Alex Lee Noecker v. McKayla Mayshell Cloyd-Hirz

IN THE COURT OF APPEALS OF IOWA

No. 21-1447
Filed May 25, 2022

ALEX LEE NOECKER,
Plaintiff-Appellant,

vs.

MCKAYLA MAYSHELL CLOYD-HIRZ,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Kathleen

Kilnoski, Judge.

A father appeals a custody modification. AFFIRMED IN PART,

REVERSED IN PART, AND MODIFIED.

J. Joseph Narmi, Council Bluffs, for appellant.

Kyle E. Focht of Focht Law Office, Council Bluffs, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.
2

TABOR, Judge.

Alex Noecker appeals a modification order granting sole legal custody of

his nine-year-old daughter, I.C.-N., to her mother McKayla Cloyd-Hirz. He also

appeals the award of trial attorney fees. Because I.C.-N.’s safety and mental

health are best served by the modified custody order, we affirm. But we reverse

the portion of the order delegating discretion over visitation to McKayla and modify

to deny visitation to Alex. And finding no abuse of discretion, we decline to disturb

the fee award. Finally, we deny McKayla’s request for appellate attorney fees.

I. Facts and Prior Proceedings

Alex and McKayla never married but have a daughter in common. I.C.-N.

was born in 2012. The following year, Alex and McKayla agreed to joint legal

custody with McKayla having physical care and Alex exercising visitation. For a

few years, that arrangement worked well. In fact, in 2017 Alex and McKayla

agreed to increase Alex’s visitation.

But McKayla noticed a decline in the quality of Alex’s parenting after he

underwent heart surgery in 2018. I.C.-N. told her mother that when she stayed

with her father there was not enough food at his house and loud music kept her

awake. And the parents’ relationship grew hostile; Alex would often disrespect

McKayla and call her names.

The conflict worsened during a weekend visitation. Deven—the mother of

I.C.-N.’s half-sister B.N.—received worrying late-night Snapchat messages. In

response, Deven and McKayla went to Alex’s house where their daughters were

spending the night. There, Alex and his girlfriend Melissa were drinking and

arguing. After the mothers let themselves in, Melissa wrestled Deven to the floor.
3

The commotion woke I.C.-N. and B.N. Upset, I.C.-N. begged Alex: “Dad, if you

love me make it stop, make it stop.” But Alex did not intervene.

More generally, McKayla worried that Alex no longer treated I.C.-N. with

love. After being at her father’s home, I.C.-N. exhibited “erratic mood swings.”

Unprompted, I.C.-N. reached out to her elementary school counselor. But even

with that guidance, a despondent I.C.-N. told her first-grade classmate that she

wanted to run away. When McKayla informed Alex about their daughter’s plan, he

lashed back at McKayla “like it wasn’t a big deal.”

And things just got worse. During an April 2019 visitation, I.C.-N. found Alex

passed out on his kitchen floor. Child protective services reported that excessive

alcohol consumption caused Alex’s condition. But during the modification hearing,

Alex suggested that his prescription medication may have also played a role.

Whatever the cause, the incident led to I.C.-N. being adjudicated as a child in need

of assistance (CINA).1 And her visits with Alex ended.

By June 2019, I.C.-N. began seeing therapist Debra Tuttle. The provider

diagnosed her with acute stress response, a precursor to post-traumatic stress

disorder (PTSD). I.C.-N. shared “that she did not feel safe with [Alex] . . . [and]

she was afraid to be around him because of his alcohol use and intoxication.”

According to McKayla, these fears manifested as nightmares, intrusive thoughts,

mood swings, and temper tantrums.

1 In the CINA proceedings, Alex was ordered to complete mental-health and
substance-abuse evaluations and submit to drug testing. But as Alex conceded
during the modification hearing, he was “defiant” and “sometimes resist[ed]” these
requirements.
4

With weekly treatment, I.C.-N.’s mental health improved. But in October

2019, Alex participated in a therapy session with his daughter. According to Tuttle,

I.C.-N. “became very stiff and rigid” when he entered the room. Soon, Alex

“sounded like he was cross-examining” his daughter. In Tuttle’s opinion, Alex was

“focused primarily” on proving the girl wrong rather than on reunification.

According to Tuttle, I.C.-N. backslid “quite a bit” after that session.

That regression in mind, in January 2020, McKayla petitioned for sole

custody and supervised visitation. While the petition was pending, Tuttle tried

another therapy session with I.C.-N. and Alex together. But again, I.C.-N.’s mental

health took a turn for the worse. Nightmares and emotional outbursts returned

after months of reprieve. The situation became so severe that I.C.-N. renewed

weekly sessions with Tuttle.2 And Tuttle changed her diagnosis from acute stress

response to PTSD.

In a December 2020 letter to the district court, Tuttle described the enduring

rift between I.C.-N. and Alex:

Seeing her father again, even in a very controlled environment, will
be further detrimental to [I.C.-N.’s] mental health at this time. I am
unsure when or if it will be possible for [I.C.-N.] and her father to
reunite successfully. Her father continues to be extremely rigid and
believes [I.C.-N.] should be punished for “lying” after more than a
year has passed.

