                       IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1652
                              Filed August 19, 2015

IN RE THE MARRIAGE OF SCOTT MICHAEL TAYLOR
AND MICHELE R. TAYLOR,

Upon the Petition of
SCOTT MICHAEL TAYLOR,
      Petitioner-Appellee,

And Concerning
MICHELE R. TAYLOR, n/k/a
MICHELE R. WULFF,
     Respondent-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Woodbury County, Duane E.

Hoffmeyer, Judge.



       A former spouse appeals a modified dissolution decree, challenging

physical care, visitation and child support. AFFIRMED.



       Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

       Francis L. Goodwin of Baron, Sar, Goodwin, Gill & Lohr, Sioux City, for

appellee.



       Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, J.

       Less than two years after their divorce, Michele Wulff, formerly known as

Michele Taylor, filed a petition to modify the visitation provisions of the decree;

Scott Taylor filed a counterclaim for modification of child support; and Michele

amended her petition to request a change in physical care. The district court

declined to modify physical care, formalized the visitation schedule, and ordered

Michele to pay child support.     Because we agree with the district court that

Michelle failed to show a substantial change in circumstances justifying

modification of physical care, we affirm on that issue.       We also affirm the

visitation schedule and child support order.

I.     Background Facts and Proceedings

       Michele and Scott married in 1999 and had two children together. C.T.

was born 2001 and B.T. was born 2005. The couple separated in 2009, and

entered a stipulated dissolution decree with court approval on June 11, 2012.

The decree granted the parties joint legal custody with Scott having physical

care. The decree did not set a formal visitation schedule, but granted Michele

“reasonable rights of visitation at all reasonable times and places as agreed upon

by the parties.” The decree did not order child support, but stated that either

party could petition the court for child support in accordance with the state

guidelines if disputes arose.

       Michele is employed by an agricultural business and earns $29,484

annually. She remarried in December 2012. Scott is employed by Mibaco, his

mother’s construction business, where he earns $12.50 an hour. He testified that
                                       3



he performs bookkeeping and has some managerial responsibilities.           Scott

remarried in May 2014. Initially, the parties cooperated in visitation and other

parenting decisions under the stipulated decree. But their relationship turned

contentious in 2014.

      On January 23, 2014, Michele filed a petition to modify the original decree.

In that petition she requested a change in visitation. On February 7, 2014, the

Child Support Recovery Unit filed a notice of intent to modify child support. On

February 11, 2014, Michele amended her petition to request primary physical

care or in the alternative, joint physical care, visitation, and an amended child

support calculation. As part of discovery, Michele’s attorney filed a subpoena

seeking financial records of Scott’s family business, including corporate tax and

bank transaction records, as well as financial records related to Scott.      The

company filed a motion to quash the subpoena, resulting in a hearing before the

district court. The court found the subpoena overbroad and unduly burdensome.

The court did order the company to produce all financial records related to Scott

generated between January and June 2014, but quashed all other requests

regarding the subpoena. The court also financially sanctioned Michele’s attorney

for an “unwillingness to negotiate or accept a less burdensome remedy.”

      Following a hearing on the amended petition, the district court denied

Michele’s request for primary physical or joint physical care, modified the
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visitation schedule, and reset the child support payment based on a new income

calculation. Michele now appeals.1

II.    Scope of Review

       The district court hears petitions to modify a dissolution decree in equity,

so our review is de novo. In re Marriage of Quirk–Edwards, 509 N.W.2d 476,

476 (Iowa 1993); see Iowa R. App. P. 6.907. That review enables us to reach

our own fact findings, but when considering credibility we defer to the district

court judge who has the ability to evaluate the witnesses in person. See In re

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

interest is the “controlling consideration.” In re Marriage of Leyda, 355 N.W.2d

862, 865 (Iowa 1984). Using the best-interest standard provides us with flexibility

to consider “unique custody issues” on a case-by-case basis. In re Marriage of

Hansen, 733 N.W.2d 683, 696 (Iowa 2007).

