at his father’s

house and was excited about the possibility of playing football in the fall. Collins

admitted she only met with the oldest child, Travis, and Tanya, and never met the

younger children or Danielle.

         Jessica Pilling, from Lifeworks, also testified about the counseling she

provided to the younger three boys. She began seeing the boys in February

2012, and continued seeing them until May 2013.           One of boys expressed

concern about possibly having to move to a different school and was also

concerned with the arguments that take place between Danielle and her mother.

Pilling testified it was particularly important for this child to have stability,

permanency, and a feeling of safety at home. Another child was having issues

with defiance and would bully his younger brother because he perceived that his

mother babied the youngest son. With the youngest son, Pilling worked with

getting him comfortable with the idea that he would not be the baby of the family

once the twins were born. The youngest son expressed worry about his mother

specifically that she was busy, should be married, and may possibly move out of

state.

         For all three of the boys, Pilling testified that frequent moves, changing

school districts, witnessing abuse or being physically abused, and a lack of

structure would all add to their level of distress. She also stated that they could
                                        10


benefit from a good male role model. Pilling believed the services she provided

to the boys had been productive. She stated one of the boys was bothered by

the fact that Travis does not seem to take an active role in his schooling. The

boys are also bothered by the fact that Travis does not call them during the week

or take an interest in what goes on between his weekend visits.

       The district court issued its decision in August 2013.      It noted despite

Travis’s frequent job changes and moves in the past few years, 3 he does appear

to now be stable and able to provide structure. This was seen by how well the

oldest son did while in his care for a few months, though the court noted that

Travis had the advantage of parenting just one of the boys, while the other three

remained with Danielle.

       Danielle had borne the burden of the daily needs of the boys at issue, the

court found, though she had had significant assistance from her parents. The

court noted the “disturbing” incidents involving the physical abuse of the children

and their witnessing Danielle’s physical altercation with her sister. The court was

also concerned with Danielle’s romantic relationships with Turner and Al who

have not been stable role models for the boys. These relationships made the

court “question the judgment of [Danielle] regarding proper role models for her

children and the irresponsibility of engaging in a relationship with a person whom

she knows very little about.” The court described Danielle’s life as “chaotic”

though it had been stabilized mostly by the help of her parents and the love she

has for her children. Her choices though, the court found, “have not been good


3
 We note, since the stipulated decree was entered, Travis has changed jobs twice and
moved once.
                                          11


in regard to relationships with other males, her behavior toward and around her

children, and her own issues of irresponsibility including numerous speeding

tickets and at least one conviction for a charge of theft.”

       With respect to the children, the court found the boys are “by and large”

bonded to Danielle, though there have been some difficulties with the oldest.

The court concluded that while “there is definitely much room for improvement by

the part of [Danielle] in regard to her parenting abilities and in making responsible

decisions about her life which affect drastically the lives of her six children,” when

every fact and circumstance was considered, the court was unable to find that

what occurred between the original decree in April 2011 until the modification trial

in June of 2013 was a “material and substantial change in circumstances that

was more or less permanent.” “Indeed, there have been traumas and problems

which have affected the children, but the Court does not find that they are to such

a degree or of such consistency that they constitute a permanent change of

circumstances.”

       Further the court concluded that while Travis is a good parent and did well

when the oldest child was placed in his care, it could not find that Travis would

provide superior care to Danielle.      The court found stability was particularly

important to the children, and any movement of the children at this time would

cause a substantial stress that would not be in their best interests. The court

denied the modification petition to change the physical care arrangement but

ordered Danielle to continue any and all counseling services, therapy, and/or

other interventions designed to improve her ability to parent. It also ordered the
                                         12


parties to meet half way between Ankeny and Manchester for visitation

exchanges.

         Travis appeals, asserting he should have physical care of the children.

II. Scope and Standard of Review.

         As petitions to modify a dissolution decree are heard in equity, our review

is de novo. Iowa R. App. P. 6.907. “We give weight to the findings of the district

court, particularly concerning the credibility of witnesses; however, those findings

are not binding upon us.” In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa

2014).

III. Modification of Physical Care.

         The physical care provisions of a dissolution decree can be modified

         only when 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 welfare of the child. The parent seeking to change
         the physical care from the primary custodial parent to the
         petitioning parent has a heavy burden and must show the ability to
         offer superior care.

In re Marriage of Brown, 778 N.W.2d 47, 51 (Iowa Ct. App. 2009). The parent

seeking to change the physical care from the primary custodial parent has a

heavy burden. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002).

This is because once custody of children has been fixed it should be disturbed

only for the most cogent reasons. In re Marriage of Frederici, 338 N.W.2d 156,

158 (Iowa 1983).

         Travis asserts the district court should have placed the children in his

physical care. He claims Danielle’s unstable lifestyle has directly affected her

ability to parent and detrimentally impacted the children. He points to the three
                                         13


DHS investigations since the dissolution decree was entered in April 2011, each

concluding the allegations were founded and placing her on the abuse registry—

“One founded abuse report could be discounted as a fluke and not reflective of

Danielle’s behavior, but two founded reports based on three different incidents

establish a pattern of behavior that is not conducive to good parenting.” She is

unemployed and has had romantic relationships with at least two men who have

significant criminal histories.

       Travis faults Danielle for deferring to her parents in the raising of the boys.

Travis was also concerned that Danielle’s father’s disability affects his ability to

watch the children. He claims her house lacks structure or discipline and she

resorts to yelling and losing her temper when she is unable to control the boys’

behavior. Travis also points out Danielle’s failure to comply with the visitation

transportation provisions, leading to her being found in contempt. He concludes,

“Danielle’s actions establish that she is a rash and selfish person who is not a

good role model for the children and not fit to be a primary care parent.” While

conceding that stability is important for his children, Travis claims that stability

does not overcome the substantial evidence of Danielle’s chaotic personal,

family, and professional life.

