In re Marriage of Jensen

IN THE COURT OF APPEALS OF IOWA

No. 21-1016
Filed January 27, 2022

IN RE THE MARRIAGE OF NATASHA MARIE JENSEN
AND STEVEN KAI JENSEN

Upon the Petition of
NATASHA MARIE JENSEN, n/k/a NATASHA MARIE LASH,
Petitioner-Appellant,

And Concerning
STEVEN KAI JENSEN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.

Following trial on competing claims for modification of an original divorce

decree, Natasha Lash appeals a district court ruling that awarded her ex-husband,

Steven Jensen, physical care of their child. AFFIRMED.

Anne K. Wilson and Thomas J. Viner of Viner Law Firm, P.C., Cedar Rapids,

for appellant.

Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro, PLC,

Cedar Falls, for appellee.

Considered by Greer, P.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.

Natasha Lash, formerly known as Natasha Jensen, appeals a district court

order awarding her ex-husband, Steven Jensen, physical care of their child. Both

parties request appellate attorney fees. Upon our de novo review, we affirm the

award of physical care to Jensen. We decline to award appellate attorney fees.

I. Background Facts & Proceedings

Lash and Jensen were divorced in 2016 pursuant to a decree that adopted

a stipulation for joint legal custody and joint physical care of their daughter, C.M.J.,

born in 2015. At the time of the divorce, the parties were residing in Waterloo.

Jensen moved out of the marital home and moved to his mother’s house in Cedar

Falls, while Lash remained in the marital home. The parties quickly abandoned

the terms of the stipulation. Jensen became the parent primarily responsible for

C.M.J.’s daily care. Lash’s visits were initially sporadic but eventually settled into

visitation every other weekend.

Lash moved into a condominium in Waterloo in 2018. Jensen moved back

into the former marital home. He was joined by Heather, whom he married in 2019.

Jensen and Heather share two children together, C.M.J.’s half-siblings, born in

2018 and 2020. Jensen, his wife, and the three children moved to Elk Run

Heights—just outside of Waterloo—in 2020. Jensen remains employed in logistics

and transportation. In 2019, Lash moved to Cedar Rapids, mainly to live with her

significant other. At the time of the modification trial, the parties lived roughly forty

miles apart. Lash was pursuing a master’s degree in nursing, with a target

graduation date of December 2021. She was not employed, with her last
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employment being in 2020. Lash was terminated from this most recent

employment.

Since the entry of the original decree, C.M.J. lived predominately with

Jensen. Before C.M.J. started kindergarten, Lash would care for C.M.J. Thursday

evening until Monday morning every other week. That schedule was modified

slightly when C.M.J. started kindergarten, modifying Lash’s time to Friday evening

to Monday morning every other weekend. The parties kept this schedule except

for a brief experiment with longer periods of custody at the start of the COVID-19

pandemic.1 C.M.J. now attends school in the district of her father’s residence.

C.M.J. is a well-adjusted and bright child. All parties agree she excels in

school and is generally outgoing and well-behaved. She has a close bond with

her half-siblings. C.M.J. experienced some difficulties in 2019 due to a situation in

Lash’s life. Those concerns were resolved after Jensen sought counseling for

C.M.J. Both parties have extended family in the area who share a close

relationship with C.M.J. The parties generally get along and are able to

communicate effectively about C.M.J.

Because of problems largely stemming from the distance between the

parties, Jensen filed a petition to modify the dissolution decree, requesting physical

care of C.M.J. Lash filed an answer and counterclaimed for physical care. Both

parties stipulated to a substantial and material change in circumstances. Based

1 That schedule had each party care for C.M.J. for thirty to forty consecutive days.
Each party had custody of C.M.J. once for such a period before they abandoned
the plan. C.M.J.’s schooling was conducted virtually during this time period, again
related to the pandemic.
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principally on Jensen’s history as the primary caregiver to C.M.J., the court

awarded him physical care. Lash appeals.

II. Standard of Review

“Petitions to modify the physical care provisions of a divorce decree lie in

equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). Thus, our

review is de novo. Id. “We give weight to the findings of the district court,

particularly concerning the credibility of witnesses; however, those findings are not

binding upon us.” In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

As always, our primary concern is the best interest of the child. Iowa R. App. P.

6.904(3)(o).

III. Discussion

Lash appeals the district court ruling modifying physical care of C.M.J. She

contends she can render superior care to their child and should have been

awarded physical care of C.M.J. Both parties request appellate attorney fees.

One of the most significant modifications made in family law is the change

of physical care. See In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa Ct.

App. 2000). The parent requesting the modification must prove, by a

preponderance of the evidence, there is a substantial and material change in

circumstances. See Hoffman, 867 N.W.2d at 32. The circumstances that have

changed “must not have been contemplated by the court” and “must be more or

less permanent, not temporary.” In re Marriage of Frederici, 338 N.W.2d 156, 158

(Iowa 1983); see also Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002).

