                   IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1691
                              Filed May 2, 2018


IN RE THE MARRIAGE OF KATIE LYNN LANG
AND JEFFREY JOSEPH LANG

Upon the Petition of
KATIE LYNN LANG,
      Petitioner-Appellant,

And Concerning
JEFFREY JOSEPH LANG,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,

Judge.



      Katie Lang appeals a district court order modifying the physical-care

provision of a decree of dissolution of marriage. AFFIRMED.




      Myia E. Steines of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,

Dubuque, for appellant.

      Kim C. Roddick of Reynolds & Kenline, L.L.P., Dubuque, for appellee.




      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       Katie Lang appeals a district court order modifying the physical-care

provision of the decree dissolving her marriage to Jeffrey (Jeff) Lang, arguing the

court should have modified the decree to place the child in her, rather than Jeff’s,

physical care. Katie also challenges the corresponding modification of her child-

support obligation and the visitation schedule imposed. Jeff requests an award of

appellate attorney fees.

I.     Background Facts and Proceedings

       The parties were married in 2003. The marriage produced one child, born

in 2006. The marriage was dissolved by decree in 2012. The parties were granted

joint legal custody and joint physical care of the child. The decree provided the

parties substantially equal parenting time. At the time of the entry of the decree,

both parties resided in the Dubuque, Iowa area.

       In late October 2016, Katie met Josh Malli “online,” and the two began

dating. At this time, Josh lived in Cresco, Iowa. Katie introduced Josh to her

daughter in early December. At some point in the spring of 2017, Katie advised

Jeff of her aspirations of moving away from the Dubuque area and having the child

move with her. Jeff opposed the potential move. In April, Katie filed a petition to

modify the decree, stating she would “be relocating to Northwood, Iowa in the near

future due to a change in employment” and requested the court to modify the

physical-care provision of the decree. Both parties requested they be awarded

physical care of the child.
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       In May, Katie and Josh purchased a three-bedroom, two-bathroom home in

Northwood.1 Northwood is located approximately three hours away from the

Dubuque area. Katie characterized Northwood as “a small, little northern Iowa

town.” Josh’s nine-year-old son will also be living in the home. According to Katie,

her daughter gets along “very well” with Josh and his son. The home has individual

bedrooms for each of the children, and is located “[l]ess than ten blocks” away from

the local elementary school. Katie’s grandmother, parents, and sister all continue

to live in the Dubuque area. Jeff also has family living in the Dubuque area. Katie

has “two very close family friends” living a “town over” from Northwood, “[a]s well

as numerous other people that [she] know[s].”

       Katie began working at the Diamond Jo casino in Dubuque in 1998. She

worked her way up to the position of food and beverage operations manager, a

position in which she earned $56,000.00 annually. Katie accepted a marketing

coordinator position in another Diamond Jo casino located in Northwood, effective

June 15, 2017. She is paid $16.50 per hour, or roughly $34,320 per year, in this

position. The change in employment therefore resulted in a pay cut for Katie in

excess of $20,000.00. In her new position, Katie generally has a regular nine-to-

five, Monday-through-Friday work schedule. Katie characterized her new position

as less stressful and having more potential opportunities for advancement.

       Jeff has lived with his mother and stepfather since the parties’ separation in

2011. The record indicates Jeff’s mother and stepfather have some health issues,




1
  Katie and Josh did some remodeling to the home, and planned to move in the day
following the modification trial in July. However, the record indicates Katie had moved
away from the Dubuque area prior to the time of the trial.
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and Jeff provides them assistance in relation to their conditions and helps to

maintain the home. The home has three bedrooms, and Jeff and the child each

have their own room. Jeff has worked for the same employer, a popular bar and

grill restaurant chain, for sixteen years. He currently holds the position of head line

cook. His work schedule fluctuates, but he typically works every day of the week

except Saturday. The start time of his shifts varies between 8:00 and 10:00 a.m.,

but his shifts end at 4:00 p.m. Jeff is allowed great flexibility in his work schedule

to accommodate any parenting obligations that may arise. Jeff earns $14.25 per

hour, works thirty-six to forty hours per week, and occasionally receives overtime.

       The child was ten years old at the time of trial. She does very well in school.

According to the evidence presented, the school the child attends in the Dubuque

area is ranked 82nd out of Iowa’s 597 elementary schools, while the Northwood

school Katie desires the child to attend is ranked 265th. The child has been

diagnosed with ADHD and has seen the same doctor in the Dubuque area

regarding her ADHD for several years. Katie has traditionally been responsible for

the child’s ADHD medication management and taking the child to the doctor or

dentist in general. This is not to say that Jeff is uninvolved in these matters, as

Katie schedules these appointments on her days off, when Jeff is working, and Jeff

steps in to take the child to appointments when Katie is unavailable. Both parents

are involved in the child’s schooling. Both of the parents are involved with the

child’s extracurricular activities, but Katie more so because she schedules those

activities during her parenting time.

