Joseph Kocinski v. Heather L. Christiansen n/k/a Heath L. Soyer

IN THE COURT OF APPEALS OF IOWA

No. 20-1721
Filed November 3, 2021

JOSEPH KOCINSKI,
Plaintiff-Appellant,

vs.

HEATHER L. CHRISTIANSEN n/k/a HEATHER L. SOYER,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Richard B. Clogg,

Judge.

Joseph Kocinski appeals the district court’s modification of a custodial

order, challenging the trial court’s determination as to legal custody and physical

care of the parties’ son. He also alleges the district court abused its discretion in

awarding trial attorney fees to the child’s mother. AFFIRMED AS MODIFIED.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Stacey N. Warren of CashattWarren Family Law, P.C., Des Moines, for

appellee.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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SCHUMACHER, Judge.

Joseph (Joe) Kocinski appeals a district court ruling that modified the

existing legal custodial and physical care provisions relating to C.B.K., a six-year-

old child he shares with Heather Soyer, f/k/a Heather Christiansen. He also

appeals the trial court’s award of attorney fees to Heather. Both Joe and Heather

request appellate attorney fees. On our de novo review, we find the court properly

granted Heather physical care of C.B.K. We modify to clarify the award of legal

custody by the district court. We determine the court did not abuse its discretion

in its award of attorney fees, and we further determine neither party should be

awarded appellate attorney fees. Accordingly, we affirm as modified.

I. Facts & Proceeding

Joe and Heather have one child together, C.B.K., born in 2014. The parents

have never been married. Joe and Heather entered into a stipulated custody and

support order in September 2016. Under the original order, the parents had joint

legal custody and shared physical care of C.B.K. on a 2-2-3 schedule.1 C.B.K. has

emotional and behavioral issues that require medical and educational assistance.

C.B.K.’s emotional and behavioral issues have increased since the parties reached

the 2016 custodial agreement. He began therapy in 2017. While he continues to

participate in therapy, the provider has changed on several occasions.

Heather is a licensed pediatric psychologist. As part of her employment,

Heather works with children with behavioral disorders and conducts autism

evaluations. She earns approximately $101,000 per year. Joe works in the field

1 The parties rotated the child every two days and alternate weekends.
3

of tech support and is a business analyst. He earns approximately $55,000 per

year. Both parties have appropriate housing.

Heather married Adam Soyer in September 2018. Adam has two children

from a previous marriage, ages eleven and fifteen. C.B.K. resides with his mother,

Adam’s two children, and Adam on days that Heather has custody of C.B.K. Joe

is not married but has an adult son who does not reside with him. On the days Joe

has custody, C.B.K. resides only with his father.

The provisions of the original custodial order started to strain not long after

entry of the stipulated order. In December 2018, Joe filed a motion to determine

which school district C.B.K. would attend. In March 2019, the district court issued

its order naming a specific school district for C.B.K. to attend.2 In the 2019

decision, the district court noted, “continued disagreements such as this one could

lead to [m]odification of the joint custody or shared physical custody order.”

C.B.K. began kindergarten in the fall of 2019. He was placed on an

Individualized Education Program (IEP) with a special instructor. He exhibited

many behavioral problems at school.3

C.B.K. has seen several educational and medical professionals since he

was a toddler. Joe and Heather struggled to come to an agreement on the course

of medical care for C.B.K. At the time of trial, the parties were unable to agree to

the appropriate treatment for C.B.K. Heather wanted to use a physician in her

2 Neither party challenged the court’s ordering of a specific school district.
3 The aggressive behaviors exhibited in the classroom include kicking, pinching,
spitting, and hitting, which resulted in C.B.K. frequently being placed in a separate
room from his classmates. A recent violent episode at school occurred on the
second day of trial. He displays aggression toward classmates and teachers.
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office who recommended medication. Due to concerns over the medication, Joe

wanted to use a different physician, although this physician also recommended

medication. Each party effectively vetoed the other’s choice of physician. C.B.K.

has not received additional assistance, apart from his therapy and his IEP, since

December 2019.

Joe filed a modification of the custody order in October 2019, requesting an

award of physical care. Heather counterclaimed. She requested physical care

and later amended her answer and counterclaim, also requesting an award of sole

legal custody.

On May 8, 2020, Joe filed a motion for emergency suspension of Heather’s

parenting time, claiming Heather had abused C.B.K. An ex parte order suspended

Heather’s parenting time. This order was set aside on May 11, 2020. Heather

moved for sanctions due to the email Joe received from the Iowa Department of

Human Services (DHS) shortly after the filing of his motion. The email indicated

DHS did not believe abuse had occurred. Joe did not disclose the email to the

court. He was sanctioned in June 2020 and required to pay $6000 of Heather’s

attorney fees.