       In contrast, Travis points out he “has a home of his own, a stable job, a

structured routine for parenting, and a history of improving his children’s

behavior.” He claims he will support the children’s relationship with Danielle and

maximize the children’s opportunities to be with her.        Noting his success in

improving the oldest boy’s grades and behavior, he thus contends he has shown
                                         14


he is the superior parent justifying a modification in the physical care of the

children.

       Danielle defends the district court’s decision.            Since the DHS

investigations, she claims she has learned how to better handle her feelings

when parenting through the assistance of counseling, thus showing her past

issues are not predictive of likely future outbursts. She claims Travis encouraged

the bad behavior in the boys. She states the children are excelling in the Ankeny

school district and live in a neighborhood with similarly aged children. She points

out the children’s counselor, Pilling, testified moving the children would add to

their level of distress. With her parent’s assistance, Danielle claims she has

adequate housing for her children. She also points out Travis has continually

moved from city to city until recently.       Danielle maintains that while she will

always be bonded with Turner due to the birth of the twins, she terminated their

romantic relationship several months before trial. Thus, his presence in her life is

not a “permanent” change in condition to justify modification.

       She points out Travis also has had a founded DHS investigation against

him involving a physical altercation with his now fiancée. The evidence shows

Travis’s and Tanya’s oldest son was present when the incident occurred. Travis

described that he was fighting with Tanya when she attempted to swallow pills in

an apparent suicide attempt, and he choked her to prevent her from swallowing.

The DHS report noted the allegation was founded for a denial of critical care and

failure to provide proper supervision.

       We note this incident took place in 2010, well before the parties’ marriage

was dissolved in April 2011. For the purposes of a modification action, we look
                                        15


only to the circumstances that have occurred since the decree or prior

modification was entered. See In re Marriage of Spears, 529 N.W.2d 299, 301

(Iowa Ct. App. 1994). However, “[i]f a parent seeks to establish a home with

another adult, that adult’s background and his or her relationship with the

children becomes a significant factor in a custody dispute.” In re Marriage of

Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004).            Thus, we will consider

Travis’s relationship with Tanya as she will have a significant role in raising the

children if physical care is modified. Travis testified the oldest son at issue was

initially hesitant to trust Tanya because of the past tumultuous relationship, but

after living with Travis and Tanya from January through May 2012, the oldest

said he did trust her again and the relationship was good.

       The founded DHS reports of abuse against Danielle are concerning. The

voicemail and text messages she left for Travis in the fall of 2011 and the

physical violence that occurred in her home in 2012, clearly show she was

unable to properly discipline and parent the four boys for a time. Her choice of

romantic partners is also concerning. She permitted men with known criminal

histories to interact with and supervise the children. She has been unable to

support herself through employment in the months leading up to trial, though she

had given birth to twins the prior summer.         While Danielle has remained

unemployed, her mother provides the majority of care for the boys. If it were not

for her parent’s generosity, she would be unable to provide for the basic needs of

her children.

       Travis does not have a long history of stability in his job or his housing,

though he does appear to be established now in the town in which he grew up.
                                        16


While he insists his job working overnights permits him substantial time to be with

his children, it is concerning he will be unavailable several evenings a week for

dinner, homework, and bedtime. These parenting obligations will fall heavily on

Tanya, who is also parenting the two children she has with Travis. It is clear the

oldest son greatly improved during the five months he spent in Travis’s care,

though the district court was correct to point out that the other three boys

remained in Danielle’s care, permitting Travis’s attention to be focused on the

oldest son.

       The boys clearly need stability and a positive male role model in their life.

Unfortunately, for Travis to provide that positive role model, it means relocating

the children out of their current school and away from their established

friendships causing a certain level of distress, according to the children’s

therapists.   However, based on our de novo review, we find Travis has

established a substantial change in circumstances since the entry of the decree.

See Brown, 778 N.W.2d at 51. Specifically, that substantial change is supported

by the multiple founded DHS investigations related to Danielle’s care of the

children, Danielle’s association with men who are not positive role models for her

children, the difficulty experienced by Danielle in complying with the visitation

transportation order, and the difficulty the children were having with school

attendance and discipline.

       In addition, we find Travis has shown he has the ability to offer superior

care. See id. This is demonstrated most clearly by the improvement the oldest

child demonstrated after the few months he lived in Travis’s home. While the

district court is correct that Travis was not required to parent all four of the
                                         17


children at issue during this time, the care Danielle provided did not improve with

the other three boys during the absence of the oldest child either. Both Danielle

and Travis have two other children to parent in their home apart from the four

children at issue here. The burden of parenting six children will be substantial for

either party. However, based on the evidence in the record, we find Travis has

demonstrated an ability to offer superior care for the children at issue.

       We reverse the district court’s denial of Travis’s modification petition, we

grant physical care of the children at issue to Travis, and we remand this case to

the district court so that a visitation schedule for Danielle can be established and

the appropriate child support order entered.

IV. Appellate Attorney Fees.

       Danielle seeks an award of appellate attorney fees.

       Appellate attorney fees are not a matter of right, but rather rest in
       this court’s discretion. Factors to be considered in determining
       whether to award attorney fees include: “the needs of the party
       seeking the award, the ability of the other party to pay, and the
       relative merits of the appeal.”

In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (citation omitted).

Based on our consideration of the factors above, we decline to award Danielle

attorney fees on appeal.

       Costs on appeal are assessed to Danielle.

       REVERSED AND REMANDED.
