Opinion
No. 5-268 / 04-1380
Filed April 28, 2005
Appeal from the Iowa District Court for Louisa County, R. David Fahey, Judge.
Michael Dean Rees appeals from a district court order modifying the visitation provisions of the parties' dissolution decree. AFFIRMED.
Jay T. Schweitzer and Timothy K. Wink of Schweitzer Wink, Columbus Junction, for appellant.
Roger A. Huddle of Weaver Huddle, Wapello, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Michael Dean Rees appeals from a district court order modifying the visitation provisions of the parties' dissolution decree. Specifically, he contends the district court erred in finding a change in circumstances had occurred. We affirm.
I. Background Facts Proceedings.
Michael Dean Rees and Rachel Marie Rees were married on February 15, 1997. They have two children: Erik Michael Rees, born October 7, 1998, and Evan Robbyn Rees, born March 28, 2002. A decree of dissolution of marriage was entered on October 10, 2003. Rachel was awarded primary physical care of the parties' two children, subject to Michael's visitation rights. In the original decree, Michael was allowed to exercise visitation with the children each Tuesday and Thursday evening during the week and either on Friday or Saturday during the weekend. Additionally, Michael was allowed to have the children for four days and three nights during the Iowa State Fair and for two weeks during the summer. If by virtue of Michael's career as a truck driver he was unable to exercise his visitation rights, reasonable efforts were to be made to allow him to reschedule the missed visitation.
The parties appeared before the district court approximately six and a half weeks earlier on August 28, 2003, to inform the court a settlement had been reached. For reasons that do not appear in the record, their consent decree of dissolution of marriage was not presented to a judge for signature until October 10, 2003.
Unfortunately, the parties immediately began to experience turmoil regarding the visitation schedule. For example, pursuant to the decree, Rachel was to pick the children up "in the driveway rather than in the street." Michael interpreted this to mean not just his own driveway, but rather, any driveway where the children were located at the conclusion of visitation. The parties also experienced problems with rescheduling the midweek visitation Michael missed by virtue of his work schedule. Michael was allowed to dictate what night he could make up the missed visitation. Often, he did not let Rachel know his weekly work schedule until Sunday evening, which made it difficult to set the children's schedule. Similarly, because there was no requirement for Michael to notify Rachel by a certain date, the parties experienced confusion over when Michael was going to take the children to the Iowa State Fair.
This incident actually occurred on October 9, 2003, one day prior to the day the dissolution was entered. However, as previously noted, the parties agreed to these visitation provisions six and a half weeks earlier and were operating under the terms of the agreement at this time. Additionally, Michael reiterated this interpretation of the decree at trial, suggesting it continued to be a source of contention between the parties.
Based on Michael's own testimony, the district court found there was almost no reason to ever vary from the Tuesday-Thursday schedule.
Michael's driveway also proved to be a source of discord between the parties. For instance, approximately ten days after the divorce decree was entered, Michael posted a sign reading "This Area Used to Pick Up Erik and Evan Rees." Stapled to the sign was a map and detailed written instructions specifying the exact path Rachel was to take. On another occasion, Michael painted lines on the gravel driveway identifying the specific route Rachel was to traverse. If Rachel varied from the proscribed path, Michael harangued her with foul language, often with the children present.
Michael enlisted Erik, the parties' then five-year-old son, to assist in coloring in the letters of the sign directed at Rachel.
On April 28, 2004, Rachel filed an application to modify the visitation provisions of the parties' dissolution decree. On August 2, 2004 following a trial, the district court entered an order modifying the parties' visitation schedule. Michael appeals.
II. Standard of Review.
Our scope of review in this modification action is de novo. In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997). We have a duty to examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996). We give weight to the district court's fact findings, particularly when considering the credibility of witnesses, but are not bound by them. Id. III. Modification of Visitation.
Michael first contends the district court erred in finding there had been a change of circumstances warranting modification of the visitation provisions of the parties' dissolution decree. Generally, the degree of change required to modify the visitation provisions of a dissolution decree is less extensive than what is required to modify the custodial provisions. In re Marriage of Wersinger, 577 N.W.2d 866, 868 (Iowa Ct.App. 1998). To modify visitation privileges, the party seeking modification must only show there has been a change of circumstances, not a substantial change of circumstances, since the entry of the initial dissolution decree. Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct.App. 1994) (citing In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa Ct.App. 1985)).
Based on the evidence presented at trial, it is clear the parties have been unable to cooperate or communicate regarding visitation in a way envisioned in the initial dissolution decree. These difficulties have been disruptive to the children's lives as they have repeatedly witnessed Michael's verbal harassment of Rachel. Additionally, the children are unable to have a set schedule during the week as the current visitation stands. This court has held that discord between parents that has a disruptive effect on the children's lives qualifies as a change in circumstances warranting modification of a dissolution decree. See, e.g., In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). Although Michael argues the parties were experiencing difficulties prior to the entry of the initial dissolution decree, we do not believe the district court was able to foresee the extent and ongoing nature of these difficulties at the time the initial decree was entered. Consequently, we conclude, as did the district court, there has been a sufficient change in circumstances to warrant modification of the visitation provisions of the parties' dissolution decree.
In establishing visitation rights, our governing consideration is the best interest of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). Generally, liberal visitation is in the children's best interests as it maximizes physical and emotional contact with both parents. Iowa Code § 598.41(1)(a) (2003). The modified visitation schedule ordered by the district court does not drastically curtail Michael's visitation with the children. Rather, the schedule simply elucidates the terms of the parties' visitation rights. For example, pursuant to the modified schedule, the problems with Michael's driveway are eradicated by requiring Michael to pick up and drop off the children. The decree further mandates with specificity when Michael is required to notify Rachel if he needs to reschedule his midweek visitation due to conflicts with his work schedule and what days the visitation may be rescheduled. These changes are in the best interests of the children because the modification not only fosters maximum contact with each parent, but also alleviates many of the issues that previously triggered discord between them. Further, the modified visitation schedule will permit the children to have a more regular and predictable schedule during the week. For these reasons, we affirm the district court's modification of the visitation provisions of the parties' dissolution decree.
Although we affirm the district court's order modifying the parties' decree, we acknowledge that the court's modification cannot remedy every potential source of contention between the parties. Ultimately Rachel and Michael are responsible for the amount of difficulty encountered during the children's visitation. We take this opportunity to admonish both parents for their immature and destructive behavior. 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). We realize Rachel and Michael are not required to be friends. However, in the future, both parents should keep in mind they owe it to their two young children to maintain an attitude of civility and communicate openly with each other regarding visitation. See id. IV. Attorney Fees.
Michael next argues the district court's award of $800 in trial attorney fees to Rachel should be reduced. The decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its decision absent a finding of abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Whether attorney fees should be awarded depends on the respective abilities of the parties to pay. Id. In addition, the fees must be fair and reasonable. In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). We find no abuse of discretion under the facts of this case.
V. Appellate Attorney Fees.
Both Rachel and Michael request attorney fees on appeal. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). In addition to the factors discussed above, we consider whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). However, a successful party does not have a vested right to appellate attorney fees. In re Marriage of Vieth, 591 N.W.2d 639, 641 (Iowa Ct.App. 1999). After a consideration of these factors, we deny both parties' requests for appellate attorney fees. Costs on appeal are taxed one-half to each party.