The present action, instituted by Joe’s petition to modify in October 2019,

was tried in September 2020. Following the presentation of evidence, the trial

court requested both parties submit proposed orders. The court ultimately ruled in

Heather’s favor on December 18, 2020, adopting her proposed order nearly

verbatim. The court granted Heather’s petition to modify legal custody, which

required her to inform Joe of major decisions affecting C.B.K. and receive his input.

However, Heather was granted final decision-making power concerning C.B.K.’s
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legal status, medical care, education, extracurricular activities, and religious

training. The court also granted Heather physical custody of C.B.K. and awarded

her attorney fees of $5000. Joe appeals.

II. Standard of Review

Custody matters are tried in equity, so we review the proceedings de novo.

Iowa R. App. P. 6.907. “Though we make our own findings of fact, we give weight

to the district court’s findings.”4 In re Marriage of Harris, 877 N.W.2d 434, 440

(Iowa 2016); see also In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa

2013) (“We give weight to the findings of the district court, particularly concerning

the credibility of witnesses; however, those findings are not binding upon us.”).

“Prior cases have little precedential value; we must base our decision primarily on

the particular circumstances of the parties in the case.” In re Marriage of Weidner,

338 N.W.2d 351, 356 (Iowa 1983). Our overriding consideration is always the

child’s best interests. Iowa R. App. P. 6.904(3)(o).

4 Joe argues our court should not grant the lower court deference in its findings of
fact or credibility due to the trial court’s near verbatim adoption of Heather’s
proposed order. Our supreme court has recognized “the customary deference
accorded trial courts cannot fairly be applied when the decision on review reflects
the findings of the prevailing litigant rather than the court’s own scrutiny of the
evidence and articulation of controlling legal principles.” Rubes v. Mega Life &
Health Ins. Co., 642 N.W.2d 263, 266 (Iowa 2002). While our supreme court has
refused to adopt a higher standard of review for such cases, it has noted that “we
must scrutinize the record more carefully when conducting our appellate review.”
NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 465 (Iowa 2010).
Due to the district court’s adoption of Heather’s proposed order, we apply the
supreme court’s mandate in this case.
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III. Discussion

Joe raises several issues on appeal. First, he claims the district court

should not have granted Heather sole legal custody.5 Second, he argues C.B.K.

should be placed in his physical care. Third, he asserts the district court abused

its discretion when it awarded Heather $5000 in trial attorney fees. Both parties

request an award of appellate attorney fees.

A. Legal Custody

Important to our analysis is Joe’s agreement that the district court awarded

Heather sole legal custody. He argues “the record does not reflect clear and

convincing evidence to justify Heather having sole legal custody of C.B.K.” Joe

contends the court should have maintained joint legal custody of C.B.K. “‘Legal

custody’ carries with it certain rights and responsibilities, including . . .

‘decisionmaking affecting the child’s legal status, medical care, [and]

education . . . .’” In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007)

(citation omitted). Joint legal custody is preferred over sole custody. Weidner, 338

N.W.2d at 359. If a court does not grant joint custody despite one parent

requesting it, the court must “cite clear and convincing evidence, pursuant to the

factors in [section 598.41(3)], that joint custody is unreasonable and not in the best

5Joe, in various portions of his brief, refers to this award as “imposing conditions
on the joint legal custody he shares with Heather, which ultimately gives Heather
power to make the final decision on matters concerning C.B.K. after obtaining
Joe’s input.” This language is similarly contained in the order portion of the district
court ruling, rather than the use of “sole legal custody” terminology.
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interest of the child to the extent that the legal custodial relationship between the

child and a parent should be severed.” Iowa Code § 598.41(2)(b) (2020).6

Joe urges us to reverse the district court’s modification of legal custody to

allow him to remain a joint legal custodian. Joe contends, “Though Joe and

Heather had an acrimonious relationship, it was not at the level that joint custody

should be denied.”

