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In re Marriage of Seward

Court of Appeals of Iowa

May 1, 2019

IN RE THE MARRIAGE OF NICOLE RAE SEWARD AND ADAM CLARK SEWARD Upon the Petition of NICOLE RAE SEWARD, Petitioner-Appellant, And Concerning ADAM CLARK SEWARD, Respondent-Appellee.

          Appeal from the Iowa District Court for Hardin County, James C. Ellefson, Judge.

         Nicole Seward appeals the modification of the visitation and child support provisions of the dissolution decree.

          Danni J. Harris of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

          Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellee.

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

          POTTERFIELD, PRESIDING JUDGE.

         Nicole Seward appeals from the modification of the decree dissolving her marriage to Adam Seward. The district court modified the decree in several respects. At issue in this appeal are the district court's modification of the visitation provision, which provided Adam with parenting time by setting out a detailed schedule, and modification of the child support provision, which declared past child support payments satisfied, increased child support, and credited Adam for overpayment of past child support. On appeal, Nicole argues the court's ruling went beyond the scope of Adam's modification petition by modifying the visitation provision and child support award when the petition only requested the court modify the decree to place physical care of the children with Adam. She also claims the court erred in declining to award her attorney fees.

         I. Background Facts and Proceedings

         The parties married in 1997. They have three children: E.S., born in 2005; A.S., born in 2007; and C.S., born in 2010. The parties divorced in 2011 by way of stipulated agreement. Relating to the children, the agreement granted joint legal custody to the parents, placed physical care of the children with Nicole, and provided Adam with "reasonable and liberal rights of visitation such as not to interfere with the health, welfare, and education of the said children with the specific dates and times to be agreed upon by the parties." The agreement also required Adam to pay Nicole child support through the Collection Services Center and required that the children continue to receive VA benefits, to which they are entitled due to Adam's past military service.

         For several years, the parties co-parented without significant issues. They were able to flexibly schedule Adam's parenting time without a set schedule until recently when E.S. refused to spend time with Adam. As a disabled veteran, Adam receives disability payments from the government each month.[1] The amount of his monthly disability payments has varied in accordance with his level of impairment over time. Adam regularly deposited these payments into a joint account he shared with Nicole, intending to satisfy his child support obligation in this manner. Then, in August 2017 Nicole sought a wage withholding order so that Adam's child support payments would be deducted from his paycheck instead. Four days later, Adam filed his petition for modification, requesting physical care of the children be awarded to him. The prayer of the petition requested "the court place primary care of the parties' minor children in [him], enter such orders as to child support and other matters appropriate under the circumstances, and enter an order as to court costs and attorney fees."

         The parties completed court-mandated mediation and reached an agreement on temporary matters, which provided Adam with scheduled parenting time with A.S. and C.S. It also required Adam to attend therapy with E.S. prior to the commencement of visitation. However, neither parent could identify a therapy provider who would meet with them due to the pending litigation. As a result, Adam commenced regularly scheduled parenting time with A.S. and C.S. but not with E.S.

         Both parties made contempt allegations against the other. Nicole's allegations of contempt against Adam related to the payment of child support among other things. The contempt actions were considered at the same time as the modification action. At trial, Adam testified and indicated he sought joint physical care of the children instead of physical care. He also requested a defined parenting-time schedule be entered to replace the existing non-specific visitation provision in the dissolution decree. Nicole also testified and denied any change in circumstance warranting modification of physical care and contested the need for a set parenting-time schedule for Adam and instead claimed the existing visitation provision was in the children's best interests.

         At the close of evidence, the court ruled from the bench. The court found no change in circumstance warranting a change in physical care and dismissed the pending contempt actions. However, the court found a change in circumstance necessitating a change to the visitation provision of the decree and concluded a set parenting-time schedule was in the children's best interest. The court then permitted the parties to provide information off the record regarding their preferences for a parenting-time schedule. Considering evidence presented relating to the contempt claims, the court declared Adam's past child support obligations satisfied and found him ahead in his payments by $5694.19, relying on a hand-written exhibit from Adam outlining his payments into the joint account, which was mostly reconcilable with a payment record submitted by Nicole. The court modified the child support award but credited Adam's future payments by $50.00 per month until the total overpayment is reached. The court also modified other provisions of the decree regulating the children's medical support and who will claim the children as dependents on future tax returns.

         As the court ruled from the bench, Nicole alerted the court to the limited scope of the modification petition and indicated the court should "simply dismiss the modification petition claiming that there had not been any change in circumstance." The court declined to do so. After the court issued its written ruling, both parties filed motions to amend and enlarge the court's findings and conclusions. Adam sought a change to the holiday provision of the entered parenting-time schedule. Nicole again noted the limited scope of ...


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