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In re Marriage of Mabbitt

Court of Appeals of Iowa

June 5, 2019

IN RE THE MARRIAGE OF CURTIS ANTHONY MABBITT AND KRISTINA MARIE MABBITT Upon the Petition of CURTIS ANTHONY MABBITT, Petitioner-Appellant/Cross-Appellee, And Concerning KRISTINA MARIE MABBITT n/k/a KRISTINA MARIE HICKCOX, Respondent-Appellee/Cross-Appellant.

          Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         The appellant appeals and the appellee cross-appeals from the order modifying the decree of dissolution of their marriage.

          Jaclyn M. Zimmerman of Miller, Zimmerman, & Evans P.L.C., Des Moines, for appellant.

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

          Considered by Vogel, C.J., and Mullins and Bower, JJ.

          Vogel, Chief Judge.

         Curtis Mabbitt appeals and Kristina Hickcox cross-appeals from the order modifying the decree of dissolution of their marriage. Curtis argues a material change in circumstances has occurred since dissolution and the district court should have modified their child visitation schedule. He also argues the court should have allowed one of their children to testify. Kristina argues the court should have ordered retroactive child support and awarded her attorney fees. We agree with the district court there is no material change in circumstances since entry of the decree to justify modifying visitation, and the court did not abuse its discretion in excluding the child as a witness. We also agree with the court's increase of child support effective after entry of the order, and the court did not abuse its discretion in declining to award attorney fees. Accordingly, we affirm.

         I. Background Facts and Proceedings

         Curtis and Kristina married in 2007. The parties had two children together: C.M., born in 2007, and A.M., born in 2008. On May 24, 2012, the court entered the dissolution decree, which dissolved the marriage, granted joint legal custody of the children, placed physical care of the children with Kristina, entered a visitation schedule, and ordered child support. The visitation schedule included regular visitation with Curtis on alternate weekends and Wednesday evenings. On April 17, 2017, Curtis filed his petition to modify the dissolution decree. A hearing was held, and the court entered its order on February 2, 2018. The court found no change in circumstances to modify child custody or visitation, modified child support due to the parties' increased incomes, and declined to award attorney fees. Both parties appeal.

         II. Standard of Review

         An action to modify a dissolution decree, including actions to modify child support and visitation, is in equity. In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). As such, our review is de novo. Id. We "give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them." Id. We review evidentiary rulings and other "matters relating to the course and conduct of a trial, not regulated by statute," for abuse of discretion. In re Marriage of Ihle, 577 N.W.2d 64, 67 (Iowa Ct. App. 1998). We review the district court's decision on attorney fees for abuse of discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).

         III. Curtis's Appeal

         Curtis argues the court should have increased his visitation.[1] "A parent seeking to modify visitation must only establish 'that there has been a material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children.'" Brown, 778 N.W.2d at 51-52 (quoting In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa Ct. App. 1994)). This standard is less demanding than the "substantial change in circumstances" required to modify custody. Id. at 51.

         Curtis asserts a material change in circumstances resulted from his superior commitment to ensuring their children attend various medical appointments, A.M.'s anxiety with and preferences for visitation, and Kristina's actions to thwart his contact with the children. Kristina countered with allegations of Curtis's attempts to manipulate A.M. coupled with his harassing conduct and verbal assaults lodged at Kristina. The district court, noting the strife between Curtis and Kristina, found Curtis's assertions did not ...


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