We highlight Joe’s agreement to the sole legal custody status as the district

court’s ruling, while granting Heather’s counterclaim, does not use the words “sole

legal custody.” The modified decree reads as follows:

1. JOINT LEGAL CUSTODY. Heather’[s] counterclaim for
modification of legal custody is granted. Joe’s Application for
Modification is denied. Joe shall have access to information and the
ability to have input into decisions. However, there must be
boundaries on the terms of legal custody and the ability for Heather
to make final decisions in the event the parties cannot reach an
agreement. Therefore, these terms of joint legal custody will apply:
a. Both parents will have legal access to information about
C.B.K., including but not limited to medical, educational, and law
enforcement records.
b. Both parents will have access to information and be
informed of decisions affecting C.B.K.’s legal status, medical care,
education, extracurricular activities, and religious training.
c. The parents will consult with one another about decisions
regarding the legal status, medical care, education, extracurricular
activities, and religious training related to C.B.K. and will follow this
process for notice and input on decisions.
d. If there are decisions to be made about an issue, Heather
will provide Joe with reasonable notice of any issue in writing.
e. Joe will then have 48 hours following the written notification
to provide his input on the matter to Heather in writing.
f. If Joe provides input, Heather will consider Joe’s input and
make a determination on the course of action.
g. If Joe does not provide input, Heather may make a
determination on the course of action.

6See also Iowa Code § 600B.40(2) (making chapter 598 applicable in non-marital
custody cases).
8

h. Both parents will notify the other if they have any knowledge
of any illness, accident, or other matter affecting C.B.K.’s well-being.
i. Disagreements about C.B.K. and any issue that may impact
him will be resolved outside of C.B.K.’s presence.

As noted above, the court’s order stated, “Heather’s counterclaim for

modification is granted.” Heather’s initial answer and counterclaim did not

specifically state a request for sole legal custody, but requested a modification of

joint legal custody. She amended her answer and counterclaim on May 8, 2020,

to request sole custody. Because Joe concedes the language of the modification

ruling grants Heather sole legal custody, we do not address the issue of hybrid

legal custody discussed in our previous rulings 7 and the tie-breaker designation

addressed by our supreme court in Harder v. Anderson, Arnold, Dickey, Jensen,

Gullickson & Sanger, L.L.P., 764 N.W.2d 534, 538 (Iowa 2009). We turn to

7 These custody statutes do not mention assigning sole decision-making authority
for some responsibilities of child-rearing and joint participation for others. See
Hansen, 733 N.W.2d at 690 (“When joint legal custody is awarded, ‘neither parent
has legal custodial rights superior to those of the other parent.’” (citation omitted)).
Yet we have found a smattering of cases where the district court unbundled the
rights listed in section 598.1(3) and (5). See, e.g., Sloan v. Casey, No. 15-0921,
2015 WL 9451093, at *7–8 (Iowa Ct. App. Dec. 23, 2015) (upholding modification
of joint legal custody to make one parent solely responsible for scheduling medical
appointments for child); In re Marriage of Bates, No. 11-1293, 2012 WL 1440340,
at *4 (Iowa Ct. App. Apr. 25, 2012) (affirming joint legal custody was unreasonable
as it relates to health-care decisions). As this court has noted in the past:
[Chapter 598] appears to consider joint custody and sole custody as
all-or-nothing propositions. When parties are awarded “joint legal
custody,” “both parents have legal custodial rights and
responsibilities toward the child” and “neither parent has legal
custodial rights superior to those of the other parent.” The statutes
mention nothing about assigning sole decision-making authority for
some responsibilities and joint participation for others. Iowa’s legal
landscape is virtually barren of appellate cases in which the district
court unbundled legal custody rights. Our supreme court has not
spoken on the matter.
Armstrong v. Curtis, No. 20-0632, 2021 WL 210965, at *3 (Iowa Ct. App. Jan. 21,
2021) (citations omitted).
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whether the record in this case supports the modification of the parties’ previous

status as joint legal custodians to an award of sole legal custody with Heather.

Here, the district court found the acrimony between Joe and Heather

created conditions that were not in the best interest of their child. The ability, or

lack thereof, of the parents to communicate is an important factor when

considering the best interest of the child. See Iowa Code § 598.41(3)(c). “Although

cooperation and communication are essential in joint custody, tension between the

parents is not alone sufficient to demonstrate [joint custody] will not work.” In re

Marriage of Gensley, 777 N.W.2d 705, 715 (Iowa Ct. App. 2009) (quoting In re

Marriage of Bolin, 336 N.W.2d 441, 446 (Iowa 1983)). In order to weigh against

joint custody, the inability to communicate “must rise above the ‘usual acrimony

that accompanies a divorce.’” Gensley, 777 N.W.2d at 715 (citation omitted).

