In re the Marriage of Nygren

IN THE COURT OF APPEALS OF IOWA

No. 21-0822
Filed February 16, 2022

IN RE THE MARRIAGE OF LAUREN NYGREN
AND TREY NYGREN

Upon the Petition of
LAUREN NYGREN,
Petitioner-Appellee,

And Concerning
TREY NYGREN,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Patrick McElyea,

Judge.

A father appeals from the modification of a joint physical care arrangement.

REVERSED.

Chase Cartee of Cartee Law firm, P.C., Davenport, for appellant.

M. Leanne Tyler of Tyler & Associates, P.C., Bettendorf, for appellee.

Considered by Schumacher, P.J., and Ahlers, J., and Vogel, S.J.*

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

(2022).
2

SCHUMACHER, Presiding Judge.

Trey Nygren appeals from the modification of a joint physical care provision.

Upon our de novo review, we find there has not been a substantial and material

change in circumstances warranting modification of the physical care provision of

the parties’ original decree. Accordingly, we reverse.

I. Facts & Proceedings

Trey Nygren and Lauren Underwood, formerly known as Lauren Nygren,

entered into a stipulation to dissolve their marriage. The stipulation incorporated

an agreement for joint legal custody and joint physical care, along with a parenting

plan for their only child, T.N., born in 2017. This stipulation was adopted by decree

filed on July 8, 2019. Trey had parenting time with the child every Wednesday and

Thursday, as well as every other weekend. On the weeks he did not have weekend

parenting time, Trey had parenting time with T.N. from Wednesday to Friday. On

days other than those awarded to Trey, Lauren had parenting time. The decree

afforded both parents specific vacation time with the child and designated holidays.

Trey was ordered to pay child support and Lauren was ordered to pay the

expenses incurred from daycare and school activities. The parties were ordered

to split medical costs incurred for T.N.

At the time of the modification trial, both Trey and Lauren had entered into

other relationships and were residing with their significant others. Both individuals

were reported to be positive influences on T.N. Trey and his significant other have

a five-month-old baby together. Trey’s significant other also has two daughters she

shares custody of with her ex-husband. T.N. is the only child that resides in
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Lauren’s home. The record reflects that T.N. is an intelligent, well-mannered child

that is bonded to both his mother and father.

Trey and Lauren live roughly thirty minutes apart. Lauren lives within

walking distance of the school the child will likely attend. The parties agreed as to

the school district for T.N. in the original decree and such is not an issue for this

appeal. Lauren works in real estate. At the time of trial, Trey was employed at a

long-term care facility doing maintenance work, directing activities, and assisting

in a memory care unit. He passed his boards a few weeks prior to trial to become

a physician assistant.

Six months after the entry of the original dissolution decree, Lauren filed a

petition for modification of the physical care provision of the decree. She alleged,

among other things, Trey did not communicate effectively with her, Trey caused

their child to be late or miss daycare, Trey did not attend medical appointments,

and Trey failed to utilize his allotted summer vacation time. Lauren also filed an

application for rule to show cause, arguing Trey should be held in contempt for

failing to pay child support and his share of the child’s medical bills.

A trial was held on March 30 and 31, 2021. At the time of trial, T.N. was

three years old. Lauren requested that the joint physical care arrangement be

modified to award her physical care. Trey requested that Lauren’s petition be

dismissed or that the court consider awarding Trey physical care.1 The district

court summarized the factual disputes between the parties as “Lauren feels as

though Trey is not doing enough or involved enough as a father.” The district court

1On appeal, Trey argues only that the court erred in modifying the joint physical
care arrangement.
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noted that “this is a very, very difficult case” because “both parents are very good

parents . . . [who] are smart, capable, and loving.” The court found that there had

been a substantial change in circumstances and awarded Lauren “primary physical

care.”2 The court noted the most obvious challenge since the entry of the decree

was the impact of a global pandemic, but did not believe such would be long term.

The court determined that Lauren was in a better situation to provide more stability

and continuity than Trey. The court determined that Trey had not willfully

disobeyed the court order to pay child support and medical bills. Trey appeals the

court’s modification ruling.

II. Standard of Review

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

equity. Thus, we review the district court’s decision de novo. Though we make

our own findings of fact, we give weight to the district court’s findings.” In re

Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016) (quotation marks and

citations omitted). “Prior cases have little precedential value, and we must base

our decision primarily on the particular circumstances of the parties presently

before us.” Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). “The

controlling consideration in child custody cases is always what is in the best

interests of the [child].” In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.

App. 2000) (quoting In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa Ct.

App. 1998)).