III.   Physical Care

       To modify a custody provision of a dissolution decree, the petitioning 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 require the requested modification. In re Marriage of Frederici, 338

N.W.2d 156, 158 (Iowa 1983). The changed circumstances must not have been

contemplated by the court when the decree was entered, must be more or less

permanent, and must relate to the welfare of the children. Id. A parent seeking



1
  On appeal, Michele challenges the imposition of sanctions against her attorney.
Because the supreme court denied her petition for writ of certiorari on October 2, 2014,
we decline to address that issue.
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to take custody from the other must prove an ability to minister more effectively to

the children’s well-being. Id. The courts have created this heavy burden to

promote stability in the lives of children with divorced parents.           Id.   “[O]nce

custody of children has been determined, it should be disturbed only for the most

cogent reasons.” Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

         Michele argues there have been four substantial changes since entry of

the original decree. First, Scott remarried and Michele alleges his new wife has

interfered with their ability to co-parent.   She also alleges the children have

conflicts with Scott’s new wife. Second, she claims Scott travels out of town

more for business. Third, she argues Scott is unwilling to facilitate therapy for

the children, despite professional recommendations the children engage in

therapy.    Fourth, she argues Scott has been limiting her visitation with the

children since his remarriage. She contends these changes require awarding the

parties joint physical care or placing the children in her physical care.

         Upon our de novo review of the record, we find Michele has not proven a

substantial change in circumstances warranting either modification of physical

care. We turn first to the allegations concerning Scott’s new wife. Usually, one

parent’s remarriage in itself does not constitute a substantial change in

circumstances. In re Marriage of Downing, 432 N.W.2d 692, 695 (Iowa Ct. App.

1988).     But we do consider new relationships.         Id.   We do not find the

stepmother’s interference alleged by Michele rises to the level of a substantial

change in circumstances not contemplated at the time of the original decree.

The strain on the relationship between Scott and Michele is not uncommon when
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parties remarry. The record does not show that any conflicts the children have

with their stepmother undermine the physical care arrangement with their father.

       Second, the record does not support Michele’s contention that Scott’s job

is requiring more out-of-state travel. Scott testified that if his mother asked him to

be gone frequently for the construction business, he would “find other

employment.” Michele did not show Scott’s work demands constituted a material

and substantial change in circumstances.

       Third, any difference of opinion the parties have concerning therapy for

the children does not constitute a change in circumstances warranting

modification of physical care. The record showed the children were doing well in

school and their activities. Scott has not interfered with Michele’s decision to

take the children to family counseling or to see a school counselor.

       Fourth and finally, we do not find that any limitations Scott placed on

Michele’s   visitation   constituted   a   substantial   and   material   change    in

circumstances justifying a change in physical care. Scott alleges when Michele

had the children for visitation on Tuesday and Thursday nights they did not

complete their homework and did not have time to wind down before bed.

Michele pointed to her son’s testimony that when he needs his father’s help with

homework Michele drops him off early. We find the visitation controversy was

appropriately addressed by the district court’s decision to set a formal visitation

schedule to assure Michele’s time with the children, rather than to change the

physical care arrangement.
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IV.    Visitation

       To modify the visitation provisions of a dissolution decree, a parent must

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

requested alteration to visitation is in the best interest of the children. In re

Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994). This burden is

less demanding than seeking a change in a custodial provision of the decree. In

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

for this lower standard is found in the prevailing principle that the best interests of

children are ordinarily fostered by a continuing association with the noncustodial

parent.” Salmon, 519 N.W.2d at 96 (citing Iowa Code section 598.41(1) (1993)).

       The original decree in this case did not include a visitation schedule. It

relied on the parties’ mutual agreement to Michele’s visitation rights “at all

reasonable times and places as agreed upon by the parties. If the parties are

unable to agree, either may ask the Court to set reasonable visitation.” As both

parties now recognize the need for a formal schedule, we agree with the district

court’s decision to modify the decree in this respect.

       Scott and Michele submitted separate visitation schedules.           The court

entered its own schedule, which included every other weekend with Michele and

one midweek visitation night from after school to 8:30 p.m.

       Michele now argues the court erred in not selecting her schedule.

Specifically, she asks for an additional mid-week visit, additional weekend

visitation, additional summer visitation, and the right of first refusal. Michele also
                                         8



asserts the district court’s visitation order was based on factual findings that were

inconsistent with the record.

