from the Iowa District Court for Scott County, Mary E. Howes,
appeals from an order denying her petition to modify the
physical care provisions of the parties' decree of
dissolution of marriage. AFFIRMED.
S. Gallagher and Peter G. Gierut of Gallagher, Millage &
Gallagher, P.L.C., Bettendorf, for appellant.
J. Quinn, Davenport, pro se appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
Schmidt (a/k/a Julia) appeals from an order denying her
petition to modify the decree dissolving her marriage to
James (Joe) Quinn. At issue in this appeal are the physical
care provisions of the decree.
court's review is de novo. See Iowa R. App. P.
6.907; In re Marriage of Hoffman, 867 N.W.2d 26, 32
(Iowa 2015) (noting modification actions lie in equity).
Prior cases have little precedential value; this court
applies the relevant law to the unique facts and
circumstances of each case. See In re Marriage of
Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re
Marriage of Snowden, No. 14-1920, 2015 WL 4233449, at *1
(Iowa Ct. App. July 9, 2015). Although review is de novo,
appellate courts "afford deference to the district court
for institutional and pragmatic reasons." Hensch v.
Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017); see
In re P.C., No. 16-0893, 2016 WL 4379580, at *2 (Iowa
Ct. App. Aug. 17, 2016) ("There are other, less
questionable reasons to exercise 'de novo review with
deference,' including: notions of judicial comity and
respect; recognition of the appellate court's limited
function of maintaining the uniformity of legal doctrine;
recognition of the district court's more intimate
knowledge of and familiarity with the parties, the lawyers,
and the facts of a case; and recognition there are often
undercurrents in a case-not of record and available for
appellate review-the district court does and should take into
account when making a decision.").
record reflects the parties married in 2006 and divorced by
way of stipulated decree in 2013. The parties have two
children. During the course of the parties' marriage, Joe
adopted Julia's son, C.Q., now eighteen years of age and
entering his senior year of high school. The parties also
have a younger son, M.Q., now eleven years of age. Pursuant
to the stipulated decree, the parties were granted joint
legal custody of both children, Julia was awarded physical
care of C.Q., Joe was awarded physical care of M.Q., and each
parent was granted visitation with the other child. Shortly
after the entry of the decree, the parties modified the
decree to expand summer visitation for the parents and to
better accommodate Julia's observance of White Month, a
Mongolian holiday. In 2016, Julia filed the instant petition
to modify the decree, seeking physical care of both children
and child support. The district court denied the petition,
concluding Julia failed to prove a material change in
circumstances not in contemplation of the decretal court.
Julia timely filed this appeal.
general principles guiding our adjudication of petitions for
modification of dissolution decrees are
well-established." In re Marriage of Hoffman,
867 N.W.2d at 32.
To change a custodial provision of a dissolution decree, the
applying party must establish by a preponderance of evidence
that conditions since the decree was entered have so
materially and substantially changed that the children's
best interests make it expedient to make the requested
change. The changed circumstances must not have been
contemplated by the court when the decree was entered, and
they must be more or less permanent, not temporary. They must
relate to the welfare of the children. A parent seeking to
take custody from the other must prove an ability to minister
more effectively to the children's well being.
In re Marriage of Frederici, 338 N.W.2d 156, 158
(Iowa 1983). "The burden on the party seeking
modification is a heavy one." In re Marriage of
Morrison, No. 16- 0886, 2017 WL 936152, at *2 (Iowa Ct.
App. Mar. 8, 2017). Courts are chary to disturb the physical
care provisions of a decree because "once custody of
children has been fixed it should be disturbed only for the
most cogent reasons." Hoffman, 867 N.W.2d at
32. Ultimately, when reaching a conclusion, "[t]he
children's best interest is the controlling
consideration." Id; accord Marriage of Winter,
223 N.W.2d 165, 166-67 (Iowa 1974) (listing factors to
consider when reaching a best-interest determination).
contends the animosity between the parties warrants
modification of the physical-care provisions of the decree.
It is not disputed the parties have a contentious
relationship. It also does not seem disputed the parties'
contentious relationship negatively impacts the children.
However, the contentious nature of the relationship does not
support modification here. First, "[t]he parties'
contentious relationship is merely a continuation of what
came before." Morrison, 2017 WL 936152, at *3.
There has been no change in circumstances since the entry of
the decree. See Albertus v. Albertus, 160 N.W. 830,
831 (Iowa 1917) ("It would be a sufficient change of
circumstances within the reasoning of those cases if this
alleged animosity or other unfitness were not in existence
when the original decree was entered."). Second, while
the parties' relationship is contentious, we cannot say
the hostility between the parents rises to the level
requiring judicial intervention. Finally, much of the
contentiousness between the parties is initiated by Julia.
This is evidenced in her own video exhibits, which show her
creating contentious situations with Joe regarding the
children and then recording the exchanges for evidentiary
purposes. Julia cannot leverage her instigation of conflict
into a legal reason to support modification of the decree.
The level of conflict in this case does not warrant a change
in physical care of the child, but both parents must mature
and find a way to interact in a non-confrontational manner
for the benefit of their children. See In re Marriage of
Fortelka, 425 N.W.2d 671, 672 (Iowa Ct. App. 1988)
("Parents must put away their personal animosities
toward each other and work together to meet the
also contends modification is warranted because Joe's
care of the children negatively affects their physical
health. Specifically, she notes Joe smokes in the home. She
also notes Joe's home has mold in the basement. Both of
these facts, she contends, contribute to M.Q.'s alleged
respiratory ailments. The evidence relevant to this issue
does not support modification. The district court made
several credibility findings regarding this issue to which we
defer. The district court credited Joe's denial that he
smoked in the home and that he smoked around M.Q. There was
no evidence of the existence of mold in Joe's house other
than Julia's assertion. Finally, there was no credible