2We interpret the court’s order as granting Lauren physical care of the child, while
providing Trey liberal visitation. See Iowa Code §§ 598.1, .41 (2020).
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III. Discussion

Trey alleges the district court erred in determining a substantial and material

change of circumstances existed that warranted modification of the joint physical

care arrangement. Both Trey and Lauren request appellate attorney fees.

A. Modification of Physical Care

The legal framework for determining whether to modify a physical care

provision of a dissolution decree is well established:

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); see also Harris, 877

N.W.2d at 440.

Lauren points to three broad factors to demonstrate a substantial change in

circumstances: (1) the difficulty Lauren and Trey have in communicating; (2) Trey’s

lack of involvement in their child’s medical appointments, daycare, and

extracurricular activities; and (3) Trey’s failure to pay child support and medical

bills.3 Trey characterizes Lauren’s allegations as relating to his struggles in

3 Neither party alleges that the slight increase in distance between the parties’
respective homes is a substantial and material change of circumstances. The
parties’ residences both remain in Scott County, as was the case at the time of the
original dissolution decree.
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passing his licensing exam. We determine that Lauren’s evidence admitted at trial

does not rise to the level of a substantial and material change of circumstances

that is permanent and not within the contemplation of the original trial court. We

further determine that the record does not support that modification of the joint

physical care arrangement is in T.N.’s best interest.

As reflected in this record, the COVID-19 pandemic has complicated the

parties’ joint parenting agreement. To be certain, when the decree was entered in

2019, the district court and the parents could not have anticipated or developed a

playbook for co-parenting in a global pandemic. Trey believed the child should

stay with him during the day when he was not working to limit exposure, while

Lauren believed that daycare and the hiring of a private teacher was more

appropriate. Outside of the COVID-19 issue, neither party’s communication to the

other parent has been perfect. Trey has not always informed Lauren when he

plans to keep the child at home with him rather than taking the child to daycare.

Trey does not check his email every day, which is one of the parties’ forms of

communication. Trey did not immediately update Lauren with his new address.

Lauren failed to inform Trey of a therapy consultation appointment for the child

until after the fact. And, as the district court noted, there are times when Lauren

could allow some latitude and Trey could make an effort to plan.

Our courts have recognized that difficulty communicating between parents

can constitute a change of circumstances. See Harris, 877 N.W.2d at 441 (“An

important factor to consider . . . is the ability of the spouses to communicate and

show mutual respect.” (quotation and citation omitted)). Although difficulty

communicating certainly makes joint physical care difficult, “[t]o be significant
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enough to justify a denial of joint [physical care], a lack of ability to communicate

must be something more than the usual acrimony that accompanies a divorce.” In

re Marriage of Ertmann, 376 N.W.2d 918, 920 (Iowa Ct. App. 1985); see also

Armstrong v. Curtis, No. 20-0632, 2021 WL 210965, at *2 (Iowa Ct. App. Jan. 21,

2021) (“Tension between the parents is not alone sufficient” to warrant

modification).

Modification may be proper when the evidence shows animosity that goes

beyond communication difficulties. See Tressel v. Kuehl, No. 18-1189, 2019 WL

1294216, at *3 (Iowa Ct. App. Mar. 20, 2019) (holding that the assault of the mother

by the father in the child’s presence and issuance of a no-contact order preventing

contact between the parents warranted modification of a shared physical care

arrangement); In re Marriage of Malloy, No. 16-0274, 2016 WL 7404611, at *5

(Iowa Ct. App. Dec. 21, 2016) (denying request for modification of shared physical

care based on mother’s allegations that the father exercised inconsistent and

unannounced visits that interrupted the children’s lives). Furthermore, the

animosity must have “a disruptive effect” on their child’s life. See Melchiori, 644

N.W.2d at 368.

Lauren and Trey’s communication difficulties do not rise to the level

warranting modification. The record contains many text messages and email

conversations demonstrating the parents are able to converse civilly about their

child, ensuring they are each informed and able to meet the child’s needs. See

Ertmann, 376 N.W.2d at 920 (noting that a willingness to communicate for the sake

of the child weighed against modification). The communication is frequent.

Moreover, it appears both parents take active steps to avoid speaking negatively
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of the other in front of their child and have instructed their significant others and

extended family to refrain from such as well. Consequently, this is not a case

where “[t]he depth of [the parents’] animosity toward each other is not lost on the

[child].” Harris, 877 N.W.2d at 434; cf. Malloy, 2016 WL 7404611, at *5 (“The

record reflects the children have thrived and maintained a close relationship with

both parents.”).