       We recognize the district court’s reference to the parties living “some

distance” apart does not reflect the testimony that Michele now lives only two

miles away from Scott.          But even when we consider the parents’ close

geographic proximity in our de novo review, we believe the visitation schedule

set by the district court is in the children’s best interests.     See Iowa Code

§ 598.41(1)(a). The schedule allows the children the certainty of a consistent

and increased amount of time with Michele.         The visitation schedule is also

consistent with C.T.’s testimony that he was willing to spend time with both

parents. We do not believe that adding another day of midweek visitation would

benefit the children. By all accounts, they are thriving on the routine observed in

Scott’s home and another school night away from that structure could detract

from their positive focus.

       Finally, we address Michele’s request for the right of first refusal. The

phrase “right of first refusal” in our case law means the custodial parent would be

required to offer the non-custodial parent the opportunity to care for the children

when the custodial parent was unavailable to provide supervision for an

extended period before seeking a third-party child care provider. See, e.g., In re

Marriage of Klemmensen, No. 14-1292, 2015 WL 2089699, at *3 (Iowa Ct. App.

May 6, 2015) (citing In re Marriage of Lauritsen, No. 13–1889, 2014 WL

3511899, at *3 (Iowa Ct. App. July 16, 2014)). In this case, Michele asks for the

following provision: “[w]hen either parent cannot care for the children for more
                                           9



than 12 hours and it is their scheduled parenting time, they must contact the

other parent first to care for the children.” Michele claims first refusal is in the

best interest of the children because it maximizes the physical and emotional

contact between the parents and the children. She also claims a first-refusal

provision would protect the children from negative comments she alleges Scott’s

mother makes about Michele.

       With Scott and Michele struggling to cooperate and communicate, we find

it would not be in the children’s best interest to require a right of first refusal.

Moreover, the record did not reveal that Scott had any standing work

commitments that would require him to place the children in the care of a third

party for any significant length of time. We agree with the district court’s decision

not to include a right-of-first-refusal provision in the visitation schedule.

V.     Child Support

       The court ordered Michele to pay $675 a month in child support. The

court reached this calculation by using the annual incomes reported by Michele

and Scott, as well as imputing an additional $2900 a year to Scott based on

financial benefits from his employer Mibaco—the family business.

       Michele asks us to remand for a new trial on the calculation of child

support due to Scott’s inconsistent testimony about his income. Michele claims

the court should have considered the assistance Scott received from his mother.

She claims Scott’s housing costs should be included in the court’s determination

of “other income.” Michele also argues she was unable to discover the true
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amount of Scott’s compensation because the district court quashed her

subpoena for Mibaco’s financial records.

       We find the child support determination to be accurate based on the

evidence presented.      Further, we find the district court properly handled

Michele’s requests for information regarding Mibaco’s finances.          The court

acknowledged the benefits Scott received from working for his family’s company

in calculating his income. The determination included the payment of various

personal expenses, including utilities bills and costs of a car. The court found

Scott’s housing was not provided by the company but personally by his mother.

Support available to Scott from his family was not a factor the district court was

required to consider in setting the child support award. See In re Marriage of

Drury, 475 N.W.2d 668, 672 (Iowa Ct. App. 1991). The child support payment

shall remain as entered by the district court.

VI.    Appellate Attorney Fees

       Both sides ask for appellate attorney fees. These are not a matter of right,

but rest in our discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255

(Iowa 2006). In arriving at our decision, we consider the parties’ needs, ability to

pay, and the relative merits of the appeal. Id. We find both parties have roughly

the same ability to pay. Because Scott is victorious on appeal we believe he is

entitled to reasonable attorney fees.

       Scott has not provided an affidavit of attorney fees with documentation to

support his request. We remand to the district court to enter judgment against

Michele in a reasonable amount. See, e.g., Markey v. Carney, 705 N.W.2d 13,
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26 (Iowa 2005) (“[U]nder our current practice, the issue of appellate attorney fees

is frequently determined in the first instance in the district court because of the

necessity for making a record.” (quoting Lehigh Clay Prods., Ltd. v. Iowa Dep’t of

Transp., 545 N.W.2d 526, 528 (Iowa 1996))).

      Costs shall be assessed equally between the parties.

      AFFIRMED.