On our de novo review, we agree communication has broken down to a

point that joint legal custody is not in C.B.K.’s best interest. The record is replete

with examples of acrimony and discord. The parties required a court order to

determine which school C.B.K. would attend. Sanctions were imposed against

Joe for pursuing a suspension of Heather’s parenting time despite DHS informing

him that allegations she abused C.B.K. were unfounded. The parties are incapable

of coming to a consensus on C.B.K.’s course of treatment. There is evidence of

deep mistrust and derision between the parents. While Joe contends the

breakdowns in communication are rare, the record is clear that the issue is

consistent and impedes the parents’ ability to make important decisions that are

required for C.B.K.’s best interest. We acknowledge that many cases reflect a

difficulty in communication between parents; however, the special medical and
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educational needs of C.B.K., along with the parents’ inability to agree on

educational and medical issues, separates this case from others.

Bearing in mind our primary consideration is C.B.K.’s best interest, his

parents’ inability to communicate and make decisions together means joint

custody is no longer workable. As Dr. Rappaport—a licensed clinical psychologist

who served as an expert witness in this case—testified, children with special

needs require stability in their educational and medical plans in order to perform

well. See id. at 716 (noting the need for a stable atmosphere in order to limit

“confusion and emotional upheaval”). The inability to obtain that stability can have

harmful long-term effects, including falling behind educationally and suffering from

lowered self-esteem. C.B.K.’s needs have suffered under the joint legal custodial

arrangement. Joint custody is not in C.B.K.’s best interest. We modify to clarify

the award of sole legal custody to Heather.

B. Physical Care

Joe argues the district court erred in granting Heather physical care of

C.B.K. and should have instead granted him physical care. A party seeking to

modify physical care of a child must prove two prongs by a preponderance of the

evidence. Harris, 877 N.W.2d at 440. First, they must establish “a substantial

change in circumstances occurred after the decree was entered.” Id. The changed

circumstances “must not have been contemplated by the court when the decree

was entered, and they must be more or less permanent.” Id. (quoting In re

Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). Additionally, the change

in circumstances must relate to the welfare of the child. Frederici, 338 N.W.2d at

158.
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Second, the party seeking modification must “prove a superior ability to

minister to the needs of the children.” Harris, 877 N.W.2d at 440. We are guided

by the factors in Iowa Code section 598.41(3) and those explained in In re Marriage

of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). We seek “to place the child[ ] in

the environment most likely to bring them to health, both physically and mentally,

and to social maturity.” Hansen, 733 N.W.2d at 695.

Here, both parties concede there has been a substantial change in

circumstances regarding the parties’ previous agreement to shared physical care.

Additionally, both parents agree C.B.K.’s behavioral dysregulation has grown

worse since he began school, with particular trouble during transitions between

parents. We agree. See Harris, 877 N.W.2d at 441 (“Discord between parents

that has a disruptive effect on [a child’s] [life] is a substantial change of

circumstances that warrants a modification.” (second alteration in original) (quoting

Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002))). Thus, we must

examine which parent can provide superior care to their child.

It is clear that both parties care deeply about C.B.K. However, upon our de

novo review, we conclude Heather can provide superior care for C.B.K. A few

factors are particularly important in our analysis. First, Joe’s primary claim for

being the superior parent is that C.B.K. becomes less dysregulated in his presence

due to the one-on-one attention he provides.8 In contrast, Heather puts C.B.K. in

positions that tend to cause his dysregulation—particularly those where he does

not have the sole and consistent attention of an adult. Joe highlights these

8There is considerable disagreement in this record as to whether C.B.K. actually
behaves better in Joe’s home.
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difficulties in Heather’s care in support of a finding he is the parent able to provide

superior care.

However, avoiding triggers for misbehavior is not inherently better

parenting. For instance, our supreme court noted in Harris that the parent who

was actively trying to address their daughter’s delayed socialization ought to have

physical care of her. 877 N.W.2d at 444; see also In re Marriage of Hubbard, 315

N.W.2d 75, 82 (Iowa 1982) (selecting the parent who “worked diligently to correct

the educational deficiencies of his children”). Additionally, avoiding difficult

situations is not likely to help C.B.K.’s long-term social development. C.B.K.’s

special education teacher testified that children she works with, including C.B.K.,

need to learn to cooperate and share. Avoiding situations where cooperation and

sharing are necessary may hinder such development. Heather is the parent

actively seeking to address C.B.K.’s behavioral issues and improve upon them.

Another important factor stems from “[t]he characteristics of [the] child” and

“[t]he capacity and interest of each parent to provide for the emotional, social,

moral, material, and educational needs of the child.” Winter, 223 N.W.2d at 166.