To both parents’ credit, Trey and Lauren’s disagreements do not appear to

have a disruptive effect on their child. Both have worked diligently to keep their

young child out of the middle and out of earshot of any disagreements. A school

psychologist met with T.N. twice at Lauren’s request. The psychologist testified

he had no concerns about the child and that he is a “developmentally really strong

little dude.” Other witnesses described the child as intelligent for his age and

happy. The record does not indicate that the parents’ communication is having a

negative impact on their child’s development and well-being. See In re Marriage

of Dauterive, No. 18-0381, 2019 WL 1056816, at *3 (Iowa Ct. App. Mar. 6, 2019)

(finding the parents’ disagreements did not warrant modification when the child’s

“well-being was [not] imperiled by the acrimony”). Lauren and Trey’s

communication does not result in a substantial and material change in

circumstances. See In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007)

(“Physical care issues are not to be resolved based upon perceived fairness to the

spouses, but primarily upon what is best for the child.” (emphasis omitted)).

Similarly, Lauren’s allegations of Trey’s lack of involvement in organizing

and participating in his child’s medical care and extracurricular activities do not

amount to a substantial and material change in circumstances. Trey admitted to
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not attending all of the medical appointments if Lauren was present. However, this

pattern has not impacted the child’s welfare. Quite the opposite, Lauren and Trey’s

child was described at trial as outgoing, intelligent, happy, and healthy. T.N. has

not suffered medically as a result of Trey’s parenting. On these allegations, we

determine a lack of a substantial and material change in circumstances warranting

modification of the parties’ joint physical care arrangement. We further determine

that Trey’s admission that he did not sign the child up for any extra-curricular

activities does not equate to a substantial and material change in circumstances.

In reaching its decision, the district court focused on factors enunciated in

Hansen: stability and agreement on child rearing practices. See id. at 696-99.

While being careful to clarify that it was not finding Trey lacked stability, the court

found, “Lauren will be in a better situation to provide more stability and continuity

than Trey will.” The court rested this finding on the fact that Trey is searching for

a new job and may need to move in the future. We determine this does not rise to

the level of a substantial and material change. The moving party bears a significant

burden in a modification action. See Harris, 877 N.W.2d at 440 (“The party seeking

to modify a dissolution decree thus faces a heavy burden . . . .”). Factors that may

be important to an initial physical care determination may not be able to overcome

the strong burden of proof necessary in a modification action. See In re Marriage

of Dethrow, 357 N.W.2d 44, 45 (Iowa Ct. App. 1984) (distinguishing between the

standards used in initial custody awards from the standard used in modifications

of custody awards).

To the extent relevant to the instant modification, on the record before us,

Trey has yet to obtain employment as a physician assistant. However, that issue
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was squarely “contemplated by the court when the decree was entered.” See

Frederici, 338 N.W.2d at 158. For instance, the stipulation provided that Trey

would be obligated to increase the amount of child support he paid after passing

his boards and obtaining a job as a physician assistant. At the time of trial, Trey

had not changed employment. We determine potential future employment without

further information as to location and distance from Trey’s current residence is not

a substantial and material change in circumstances.4

The district court correctly noted that Lauren and Trey are largely in

agreement over child-rearing practices. For instance, the parents agree on where

their child should attend school. Both parents agree the other is loving and

supportive of their child. The only notable disagreements on child rearing in the

record before us, outside of the COVID-19 concerns, involve how to deal with their

child’s “sleep hygiene” and disagreement on Trey occasionally keeping T.N. out of

daycare so the child could have more “dad days.” No doubt, the parents have

different parenting styles. However, the parents’ general agreement on how to

raise their child further supports maintaining joint physical care.

Trey was behind in child support payments and expenses for medical care

at the time of trial. He attributes this to a delay in passing his boards. Lauren

acknowledges such is not determinative of physical or shared care. While we do

not condone this delinquency, the district court determined that Trey was not in

contempt of court, and such finding has not been appealed.

4 While the district court cited future employment for Trey as a basis for
modification, Trey expressed intent to move closer to his son for work, rather than
further away.
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While there have been some minor changes in the parties’ lives following

the entry of the decree, on this record, we do not determine “that conditions since

the decree was entered have so materially and substantially changed that the

[child’s] best interests make it expedient to make the requested change.” See id.

We also determine the evidence does not support finding a modification is in the

child’s best interest. We reverse the modification of the joint physical care

arrangement.

B. Appellate Attorney Fees

Both parties seek an award of appellate attorney fees. Iowa Code section

598.36 permits an award of attorney fees to the prevailing party. In re Marriage of

Minjares, No. 19-0623, 2019 WL 6894283, at *2 (Iowa Ct. App. Dec. 18, 2019).

“Appellate attorney fees are not a matter of right, but rather rest in this court’s

discretion.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We may

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). Given these

factors relative to these parties, we decline to award appellate attorney fees.

REVERSED.