Opinion
No. 3-589 / 03-0129
Filed November 17, 2003
Appeal from the Iowa District Court for Dubuque County, John Bauercamper, Judge.
Patricia Reisen-Ottavi appeals and William Reisen cross-appeals from a modification of the parties' dissolution decree. AFFIRMED.
Robert Sudmeier and Norman Wangberg Of Fuerste, Carew, Coyle, Juergens Sudmeier, P.C., for appellant.
Elizabeth V. Croco and Allison Heffern of Simmons, Perrine, Albright Ellwood, P.L.C., for appellee.
Heard by Mahan, P.J., and Vaitheswaran and Eisenhauer, JJ.
Patricia Reisen n/k/a Patricia Reisen-Ottavi appeals and William Reisen cross-appeals from a modification of the parties' dissolution decree. Patricia contends the district court erred when it denied her request to reduce William's visitation with the parties' children. On cross-appeal, William contends the district erred when it (1) increased his child support obligation and (2) failed to award him trial attorney fees. He also requests an award of appellate attorney fees. We affirm.
Background Facts and Proceedings. A decree dissolving the marriage of Patricia and William was entered on November 3, 2000. The court approved by decree a stipulation executed by the parties. The stipulation and decree provided for joint legal custody of the parties' two children, Nolan, born October 2, 1992, and Casey, born June 12, 1996, and placed primary care with Patricia. A detailed visitation schedule was included in the decree, which resulted in William having the children with him half of the time. The stipulated decree also required William to pay child support in the amount of $330 per month.
On July 17, 2002, Patricia filed a petition for modification requesting the district court modify the original decree to reduce William's visitation with the children. She also requested that the court increase his child support obligation. Following a hearing, the district court granted Patricia's application in part by ordering that she receive two weeks of uninterrupted summer visitation with the children and increased William's child support obligation to $393 per month. However, the court denied her request to further reduce William's visitation. The court also ordered the parties to participate in counseling in order to improve their ability to communicate with each other about the children's schedules, welfare, and other nonfinancial needs. Patricia appeals and William cross-appeals.
Standard of Review. Our scope of review in this modification action is de novo. Iowa R.App.P. 6.4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
Visitation. Patricia contends the district court erred when it denied her request to reduce William's visitation with the parties' children. Patricia offered evidence concerning, and gave the following reasons for requesting the reduction in William's visitation:
(1) lack of effective communication between the parents;
(2) poor coordination of the children's activities, daycare and appointments;
(3) logistical problems experienced in transferring the children's belongings between the two households;
(4) open animosity between the parents in the presence of the children;
(5) inconsistent assistance by the parents with school assignments; and
(6) disagreements between the parents as to the need for child care.
Patricia further testified that she blamed William for the failure of the visitation plan. On the other hand, William denies that there were any significant problems with the visitation schedule or that the visitation schedule created a confusing, unstable situation for the children.
To modify visitation privileges, the party seeking modification must show a change of circumstances has occurred since the entry of the initial decree. In re Petition of Holub, 584 N.W.2d 731, 733 (Iowa Ct.App. 1998). Generally, a much less extensive change of circumstances need be shown in visitation cases. Id. In reaching its conclusion the court stated in part:
Based on the evidence presented, this judge would not find that the communication skills of the parents are adequate to support a judicially imposed joint physical care plan if this were an initial child custody/placement trial.
. . . .
[T]hat the evidence presented about the communication problems, the lack of civility between the parents, disruption and confusion experienced by the children, and related problems, have all reached a level which requires the court to discard the child care plan the parents both agreed to accept two years ago.
The district court concluded Patricia met her burden and, despite its conclusions reached above, simply awarded her two weeks of uninterrupted visitation with the children during the summer. The district court did not change any other visitation provision.
The district court appears to have imposed a higher burden than required.
Based on the evidence presented we agree with the outcome reached by the district court. However, we reach our de novo result for a different reason. We conclude after a thorough study of the trial transcript that the problems in this case are due to the parents' inability to communicate and cooperate with one another. We disagree with the district court that the current visitation schedule is disruptive or confusing to the children. In fact, we believe that the schedule fosters maximum continuing contact with both parents. As set forth above, all of Patricia's complaints about the visitation schedule focus on the parents' inability to communicate with one another. If we were to adopt Patricia's proposed schedule, it would drastically reduce William's time with the children. Essentially, he would go from having the children in his care half of the time to approximately four or five days a month. Our courts have repeatedly pointed to the importance of communication between parents about their children's welfare. See In re Marriage of Bolin, 336 N.W.2d 441, 447 (Iowa 1983). Although we realize that Patricia and William are not required to be friends, they owe it to their children to maintain an attitude of civility and communicate openly with each other. See id. We conclude it is in the best interests of these children to have maximum continuing physical and emotional contact with both parents. We refuse to change the visitation schedule other than the summer visitation provision added by the district court.
We also conclude that the behavior of the paternal grandparents is not in the best interests of these children.
For these reasons, we affirm the decision of the district court on this issue.
Cross-Appeal. First, William contends the district court erred when it increased his child support obligation. We disagree. Pursuant to Iowa Code section 598.21(8) (2001), a court may modify an order of child support when a "substantial change in circumstances" has been shown to exist. A substantial change in circumstances exists when "the court order for child support varies by ten percent or more from the amount which would be due pursuant to the most current child support guidelines." Iowa Code § 598.21(9). The district court concluded and we agree that the current support order deviates by more than ten percent and, thus, the court correctly determined William's child support should be increased to $393 per month.
Second, William contends Patricia should have been ordered to pay $3000 toward his trial attorney fees. A party does not have a right to an award of attorney fees; rather the district court uses its discretion to determine whether an award is appropriate. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). "Whether attorney fees should be awarded depends on the respective abilities of the parties to pay the fees and the fees must be fair and reasonable." In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct.App. 1997). We conclude the district court properly considered this issue, and we find no abuse of discretion.
William also requests $1500 toward his appellate attorney fees. Similarly, an award of appellate attorney fees is not a matter of right, but rests within the discretion of the court. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999). "We are to 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." In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). We decline to award William appellate attorney fees.