Alyssa Marie Slusser v. Dakota Daniel Stevens

IN THE COURT OF APPEALS OF IOWA

No. 22-0072
Filed July 20, 2022

ALYSSA MARIE SLUSSER,
Petitioner-Appellee,

vs.

DAKOTA DANIEL STEVENS,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Webster County, John R. Flynn,

Judge.

Dakota Stevens appeals the denial of his request to modify physical care of

a child. AFFIRMED AND REMANDED.

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

Des Moines, for appellant.

Jennifer Frese of Kaplan & Frese, LLP, Marshalltown, for appellee.

Considered by May, P.J., Chicchelly, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
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CHICCHELLY, Judge.

Deciding physical care of a child is “inevitably an onerous task.” In re

Marriage of Graziano, 573 N.W.2d 598, 599 (Iowa 1998). Sometimes, the court

must decide between two exemplary parents. See, e.g., In re Marriage of Fennelly

& Breckenfelder, 737 N.W.2d 97, 101 (Iowa 2007) (“[T]he court noted the

conundrum it faced in deciding who should be awarded physical care because

both parties are great parents.”). At other times, the court is on the horns of a

dilemma, forced to choose one undesirable parent over another. See, e.g., Smith

v. Smith, No. 03-0863, 2004 WL 433906, at *2 (Iowa Ct. App. Mar. 10, 2004)

(“Simply put, the record reveals the trial court was faced with the unhappy task of

choosing between two immature and seriously flawed parents.”). This appeal

presents the latter scenario.

On appeal from the order denying his request to modify custody, Dakota

Stevens contends the court erred by finding he failed to show he can provide

superior care to the child he shares with Alyssa Slusser. He also challenges the

award of attorney fees to Alyssa. Following our review, we agree that the child’s

best interests are better served in Alyssa’s care and affirm the award of attorney

fees. We remand to the district court to determine a reasonable award of Alyssa’s

appellate attorney fees.

I. Background Facts and Proceedings.

Dakota and Alyssa are the parents of a child born in 2012. For the first four

years of the child’s life, Dakota and Alyssa shared physical care by informal

agreement. But Dakota took the child in October 2016 and failed to return her. In

December, Dakota told Alyssa that she would not get the child back. Unable to
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reach the child by phone or otherwise locate her, Alyssa reached out to the Iowa

Department of Human Services, who located the child in Texas.

After locating the child, Alyssa petitioned the district court, seeking physical

care of the child. In February 2017, the court entered a temporary custody order,

requiring Dakota to return the child to Alyssa within seven days. It also provided

that physical care would alternate between Dakota and Alyssa monthly.

When Dakota returned the child, Alyssa noticed negative behaviors that

were not present when she left Alyssa’s care five months earlier. The child was

fearful, had night terrors, self-harmed, and had emotional outbursts daily. The

child reported that Dakota would spank her bare buttocks with a belt, causing

bruising. Because of the allegations of physical abuse, the child was placed in

Alyssa’s temporary care.

The child was diagnosed with adjustment disorder with disturbance of

emotions and conduct. Alyssa took the child to parent-child interactive therapy to

address any trauma that occurred. The child’s therapist recommended Dakota

engage in the same therapy to have in-person visits with the child, but Dakota

refused and claimed the child’s mental-health diagnosis was “made up.” As a

result, the only contact Dakota had with the child for one year was a weekly

telephone call.

Dakota began having limited in-person visits with the child in March 2018.

The visits gradually increased in length to include overnight visits. Then, in June

2019, Dakota and Alyssa reached an agreement about the child’s custody. They

stipulated that they would share joint legal custody of the child, with Alyssa acting

as the child’s physical caretaker and Dakota receiving visits on alternating
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weekends. The district court entered an order approving the agreement the next

day.

This modification action began a mere five months after the parties’ reached

their agreement. Alyssa petitioned to modify the custody agreement, asking for

sole legal custody; in response, Dakota sought physical care. After Alyssa

voluntarily dismissed her petition, the matter proceeded to trial on Dakota’s request

to modify physical care.

The district court denied the modification in November 2021. Although it

found a substantial change in circumstances had occurred since June 2019, the

court had “serious concerns about each parent’s ability to adequately care for [the

child] on a primary basis.” Ultimately, it found Dakota failed his burden of showing

he can provide superior care to the child. But the court modified the visitation

schedule to increase the amount of visitation Dakota receives. It also awarded

Alyssa $3000 in trial attorney fees.

II. Scope and Standard of Review.

We review the modification ruling de novo. See Thorpe v. Hostetler, 949

N.W.2d 1, 4 (Iowa Ct. App. 2020). We decide the issues anew after an

examination of the entire record. See id. at 5. And though we are not bound by

the district court’s factual findings, we do give them weight, especially when they

concern witness credibility. See id.

III. Modification of Physical Care.

As the parent seeking to modify the parties’ physical care arrangement,

Dakota bears the burden of showing (1) a material and substantial change in

circumstances has occurred since the decree’s entry that warrants a change in the
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custodial agreement and (2) “an ability to minister more effectively to the child[]’s

well being.” Id. (citation omitted). Because neither party challenges the finding of

a material and substantial change in circumstances, the question is whether

Dakota can provide superior care than Alyssa.

