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Tressel v. Kuehl

Court of Appeals of Iowa

March 20, 2019

BECKY JANE TRESSEL, Plaintiff-Appellee,
v.
BRANDON R. KUEHL, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.

         A father appeals the district court's order modifying the physical care provisions of a custody decree concerning his minor child.

          Jennifer M. Olsen of Olsen Law Firm, Davenport, for appellant.

          Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellee.

          Considered by Tabor, P.J., and Mullins and Bower, JJ.

          MULLINS, JUDGE.

         Becky Tressel and Brandon Kuehl are the parents of one child, O.J.K., born in 2015. Becky and Brandon never married and were in a relationship until approximately five months after O.J.K.'s birth. On October 3, 2016, the court entered a decree awarding both parties joint legal custody and shared physical care of O.J.K. The court noted Becky and Brandon's troubled relationship and Becky's intrusion on Brandon's parenting time. The court expressed its concern with Becky's interference, which was "often over minor and somewhat orchestrated reasons," including constantly texting Brandon and needlessly involving the police without a reasonable basis. Further, the court was concerned about Becky's denial of visitation. The court expressed its hope that the situation would change and found that joint legal custody and shared physical care was in O.J.K.'s best interests. The court ordered Brandon to pay child support and required the parent relinquishing custody to provide transportation to the other parent's residence.

         On October 26, Becky and Brandon entered into a stipulation modifying the decree as to the days they would have custody in order to work better for the parties' schedules. Further, the parties agreed to deviate from the guideline amount of child support and that, going forward, Brandon would have no support obligation. The stipulation also required Brandon's name be added as an emergency contact at O.J.K.'s daycare and preschool. The district court approved the parties' stipulation the same day.

         On February 10, 2017, Becky filed a petition for relief from domestic abuse against Brandon based on an incident which occurred in December 2016. She alleged that during a custody exchange at Brandon's house, Brandon sexually assaulted her. The court granted a temporary protective order, halting Brandon's visitation with, and custody of, O.J.K. On February 22, 2017, the district court resumed visitation as previously ordered and required all visitation exchanges to occur at Brandon's mother's house. On March 21, the court entered a protective order by consent agreement, which continued the custody and visitation arrangement as previously ordered. For the incident, Brandon was arrested, ultimately pled guilty, and was granted a deferred judgment to a charge of assault causing bodily injury. Based upon the assault, the Iowa Department of Human Services (DHS) initially returned a founded child-abuse assessment against Brandon for denial of critical care. However, DHS subsequently modified the finding from founded and placement on the child-abuse registry to confirmed without placement on the registry.

         In July, Becky filed a custody modification petition. She cited Brandon's assault conviction and the parties' inability to co-parent as substantial and material changes of circumstances to justify modification. She requested physical care of O.J.K., child support, and attorney fees. Brandon denied Becky's application, stating that Becky was the party to blame for their inability to co-parent. He requested either the court deny Becky's application or, if the court determined there was a change of circumstances justifying a custody modification, physical care be awarded to him. He also requested Becky pay child support and attorney fees. The court held a trial in early February 2018. In March, Becky moved to reopen the evidence to allow evidence of Brandon's recent arrest for operating while intoxicated (OWI) to be added to the record. Becky argued that the outcome of this arrest could potentially affect custody and visitation, as Brandon may be incarcerated and his driving privileges suspended. On April 19, the court filed its ruling on the modification petition, finding a substantial change in circumstances had occurred to support modification and found Becky to be the superior parent.[1]Based upon these findings, the court continued joint legal custody and awarded Becky physical care. Brandon appeals the modification, contending the district court erred in finding a substantial change of circumstances warranting modification of physical care and that Becky could provide superior care. Both parties request appellate attorney fees.

         We review petitions to modify custody 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)). The best interests of the child is our primary consideration. Iowa R. App. P. 6.904(3)(o). We must consider and "base our decision primarily on the particular circumstances of the parties," and "[p]rior cases have little precedential value." Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002).

         In order to modify 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 to take custody from the other must prove an ability to minister more effectively to the children's well being.

Hoffman, 867 N.W.2d at 32 (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). This places a heavy burden upon the parent requesting the modification as "once custody of children has been fixed it should be disturbed only for the most cogent reasons." Id. (quoting Frederici, 338 N.W.2d at 158). When determining physical care, our goal "is to place the [child] in the environment most likely to bring them to health, both physically and mentally, and to social maturity." In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa ...


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