IN RE THE MARRIAGE OF KALLI CAVALIER AND AARON CAVALIER Upon the Petition of KALLI CAVALIER, n/k/a KALLI TERRELL, Petitioner-Appellee, And Concerning AARON CAVALIER, Respondent-Appellant.
from the Iowa District Court for Linn County, Fae E.
Cavalier appeals the district court's order modifying the
child care and custody provisions of his divorce decree.
J. Viner of Viner Law Firm P.C., Cedar Rapids, for appellant.
Kristen A. Shaffer of Shuttleworth & Ingersoll, P.L.C.,
Cedar Rapids, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.
Cavalier appeals from the district court's order
modifying physical care of K.C., born in 2012, his child with
Kalli Cavalier, now known as Kalli Terrell. He argues the
district court abused its discretion by denying his motion to
continue and it should not have changed physical care of K.C.
to Kalli. Kalli requests appellate attorney fees. We find no
abuse of discretion and we decline to interfere with the
modification or award attorney fees.
and Kalli married on September 8, 2012, and the marriage was
dissolved on January 27, 2015. The dissolution decree
incorporated the parties' stipulation, in which they
agreed to joint legal custody of K.C. with Aaron having
physical care and Kalli having supervised visitation.
28, 2016, Kalli filed her petition for modification, claiming
a material and substantial change in circumstances and
seeking shared physical care of K.C. On September 11, 2017,
Kalli moved to amend her petition, asking the court to grant
her physical care of K.C. On September 21, Aaron filed a
motion to continue trial due to Kalli's recent amendment
to her petition, and the court denied his motion. On October
25 and 26, trial was held on the matter. On January 10, 2018,
the district court issued its ruling, finding a material and
substantial change in circumstances and granting physical
care of K.C. to Kalli and visitation with Aaron. Both parties
filed post-trial motions. On March 1, 2018, the court
corrected and modified certain provisions in its earlier
ruling, but it retained physical care with Kalli and
visitation with Aaron. Aaron now appeals, and Kalli requests
appellate attorney fees.
the motion to continue, such a motion "is in the
discretion of the trial court and will be interfered with on
appeal only where there is a clear abuse of discretion."
In re Marriage of Hatzievgenakis, 434 N.W.2d 914,
916 (Iowa Ct. App. 1988). "Ordinarily an abuse is found
to exist only where there is not support in the record for
the trial court's action." Id. In denying
the motion, the court wrote:
[Aaron] is the primary care provider for the minor child
pursuant to the earlier decree. Based upon [Aaron's]
resistance to [Kalli's] request to modify primary care to
a shared-care arrangement, [Aaron] would be expected to
present evidence at trial that he remains a fit and proper
person to have primary physical care of the minor child in
any event. The fact that [Kalli] now requests, in the
alternative, a modification of the decree to order her to
provide primary care, in light of [Aaron's] recent move,
does not substantially change the physical care issues to be
determined by the Court nor the evidence to be presented by
support for the court's decision to deny the motion to
continue and the court did not abuse its discretion in doing
so. See id.
the modification of physical care, we review such decisions
de novo. In re Marriage of Hoffman, 867 N.W.2d 26,
32 (Iowa 2015). "Although we make our own findings of
fact, 'when considering the credibility of witnesses the
court gives weight to the findings of the trial court'
even though we are not bound by them." Id.
(quoting In re Marriage of Udelhofen, 444 N.W.2d
473, 474 (Iowa 1989)). In order to modify a physical care
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 ...