CourtListener 2774112

IN THE COURT OF APPEALS OF IOWA

No. 13-1928
Filed January 28, 2015

IN RE THE MARRIAGE OF NATHAN ALLEN LOGEMANN
AND KERSTEN ASHLEY LOGEMANN

Upon the Petition of
NATHAN ALLEN LOGEMANN,
Petitioner-Appellee,

And Concerning
KERSTEN ASHLEY LOGEMANN,
n/k/a KERSTEN ASHLEY ABILD,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cass County, J.C. Irvin, Judge.

A mother appeals the district court’s decision modifying a custody

arrangement. AFFIRMED.

Theodore R. Wonio of Cambridge Law Firm, P.L.C., Atlantic, for appellant.

Karen Atkinson Dales, Council Bluffs, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, J.

Kersten Abild appeals the district court’s grant of her former husband

Nathan Logemann’s petition to modify the physical care provisions of a custodial

arrangement regarding their two minor children. Kersten contends the district

court erred in transferring physical care from Kersten to Nathan. She argues

Nathan did not meet the heavy burden of showing there was a substantial and

material change in circumstances to justify modification of the care provisions.

For the reasons stated below, we affirm the decision of the district court.

I. BACKGROUND FACTS & PROCEEDINGS.

Kersten and Nathan are the parents of two minor children, C.L. and D.L.

In 2008, the district court entered a decree dissolving their marriage. The decree

awarded Kersten and Nathan joint legal custody and placed physical care with

Kersten with liberal visitation for Nathan. The court ordered Nathan to pay child

support to Kersten. Nathan has since remarried, and Kersten has been in a

relationship with Cory Harter for over five years.

In 2009, Nathan filed an application to modify the child support order,

which the court denied. In 2012, Kersten filed an application to modify the

visitation provisions to reduce visitation. The court entered an order maintaining

joint legal custody and physical care with Kersten, but inserted a number of

provisions to assist the parents in cooperating in the children’s care. Among

these, the court ordered that neither parent would enroll the children in an activity

without first consulting with and obtaining the approval of the other party. If one
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party signs up the children for an activity without obtaining approval, the other

parent is not responsible for that parent’s portion of the related fees.

In March 2013, Kersten asked the court to review the modification order

and reduce visitation as requested in her previous application to modify. Nathan

filed a counter-application requesting physical care. The court granted Nathan’s

application and awarded him physical care with Kersten having visitation and

paying child support to Nathan. Kersten filed an application for new trial and a

motion to enlarge, modify, and amend. The court made minor changes to its

order but maintained the modification it entered. Kersten now appeals the

modification.

II. SCOPE AND STANDARD OF REVIEW.

Because an action to modify a custody decree is heard in equity, our

review is de novo. Iowa R. App. P. 6.907; In re Marriage of Brown, 778 N.W.2d

47, 50 (Iowa Ct. App. 2009). We give weight to the district court’s findings of

fact, especially with regard to witness credibility, but we are not bound by them.

Iowa R. App. P. 6.904(3)(g); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa

1992). Prior cases have little precedential value, as we must base our decision

on the particular circumstances of the case before us. Melchiori v. Kooi, 644

N.W.2d 365, 368 (Iowa Ct. App. 2002). “The trial court has reasonable discretion

in determining whether modification is warranted and that discretion will not be

disturbed on appeal unless there is a failure to do equity.” In re Marriage of Kern,

408 N.W.2d 387, 389 (Iowa Ct. App. 1987).
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III. ANALYSIS.

A. Modification of Physical Care.

Courts may modify the custody or care provisions of a decree only where

the record reveals “a substantial change in circumstances since the time of the

decree, not contemplated by the court when the decree was entered, which was

more or less permanent, and relates to the welfare of the child.” Melchiori, 644

N.W.2d at 368. The burden is on the party seeking modification to show a

substantial change by a preponderance of the evidence. In re Marriage of

Feustel, 467 N.W.2d 261, 263 (Iowa 1991). In addition, the party seeking

modification must demonstrate that he or she possesses a superior ability to

minister to the needs of the children. In re Marriage of Whalen, 569 N.W.2d 626,

628 (Iowa Ct. App. 1997). Once a custodial arrangement is established, “it

should be disturbed only for the most cogent reasons.” In re Marriage of

Frederici, 338 N.W.2d 156, 158 (Iowa 1983). As in any custody or care

determination, our paramount concern is the best interests of the child. See In re

Marriage of Bergman, 466 N.W.2d 274, 275 (Iowa Ct. App. 1990).

