from the Iowa District Court for Cass County, Gregory W.
Wright appeals the order modifying Sean Ryan's child
visitation and support.
B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des
Moines, for appellant.
Alexander E. Wonio of Hansen, McClintock & Riley, Des
Moines, for appellee.
by Doyle, P.J., and Tabor and McDonald, JJ.
we there yet?" This familiar refrain must be heard often
as the parties' children, now ages ten and nine, spend
twenty hours cooped up in a car for each of their monthly
forty-eight-hour weekend visits with their father. No doubt,
these interstate highway treks back and forth between
Colorado and Iowa are not great fun for the children. Even
their father admits that "it's just rough on
Wright appeals following modification of the decree
establishing custody, visitation, and support of the
parties' minor children. Jessica argues the district
court misused the term "physical care" in the
modification order when referring to Sean Ryan's summer
visitation with the children. She also argues the visitation
schedule entered in the modification order is contrary to the
children's best interests. Finally, Jessica argues the
district court erred in calculating the amount of Sean's
child support and in failing to require Sean to pay cash
medical support for the children. Although Sean did not
cross-appeal, he requests a different school-year/holiday
visitation schedule than ordered by the district court. Both
parties request an award of their appellate attorney fees.
Background Facts and Proceedings.
and Sean are the parents of two children: J.A.W., born in
2007, and J.P.W., born in 2008. A 2015 decree established the
children's custody, visitation, and
support. It provided for joint legal custody of the
children with Jessica granted physical care. The decree
granted Sean visitation on alternating weekends and each
Wednesday evening during the school year, with the parties
alternating care of the children each week during the summer.
The decree also ordered Sean to pay Jessica child support in
the amount of $967.07 per month. In 2016, Sean petitioned to
modify the custody decree based on Jessica's plans to
move out of state. Jessica's family was purportedly
relocating to Colorado, where they would establish a new
scrap-metal business, and Jessica planned to continue to work
for the family business. Jessica moved to the suburban
Denver, Colorado area in the summer of 2016, a ten-hour drive
from Sean's Anita, Iowa residence.
2017, the district court entered its modification order. The
court found that Sean failed to establish a substantial
change in circumstances warranting modification of the
children's physical care, but it determined Jessica's
move to Colorado warranted a modification of the visitation
provisions of the decree. The court modified the visitation
schedule to provide Sean with one forty-eight-hour weekend of
visitation per month during the school year. The court also
granted Sean summer visitation beginning five days after the
end of the school year and ending five days before the start
of the next school year, with Jessica having the children one
forty-eight-hour weekend during each of those months. The
original decree's holiday visitation schedule was left
undisturbed. The court also modified the child support
provisions of the decree to provide Sean would pay child
support in the amount of $524.76 per month. Jessica appeals
the order, challenging the modification of the visitation and
child support provisions of the decree.
Scope of Review.
Our review of equitable proceedings is de novo. See
Iowa R. App. P. 6.907; Wilker v. Wilker, 630 N.W.2d
590, 594 (Iowa 2001). We review the entire record and decide
anew the factual and legal issues preserved and presented for
review. See In re Marriage of Williams, 589 N.W.2d
759, 761 (Iowa Ct. App. 1998). Although our review is de
novo, we afford deference to the district court for
institutional and pragmatic reasons. See In re Marriage
of Morrison, No. 16-0886, 2017 WL 936152, at *1 (Iowa
Ct. App. Mar. 8, 2017). This means we give weight to the
district court's findings of fact. See In re Marriage
of Gust, 858 N.W.2d 402, 406 (Iowa 2015). This also
means we will affirm the district court unless the district
court failed to do substantial equity. See In re Marriage
of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); In re Marriage of
Lukowicz, No. 14- 0088, 2015 WL 162089, at *4 (Iowa Ct.
App. Jan. 14, 2015) (using substantial equity standard). In
exercising our review, "[p]rior cases are of little
precedential value, except to provide a framework for
analysis, and we must ultimately tailor our decision to the
unique facts and circumstances before us." In re
Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995)
(citing In re Marriage of Will, 489 N.W.2d 394, 397
Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App.
Use of term "physical care."
first attacks the language used by the district court in
modifying the decree with respect to child visitation. The
modification order states, in pertinent part:
The burden on Sean to change physical care is very high. He
must prove a substantial change in circumstances. If he
establishes that burden, he must then meet the additional
burden of showing that he is somehow in a superior position
to parent the children. There is no question that moving to
Colorado 10 hours away is a change in circumstances. It is a
little more difficult to determine whether that is the kind
of substantial change necessary to meet Sean's burden.
While this court finds the change significant, this court
does not find it substantial, even though Jessica moved 10
hours away. This court finds it significant enough to modify
the visitation provisions. In addition, there is no evidence
before this court to show that Sean is somehow in a position
to be a superior parent. There is no question that he loves
his children and has a relationship that ought to continue,
but he is not in a superior position to parent. He fails on
that burden also.
This court does find from the evidence that there should be
an adjustment to the visitation, especially during the summer
school visitation. This court will enter an order that
modifies the current decree in that respect.
. . . .
1. The original decree is modified to provide that the
parties shall have joint legal custody with Jessica retaining
primary physical care during the school year and Sean having
primary physical care during the summer school vacation. Sean
shall assume physical care of the children five days after
the last day of school, and return physical care to Jessica
five days before the start of school in the fall.
asserts the court use of the term "physical care"
with regard to Sean's summer visitation is inconsistent
with the court's ruling regarding Sean's failure to
meet his burden to change physical care. In denying her
motion to enlarge and amend the modification order, the
district court stated on this issue, "The designation of
Sean's parenting time as physical care instead of
visitation is a distinction ...