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.
from the Iowa District Court for Hardin County, James C.
Seward appeals the modification of the visitation and child
support provisions of the dissolution decree.
J. Harris of Whitfield & Eddy, P.L.C., Des Moines, for
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.
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.
Background Facts and Proceedings
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
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. 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."
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.
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
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.
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 ...