       Jeff and Katie have done an exemplary job in co-parenting this child, and

we commend them both for their efforts. Jeff and Katie have never had any
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significant problems with communicating with one another about the child. Jeff

and Katie have also been able to accommodate one another in relation to altering

the parenting-time schedule upon the request of the other parent. Both parents

are respectful of the other’s relationship with the child and allow the child to call

the other parent when the child is away from that parent. Up until the time Katie

got a new boyfriend, Katie, Jeff, and the child continued to occasionally do family

activities together such as go out to eat or get ice cream. We repeat the district

court’s commendation to these parents that “the court could not be happier with

the way these parties have parented their child and acted toward each other.”

Generally speaking, each of the parties agree the other is a good parent. The child

has a good relationship with both parents.

       Following a modification trial, the district court awarded physical care of the

child to Jeff. In doing so, the court noted “[t]he physical care determination is a

very difficult decision in this case,” as the court was “impressed with both parents”

and was confident that either would serve as an outstanding physical caregiver to

the child. The court reasoned “the child would be best served by living in the town

where she has lived her entire life, attending the same (superior) school, continuing

relationships with the same friends, seeing the same doctor, and being near

essentially all of her relatives.”

       Katie filed a motion to reconsider in which she requested the court to award

her physical care of the child or, alternatively, to modify its ruling in a number of

other respects. The court declined to reconsider the physical-care issue, but

modified its prior ruling in relation to exchanges of the child and holiday visitation.

       As noted, Katie appeals.
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II.    Standard of Review

       Actions to modify the physical-care provisions of a decree of dissolution of

marriage are equitable proceedings, which we review de novo. Iowa R. App. P.

6.907; In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). We give weight

to the factual findings of the district court, especially when considering the

credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.904(3)(g).

III.   Discussion

       Modification   requires   the   existence   of   a   substantial   change   in

circumstances not contemplated by the court at the time of the original decree.

Harris, 877 N.W.2d at 440. The parties agree Katie’s relocation amounts to a

substantial change in circumstances rendering modification of the physical-care

arrangement appropriate. Therefore, the physical-care determination turns on

which parent has a superior ability to minister to the needs of the child and what is

in the child’s best interests. See id. Our primary consideration is the long-term

best interests of the child. See In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa

1995). “Prior cases are of little precedential value, except to provide a framework

for our analysis, and we must ultimately tailor our decision to the unique facts and

circumstances before us.” Id.

       Katie argues it would be in the child’s best interests to be placed in her

physical care. She contends she can provide better structure and stability for the

child; can more effectively discipline the child; is more able to financially support

the child; and has traditionally been responsible for ministering to the child’s

medical and dental needs, as well as her schooling.
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       The criteria for determining child custody are applied in both dissolution and

modification proceedings. See In re Marriage of Hubbard, 315 N.W.2d 75, 80

(Iowa 1982); In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996).

“The factors the court considers in awarding custody are enumerated in Iowa Code

section 598.41(3)” (2017). Courtade, 560 N.W.2d at 37. “In determining which

parent serves the child’s best interests, the objective is to place the child in an

environment most likely to bring the child to healthy physical, mental, and social

maturity.”   Id. at 38.   The following factors are relevant to the best-interests

determination in this case:

       a. Whether each parent would be a suitable custodian for the child.
       b. Whether the psychological and emotional needs and development
       of the child will suffer due to lack of active contact with and attention
       from both parents.
       c. Whether the parents can communicate with each other regarding
       the child’s needs.
       d. Whether both parents have actively cared for the child before and
       since the separation.
       e. Whether each parent can support the other parent’s relationship
       with the child.
       f. Whether the custody arrangement is in accord with the child’s
       wishes or whether the child has strong opposition, taking into
       consideration the child’s age and maturity.

Iowa Code § 598.41(3)(a)–(f). Upon our de novo review, we agree with the district

court that both Jeff and Katie are suitable custodians for this child.         See id.

§ 598.41(3)(a). Regardless of which parent is granted physical care, the child will

suffer from decreased contact with the other parent. See id. § 598.41(3)(b). Both

parents have done an exemplary job in communicating with the other, actively

caring for the child, and supporting the other parent’s relationship with the child.

See id. § 598.41(3)(c)–(e). As the district court recognized in its statement to the

parties at the close of the modification trial, the parties have done a good job in not
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putting the child on the spot and forcing her to choose which parent she would

prefer to live with. The testimony by other witnesses seems to indicate that the

child is torn on the matter. See id. § 598.41(3)(f).

       As the district court recognized, this is a difficult case in which the physical-

care determination is a close call. The district court expressed the following on the

record to the parents at the close of evidence:

       I’m going to tell you this is going to be a terrible decision for me to
       make, an incredibly hard decision to make, and most of the custody
       cases that I hear I could tell you when I walk out of the courtroom at
       the very end of it for the most part what I’m going to do with custody,
       and today I want time to think about it and think about your situation.
       I can’t tell you what I’m going to do. And this is a more difficult
       decision than the vast majority of custody cases that I have to hear.
       It really is. And I’ve had cases before where it’s a difficult decision
       because I have two terrible parents, to be honest with you, and I
       know that I have to place the child with one of them, and this isn’t
       that way. This is two good parents who’ve really done all the right
       things for their daughter.

