In re the Marriage of Swalin

IN THE COURT OF APPEALS OF IOWA

No. 24-1825
Filed November 13, 2025

IN RE THE MARRIAGE OF TODD LELAND SWALIN
AND AMY JO SWALIN

Upon the Petition of
TODD LELAND SWALIN,
Petitioner-Appellant,

And Concerning
AMY JO SWALIN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Wright County, DeDra Schroeder,

Judge.

A father appeals the modification of a marriage dissolution decree granting

physical care to the mother and dismissing his contempt application. AFFIRMED.

Dani L. Eisentrager, Eagle Grove, for appellant.

Robb D. Goedicke of Neighborhood Law Group of Iowa, P.C., West Des

Moines, for appellee.

Considered without oral argument by Tabor, C.J., and Greer and Buller, JJ.
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GREER, Judge.

Because the district court awarded Amy Swalin physical care of the parties’

two children in this modification of custody action, Todd Swalin appeals. The

district court also considered and denied Todd’s application for contempt of the

court’s orders against Amy. On appeal, Todd claims the district court erred in

(1) not awarding physical care of the children to him, and (2) not finding Amy in

contempt. Each party requests appellate attorney fees. We affirm the district

court’s decisions.

I. Background Facts and Prior Proceedings.

Todd and Amy divorced in September 2020, and their stipulation and

parenting agreement, incorporated in the decree of dissolution of marriage,

provided for joint custody and joint physical care of their children, T.S.1 (born 2015)

and R.S. (born 2018). At the time of their divorce, Amy and Todd resided in two

towns about fifty minutes apart. Per their agreed parenting schedule, during the

school year Todd would have custody of the children each weekend, alternating

weekly between Thursday through Sunday one week and Friday through Sunday

the next week. Amy’s parenting time would resume on Monday. In the summer

months while school was recessed, they alternated weeks. They agreed the

children would attend school in Amy’s town. Amy was responsible for transporting

the children, including bringing them to Todd on Thursday evenings, picking them

up for school Friday morning, returning them to Todd on Friday after school, and

picking them up from Todd on Monday morning.

1 Todd adopted T.S. when she was three years old.
3

Although the parenting agreement contained inspirational parenting goals,

things did not always go smoothly. To address his concerns related to their

parenting agreement, Todd filed an application for contempt in May 2021, and he

made several amendments to this application. In September 2022, the district

court found Amy in contempt of court for failing to deliver the children to Todd’s

home for his scheduled parenting time and for refusing to pay the children’s

medical bills. Todd was allowed seventeen days of makeup time with the children.

From August 2021 until October 2022, three child abuse allegations were made

against Todd to the Iowa Department of Health and Human Services; all

allegations were unfounded. The parents did most of their communication through

online parenting applications.

In August 2023, Todd applied to modify the custody order seeking physical

care of the children. The same day Todd filed another contempt action, and he

later amended it twice. Amy answered and counterclaimed, seeking the same

result for herself. Both alleged a substantial change in circumstances since the

entry of the decree and then stipulated to that finding before the modification trial.

At the August 2024 trial, Todd testified that he lives with his girlfriend Mindy,

who he began dating in August 2021. Mindy has three children, and the couple

have a daughter together. Mindy’s eldest child visits them every other weekend.

Her second eldest child resides in the home full-time, and her other child resides

in the home half the time.

Todd holds a bachelor’s degree and works at a factory and as a real estate

agent and has stake in a farming operation and rental properties. His factory hours

are 10:00 p.m. until 6:30 a.m. He testified that his real estate work has flexible
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hours and the farming operation does not require a lot of his time. He claims no

income from the rental properties or farming endeavor. Because he works

overnight, T.S. and R.S. sleep while he is at work and Mindy stays home with them.

Todd has described the relationship between Mindy and T.S. as a “challenge.”

Amy testified that R.S. “seems like she gets along [with Mindy], but [T.S.] says

Mindy is not nice to her.”

Amy testified that she lives with her common-law husband, Harley, their two

children,2 and T.S. and R.S. Amy’s and Harley’s relationship began in 2020.

Because of the transportation required for the custody arrangement Amy could not

work full time, so she ran an in-home daycare three days a week.

