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Day v. Anderson

Court of Appeals of Iowa

July 5, 2018

ARTHUR L. DAY, Petition-Appellant/Cross-Appellee,
v.
MISTY L. ANDERSON, Respondent-Appellee/Cross-Appellant.

          Appeal from the Iowa District Court for Allamakee County, Richard D. Stochl, Judge.

         Arthur Day appeals and Misty Anderson cross-appeals from the order modifying the terms of the decree respecting the custody of their child.

          Nicholas T. Larson of Larson Law Office, PLLC, Osage, for appellant.

          Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C., Decorah, for appellee.

          Considered by Danilson, C.J., and Mullins and McDonald, JJ.

          DANILSON, CHIEF JUDGE.

         Arthur Day appeals and Misty Anderson cross-appeals from the order modifying the terms of the decree[1] respecting the custody of their child, G.D. Day maintains G.D. should be placed in his physical care, or, in the alternative, the district court should have denied Anderson's request to modify the shared-care schedule. Day also asserts the court improperly modified other provisions of the decree. Day contends the court abused its discretion in refusing to admit exhibits at trial depicting text messages Day obtained from Anderson's iPad. Day also challenges both the district court's determination that Anderson was not in contempt and the order that Day pay $600 toward Anderson's attorney fees due to his unsuccessful contempt action. On cross-appeal, Anderson asserts the court should have granted her request to modify the decree respecting G.D.'s schooling and requests appellate attorney fees.

         Finding no error in the district court's evidentiary rulings; determination to maintain shared care; and modification of the provisions of the decree respecting the shared-care schedule, the right of first refusal, and G.D.'s schooling, we affirm. We reverse the district court's modification of the decree's tax provisions. We also reverse the court's award of attorney fees to Anderson based on her successful defense to the contempt action. We deny Anderson's request for appellate attorney fees.

         I. Background Facts & Proceedings.

         Day and Anderson are the parents of G.D., who was born in 2008 and was eight years old at the time of the modification trial. After the parties ended their relationship, Day filed a petition for custody in 2013.[2] A decree approving the parties' stipulated custody agreement was entered on July 7, 2014. Under the decree, the parties had joint legal custody and shared physical care of G.D. They divided time with G.D. on a two-day, two-day, three-day schedule.

         As was the case before the decree, Day remained living in Postville at the time of the modification trial. Day works in Osage and commutes approximately seventy-five miles each way to work. Day stated the current shared-care schedule allows him to stay late in Osage to meet with clients on the days he does not have G.D. Day's mother lives in Postville and picks G.D. up from school and provides after-school care for G.D. on the days when G.D. is with Day.

         At the time of the modification trial, Anderson was living in Decorah. She explained that although she still owned a home in Postville, she had moved to live with her fiancé full-time in Decorah. Anderson also works in Decorah, having changed jobs since the time of the decree.

         Anderson filed a petition for modification on April 27, 2016, requesting the court to change the shared-care schedule to an alternating weekly schedule and seeking modification of the provision requiring G.D. to remain living and attending school in the Postville School District. Day requested physical care in an amended answer and counterclaim filed June 29, 2017. The modification trial was held on July 26, 2017.

         After trial but before the district court's order on modification was filed, Anderson enrolled G.D. in the Decorah School District. Day filed an application for rule to show cause, alleging Anderson was in contempt for enrolling G.D. in a school district other than Postville.

         In its September 19, 2017 ruling, the district court modified the decree to provide for an alternating weekly shared-care schedule, eliminated the decree's right-of-first-refusal provision, and modified the provision respecting tax exemptions. The court also modified the decree by lifting the requirement that Anderson and G.D. reside within the Postville School District, but did not modify the requirement that G.D. attend school in Postville. The court denied Day's request for physical care. The court also dismissed Day's application for rule to show cause, and awarded Anderson $600 in attorney fees for having to defend the contempt action. Day appeals and Anderson cross-appeals.

         II. Evidentiary Rulings.

         Day asserts the district court improperly refused to admit proposed Exhibits 15, 16, and 17 at the modification trial. These exhibits included text messages Day obtained from Anderson's iPad, which G.D. was allowed to use and, unbeknownst to Anderson, had brought to Day's home.

         We review the district court's evidentiary rulings for an abuse of discretion. Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002). "An abuse of discretion exists when the court exercises its discretion 'on grounds or for reasons clearly untenable ...


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