In its subsequent ruling, the court stated:

               Absent any changes, if the court was forced to choose a
       physical care provider, the court would choose Katie—but not by
       much. The court is entirely confident in Jeffrey’s ability to parent the
       child. The proposed changes are significant. The child would move
       to a new town where she wouldn’t know anyone. She would move
       away from all of her friends and relatives. She would attend a lower-
       rated school. She would start seeing a new doctor for her ADHD
       issues. And although the court has no reason to impugn Josh Malli,
       the relationship has developed and progressed very quickly. Katie
       just met him in October. They apparently started discussing living
       together within a few months. They have purchased a home
       together, despite not being married or engaged. If the relationship
       were to fail, Katie’s living arrangements would change, and she might
       regret taking a significant pay cut and moving three hours away.
       Josh’s nine-year-old son lives with him, and the blended family
       situation could be a difficult adjustment for Katie, Josh, or the two
       children.
               The physical care determination is a very difficult decision in
       this case. The court has been impressed with both parents. Both
       have continually provided very good care for their daughter, and
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       there is every indication that both parties will continue to be mature
       and cooperative. Faced with the two choices, the court is confident
       that the child would be best served by living in the town where she
       has lived her entire life, attending the same (superior) school,
       continuing relationships with the same friends, seeing the same
       doctor, and being near essentially all of her relatives.

       The court determined that, absent Katie’s relocation and if it were forced to

choose between the parents, the child’s best interests would be served by placing

her in Katie’s physical care. However, in considering Katie’s relocation, the court

ultimately determined the stability of keeping the child in the Dubuque area is in

the child’s best interests and tipped the balance in favor of placing the child with

Jeff. Upon our de novo review of the record, we agree with the district court’s

assessment. Cf. In re Marriage of Allen, No. 15-1100, 2016 WL 1133835, at *2

(Iowa Ct. App. Mar. 23, 2016). We note it is important to avoid disruption in the

child’s life unless mandated by the circumstances. See Stouwie v. Stouwie, 222

N.W.2d 435, 438 (Iowa 1974). Here, we cannot conclude the circumstances

mandate uprooting this child from the area in which she has lived her entire life,

thus geographically separating her from most of her family, her friends, her school,

her medical providers, and the atmosphere she has become accustomed to in

general.   Under these circumstances, we find the best interests of the child can

best be met by placing physical care with Jeff, as he will be providing care in the

“environment most likely to bring the child to healthy physical, mental, and social

maturity.” Courtade, 560 N.W.2d at 38; cf. In re Marriage of Snowden, No. 14-

1920, 2015 WL 4233449, at *2– (Iowa Ct. App. July 9, 2015) (affirming placement

of physical care with father after mother’s geographic move rendered continued

joint-physical-care arrangement unfeasible in a “close case” in which “[m]any of
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the factors relevant to the physical care decision [were] in relative equipoise”,

because placing children with father minimized disruption in children’s lives.).

       We therefore affirm the district court’s decision to place the child in Jeff’s

physical care. Because we affirm on the issue of physical care, we also affirm on

the issue of child support, as Katie only challenges her child-support obligation on

the contention that she should have been awarded physical care.

       Katie additionally complains the district court imposed a “vague and

ambiguous visitation” schedule and specifically requests this court to modify the

visitation schedule to provide she “shall have visitation time with the child at a

minimum of two (2) weekends per month. Said weekends shall include any

extended weekends which may fall in that month.” The modification order provided

Katie with visitation time “every other weekend” and encouraged the parties to use

holiday and other longer weekends as visitation weekends to maximize Katie’s

visitation. We find the court’s visitation schedule no more “vague and ambiguous”

than Katie’s requested schedule. Furthermore, based on the parties’ past co-

parenting performance, we are satisfied they will heed the district court’s

encouragement and be able to work together to maximize Katie’s visitation. For

these reasons, we decline to entertain Katie’s request for appellate modification of

the visitation schedule.

       Finally, Jeff requests an award of appellate attorney fees. See Iowa Code

§ 598.36; Schaffer v. Frank Moyer Constr. Inc., 628 N.W.2d 11, 23 (Iowa 2001)

(holding that a statute allowing an award of trial attorney fees permits an award of

appellate attorney fees as well). An award of appellate attorney fees is not a matter

of right but rests within this court’s discretion. In re Marriage of Berning, 745
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N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining whether to award attorney

fees, we consider the needs of the party making the request, the ability of the other

party to pay, and whether the party making the request was obligated to defend

the district court’s decision on appeal. Id. In consideration of these factors, we

decline to award appellate attorney fees to Jeff. Costs on appeal are assessed to

Katie.

IV.      Conclusion

         We affirm the district court’s modification ruling in its entirety. We decline

to award appellate attorney fees to Jeff. Costs on appeal are assessed to Katie.

         AFFIRMED.
