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In re Marriage of Cavalier

Court of Appeals of Iowa

February 20, 2019

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.

          Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde, Judge.

         Aaron Cavalier appeals the district court's order modifying the child care and custody provisions of his divorce decree.

          Thomas 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. [*]

          VOGEL, CHIEF JUDGE.

         Aaron 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.

         Aaron and Kalli married on September 8, 2012, and the marriage was dissolved on January 27, 2015.[1] 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.

         On June 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.

         Regarding 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 either party.[2]

         We find 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.

         Regarding 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 provision:

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 ...

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