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Upon the Petition of Washington

Court of Appeals of Iowa

April 18, 2018

Upon the Petition of DAMARIUS J. WASHINGTON, Petitioner-Appellant, And Concerning PORSHA COLLINS, Respondent-Appellee.

          Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.

         Damarius Washington appeals from the district court's order denying his petition for modification of the order establishing paternity, custody, visitation, and child support and ruling on Collins' contempt allegations.

          M. Leanne Tyler of Tyler & Associates, P.C., Bettendorf, for appellant.

          Ciara L. Vesey of the Law Office of Ciara L. Vesey, PLLC, Davenport, for appellee.

          Danilson, C.J., and Vaitheswaran and Bower, JJ. Tabor, J., takes no part.

          DANILSON, CHIEF JUDGE.

         Damarius Washington appeals from the district court's order denying his application for modification of the order establishing paternity, custody, visitation, and child support of the parties' child, and ruling on Porsha Collins' contempt allegations. Washington asserts the court erred in determining there was not a substantial change in circumstances warranting modification of custody, finding Washington in contempt, ordering Washington to pay forty percent of his bonus to Collins for child support, and ordering Washington to pay Collins' trial attorney fees. Washington also contends the court engaged in "impermissible and unconstitutional racial stereotyping of an educated black male" throughout the proceedings. Both parties request appellate attorney fees.

         We conclude the court properly reached its determination regarding the modification of physical care. We find the court's order respecting the portion of Washington's bonus to be paid for child support was not equitable and modify the provision accordingly. As to Washington's writ of certiorari, [1] we find the court properly found Washington in contempt for failure to maintain Z.'s health insurance but erred in finding contempt based on Washington's failure to provide notice for summer visitation. Because we find substantial evidence supporting one ground of Collins' application for rule to show cause, we annul the writ. We find no abuse of discretion in the district court's award of trial attorney fees and affirm. Washington is ordered to pay $2500 of Collins' appellate attorney fees.

         I. Background Facts & Proceedings.

         Washington and Collins engaged in an approximately two-year relationship. Their child, Z., was born in November 2012. In February 2013, the parties reached an agreement as to custody, visitation, and child support, and the court entered an order on the petition to establish paternity, custody, visitation, child support, and related matters (paternity order) in accordance with the parties' agreement. The parties agreed Collins would have physical care of Z., and the parties would share legal custody. Washington was to have visitation with Z. every other weekend and for four one-week periods during the summer until Z. was three years old-at which time Washington would have summer visitation for two two-week periods. The paternity order expressly required Washington to provide Collins "with written notice of the dates he chooses for summer visitation no later than April 1st." The paternity order also provided Washington "shall have such other and further visitation as is agreed between the parties."

         By both parties' accounts, they co-parented without serious issue under the provisions of the paternity order until 2016. As explained by the district court:

There was nothing filed in this case until the Child Support Recovery Unit [(CSRU)] became involved to enforce [Washington]'s child support obligation due to the child being on Title 19 services. The CSRU filed a notice of their services on May 9, 2016, and a wage withholding order on May 11, 2016.

         Washington filed an application to modify the paternity order on June 20, 2016, seeking physical or shared care of Z. or extraordinary visitation. Also on June 20, Washington filed an application for rule to show cause asserting Collins had denied Washington summer visitation and "such other and further visitation" as contemplated by the paternity order. Washington also maintained Collins failed to change Z.'s last name in accordance with the paternity order. On July 21, Collins filed an application for rule to show cause, contending Washington failed to maintain health insurance for Z. and failed to provide notice of his summer-visitation dates in writing by April 1 of each year as required by the paternity order.

         After a hearing held April 18-19, 2017, the district court entered its ruling. The court held there was not a substantial change in circumstances from the time of the paternity order warranting a change in custody of Z., and ordered Z. remain in Collins' physical care. The court did find the circumstances appropriate to modify the visitation and child-support provisions of the paternity order. The court also found Washington in contempt for failing to provide notice of his summer visitation dates to Collins prior to April 1 in 2013, 2014, and 2015 and for failing to maintain health insurance for Z. Washington now appeals.

         II. Analysis.

         Washington contends the court erred in maintaining physical care of Z. with Collins, ordering Washington to pay forty percent of his bonus to Collins, finding Washington in willful contempt for failing to provide summer-visitation notice and to maintain Z.'s health insurance, and ordering Washington to pay Collins' attorney fees. Washington also asserts on appeal the district court engaged in "impermissible and unconstitutional racial stereotyping of an educated black male" throughout the proceedings.

         (1) Custody.

         Washington asserts a substantial change in circumstances based on Collins' refusal of summer visitation, refusal of phone contact with Washington, failure to share health-care and educational information, and refusal to permit additional visitation. Washington maintains the change in circumstances justifies modification of the custody provisions of the paternity order and argues Z. should be placed in his physical care.

         We review the district court's custody determinations de novo. Iowa R. App. P. 6.907; see also Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). "[W]e give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but we are not bound by them." McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010). "Our overriding consideration is the best interests of the child." Id. In making custody determinations under Iowa Code chapter 600B (2016), we look to the factors provided in Iowa Code section 598.41(3) as well as our case law. Iowa Code § 600B.40 .

Courts are empowered to modify the custodial terms of a paternity decree only when there has been a substantial change in circumstances since the time of the decree, not contemplated by the court when the decree was entered, which was more or less permanent, and relates to the welfare of the child.

Melchiori, 644 N.W.2d at 368. "[T]he parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden and must show the ability to offer superior care." Id.

         Washington contends since the time the paternity order was entered in 2013, Collins has refused him summer visitation and denied his requests for further visitation. In a letter dated April 25, 2016, Washington stated he received no summer visitation in 2013, one week in 2014, and one and a half weeks in 2015, and he requested four weeks of summer visitation in 2016. Washington also stated Collins had refused his requests for additional visitation on more than one occasion.

         However, Collins stated Washington did not receive four weeks of visitation each summer because he did not request it. She noted even the 2016 notice for summer visitation provided in the April 25 letter was nearly one month late under the terms of the paternity order. Collins explained she preferred to adhere to the terms of the paternity order respecting summer-visitation notice and additional visitation because she learned in her parenting class that failure to follow the paternity order could lead to one parent taking advantage of the other. Washington did not state Collins has refused to allow his regular visitation with Z. pursuant to the paternity order. In fact, Collins stated that on ...


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