At trial Todd alleged several concerning behaviors of Amy. He was

concerned about the children’s attendance records at school and Amy’s choices

to keep the girls home from school or actions that caused them to be tardy. Todd

also testified that he was concerned about Amy’s drinking habits. On two

occasions, she has been arrested for operating while intoxicated (OWI), thus Todd

had concerns about her being intoxicated when picking up and dropping off the

children from school. Amy denied these allegations, noting that on each charge,

the children were not in the vehicle. And, the school principal, who walks T.S. to

the car at pickup, testified to no observation of any concerning behaviors. Todd

claimed Amy was intoxicated when talking to the children on the phone “on

average maybe once, twice a month.” As Todd testified, in June 2024, he received

a video of Amy “highly intoxicated” arguing with staff at a restaurant and the police

2 At the time of trial Amy and Harley shared two children and Amy was pregnant

with their third child.
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were called. Amy contends that she was not intoxicated but she had reported the

incident at the restaurant to police.

Todd and Amy disagreed about what activities the children should be

involved in, particularly those that would conflict with Todd’s parenting time. For

example, Amy signed the girls up for dance classes that end at 6:00 p.m., when

Todd’s visitation was scheduled to start. Todd and Amy disputed who should have

been responsible for transporting the girls from dance to Todd’s home.

At trial both parties agreed there was sufficient change in circumstances for

modification in that their previous parenting agreement was not working. As the

district court noted “[i]t is not at all surprising that this arrangement was

unsuccessful due to the distance between the parties’ homes, the parties’ inability

to coparent effectively, and the parties’ different personalities.” After trial the

district court denied Todd’s application for contempt and awarded physical care to

Amy. Todd appeals.

II. Standard of Review.

Applications to modify custody orders lie in equity and are reviewed de

novo. Venechuk v. Landherr, 20 N.W.3d 471, 475 (Iowa 2025). “While we are not

bound by the fact-findings of the district court, we give them weight, especially as

to credibility determinations.” Thorpe v. Hostetler, 949 N.W.2d 1, 4 (Iowa Ct. App.

2020).

“If there has been a finding of contempt, we review the evidence to assure

ourselves that the court’s factual findings are supported by substantial evidence”

and “[t]he district court’s legal conclusions are reviewed for errors of law.” In re

Marriage of Swan, 526 N.W.2d 320, 326–27 (Iowa 1995).
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III. Analysis.

A. Modification.

Todd argues that he was the superior parent and the district court erred in

not awarding him physical care of the children.3 We will not disturb the trial court’s

conclusions “unless there has been a failure to do equity.” In re Marriage of

Wessels, 542 N.W.2d 486, 490 (Iowa 1995). As always, our top concern is the

best interests of the children. Iowa R. App. P. 6.904(3)(n). To determine the best

interests of the children we consider the factors in Iowa Code section 598.41(3)

(2025), and the Iowa Supreme Court in In re Marriage of Winter, 223 N.W.2d 165,

166–67 (Iowa 1974). See In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa

2007). In deciding which parent should be awarded physical care “the factors of

continuity, stability, and approximation are entitled to considerable weight.” Id.

at 700. “The objective of a physical care determination is to place the children in

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

and to social maturity.” Id. at 695.

As noted by the district court “[b]oth parents in this case have positives and

negatives. [And it] is apparent that both parents love these children very much.”

We agree with this assessment. Still, Amy has primarily taken care of meeting the

children’s mental and physical needs; she takes them to school and is the parent

who schedules doctor’s and other appointments. There is no concern with Todd’s

3 Todd also claims the district court was biased against him due to his gender and

that the court “took great efforts to include arbitrary findings about Todd that cannot
be verified, specifically related to Todd’s demeaner in the court room.” We do not
share Todd’s sentiment that the district court showed bias toward him but instead
believe the district court’s findings included credibility observations that did not
favor Todd.
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ability to take care of the children, he simply has not been involved in the day to

day care to the same degree as Amy. The district court stated that Todd “seemed

unsure regarding the children’s medication, dosage, schoolteachers, and other

pertinent information that applies to the day-to-day care of the children.” Also,

Todd was less enthusiastic about the children’s involvement in extracurricular

activities as he felt the activities interfered with his parenting time. On his end,

Todd emphasized legitimate concerns over Amy’s OWI convictions, worrying that

her behavior would be a safety risk for the children. At trial he testified that he had

to drive T.S. to school because Amy arrived intoxicated. But, Amy denied she

drove intoxicated with the children or placed them at risk.

Notably T.S. has a strained relationship with Mindy. It has been

recommended that T.S. undergo trauma therapy that would ultimately involve Todd

and Mindy as participants. T.S. has had some behavioral problems noted by Todd

that appear to be “worse” when T.S. is interacting with Mindy. That strained

relationship provides another best interest consideration that favors awarding Amy

physical care.

