Alexis Ficek v. Ronald Morgan, III

IN THE COURT OF APPEALS OF IOWA

No. 22-0217
Filed September 21, 2022

ALEXIS FICEK,
Petitioner-Appellee,

vs.

RONALD MORGAN, III,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.

A father appeals the district court’s disposition of his petition to modify

visitation, custody, and child support. AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED WITH INSTRUCTIONS.

Alexis Ficek, Pleasant Hill, self-represented appellee.

Kate Simon of Cordell Law, L.L.P., Des Moines, and Ronald Rieper, Des

Moines, for appellant.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2

CHICCHELLY, Judge.

Ronald (Ronnie) Morgan appeals the district court’s disposition of his

petition to modify visitation, custody, and child support for two minor children, A.M.

and E.M. The court declined to modify the most recent order between Ronnie and

the children’s mother, Alexis Ficek, except that it removed the supervision

requirement for Ronnie’s visitation. Upon our de novo review, we affirm the district

court’s ruling as to legal custody and child support, but reverse and remand with

instructions relative to the issue of visitation.

I. Background Facts and Proceedings.

Ronnie and Alexis were never married but have two minor children together,

A.M., born in 2011, and E.M., born in 2013. In 2015, the court entered a decree

establishing paternity, child custody, visitation, and support. Ronnie and Alexis

were awarded joint legal custody. Alexis was awarded physical care subject to

Ronnie’s scheduled visitation, which included alternating weekends and

overnights during the week. The court ordered Ronnie to pay $667.92 per month

in child support and provide health insurance for the children.

Ronnie began using opiates in approximately 2017 and later developed an

addiction to heroin. He entered an in-patient treatment facility in early 2019, but

upon his departure, Ronnie relapsed and overdosed while the children were in his

care. The children found him unresponsive and called a grandparent for

assistance. Ronnie re-entered in-patient treatment in July and eventually

transitioned to a sober living house from August into October. Ronnie relapsed

upon his release but maintains he has remained sober since October 27, 2019 and

no longer requires any form of treatment.
3

After Ronnie’s overdose in the children’s presence, Alexis filed an

application for modification of the court’s 2015 decree. Ronnie did not participate

in the modification case, and the court entered a default judgment in November

2019. The court awarded sole legal custody to Alexis and left Ronnie’s visitation

rights up to Alexis’s discretion—with visitation to occur as deemed to be in the best

interests of the children and under the supervision of Alexis, a professional

supervisor, or a third party chosen by Alexis.

Since then, Alexis and Ronnie’s co-parenting relationship has remained

rocky. As the district court noted, “they bicker inappropriately when discussing the

children” and “clearly do not agree on many issues.” Ronnie faults Alexis for,

among other things, not being more liberal with his visitation, limiting his phone

communication with the children, and over-enrolling the children in extracurricular

activities—particularly during the time they have agreed to set aside for his

visitation.1 Alexis likewise faults Ronnie for a number of issues, including

inconsistent and cancelled visits, lack of attendance at therapy sessions, and

“hostile” communication.

At the same time, Ronnie has started down a better path in many ways. He

provided five clean drug tests in the two years between the default modification

order and the modification trial presently under review. Although Ronnie struggled

to work and fell behind in child support during the height of his addiction, he has

maintained steady employment since April 2021. He is married, and his wife’s

1 The parties have engaged in mediation on at least two occasions. Most recently,
they agreed in May 2021 that Ronnie shall have parenting time with the children
every Saturday from 10:00 A.M. until 7:00 P.M.
4

three children reside in their home part-time. Ronnie is afforded regular,

unsupervised, and overnight visitation with his eldest child, R.M., born out of a

different relationship in 2008.

In December 2020, Ronnie filed a petition for modification, alleging a

substantial change in circumstances since the default order. After a bench trial in

November 2021, the court ordered the modified paternity order from 2019 to

remain in full force and effect, except that the provision requiring supervision of

Ronnie’s visitation be deleted. Ronnie filed a timely appeal.

II. Review.

Our review of custody proceedings for a child born out of wedlock is de

novo. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). We give weight to the

district court’s factual findings and credibility determinations, though we are not

bound by them. Id.; Iowa R. App. P. 6.907. “Prior cases have little precedential

value, except to provide a framework for analysis, and we must base our decision

on the particular facts and circumstances before us.” In re Marriage of Will, 489

N.W.2d 394, 397 (Iowa 1992).

III. Discussion.

A. Change in Circumstances and Best Interests of the Children.

Ronnie alleges the district court erred in finding that he did not establish a

substantial change in circumstances. He also maintains the court’s disposition

was not in the children’s best interests. As the party seeking modification, Ronnie

“must establish by a preponderance of evidence that there has been a material

change in circumstances since the decree and that the requested change in

visitation is in the best interests of the children.” Christy v. Lenz, 878 N.W.2d 461,
5

464 (Iowa Ct. App. 2016) (citation omitted). “‘[A] much less extensive change in

circumstances is generally required in visitation cases’ than the change necessary

to modify child custody.’”2 Id. (alteration in original) (citation omitted). “The

rationale for this lower standard is found in the prevailing principle that the best

interests of children are ordinarily fostered by a continuing association with the

noncustodial parent.” Id. (citation omitted).

