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Van Gundy v. Bolton

Court of Appeals of Iowa

May 15, 2019

BRADLEY WAYNE VAN GUNDY, Plaintiff-Appellee,
JENNIFER GRACE BOLTON, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Linda L. Fangman, Judge.

         A mother appeals from an order modifying the physical care provisions of a custody order.

          Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant.

          Shanna Chevalier of Laird & Luhring, Waverly, for appellee.

          Considered by Doyle, P.J., Mullins, J., and Gamble, S.J. [*]


         Jennifer Bolton appeals from an order modifying the physical care arraignment between herself and Bradley (Brad) Van Gundy granting Brad physical care of their daughter, O.V.G. On appeal, Jennifer argues the district court erred in determining it was in O.V.G.'s best interest to place physical care with Brad. She also argues the court erred in denying her request for attorney fees and requests appellate attorney fees. Brad also requests appellate attorney fees.

         I. Background Facts and Proceedings.

         Jennifer and Brad are the never-married parents of O.V.G., age seven at the time of trial. When the parties began their relationship, Jennifer had three children from prior relationships and was married to another man. After the parties' romantic relationship ended, they entered into a stipulated agreement providing for joint physical care of O.V.G. However, the parties largely ignored the terms of the stipulation and employed a flexible care schedule that worked well for them. Both lived in the Waterloo/Cedar Falls area and open-enrolled O.V.G. in the Cedar Falls school district.

         Both parents entered into new relationships. Jennifer lived with at least three different men, married and divorced her third husband, and then remarried Nathan Bolton, the man to whom she was legally married while pregnant with O.V.G. Jennifer also had three more children, two from a sperm donor while married to her third husband and one with Nathan after they remarried. Brad lived with another woman and her daughter for roughly six months. Then his girlfriend and her daughter moved into his home approximately five years before trial.

         Jennifer became concerned about one of her older children, who was living in the Des Moines area with his father and step-mother, and determined she needed to move closer to the child. She informed Brad of her plan to move her family via text message, indicating she expected the move to occur in roughly six months. However, Jennifer sold her business and her home sooner than expected. Jennifer's family moved to Ankeny just three months later. Around this time, Jennifer and Brad's relationship began to deteriorate. Initially, Jennifer wanted O.V.G. to move with her to Ankeny at the end of the school year and spend more time with Brad on the weekends and in the summer to compensate. Brad wanted O.V.G. to live with him so that she could continue to attend the same school and be near both his and Jennifer's extended family.

         As a result, Brad petitioned for modification and sought an emergency temporary order to prevent Jennifer from moving O.V.G. to Ankeny. The district court granted Brad's request for a temporary order. Pursuant to the temporary order, O.V.G. stayed with Brad in the Waterloo area, and Jennifer exercised visitation with O.V.G.. O.V.G. began school in the Cedar Falls district in August, so Jennifer requested O.V.G. be placed with her at the end of the fall semester to ease the transition back to her physical care. The matter proceeded to trial, and the court found Jennifer's move amounted to a material and substantial change in circumstance and it was in O.V.G.'s best interest for Brad to retain physical care of her. Jennifer now appeals. Additional facts will be set forth as necessary to address the issues raised on appeal

         II. Scope and Standards of Review.

         Actions to modify physical care of a child are reviewed de novo. See Iowa R. App. P. 6.907 (stating equitable proceedings are reviewed de novo); Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). When considering whether to modify physical care provisions, the analysis is the same regardless of whether the parents were ever married. See Iowa Code § 600B.40(2) (2018). "Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us." Melchiori, 644 N.W.2d at 368. However, the district court is afforded deference for institutional and pragmatic reasons. Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). ...

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