The parent requesting modification must show the circumstances relate to the

welfare of the child and “prove an ability to minister more effectively to the child’s
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well being.” Hoffman, 867 N.W.2d at 32. “The heavy burden upon a party seeking

to modify custody stems from the principle that once custody of children has been

fixed it should be disturbed only for the most cogent reasons.” Frederici, 338

N.W.2d at 158. Here, both parties agree the physical distance caused by Lash’s

move to Cedar Rapids is a substantial and material change. Because the parties

stipulated to a change in circumstances, we do not address whether a separation

of approximately forty miles equates to a substantial and material change in

circumstances under current case law.

The party seeking modification must “prove an ability to minister more

effectively to the children’s well-being.” Id. Where, as here, the parties have

shared joint physical care, the question “is which parent can render ‘better’ care.”

In re Marriage of Eggeling, No. 18-0234, 2019 WL 478818, at *2 (Iowa Ct. App.

Feb. 6, 2019) (quoting Melchiori, 644 N.W.2d at 368-69). In making this decision,

courts are guided by the factors in Iowa Code section 598.41(3) (2021) and the

nonexclusive factors in In re Marriage of Winters, 223 N.W.2d 165, 166-67 (Iowa

1974). We seek “to place the children in an environment most likely to bring them

to health, both physically and mentally, and to social maturity.” In re Marriage of

Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Multiple factors support the district court’s conclusion that Jensen can

provide better care. First, Jensen has been the primary caregiver since the

dissolution due to the parties’ abandonment of the joint physical care arrangement.

Lash predominately only cared for C.M.J. every other weekend, along with about

a month of care at the beginning of the COVID-19 pandemic. In contrast, Jensen,

along with his wife, took care of C.M.J. most weekdays and every other weekend.
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Both parties agree that C.M.J. has thrived under this arrangement. See id. at 697

(“[T]he successful caregiving by one spouse in the past is a strong predictor that

future care of the [child] will be of the same quality.”). Additionally, our courts have

recognized that removing a child from their primary caregiver can cause instability,

damaging their emotional well-being. See id. at 696-97; In re Marriage of Lydolf,

No. 20-0679, 2021 WL 2453050, at *4 (Iowa Ct. App. June 16, 2021) (“[K]eeping

[children] close to their primary caregiver is the ‘least disruptive emotionally’ to the

children.” (citation omitted)).

At the time of trial, Jensen was the more stable parent. See Winters, 223

N.W.2d at 166. “In custody modification cases, stability is the trump card.” Thorpe

v. Hostetler, 949 N.W.2d 1, 7 (Iowa Ct. App. 2020). Jensen has been steadily

employed and has an established routine with C.M.J. On the other hand, at the

time of trial Lash was unemployed and seeking to finish a master’s degree. She

had not arranged employment for after graduation. Issues in her personal life had

caused difficulties for C.M.J. since the entry of the original decree. And awarding

physical care to Lash would require C.M.J. to change schools. C.M.J. has

attended preschool and kindergarten in the school district near her father’s home.

Both parties acknowledge she has excelled in this educational environment.

Additionally, C.M.J.’s bond with her half-siblings favors Jensen receiving

physical care. “There is a presumption that siblings should not be separated.” In

re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). This presumption extends

to half-siblings as well. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476,

480 (Iowa 1993). It was uncontroverted at trial that C.M.J. shares a close bond

with her half-siblings. While this is a modification action, due to Jensen being the
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primary caregiver of C.M.J. by agreement of the parties, C.M.J. has lived with her

half-siblings on a full-time basis, separated only during Lash’s visitation times.

Separating her from them is not in her best interest.

Lash bases her claim of superior parenting primarily on the fact that she

resides in what she considers a better school district, one that would adequately

challenge C.M.J. academically. However, the relative merits of a school district is

not an outcome determinative factor in our analysis. This court recently stated,

“The best interest of the child . . . does not necessarily hinge on perceived

comparable merits of the schools at issue.” In re Marriage of Flick, No. 20-1535,

2021 WL 2453111, at *5 (Iowa Ct. App. June 16, 2021). Moreover, our supreme

court has noted the inadequacies of sources similar to that relied on by Lash to

establish her school district’s superiority. See Hoffman, 867 N.W.2d at 35-36

(noting the “conclusion that one district was superior to the other is not sound”

because the data did not account for factors such as socio-economic differences,

differences between urban and rural districts, or instructional experiences, among

others).2 Given the other factors already discussed, the perceived strength of

Lash’s school district is insufficient to warrant awarding her physical care of C.M.J.

Both parties request appellate attorney fees. Appellate attorney fees are

available to the prevailing party. See Hensch v. Mysak, 902 N.W.2d 822, 827

(Iowa Ct. App. 2017); see also Iowa Code § 598.36 “In determining whether to

award appellate attorney fees, we consider the needs of the party making the

2 The sources Lash relies on in this case are similar to that in Hoffman, ranking
schools based on factors like graduation rate, school funding, student-teacher
ratio, and standardized test scores.
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request, the ability of the other party to pay, and whether the party making the

request was obligated to defend the decision of the trial court on appeal.” In re

Marriage of Hoffman, 891 N.W.2d 849, 852 (Iowa Ct. App. 2016) (citation omitted).

Having considered these factors, we decline to award appellate attorney fees.

AFFIRMED.