Christy v. Lenz

• Decision Date: 24 February 2016
• Docket Number: No. 15–0350.,15–0350.
• Parties: Ian Gregory CHRISTY, Petitioner–Appellee, v. Abbey Sue LENZ, n/k/a Abbey Sue Bro, Respondent–Appellant.
• Court: Iowa Court of Appeals

878 N.W.2d 461

Ian Gregory CHRISTY, Petitioner–Appellee,

v.Abbey Sue LENZ, n/k/a Abbey Sue Bro, Respondent–Appellant.

No. 15–0350.

Court of Appeals of Iowa.

Feb. 24, 2016.

Eric Borseth of Borseth Law Office, Altoona, for appellant.

Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, for appellee.

Heard by DANILSON, C.J., and MULLINS and McDONALD, JJ.

MULLINS, Judge.

Abbey Sue Lenz, now known as Abbey Sue Bro, appeals the district court's modification decision that altered the visitation, legal custody, and child support provisions of the paternity decree. Abbey asserts (1) the district court erred in finding a change of circumstances exists to justify the modification of visitation and legal custody; (2) the father, Ian Christy's, proposed visitation schedule and proposed language for the legal custody provision are not in the child's best interest; (3) the court should not have changed the parent responsible for carrying health insurance for the child to Ian; and (4) the child support ordered by the district court does not follow the guidelines. Abbey also asserts the court abused its discretion in denying her request for trial attorney fees, and she requests an award of appellate attorney fees. Ian defends the actions taken by the district court and also requests an award of appellate attorney fees. Having considered the claims made on appeal, we affirm the district court's modification decision and award Ian $2000 in appellate attorney fees.

I. Background Facts and Proceedings.

Ian and Abbey are the parents of a six-year-old child. In 2009, the court entered an original paternity decree, placing the child in Abbey's care subject to Ian's visitation, granting the parties joint legal custody, ordering child support, and directing Abbey to provide health insurance for the child with an additional monthly payment from Ian for cash medical support. At that time both Abbey and Ian were attending school and were minimally employed. Since the decree was entered, Abbey has married, changed jobs, moved residences, and given birth to another child. Ian has graduated college, moved residences, gotten engaged, and become employed full time with a job that provides health benefits.

Ian filed a petition to modify the prior decree's child support amount, the visitation schedule, the language of the legal custody provision, and the health insurance requirement. While Abbey agreed some minor changes should be made, she otherwise objected to the modification action. After hearing from both parties, the court granted Ian's modification petition, expanding Ian's time with the child during weekly visitation, modifying the holiday visitation schedule, granting an additional week of summer visitation, ordering Ian to provide health insurance for the child, increasing the child support amount, and denying both parties' request for trial attorney fees. From this order, Abbey appeals.

II. Scope and Standard of Review.

Our review of a modification proceeding is de novo in light of the fact the case was heard in equity. In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct.App.2009). "We therefore give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them." Id. We give deference "because the trial court has a firsthand opportunity to hear the evidence and view the witnesses." Id.

III. Change in Circumstances.

Abbey first asserts there was not a change in circumstances sufficient to justify the change in the visitation schedule or in the language of the legal custody provision of the original decree. She maintains the current circumstances were anticipated and planned for in the original decree, and therefore, Ian failed to satisfy his burden of proof in the modification action.

As Ian sought the modification of the visitation schedule, he "must establish by a preponderance of evidence that there has been a material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children." In re Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct.App.1994). "[A] much less extensive change in circumstances is generally required in visitation cases" than the change necessary to modify child custody. Id. at 96. "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." Id.

