Opinion
23-0818
03-06-2024
MELVIN THEMOUS HARDGRAVES, Plaintiff-Appellant, v. ICA GOULETTE, Defendant-Appellee.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant. Nick E. Wingert of Mayne, Hindman, Frey, Parry & Wingert, Sioux City, for appellee.
Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.
A father appeals from the denial of his petition to modify a physical-care order placing the child in the mother's physical care. AFFIRMED.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.
Nick E. Wingert of Mayne, Hindman, Frey, Parry & Wingert, Sioux City, for appellee.
Considered by Bower, C.J., Langholz, J., and Carr, S.J. [*]
LANGHOLZ, JUDGE
Melvin Hardgraves appeals from the denial of his petition to modify a custody order to obtain physical care of his eight-year-old daughter, who is now placed in the care of her mother, Ica Goulette. He contends that their daughter is having increased behavioral issues that are not being adequately addressed by Goulette. But the district court found that Hardgraves had not shown a substantial change in circumstances warranting a change in physical care.
On our de novo review, we agree with the district court. At most, Hardgraves has shown only a minimal change in circumstances since the original order. He has not met his heavy burden to show a substantial and material change of circumstances that warrants modifying their daughter's physical-care placement. We also decline to award Goulette appellate attorney fees.
I. Background Facts and Proceedings
Hardgraves and Goulette have one daughter. They were never married. And their daughter has been in Goulette's care since birth. In March 2020, when their daughter was four years old, Hardgraves petitioned to establish paternity and obtain joint legal custody and joint physical care of their daughter. See Iowa Code §§ 600B.7, .40 (2020). After several rounds of hotly contested litigation, the parties reached a mediated agreement that the district court approved in September 2021. Consistent with the agreement, the court granted the parties joint legal custody of their child and placed their daughter in Goulette's physical care. Hardgraves was awarded visitation rights every Wednesday night and every other weekend during the academic calendar and alternating weeks in the summer.
Only about a year later, in December 2022, Hardgraves came back to court seeking to modify the physical-care placement. This time, instead of the joint physical care he had previously sought, he claimed that he should be granted sole physical care. Hardgraves mainly argued that their daughter was having increased behavioral issues that were not being addressed by Goulette. And he contended that he could provide superior care to their child.
The district court disagreed. After a one-day hearing-receiving dozens of exhibits and testimony from Hardgraves, Goulette, their then-seven-year-old daughter, and Goulette's mother-the district court found that Hardgraves had not proved a substantial and material change in circumstances warranting modification of physical care. And the court found that their daughter "is doing as well as can be expected" in Goulette's care, so modifying her care "would not be in her best interests." The court also denied Goulette's request for trial attorney fees, reasoning that Hardgraves sought modification to benefit their child rather than "to be vindictive or hurtful" and that "the parties are of meager means" and will "each find it a challenge to pay their own attorney fees let alone anything in addition to that." Hardgraves now appeals.
II. Modification of Physical Care
Once physical care of a child has been set by the court, "it should be disturbed only for the most cogent reasons." In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). And so, a parent seeking to modify a physical-care provision bears a "heavy burden." Id. Hardgraves seeks to change their daughter's placement from Goulette's physical care to his physical care. He must thus prove by a preponderance of the evidence that a substantial and material change in circumstances arose after entry of the decree that relates to their daughter's welfare, is more or less permanent, and was not originally contemplated by the court. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). If such a qualifying change is found, then he must show that placement in his physical care better serves their daughter's interest than her current placement in Goulette's physical care. See id.
The same standards apply to modifying physical care whether originally set in a dissolution decree or a custody order for unmarried parents under chapter 600B. See Iowa Code § 600B.40(2) (providing that Iowa Code section 598.41 "shall apply" when "determining the visitation or custody arrangements").
We review a district court's decision whether to modify the physical-care provisions of a custody order under Iowa Code chapter 600B de novo. Thorpe v. Hostetler, 949 N.W.2d 1, 4 (Iowa Ct. App. 2020); see also Iowa R. App. P. 6.907. But because "the district court was able to listen to and observe the parties and witnesses," "we give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them." McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010).
On appeal, Hardgraves argues "there has been a substantial and material change of circumstances, not within the contemplation of the [c]ourt, specifically dealing with [their daughter's] behavioral issues, that do not appear to be alleviated or being adequately addressed." He elaborates slightly in his single page of analysis that their daughter's "behaviors have gotten out of control" since the court's September 2021 order. And he contends that the child is "defiant, argumentative, and physically aggressive" and that her "disruptive behaviors stem from a lack of discipline" and a failure of Goulette to "adequately address[]" them.
To begin, evidence in the record suggests that the behavioral issues may not be a change at all. Hardgraves submitted a March 2020 affidavit-well before the September 2021 order setting physical care-in which he complained about their daughter's inappropriate behavior and claimed that Goulette "has no control over [her] and does not discipline her accordingly." But even if we were to assume that the child's behaviors are somewhat worse or manifest in slightly different ways now that she is in elementary school, Hardgraves has not shown that this is a substantial and material change.
The district court found-and we see no basis to disagree-that while their daughter "had an unacceptable amount of tard[ies] and her academic performance show areas of concern," she was "not a behavioral concern at school." And Goulette was participating in meetings to address their daughter's attendance and academic performance. Goulette also supports their daughter's participation in counseling-even adjusting counselors to best meet the child's needs-and the management of their daughter's behaviors with medication. Neither these circumstances-nor anything else highlighted by Hardgraves on appeal-rise to a substantial and material change in circumstances justifying modification of physical care. Indeed, as their daughter's progress under treatment has demonstrated, Hardgraves has also failed to show that any behavioral change is more or less permanent. We thus affirm the district court's denial of Hardgraves's petition to modify the physical-care placement of the parties' daughter.
Compare Roden v. Coates, No. 08-1452, 2009 WL 1676912, at *1 (Iowa Ct. App. June 17, 2009); Hutchens v. Bond, No. 06-1922, 2007 WL 1345832, at *3-4 (Iowa Ct. App. May 9, 2007); Sigler v. Cook, No. 06-0813, 2007 WL 1201764, at *2-3 (Iowa Ct. App. Apr. 25, 2007) (each finding that children's new behavior issues were not a substantial change in circumstances), with In re Marriage of Karas, No. 20-1424, 2021 WL 2708994, at *3-4 (Iowa Ct. App. June 30, 2021) (finding that serious "escalating behaviors and [an] unsafe environment" were a substantial change in circumstances justifying modification of physical care).
III. Appellate Attorney Fees
Goulette seeks an award of appellate attorney fees. Appellate attorney fees are not awarded as a matter of right but rest in our discretion. See Iowa Code § 600B.26 ("In a proceeding to determine custody or visitation, or to modify a paternity, custody, or visitation order under this chapter, the court may award the prevailing party reasonable attorney fees." (emphasis added)). We weigh the needs of the party requesting the award, the other party's ability to pay, the relative merits of the appeal, and whether the party had to defend the district court's decision on appeal. Hensch v. Mysak, 902 N.W.2d 822, 827 (Iowa Ct. App. 2017). Like the district court, we conclude that it would be inappropriate to award attorney fees-especially given the respective financial conditions of the parties. And so, we deny Goulette's request for appellate attorney fees.
AFFIRMED.
[*] Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2024).