from the Iowa District Court for Black Hawk County, Linda L.
mother appeals from an order modifying the physical care
provisions of a custody order.
Forcier of Forcier Law Office, P.L.L.C., Waterloo, for
Chevalier of Laird & Luhring, Waverly, for appellee.
Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.
GAMBLE, SENIOR JUDGE.
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.
Background Facts and Proceedings.
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.
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.
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
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
Scope and Standards of Review.
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). ...