The visitation provision of the paternity decree provided for expanded visitation as the child entered school. However, what was not anticipated when the original decree was entered was Abbey's refusal to accommodate Ian's reasonable requests for minor departures from the terms of the decree along with her inability to communicate important information regarding the child to Ian. Abbey refused to accommodate Ian's request to switch weekends in May 2014 so that the child could attend Ian's college graduation and Ian's brother's wedding, despite the fact Ian asked for the accommodation months in advance. When asked about the reason she refused to accommodate the request for Ian's graduation, Abbey testified she originally agreed Ian could have the child for a few hours that Saturday, but she refused to permit the visit at all when Ian would not switch with her the day that she wanted. As to Ian's brother's wedding, Abbey testified it was over Memorial Day weekend and she had "plans," although she could not remember what those plans were at the time of the trial. The child originally was to participate in the wedding but was denied that opportunity. It is unclear why the parties could not have switched the weekend visitations in May of that year.

In addition, when visitations were cut short due to weather, Abbey refused to cooperate to permit Ian to make up the missing time with the child. Abbey denied any requests for extra time. Finally, the evidence established Abbey manipulated the summer visitation schedule to maximize the time the child was away from Ian.

While Abbey claims there has not been a material change in circumstances to justify the visitation modification, she admitted "some adjustments" in the schedule would be beneficial to the child. Her proposed "adjustment" would be to eliminate the midweek visit, which would result in Ian not seeing the child for nearly two weeks. Abbey conceded she would not like to have this schedule imposed on her and agreed the child would not like her proposed schedule either.

We agree with the district court's decision to modify the visitation schedule in light of the change in circumstances brought about by Abbey's refusal to be flexible in accommodating Ian's reasonable requests for minor alterations to the schedule. The change made by the district court increases Ian's time with the child and furthers our "prevailing principle that the best interests of children are ordinarily fostered by a continuing association with the noncustodial parent." See id. Notwithstanding the new visitation schedule—with all its detail—we encourage the parties to consider the best interests of the child and be flexible in adjusting visitation times to accommodate special events.

Abbey likewise maintains there was not a substantial change in circumstances sufficient to justify modifying the language in the joint custody provision of the original decree. See Brown, 778 N.W.2d at 51 ("The custodial terms of a dissolution decree may be modified only when there has been a substantial change in circumstances...."). While Abbey asserts the higher burden of proof is applicable to Ian's request to modify the language in the joint custody provision, Ian did not seek to change who would be the child's custodial parent. Instead, he merely sought for the court to further clarify and define what the court meant in the original decree when it awarded the parties joint legal custody. A party need not demonstrate a change in circumstances when the party seeks only to clarify the terms of the dissolution decree. See In re Marriage of Russell, 559 N.W.2d 636, 637 (Iowa Ct.App.1996) ("A decree for dissolution of marriage is susceptible to interpretation in the same manner as other instruments."); see also Orvedal v. Orvedal, 669 N.W.2d 89, 91–92 (N.D.2003) ("When a divorce decree fails to specify some particulars, and uncertainties in the decree arise from subsequent events, clarification of the decree is often appropriate."); Lassiter v. Lassiter, Nos. C–020494, C–020370, C–020128, 2003 WL 21034193, at *2 (Ohio Ct.App. May 9, 2003) (noting the parent was not seeking a modification but rather a clarification of the decree and so the parent did not have the burden to show a change in circumstances); Rivard v. Rivard, 75 Wash.2d 415, 451 P.2d 677, 679 (1969) (noting a modification occurs when visitation rights are extended or reduced but a clarification of the decree "is merely a definition of the rights which have already been given and those rights may be completely spelled out if necessary" and a party need not show a change in circumstances to obtain a "clarification" of the decree). We thus conclude Ian need not show a change in circumstances, material or substantial, in order for the district court to clarify the terms of the joint legal custody provision of the paternity decree.

The original decree provided:

CUSTODY: The parties will share joint legal custody of [the child]. Joint legal custody means an award of the rights of legal custody of a minor child to a parent under which a parent has legal custodial rights and responsibilities toward the child. The rights and responsibilities of legal custody include, but are not limited to, decision making effecting the child's legal status, medical care, education, extra-curricular activities, and religious instruction.

Ian testified Abbey does not provide him with the needed information regarding the child, has given him untimely information,...