On appeal, Kersten contends Nathan did not meet the burden of showing

there has been a substantial and material change in the circumstances to justify

modification. Nathan contends that subsequent to their dissolution decree,

Kersten’s conduct with respect to the children and himself has created a

substantial and material change in the custodial circumstances such that it is in

the children’s best interest to grant him physical care. Nathan asserts Kersten is

unable to communicate or cooperate effectively with him to further the children’s
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care. He claims she does not inform him of the children’s doctor appointments,

subjects the children to excessive medical treatment, enrolls them in activities

without consulting him, and withholds visitation from him.

At the modification hearing, the court heard testimony from, among others,

Kersten, Nathan, and the guardian ad litem (GAL). Nathan testified to numerous

occasions when Kersten withheld visitation from him in violation of the court

order. In the summer of 2011, the parties had a two-week-on, two-week-off

visitation schedule. Kersten refused to give the children to Nathan for the first

two weeks of July because Nathan was late picking them up on the first day.

She admitted she refused to give Nathan visitation on that occasion because she

was angry at him. After a heated exchange, she also refused to give him the

children for the first two weeks of August. On another occasion in 2009, she

refused to give him the children because he had gotten temporarily behind in

child support payments. Easter weekend of 2012, Kersten’s brother was in town,

and Kersten informed Nathan he would not get the children even though the

decree stated he had visitation over the Easter holiday.

Exchanges of the children frequently involve Kersten yelling and

screaming at Nathan in front of the children. Nathan made some audio

recordings of these incidents. The GAL listened to some of these recordings and

agreed that Kersten is the instigator of these exchanges. The GAL also reported

Kersten was angry, combative, and abusive when the GAL attempted to contact

her. The children reported to the GAL that Kersten says negative things about

Nathan in front of them but they have not heard Nathan make similar statements.
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Nathan also testified Kersten does not consult him or obtain his approval

before enrolling the children in activities. He stated she usually only informs him

afterward. Nathan also complained Kersten signs the children up for events and

activities during his visitation time without informing him until immediately before

they are scheduled. On one occasion Kersten’s mother, who is often involved in

caring for the children, signed one child up for golf; Kersten did not inform Nathan

until afterward. Nathan also has had to cancel activities he planned during his

visitation time because Kersten has enrolled the children in an activity without

informing him. Kersten disagreed with Nathan’s characterizations. She stated

Nathan gets the same information in emails that she gets from Boy Scouts and

other groups the children are involved in. She also stated she gives Nathan

receipts of their fees from activities to inform him they are enrolled. Kersten

believes Nathan does not talk to her about the children’s activities because he

does not want to pay for anything.

Nathan believes Kersten seeks excessive medical treatment for the

children and does not involve him in medical decisions. D.L. has a number of

medical issues including an as-yet undiagnosed metabolic disorder which causes

him to have poor weight gain for his height and unstable blood sugar levels. A

letter from a treating doctor indicates no specific diagnosis has been made. D.L.