In June 2021, the district court held a modification hearing. The court

granted McKayla’s request for legal custody and physical care of I.C.-N. Any

2 Before the second session with her father, I.C.-N. had been coping well without
therapy for about six months.
5

contact between I.C.-N. and Alex was at McKayla’s discretion. The court also

awarded McKayla $1500 in attorney fees. Alex appeals the modification ruling.3

II. Scope and Standards of Review

Our review is de novo. Mason v. Hall, 419 N.W.2d 367, 369 (Iowa 1988).

We examine the whole record and adjudicate rights anew on the issues properly

raised by the parties. Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct. App.

1994). We give weight to the district court’s fact findings, especially when

considering witness credibility. Id. But we are not bound by them. Id. Our

“controlling consideration” is always the child’s best interests. In re Marriage of

Swenka, 576 N.W.2d 615, 616 (Iowa Ct. App. 1998).

We review an attorney fee award for abuse of discretion. In re Marriage of

Giles, 338 N.W.2d 544, 546 (Iowa Ct. App. 1983).

III. Discussion

A. Modification.

To change a paternity decree’s custodial or physical care terms, the

petitioner must show “a substantial change in circumstances . . . 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 v. Kooi, 644 N.W.2d 365, 368 (Iowa

Ct. App. 2002). Our state favors joint legal custody. In re Marriage of Weidner,

338 N.W.2d 351, 359 (Iowa 1983). But a parent can overcome that preference

with “clear and convincing evidence . . . that joint custody is unreasonable and not

3 McKayla’s counsel waived the right to file an appellee’s brief.
6

in the best interests of the child.” Iowa Code § 598.41(2)(b) (2020). Our best-

interests analysis is guided by these statutory factors4:

a. Whether each parent would be a suitable custodian for the
child.
b. Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with
and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child’s needs.
d. Whether both parents have actively cared for the child
before and since the separation.
e. Whether each parent can support the other parent’s
relationship with the child.
f. Whether the custody arrangement is in accord with the
child’s wishes or whether the child has strong opposition, taking into
consideration the child’s age and maturity.
g. Whether one or both of the parents agree or are opposed
to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other
parent will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation.

Iowa Code § 598.41(3). These principles in mind, we turn to the merits.

The district court decided I.C.-N.’s mental-health diagnosis was a

substantial change in circumstances since the decree. Alex does not directly

contest that finding. So we consider that step unchallenged.

Turning to the question of sole custody, the statutory factors support

severing Alex’s legal custodial relationship with I.C.-N. We could begin and end

with the first factor. Alex is not a suitable custodian for the child. See Iowa Code

§ 598.41(3)(a). As the district court found, he has “not shown an ability to put the

child’s needs before his own.” His alcohol and drug use, as well as his harsh

parenting style have caused I.C.-N. fear and alienation.

4 Subsections (j) and (k) are not relevant here.
7

Considering the other factors reinforces that view. I.C.-N. will not suffer

psychologically or emotionally from a lack of contact with Alex. In fact, the opposite

is true. Contact with him “exacerbates her mental health symptoms.” He has not

had visitation with her for three years. And he has not been able to communicate

effectively with McKayla about their daughter’s needs. As for the child’s wishes,

according to the guardian ad litem (GAL) from her CINA case (who testified at the

modification hearing), I.C.-N. would “like to just be in the custody of her mom, not

have to see her dad, and be able to go on with her life.” Is she old enough or

mature enough to have a say? We defer to the GAL’s assessment that I.C.-N. is

“smart,” “has great insight into the situation that’s going on around her,” and is “not

your average nine-year-old.”

But Alex insists he is a “loving and stable father” and asks that we restore

joint legal custody and visitation, reversing the district court’s “de facto termination”

order. As Alex sees it, “the crux of the rub” is I.C.-N.’s therapist. He argues Tuttle

is “unqualified, prejudiced, subjective, and easily influenced.” And he contends

that, because the district court relied on Tuttle’s testimony, it failed to act in I.C.-N.’s

best interests.

Trouble is, the district court made clear credibility assessments. The court

found the therapist to be “professional, patient, skilled, and implacable.”5 Given

our distance from the witnesses on appeal, we defer to the court’s assessment.

Nicolou, 516 N.W.2d at 906. That said, even without the explicit credibility finding,

5 In contrast, the district court expressed skepticism over Alex’s testimony, noting
his theory about the child’s mental health “simply makes no sense.”
8

we agree with the district court that there is ample evidence that joint custody is

not in the child’s best interests. See Iowa Code § 598.41(2)(b).

