Ryan v. Wright

919 N.W.2d 638 (Table)

Sean Patrick RYAN, Plaintiff-Appellee,

v.Jessica S. WRIGHT, Defendant-Appellant.

No. 17-1375

Court of Appeals of Iowa.

Filed May 16, 2018

Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines, for appellant.

Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for appellee.

Heard by Doyle, P.J., and Tabor and McDonald, JJ.

DOYLE, Presiding Judge.

"Are we there yet?" This familiar refrain must be heard often as the parties’ children, now ages ten and nine, spend twenty hours cooped up in a car for each of their monthly forty-eight-hour weekend visits with their father. No doubt, these interstate highway treks back and forth between Colorado and Iowa are not great fun for the children. Even their father admits that "it’s just rough on them."

Jessica Wright appeals following modification of the decree establishing custody, visitation, and support of the parties’ minor children. Jessica argues the district court misused the term "physical care" in the modification order when referring to Sean Ryan’s summer visitation with the children. She also argues the visitation schedule entered in the modification order is contrary to the children’s best interests. Finally, Jessica argues the district court erred in calculating the amount of Sean’s child support and in failing to require Sean to pay cash medical support for the children. Although Sean did not cross-appeal, he requests a different school-year/holiday visitation schedule than ordered by the district court. Both parties request an award of their appellate attorney fees.

I. Background Facts and Proceedings.

Jessica and Sean are the parents of two children: J.A.W., born in 2007, and J.P.W., born in 2008. A 2015 decree established the children’s custody, visitation, and support.¹ It provided for joint legal custody of the children with Jessica granted physical care. The decree granted Sean visitation on alternating weekends and each Wednesday evening during the school year, with the parties alternating care of the children each week during the summer. The decree also ordered Sean to pay Jessica child support in the amount of $967.07 per month. In 2016, Sean petitioned to modify the custody decree based on Jessica’s plans to move out of state. Jessica’s family was purportedly relocating to Colorado, where they would establish a new scrap-metal business, and Jessica planned to continue to work for the family business. Jessica moved to the suburban Denver, Colorado area in the summer of 2016, a ten-hour drive from Sean’s Anita, Iowa residence.

In June 2017, the district court entered its modification order. The court found that Sean failed to establish a substantial change in circumstances warranting modification of the children’s physical care, but it determined Jessica’s move to Colorado warranted a modification of the visitation provisions of the decree. The court modified the visitation schedule to provide Sean with one forty-eight-hour weekend of visitation per month during the school year. The court also granted Sean summer visitation beginning five days after the end of the school year and ending five days before the start of the next school year, with Jessica having the children one forty-eight-hour weekend during each of those months. The original decree’s holiday visitation schedule was left undisturbed. The court also modified the child support provisions of the decree to provide Sean would pay child support in the amount of $524.76 per month. Jessica appeals the order, challenging the modification of the visitation and child support provisions of the decree.

II. Scope of Review.

Our review of equitable proceedings is de novo. See Iowa R. App. P. 6.907 ; Wilker v. Wilker , 630 N.W.2d 590, 594 (Iowa 2001). We review the entire record and decide anew the factual and legal issues preserved and presented for review. See In re Marriage of Williams , 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Although our review is de novo, we afford deference to the district court for institutional and pragmatic reasons. See In re Marriage of Morrison , No. 16-0886, 2017 WL 936152, at *1 (Iowa Ct. App. Mar. 8, 2017). This means we give weight to the district court’s findings of fact. See In re Marriage of Gust , 858 N.W.2d 402, 406 (Iowa 2015). This also means we will affirm the district court unless the district court failed to do substantial equity. See In re Marriage ofMauer, 874 N.W.2d 103, 106 (Iowa 2016) ; In re Marriage of Lukowicz , No. 14- 0088, 2015 WL 162089, at *4 (Iowa Ct. App. Jan. 14, 2015) (using substantial equity standard). In exercising our review, "[p]rior cases are of little precedential value, except to provide a framework for analysis, and we must ultimately tailor our decision to the unique facts and circumstances before us." In re Marriage of Kleist , 538 N.W.2d 273, 276 (Iowa 1995) (citing In re Marriage of Will , 489 N.W.2d 394, 397 (Iowa 1992) ).