also has ADHD, Asperger Syndrome, and some developmental delays. Although

Kersten has taken the children to numerous doctors for testing no doctor has

given a specific diagnosis for D.L.’s metabolic issues.
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Nathan testified that when he is aware of the children’s doctor

appointments he attends but Kersten often does not inform him when they are

scheduled. Nathan testified he usually finds out about the children’s

appointments after they have taken place from medical providers, the insurer,

teachers, and the children. Kersten occasionally informs him afterward about

test results or what occurred at an appointment. Kersten testified she keeps

Nathan aware of the appointments by text, telephone, and informing him in

person. She produced a photograph of one text she sent Nathan informing him a

doctor’s appointment had been cancelled. Nathan later discovered she had

rescheduled the appointment and did not inform him of the new date. On one

occasion, it appeared that Kersten deliberately misled Nathan and his wife about

taking the children to a doctor’s appointment. Kersten asked Nathan to drop the

children off at her house on a Monday morning instead of at school because they

needed to pick up some things from her house. Nathan later discovered that

instead of taking them to school, Kersten took the children to a doctor’s

appointment. With regard to these issues, the district court found Nathan’s

testimony was more credible than Kersten’s.

Kersten’s mother testified that she attends most of the children’s doctor’s

appointments and was able to name seven or more doctors the children had

seen throughout Iowa and in Omaha. Nathan was unaware the children had

seen several of the named doctors and had never attended those appointments.

Upon examining the children’s medical records during the process of discovery,

Nathan became aware for the first time of some of the medical concerns Kersten
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has about the children, especially D.L. Kersten has reported symptoms and

concerns to medical personnel that Nathan and his wife have never observed in

the children while in their care. Nathan also became aware for the first time

through discovery that C.L. was seeing a therapist twice monthly. Kersten has

also told the children’s school that D.L. has diabetes and enforced a strict routine

and schedule for his snacks and meals. D.L. has never been diagnosed with

diabetes, and the school eventually declined to follow the routine Kersten

specified without medical documentation of his condition.

The GAL reported that both parents love the children, are close with them,

believe they are acting in their best interests, and maintain appropriate homes

where the children are well-cared for. She testified both parents can meet the

children’s needs, including special medical needs. However, she also reported

that it was in the children’s best interest to transfer physical care to Nathan. She

reported:

The children will maintain active and meaningful contact with both
parents if in Nathan’s care. I do believe that Kersten inhibits the
relationship between the children and their father. . . . The parents
are not able to effectively communicate at this time regarding the
children’s needs. They do not listen to each other or respect each
other. . . . Kersten unilaterally makes decisions and does not
include Nathan in the decisions. . . . There are major issues with
the health and well-being of [D.L.]. It is very concerning to me that
Kersten does not communicate with Nathan about the doctor’s
appointments or the results.

The GAL also testified she had originally planned to recommend a shared care

arrangement, however, Kersten refused to talk with the GAL about it. This and

her previous experience with Kersten convinced the GAL a shared care

arrangement would be infeasible between these parents. The GAL considered a
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number of factors including the children’s best interests; their emotional,

psychological, and mental well-being; the parents’ ability to communicate and

make decisions with each other; and the parents’ ability to facilitate a relationship

with the other. The GAL stated that the children were under constant stress and

pressure from being between Kersten and Nathan and that this affects their

mental health and emotional well-being.

Although Kersten challenged the inclusion of the GAL’s report and

testimony in the record based on various complaints about the GAL’s

investigations in this case, the district court specifically found the GAL

[h]as done extensive work in this case. She has been in contact
with professionals from both the children’s schools. She has
reviewed medical records, some of which the Court also has
reviewed. There is no indication that she has acted
unprofessionally or has been more predisposed to one parent over
the other during her investigation. The Court find[s] [the GAL’s]
report and testimony helpful to the Court and relies upon it along
with the other evidence presented in making its decision.

On our review of the record, we agree with the district court and will give

deference to its credibility determinations. The court found Nathan’s testimony

was generally credible. Nathan blamed the communication issues on Kersten

and the court agreed with him.

The court found “there has been a substantial and material change in

circumstances that warrants the Court changing primary physical care of the

children to Nathan with Kersten having reasonable and liberal rights of visitation.”

In so deciding the court found particularly significant the difficulties the parents

have communicating, Kersten’s withholding of visitation from Nathan, Kersten’s

failure to involve Nathan in the children’s medical treatment, Kersten’s failure to
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obtain Nathan’s approval of the children’s activities, and Kersten’s failure to

promote the children’s relationship with Nathan. The court also noted Kersten

had not acted in the children’s best interests.