While the district court found Ronnie did not satisfy the higher standard

necessary to modify custody, we note the court implicitly found there was at least

a material change in circumstances in relation to Ronnie’s abstinence from illegal

drugs, which was sufficient to support removing the supervision requirement from

his visitation. However, the court concluded that a structured visitation schedule

was not yet in the children’s best interests because Ronnie “does not appreciate

the gravity of his addiction” and “also does not appreciate the destructive impact

of his addictions on his children and Alexis.” The children’s therapist noted that

“Dad’s lack of consistency of involvement in their lives” has provided the children

with additional trauma. Ronnie does not accept any fault for this harm despite

numerous cancelled visits with the children. He admits his lack of attendance at

some visits and therapy sessions occurred because he lost his license after a 2019

conviction for operating while intoxicated and also because he was between jobs.

He also admits to still consuming alcohol.

2To modify child custody, the party seeking modification must establish a material
and substantial change in circumstances that is relatively permanent and was not
originally contemplated by the court. Thorpe v. Hostetler, 949 N.W.2d 1, 5 (Iowa
Ct. App. 2020).
6

In light of the trauma the children have experienced in their relationship with

Ronnie, the district court found a slow and unstructured approach to increased

visitation to be consistent with their best interests, leaving decisions concerning

the progression of visitation in the hands of Alexis. While we agree that a slow

approach to increased visitation is consistent with the children’s best interests

here, our cases do not support

the right of visitation [to be] contingent upon an invitation from the
party having custody of the child, or require the consent of one parent
for the other to visit the child, . . . thereby leaving the privilege of
visitation entirely to the discretion of the party having the child in
custody.

Smith v. Smith, 142 N.W.2d 421, 425 (Iowa 1966) (alteration in original) (citation

omitted); see also In re Marriage of Retterath, No. 14–1701, 2015 WL 6509105, at

*4 (Iowa Ct. App. Oct. 28, 2015); Thompson v. Fowler, No. 17-0284, 2017 WL

6513973, at *3 (Iowa Ct. App. Dec. 20, 2017); In re Marriage of Kanetomo, No. 19-

2008, 2020 WL 5650593, at *4 (Iowa Ct. App. Sept. 23, 2020). As such, we cannot

concur in the district court’s approach. While we do find the court acted equitably

in modifying visitation to remove the supervision requirement, we remand to the

district court to set a gradual visitation schedule for Ronnie that progresses, over

a period of no more than six months, to every other weekend from Friday at 5:00

P.M. until Sunday at 5:00 P.M., as well as additional visitation on a weekday or

worknight, the details of which shall be set by the district court upon consideration

of the children’s best interests.
7

B. Legal Custody.

Ronnie alleges the district court erred in denying his request to modify legal

custody. This determination requires a higher standard than that necessary to

modify visitation. See Christy, 878 N.W.2d at 464. To modify a custodial provision,

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.

Thorpe, 949 N.W.2d at 5. As explained above, the district court found Ronnie

failed to demonstrate a substantial, permanent change in circumstances. The

court’s ruling stated:

Although the court is hopeful that Ronnie has gotten past the worst
of his addiction, it does not bode well when he minimizes the
struggles he faces with substance abuse. . . . It will take time and
patience for Ronnie to rebuild trust with his children and Alexis,
neither of which he has demonstrated. He thinks of himself first and
the best interests of his children second.

We agree with the district court’s concerns regarding the substantial and lasting

nature of Ronnie’s progress. Therefore, we affirm the court’s refusal to modify

legal custody.

C. Modification of Child Support.

Ronnie does not dispute the district court’s calculation of child support,

which arrived at a figure within ten percent of the amount originally ordered in

2015.3 Rather, he argues the district court should have considered deviating from

3 Modification of child support orders is permitted “when there is a substantial
change in circumstances,” which exists when the result varies by ten percent or
8

the child support guidelines to do justice between the parties. He claims his

obligation is not sustainable and leaves him vulnerable to non-compliance because

he is unable to cover monthly expenses or catch up on his arrears to Alexis, which

total over $17,000. However, we find it was not an abuse of discretion for the court

to refuse to vary from the child support guidelines in this instance. See In re

Marriage of Hoksbergen, 587 N.W.2d 490, 492 (Iowa Ct. App. 1998) (setting forth

the standard of review). Iowa Court Rule 9.11 permits variance from the guidelines

when the court makes a written finding that their application “would be unjust or

inappropriate.” We do not find such an injustice based upon our review of the

record. Ronnie’s child support obligations will continue in the amount originally

ordered.

IV. Disposition.

We find the district court acted equitably and consistently with the children’s

best interests by refusing to confer legal custody or decrease child support for

Ronnie. On those issues we affirm. However, we remand to the district court to

set a visitation schedule consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

INSTRUCTIONS.

more. See Iowa Code § 598.21C(1), (2)(a). Therefore, the court did not disturb
Ronnie’s monthly obligation.