I.C.-N. has long reported distress from her father’s substandard care. Yet

Alex has been reluctant to confront the roots of his daughter’s anxiety. Indeed,

Tuttle was concerned that Alex “complete[ly] disconnect[ed] emotionally from his

daughter” during their therapy sessions. As further evidence of Alex’s callous

attitude, McKayla offered into evidence a January 2019 Snapchat video of I.C.-N.

crying and asking for her mother.6 Alex posted the video with a dismissive caption

and a smiling emoji. When asked about this video, Alex testified: “[I]f you think

that you’re gonna run the show . . . that’s not how the world works, you don’t get

to choose your father.”

But despite the foregoing, Alex believes it is in I.C.-N’s best interest “to

overturn the district court’s ruling and grant visitation.” He points to his relationship

with B.N. as reflecting his capable parenting.7 And he urges that he “is willing to

do whatever” it takes and would accept visitation in whatever form is best for I.C.-N.

To that end, he suggests starting therapy sessions with a new provider.

6 I.C.-N.’s toddler sister B.N. can be seen trying to console her older sister.
Meanwhile, Alex keeps recording, unshaken by his distraught daughter.
7 True, Alex’s relationship with B.N. appears to be healthier. But this does not

change his relationship with I.C.-N.
What’s more, the GAL explained the difference between the sisters. Based
on her observations, the GAL believed that B.N. was too young to process the
experiences that traumatized I.C.-N. Beyond that, the GAL believed that Alex
harbored resentment toward I.C.-N. because she “made the phone call” that led to
the CINA adjudication. Finally, the GAL noted that the relationship between Alex
and the respective mothers was different, with Alex getting along better with Deven
than McKayla.
9

Given Alex’s track record of hostility toward providers and I.C.-N.’s visceral

reaction to therapy with her father, we doubt a new therapist would achieve a

different outcome. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (looking at

“past performance” to predict future action). As the district court noted, Alex

“offer[s] no plan that accept[s] I.C.-N. as she is now.”

We recognize that “the right of access to one’s child should not be denied

unless the court is convinced such visitations are detrimental to the best interest

of the child. In the absence of extraordinary circumstances, a parent should not

be denied the right of visitation.” Smith v. Smith, 142 N.W.2d 421, 425 (Iowa 1966);

see also Thompson v. Fowler, No. 17-0284, 2017 WL 6513973, at *3 (Iowa Ct.

App. Dec. 20, 2017) (remanding case when court delegated discretion over

visitation to opposing party). But like the district court, we are convinced that

visitation with Alex would be detrimental at this point in I.C.-N.’s emotional

development, as demonstrated by the 2019 and 2020 therapy sessions. That said,

the court’s delegation of discretion over visitation to McKayla was improper. See

Thompson, 2017 WL 6513973, at *3; accord In re Marriage of Retterath, No. 14-

1701, 2015 WL 6509105, at *4 (Iowa Ct. App. Oct. 28, 2015). Instead, this is the

rare case that requires the court to deny visitation because contact with Alex will

likely cause significant emotional harm to the child. See Smith, 142 N.W.2d at

425; see also Iowa Code § 598.41(1)(a).

Still, we emphasize that a future relationship between Alex and I.C.-N.

should not be off the table. We are encouraged by McKayla keeping a close

connection with I.C.-N.’s paternal grandparents. And we applaud her assertion

that she is “absolutely” open to having Alex rebuild a relationship with their
10

daughter after I.C.-N. has “healed as an individual.” Right now, visitation may not

be what I.C.-N. “wants or what she needs.” Someday, it may be in I.C.-N’s best

interests to resume visitation with her father.8 But only the district court may modify

the decree—after the parties have had the chance to be heard. See In re Marriage

of Stephens, 810 N.W.2d 523, 531 (Iowa Ct. App. 2012).

McKayla proved modification was in I.C.-N.’s best interests. We affirm the

grant of sole legal custody to McKayla but reverse the delegation provision and

modify to deny Alex visitation.

B. Attorney Fees

Next we consider attorney fees. Alex challenges the district court’s grant of

$1500 to defray McKayla’s legal expenses, arguing it was an abuse of discretion.

And McKayla requests $700 to cover appellate attorney fees.

Trial first, attorney fee awards are within the district court’s discretion. Giles,

338 N.W.2d at 546. Any fees granted should be in reasonable amounts and based

on the parties’ respective abilities to pay. In re Marriage of Van Ryswyk, 492

N.W.2d 728, 732 (Iowa Ct. App. 1992). McKayla prevailed on the merits, received

a comparatively small fee award, and earns half what Alex does. We cannot say

the district court abused its discretion. So we affirm that award.

As for appellate attorney fee awards, we grant them at our discretion. Id.

We consider the parties’ respective abilities to pay and whether the requesting

party had to defend the district court’s decision. Id. McKayla’s attorney waived

8Future restrictions on visitation would be less likely if Alex could show “definite
evidence of improved self-control and thinking” on his part. See Smith, 142
N.W.2d at 423.
11

the opportunity to file a brief. So we decline to award fees. Costs of the appeal

are assessed to Alex.

AFFIRMED IN PART, REVERSED IN PART, AND MODIFIED.