As for the requirement that a parent support the other parent’s relationship

with the children, Todd’s constant monitoring of the failures of Amy, that often

included minor violations of the parenting plan, were not in the children’s best

interests. And while many of Todd’s concerns related to missed parenting time

when one child was sick, the district court noted that Todd did not offer to come

get the other child. On top of that, the district court observed Todd during the trial,

noting that Todd’s “distain of [Amy] was apparent both in his demeanor at trial and

in his communication with her in the exhibits and pleadings. [Todd’s] facial
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expressions when [Amy] testified and his tone when he testified and spoke of her

was notable.”

At trial Todd claimed that he is the more stable parent because he had “a

little more of a routine” than Amy. The district court noted that Amy was more

disorganized and often late taking the children to school and to their father’s home,

but even though that resulted in some parenting issues, the bottom-line was that

her behavior did not impact the children negatively. The elementary school

principal testified that “nothing stands out too much as an issue regarding the

children’s attendance or tardies.” Todd also claimed that the children relocating to

the school in his town would be a smooth transition because they know several

people at that school, but that factor weighed equally with Amy. Stability is more

than stringent routines. Amy has an established home for the children, and they

attend school and extracurricular activities in the area. See In re Marriage of

Flibotte, No. 09-0331, 2009 WL 5126114, at *4 (Iowa Ct. App. Dec. 30, 2009)

(awarding physical care to a parent in part because “the children attend school in

the area, and it is in their best interests that they continue in the same school”).

After considering the above factors and on our de novo review, we

determine Amy was properly granted physical care of the children. Because Amy

has been primarily responsible for the children’s physical care it would be best for

the children for her to continue to do so. See Hansen, 733 N.W.2d 683, 696 (Iowa

2007) (holding that “[s]tability and continuity tend to favor a spouse who, prior . . .,

was primarily responsible for physical care”). Similarly, the factor of approximation

favors Amy as she has handled the children’s physical care. Id. at 697 (holding

the approximation factor focuses on the “historic patterns of caregiving”). We
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expect Amy to support Todd’s relationship with the children as required under Iowa

Code section 598.41(5)(b). We affirm the district court's award of physical care to

Amy because it is in the best interests of the children.

B. Contempt.

Todd argues the district court erred in not finding Amy in contempt. A trial

court has broad discretion to decide whether to hold a party in contempt. See

Swan, 526 N.W.2d at 327. When a trial court has not held a party in contempt, we

will uphold the trial court decision “unless [that] discretion is grossly abused.” Id.

(citation omitted). Upon our review, we find that the trial court did not abuse its

discretion in denying the contempt application.

The burden was on Todd to prove that Amy acted in contempt of the court’s

orders. He claimed that Amy willfully and deliberately, and with a wanton

disregard, failed to drop off the children during his parenting time, including when

the children were ill, or do so in a timely manner; and that she did not inform Todd

about the children. As the district court noted “[n]ot every violation of a court order

will sustain a finding of contempt; it must be shown that there was a willful

disobedience.” Abraham v. Beeghly, 363 N.W.2d 596, 598 (Iowa Ct. App. 1984).

Willfulness is established with “evidence of conduct that is intentional and

deliberate with a bad or evil purpose, or wanton and in disregard of the rights of

others, or contrary to a known duty, or unauthorized, coupled with an unconcern

whether the contemner had the right or not.” Id. (citation omitted).

The district court did not find Amy’s actions to be willful disobedience. In

response to Amy not traveling with ill children the district court found that “[c]hildren

do not need to be transported to another parent’s home 50 minutes in a car when
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they are not feeling well.” Amy did not separate the children when only one of

them was sick, because the district court found “if [T.S.] is struggling with her

relationship with her father and her father’s significant other, it is not unreasonable

to consider the child’s needs that the children should go together on visitation with

their father so that they also have each other as a support system.” The district

court considered Amy’s actions to be in the best interests of the children and was

not “convinced that [Amy] acted with an evil or bad purpose.” Neither are we. We

find the district court exercised appropriate discretion in not holding Amy in

contempt.

C. Appellate Attorney Fees.

Todd and Amy each ask us to award them appellate attorney fees.

“Appellate attorney fees are awarded upon our discretion and are not a matter of

right.” In re Marriage of Heiar, 954 N.W.2d 464, 473 (Iowa Ct. App. 2020). When

deciding whether to exercise our discretion, “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. (cleaned up). We decline to award either party appellate attorney

fees.

IV. Conclusion

We affirm the district court’s award of physical care to Amy because it is in

the best interests of the children. The district court acted with appropriate

discretion in not finding Amy in contempt. And we decline to award either party

appellate attorney fees.

AFFIRMED.