Dakota’s argument focuses mostly on Alyssa and her flaws: her substance

use, an arrest for an incident of domestic abuse with a former boyfriend, exposing

the child to unsafe people, her mental health, and housing instability. Those same

concerns were considered by the district court, which found that Alyssa “is certainly

not a perfect mother”:

On the contrary, the court has serious concerns about Alyssa’s ability
to properly care for this child. These concerns have all been set forth
above in the findings of facts section of this order. To be clear, the
court has considered all of these concerns. The court is not ignoring
these serious concerns. They are in fact very serious. Alyssa needs
to do better moving forward.

But the court found the witnesses who testified about Alyssa’s bond and

relationship with the child credible and noted that Alyssa has a support system.

And though Alyssa was not completely honest about her shortcomings, the court

found that “Alyssa deeply loves her daughter and is not hiding from her past or

present situation.” The same could not be said of Dakota, who failed to present

evidence of a bond with the child or a support system. The court also made explicit

findings about Dakota’s evasiveness in providing information about where he lives

and what he does for a living and noted many of his claims defy logic.

Dakota also notes that physical care of Alyssa’s younger child was modified

to place the child in her father’s care based on the same concerns cited in this

appeal. The district court acknowledged it was “keenly aware” of the findings made
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by the district court in the other modification action. But there are significant

differences between Dakota and the other child’s father. The court in the other

modification action found the credible evidence showed the father of Alyssa’s

younger child was superior to Alyssa as a parent. As the other court noted in ruling

on that modification action, “Alyssa has not voiced any concerns about [the

younger child]’s physical, social, mental, or emotional health while in [her father]’s

care.” The same cannot be said here given the serious concerns about Dakota’s

physical abuse of the child or other traumatizing behavior that altered the child’s

behavior after five months in Dakota’s care.

Finally, Dakota claims the district court overemphasized his failure to

explain the source of his income considering the concerns about Alyssa. But the

court’s concerns about Dakota go beyond his failure to explain his income. The

court could not find Dakota could provide superior care “due to his past behavior

and the evasiveness, secrecy, narcissism and unwillingness of Dakota to inform

the Court about his professional life, among other things.” On top of Dakota’s

failure to provide information about how he earns a living, the court noted “very

serious concerns relative to his ability to adequately care for [the child] as a primary

caretaker.” Of chief concern is the abuse allegation. The court also noted his lack

of bond with the child, his refusal to cooperate with the abuse investigation, his

apparent dishonesty, the $24,800 he owes in child support despite claims of

wealth, and his unwillingness to admit any faults or mistakes. And although he

brings up Alyssa’s violent conduct toward others, Dakota also has a criminal record

with convictions for disorderly conduct and domestic abuse assault.
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We share the same concerns as the district court about Alyssa’s parenting.

Without minimizing those concerns, we also agree that Dakota failed to show he

is the better parent. As the district court explained, the choice here is between

Alyssa’s known deficiencies as a parent and all that is unknown about Dakota.

The little that is known about Dakota—his act of refusing to return the child for five

months and the change in the child that resulted from it—is of great concern.

Although Alyssa is far from an ideal parent, Dakota failed to show he is superior in

this regard. We therefore affirm the denial of Dakota’s request to modify physical

care.

IV. Attorney Fees.

Dakota also challenges the district court’s award of $3000 in trial attorney

fees to Alyssa. We review the award of trial attorney fees for an abuse of

discretion. See Christy v. Lenz, 878 N.W.2d 461, 469 (Iowa Ct. App. 2016). An

award of trial attorney fees depends on the parties’ relative financial positions. See

id. We will overturn an award of trial attorney fees only if “it rests on grounds that

are clearly unreasonable or untenable.” In re Marriage of Erpelding, 917 N.W.2d

235, 238 (Iowa 2018) (citation omitted).

The district court awarded Alyssa trial attorney fees after considering “the

respective incomes of the parties and the legal expenses they have both incurred.”

This was a proper exercise of discretion. Dakota premises his argument against

the award on a successful appeal of his request to modify physical care, see Iowa

Code § 600B.26 (2019) (stating that “the court may award the prevailing party

reasonable attorney fees” in a modification action (emphasis added)), but we have
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affirmed the district court on that matter. Because the district court did not abuse

its discretion in awarding trial attorney fees, we affirm that award as well.

Alyssa asks us to award her $10,000 in appellate attorneys incurred in

defending the district court’s decision on appeal. An award of appellate attorney

fees is not a matter of right but rests in this court’s discretion. See Christy, 878

N.W.2d at 469. “[W]e 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).

An award of Alyssa’s appellate attorney fees is appropriate based on the

circumstances before us. Because she has not provided an affidavit of attorney

fees with documentation to support her request, we remand to the district court to

determine the amount of Alyssa’s appellate attorney fees and to enter judgment

against Dakota in a reasonable amount. See, e.g., Markey v. Carney, 705 N.W.2d

13, 26 (Iowa 2005) (“[U]nder our current practice, the issue of appellate attorney

fees is frequently determined in the first instance in the district court because of

the necessity for making a record.” (alteration in original) (citation omitted)).

AFFIRMED AND REMANDED.