Upon our de novo review, we agree with the district court that Nathan has

met his burden to demonstrate there has been a substantial and material change

in the circumstances. In cases where one parent has physical care, Iowa Code

section 589.41(5)(b) (2015) provides:

[T]he parent responsible for providing physical care shall support
the other parent’s relationship with the child. . . . Rights and
responsibilities as joint legal custodian of the child include but are
not limited to equal participation in decisions affecting the child’s
legal status, medical care, education, extracurricular activities, and
religious instruction.

It is clear in this case Kersten has frustrated Nathan’s right to equal participation

in the children’s medical care, education, and extracurricular activities. The more

credible evidence was that she has not kept Nathan informed of their schedules,

appointments, and events. We are particularly troubled by Kersten’s failure to

ensure Nathan has the opportunity to be an equal participant in the children’s

medical treatment. Clearly, the children have some special needs, particularly

D.L. Nathan has a right not only to be informed of appointments and tests, but to

have an equal hand in determining if and when they take place, and to provide

doctors his own observations of the children’s symptoms and his opinions of their

needs. Kersten is very protective of the children but her conduct toward Nathan

is inconsistent with her responsibilities as a joint legal custodian, and it is not in

the children’s best interest because it inhibits their relationship with their father.

By withholding visitation, speaking negatively about Nathan in front of the
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children, and failing to cooperate and coordinate care of the children with Nathan,

she has demonstrated she is not able or willing to provide the necessary support

for their relationship with Nathan. This is a substantial change that the court did

not contemplate when it initially granted Kersten physical care. A preponderance

of the evidence supports our finding of a substantial change in circumstances

that justifies modification.

Having found there is a substantial change in circumstances, we must

next determine whether Nathan has met the burden to show he can provide

superior care. The evidence supports a finding that both parents are capable of

caring for the children and meeting their needs. However, in considering what

custody arrangement is in the best interest of the children, the court must weigh

the factors set out under Iowa Code section 598.41(3). Relevant here are the

questions of “[w]hether the parents can communicate with each other regarding

the child[ren’s] needs” and “[w]hether each parent can support the other parent’s

relationship with the child[ren].” See Iowa Code § 598.41(3)(c) and (e). The

GAL reported that Nathan was more likely to support the children having active

and meaningful contact with Kersten, but Kersten inhibits contact between the

children and Nathan. We find the evidence supports this finding. The children

report Kersten speaks negatively about Nathan outside his presence; Nathan

reports Kersten is abusive to him when he picks up the children and in the

presence of the children; and Kersten does not support Nathan’s involvement in

their activities and medical treatment. The children do not report that Nathan

speaks negatively about Kersten in their presence. The GAL reported Nathan is
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willing to have a shared physical arrangement, but Kersten does not want shared

physical care and wants to reduce Nathan’s visitation time. When writing the

original decree in 2008, the district court could not have contemplated how

Kersten’s inability to communicate and cooperate with Nathan in the children’s

care could come to impact the children’s relationship with Nathan and

consequently their mental and emotional well-being. We believe this change in

circumstances constitutes a cogent reason to modify the decree. Accordingly,

we affirm the district court’s modification of the custodial arrangement.

B. Attorney Fees.

“Attorney fees are not a matter of right, but rest in the court’s discretion.”

In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Factors the court

considers include “the needs of the party seeking the award, the ability of the

other party to pay, and the relative merits of the appeal.” Id. (quoting In re

Marriage of Geil, 509 N.W.2d 738, 43 (Iowa 1993)). We may also consider

“whether the party making the request was obligated to defend the trial court’s

decision on appeal.” In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa 1981).

We award no attorney fees, and assess costs to Kersten.

IV. CONCLUSION.

For the foregoing reasons, we affirm the district court’s modification of the

care provisions of the parties’ custodial arrangement. We award no attorney fees

and assess costs to Kersten.

AFFIRMED.