Hensch v. Mysak , 902 N.W.2d 822, 824 (Iowa Ct. App. 2017).

III. Child Visitation.

A. Use of term "physical care." Jessica first attacks the language used by the district court in modifying the decree with respect to child visitation. The modification order states, in pertinent part:

The burden on Sean to change physical care is very high. He must prove a substantial change in circumstances. If he establishes that burden, he must then meet the additional burden of showing that he is somehow in a superior position to parent the children. There is no question that moving to Colorado 10 hours away is a change in circumstances. It is a little more difficult to determine whether that is the kind of substantial change necessary to meet Sean’s burden. While this court finds the change significant, this court does not find it substantial, even though Jessica moved 10 hours away. This court finds it significant enough to modify the visitation provisions. In addition, there is no evidence before this court to show that Sean is somehow in a position to be a superior parent. There is no question that he loves his children and has a relationship that ought to continue, but he is not in a superior position to parent. He fails on that burden also.

This court does find from the evidence that there should be an adjustment to the visitation, especially during the summer school visitation. This court will enter an order that modifies the current decree in that respect.

....

1. The original decree is modified to provide that the parties shall have joint legal custody with Jessica retaining primary physical care^[2] during the school year and Sean having primary physical care during the summer school vacation. Sean shall assume physical care of the children five days after the last day of school, and return physical care to Jessica five days before the start of school in the fall.

Jessica asserts the court use of the term "physical care" with regard to Sean’s summer visitation is inconsistent with the court’s ruling regarding Sean’s failure to meet his burden to change physical care. In denying her motion to enlarge and amend the modification order, the district court stated on this issue, "The designation of Sean’s parenting time as physical care instead of visitation is a distinction without meaning in the context of the court’s order. It is clear as written and need not be changed."

The term "physical care" has a specific meaning in Iowa family law. " ‘Physical care’ means the right and responsibility to maintain a home for the minor child and provide for routine care of the child." Iowa Code § 598.1(7) (2016). Where joint (or shared) physical care³ is not warranted, like here, the court must chose a primary caretaker who is solely responsible for decisions concerning the child’s routine care, and visitation rights are ordinarily afforded a parent who is not the primary caretaker. See In re Marriage of Hansen , 733 N.W.2d 683, 691 (Iowa 2007). Thus the term is not applicable to the award of visitation.

In context, it is clear that the court did not modify the decree to provide shared physical care but rather modified the visitation provisions of the decree to provide Sean with extended summer visitation to compensate for the decrease in visitation during the school year. The court was unambiguous in stating that it was not modifying child custody. Nevertheless, the court’s use of the term "physical care" with regard to Sean’s summer visitation was incorrect.

B. Standard for modification. Jessica also argues the court applied the wrong standard in modifying visitation by finding her move to Colorado was "significant enough to modify the visitation provisions" rather than finding a "substantial" change in circumstances warranted modification. Although a party seeking modification of a decree’s custody provisions "faces a heavy burden" of establishing "a substantial change in circumstances occurred after the decree was entered" and "a superior ability to minister to the needs of the [child]," see In re Marriage of Harris , 877 N.W.2d 434, 440 (Iowa 2016) (citation omitted), a less demanding burden applies when a parent seeks to modify child visitation, see In re Marriage of Brown , 778 N.W.2d 47, 51 (Iowa Ct. App. 2009) ; In re Marriage of Salmon , 519 N.W.2d 94, 96 (Iowa Ct. App. 1994). This is because continued association with the noncustodial parent is ordinarily in the children’s best interests. See Salmon , 519 N.W.2d at 96. To modify child visitation, a parent need only show "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 [child]." Id. at 95-6 (citation omitted); see also Smith v. Smith , 142 N.W.2d 421, 422 (Iowa 1966) ("It seems readily apparent a much more extensive change of conditions would be required to support a change of custody than would be necessary to justify a change of visitation rights."). The court’s finding that Jessica’s move is "significant enough" to warrant modifying the...