C.B.K. has a history of behavioral troubles that will require educational and medical

assistance going forward. Heather has been the primary parent coordinating

C.B.K.’s appointments since birth. Moreover, as a pediatric psychologist herself,

Heather is well equipped to know and understand the options available to C.B.K.

and how to access them. Heather’s intimate knowledge of C.B.K.’s treatment

history and the options available going forward weigh in favor of her obtaining

physical care of C.B.K.
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Finally, we agree that Joe shows a marked lack of maturity when dealing

with Heather and little understanding of how his behavior affects C.B.K.’s

relationship with his mother. A lack of maturity has been an important factor when

considering who will render superior care. See Melchiori, 644 N.W.2d at 370. Joe

shows no remorse for pursuing his claim of abuse against Heather despite his

knowledge of the DHS’s position that no abuse occurred. Additionally, he has

taken a consistent stance that his judgment is better than those of trained

professionals.9 In contrast, Heather and Adam testified repeatedly acknowledging

their mistakes and how they have tried to improve. Joe also appears to minimize

C.B.K.’s behaviors while in his care.

Lastly, Joe contends that one of Adam’s children poses a threat to C.B.K.,

making it unsafe for Heather to have physical care. The record does contain

evidence of the child having behavioral issues and acting out. There is one

instance in particular where the child pushed C.B.K. down and caused C.B.K. to

get a contusion on his head. However, the record also contains testimony that the

child’s behavior has improved considerably the past year or two. Overall, the

evidence of any potential risk to C.B.K. is insufficient to undermine our conclusion

given the other factors previously discussed. We determine Heather is the parent

able to provide superior care to C.B.K. and is the appropriate physical custodian.

C. Trial Attorney’s Fees and Appellate Attorney’s Fees

Joe contends the district court abused its discretion in awarding Heather

$5000 in trial attorney fees. Heather responds by claiming Joe waived the issue

9 Joe testified he believes his judgment is more appropriate than C.B.K.’s current
therapist and two DHS workers who were involved in various claims made by Joe.
14

by paying the attorney fee award in full. However, a party does not waive the right

to appeal by paying the judgment amount. Hegtvedt v. Prybil, 223 N.W.2d 186,

188-89 (Iowa 1974) (“Waiver is the voluntary relinquishment of a known right.

Payment is not voluntary when it is made under compulsion of court order.”). That

is true even if, as is the case here, a supersedeas bond is available to stay the

execution of the judgment. Peoples Tr. & Sav. Bank v. Sec. Sav. Bank, 815

N.W.2d 744, 754 (Iowa 2012) (“[T]he mere availability of a supersedeas bond or

other mechanism to stay enforcement does not mean that payment of a judgment

results in waiver of the right to appeal.”). Thus, we may consider the merits of

Joe’s appeal.

We review the award of attorney fees for an abuse of discretion.

NevadaCare, 783 N.W.2d at 469. We will reverse only when the court bases its

decision “on grounds that are clearly unreasonable or untenable.” Id. Iowa Code

section 600B.26 allows courts to grant an award of attorney fees to the prevailing

party in a custody dispute. Trial attorney’s fees should be based on “the respective

abilities of the parties to pay” and “must be fair and reasonable.” In re Marriage of

Guyer, 522 N.W.2d 818, 822 (Iowa 1994).

As the prevailing party, the court had the discretion to award Heather

attorney fees. However, given the financial circumstances of the parties—Heather

makes considerably more than Joe, and the attorney fees were substantial in this

case—the court reduced the amount Joe was responsible for to $5000, a small

percentage of the fees requested. Such an award was fair and reasonable, and it

was not an abuse of discretion.
15

Both parties request an award of appellate attorney fees. Iowa Code

section 600B.26 makes appellate attorney fees available to the prevailing party.

Wendt v. Peterson, No. 20-0060, 2020 WL 4814153, at *4 (Iowa Ct. App. Aug. 19,

2020). “Appellate attorney fees are not a matter of right, but rather rest in this

court’s discretion.” In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006)

(citation omitted). We consider “the needs of the party seeking the award, the

ability of the other party to pay, and the relative merits of the appeal.” Id. (citation

omitted). Additionally, “we consider whether the party making the request was

obligated to defend the trial court’s decision on appeal.” Guyer, 522 N.W.2d at

822.

As the prevailing party, we have discretion to award fees in Heather’s favor.

Heather was obligated to defend the trial court’s decision on this appeal. However,

given the respective financial conditions of the parties, we decline to award

appellate attorney fees to either party.

VI. Conclusion

We modify to clarify the award of legal custody to Heather as sole legal

custody. We affirm the award of physical care to Heather, the award of trial

attorney fees to Heather, and deny the requests for appellate attorney fees.

AFFIRMED AS MODIFIED.