Eric Robert Hochstein v. Shelby Alexandria True

IN THE COURT OF APPEALS OF IOWA

No. 22-0837
Filed January 11, 2023

ERIC ROBERT HOCHSTEIN,
Petitioner-Appellant,

vs.

SHELBY ALEXANDRIA TRUE,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Chris

Foy, Judge.

Eric Hochstein appeals from the order denying his petition to modify

physical care of his child with Shelby True. AFFIRMED.

Megan R. Rosenberg of Cady & Rosenburg Law Firm, P.L.C., Hampton,

and Richard Piscopo, Mason City, for appellant.

Michael J. Moeller of Sorensen & Moeller Law Office, Clear Lake, for

appellee.

Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ.
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BULLER, Judge.

Eric Hochstein and Shelby True were never married but share a child born

in 2017. A consent order was entered between the parties, incorporating a written

settlement stipulation that awarded joint legal custody to both parents, primary care

to Shelby, and visitation on a fixed schedule to Eric. Eric now seeks to modify the

physical-care arrangement. We affirm, finding Eric has not met his heavy burden

to warrant a modification, and we order Eric to pay Shelby’s appellate attorney

fees.

The district court found that, within months of the original custody order, Eric

began badgering Shelby for shared physical care. When Shelby refused, Eric

requested extra parenting time, which he occasionally received. It is undisputed

that Eric has always received all scheduled visitation contemplated under the

custody order.

Unable to convince Shelby to voluntarily give him more time, Eric apparently

turned to the Iowa Department of Health and Human Services (HHS) hotline. He

made multiple reports of child abuse and neglect against Shelby. Three different

HHS investigators conducted a total of at least five formal child abuse

assessments. Each assessment came back unconfirmed, and each investigator

found Shelby’s home to be safe and appropriate.

In seeking to modify the physical-care provisions of a custody order, Eric

bears “a heavy burden and must show the ability to offer superior care.” In re

Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998). As our supreme

court has explained:
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To change a custodial provision of a dissolution decree, the
applying party must establish by a preponderance of evidence that
conditions since the decree was entered have so materially and
substantially changed that the children’s best interests make it
expedient to make the requested change. The changed
circumstances must not have been contemplated by the court when
the decree was entered, and they must be more or less permanent,
not temporary. They must relate to the welfare of the children. A
parent seeking to take custody from the other must prove an ability
to minister more effectively to the children’s well being. 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.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

On our de novo review, see Mayfield, 577 N.W.2d at 873, we agree with the

district court that Eric did not meet his heavy burden. Although Eric points to a

handful of changed circumstances, we do not find them persuasive or substantial.

For example, the drive between Mason City and Clear Lake—approximately ten

miles—is not the kind of substantial change contemplated by our case law. See

In re Marriage of Hoffman, 867 N.W.2d 26, 34 (Iowa 2015) (finding a move

separating the parents by seventy miles was not a substantial change in

circumstances). We also find Eric’s complaints about Shelby not supporting his

relationship with the child ring hollow when both parties agree Shelby has given

Eric all of the parenting time he is entitled to under the custody order, and then

some. We also agree with the district court that Eric offered no credible reason to

doubt the repeat findings by HHS—made in at least five investigations by three

different investigators—that Shelby’s home is safe and appropriate.

We adopt the district court’s assessment of Eric’s credibility, motivation, and

bias. The record generally supports the district court’s observation that Eric is

“obsessed” with obtaining shared physical custody, and Eric’s conduct does in fact
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suggest the “obsession has clouded his judgment and warped his perspective.”

We also join in the district court’s observation that Eric’s behavior is not in the

child’s best interests and likely undermines his efforts to obtain additional time from

Shelby. And we share the district court’s observation that the overwhelming

majority of “injuries” documented by Eric appear to be the routine bumps, bruises,

and scrapes attendant to any active child.

Last, we address attorney fees. Eric does not challenge the district court’s

award of fees to Shelby at trial, but he asks for $6000 in attorney fees on appeal.

We deny Eric’s request, as he is not the prevailing party. See Iowa Code § 598.36

(2022). Shelby also requests attorney fees in the amount of $6000. Given that

Shelby asks for the same amount in fees that Eric requested, and Shelby actually

prevailed, we are hard pressed to find the request unreasonable. An award is also

supported by Shelby’s duty to defend the district court’s decision on appeal, which

she has successfully done. See, e.g., In re Marriage of Kurtt, 561 N.W.2d 385,

389 (Iowa Ct. App. 1997) (“In determining whether to award appellate attorney

fees, we consider the needs of the party making the 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.”). We grant Shelby’s request for $6000 in

appellate attorney fees.

AFFIRMED.