Opinion
No. 6-199 / 05-1846
Filed April 12, 2006
Appeal from the Iowa District Court for Jasper County, Dale B. Hagen, Judge.
Todd Lenz appeals the physical care and visitation provisions of a modification ruling. AFFIRMED.
Barry S. Kaplan and Melissa A. Nine of Kaplan Frese, L.L.P., Marshalltown, for appellant.
Dennis F. Chalupa of Brierly Charnetski, L.L.P, Newton, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Todd and Lisa Lenz stipulated to a dissolution decree that afforded Lisa physical care of the parties' three children, subject to visitation with Todd. Approximately two years after the decree was entered, Todd applied to modify the physical care and visitation provisions.
By this time, the oldest child was in college and the second child was fifteen years old and was somewhat estranged from her father. The trial, therefore, focused on the youngest child, eleven-year-old Nathan. Todd expressed frustration that Lisa did not allow him more visitation with his son. He stated, "I'm here today to request that [Nathan] would be able to spend at least half the time with me, including overnight stays during the week and at least half the time during the summer."
The district court denied his request, finding no change of circumstances that would warrant either a modification of the physical care arrangement or expanded visitation. On our de novo review, we agree with this resolution.
I. Physical Care
A party seeking to modify a physical care arrangement carries a heavy burden. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002). Todd did not meet this burden. See In re Marriage of Maher, 510 N.W.2d 888, 891 (Iowa Ct.App. 1993) (requiring showing of a material and substantial change of circumstances since the entry of the decree as well as superior care-taking ability). At trial, he focused almost exclusively on his request for expanded visitation, making scant mention of a change in physical care. On appeal, Todd asks for "split physical care" but does not apply the modification standards or cite factors that would support such an arrangement.
On our de novo review, we note that the parties lived in separate school districts. Todd presented no evidence that Nathan would benefit by transferring to another school or that he was more capable than Lisa of caring for the child on a regular basis before and after school. He also did not counter Lisa's testimony that changes to the stipulated decree would disrupt Nathan's education and split the siblings. See In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). We conclude the district court acted equitably in declining to modify the physical care provision of the dissolution decree.
II. Visitation
A party seeking to modify a visitation provision of a decree carries a lesser burden than the burden that applies when seeking a change in physical care. See In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa Ct.App. 1985) ("Generally, a much less extensive change of circumstances need be shown in visitation right cases."). Todd also did not satisfy this burden. The decree, which was agreeable to Todd just two years earlier, set forth a minimum schedule and stated that Todd should "receive additional visitations as agreed upon between the parties, and with due consideration of both the parties' work schedules." Todd conceded that Lisa furnished additional visitation, including evening visits in the middle of the week.
We recognize the parties did not communicate well and a breakdown in communication may amount to a change of circumstances warranting a change in the visitation schedule. Remsburg v. Remsburg, 180 N.W.2d 461, 463 (Iowa 1970); Cf. Melchiori, 644 N.W.2d at 368; In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). However, as the district court explained, the disruption reflected in this record was "something that certainly could have been anticipated two years ago." And, as the court further recognized, effective communication cannot be judicially mandated. We conclude the parties' level of communication did not warrant a modification of the visitation schedule.
We are more troubled by Lisa's arbitrary denial of visitation on several occasions. Specifically, Lisa admitted that she did not allow Nathan to visit his father on some Wednesday evenings because Nathan was disrespectful to her. She also did not provide a cogent explanation for refusing to expand visitation during the summer. These types of actions may serve as grounds for changing a visitation schedule or even modifying physical care. Remsburg, 170 N.W.2d at 463. We conclude Lisa's conduct did not yet warrant such measures, but note her obligation to facilitate maximum contact between Nathan and his father. See Iowa Code § 598.41(1) (2005).
III. Attorney Fees
Lisa seeks an award of appellate attorney fees. Such an award rests within our discretion. See In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). Based on the income of the parties as disclosed in the record, we deny the request.