Upon the Petition of Ashley M. Christenson, and Concerning Zachary L. McNew

IN THE COURT OF APPEALS OF IOWA

No. 16-1144
Filed October 26, 2016

Upon the Petition of
ASHLEY M. CHRISTENSON,
Petitioner-Appellant,

And Concerning
ZACHARY L. McNEW,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Paul R. Huscher,

Judge.

Ashley Christenson appeals the modification of a stipulated decree

concerning visitation and custody. REVERSED AND REMANDED.

Hilary J. Montalvo of Caldwell, Brierly, Chalupa & Nuzum, P.L.L.C.,

Newton, for appellant.

Zachary L. McNew, Newton, appellee pro se.

Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

Ashley Christenson appeals the district court’s modification of a stipulated

decree of visitation and custody. We find there has been no substantial change

in circumstances justifying modification of physical care. We also find there has

been a substantial change in circumstances requiring child support to be

recalculated. Accordingly, we reverse and remand for further proceedings.

I. Background Facts and Proceedings

S.M. was born in 2012 to Ashley and Zach McNew. They were never

married but cohabited in Ashley’s parent’s basement until May 2013. While living

together, at Ashley’s urging, they agreed to a stipulated decree of visitation and

custody. The decree provided joint legal custody to the parties, physical care of

the child to Ashley, and required Zach to pay child support. The decree also

outlined visitation for Zach and included provisions should Zach change from

working nights to days.

After Ashley and Zach separated, Zach moved into his parents’ home and

began visitation on the schedule set forth in the decree. Both parties have

changed jobs and Zach now works days. After changing from working nights to

days, Zach and Ashley switched to the adjusted schedule in the decree. When it

became apparent to them the child would benefit from more time with Zach,

Ashley agreed to increase Zach’s visitation. Additionally, both parties made

significantly more money after transitioning to their new jobs.

The district court entered a Modification of Decree finding Zach and

Ashley had modified the decree by their actions and instead of Ashley having

physical care, the parties had in fact converted their agreement into shared
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physical care. The modification also set out a visitation schedule if the parties

could not agree on an equitable division of time, reduced Zach’s child support

obligation, detailed the sharing of expenses for future extracurricular activities,

and restated Zach’s responsibility to maintain insurance for the child. Ashley

challenged the ruling by filing a motion to enlarge and amend the trial court’s

ruling; the motion was denied. Ashley now appeals the change of physical care,

the denial of her motion to enlarge and amend, and the denial of her request for

attorney fees.

II. Standard of Review

Our review of equitable actions is de novo. Iowa R. Civ. P. 6.907. We are

bound to examine the record and adjudicate the rights of the parties anew. In re

Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). We defer to

the district court’s determinations of credibility based on the unique opportunity to

hear the evidence and view the witnesses available to the district court. In re

Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).

III. Physical Care

Ashley claims the district court erred in determining the parties had shared

physical care of the child and in modifying the decree to reflect that change. A

court may modify the terms of a decree “only when there has been a substantial

change in circumstances since the time of the decree, 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).
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The decree was originally formulated while Zach and Ashley were

cohabiting and granted Ashley physical care. Zach was granted visitation which

took into account the fact he worked nights but provided alternate visitation if he

began to work a day shift. The district court’s modification found Zach’s

transition to a different shift contributed to a substantial change in circumstances;

however, because this was contemplated in the original decree, we find this

change an inappropriate basis for modification of the decree.

While living together, Zach did care for the child while Ashley worked. The

district court found this amounted to shared physical care. The district court also

found this to be a substantial change not contemplated in the initial decree. We

disagree. We find the parties cannot adjust the terms of the decree by their

actions. See Brown, 487 N.W.2d at 51. The express language of the decree

“should have force and effect, and be given a consistent, effective, and

reasonable meaning.” See id.

Additionally, a party may not leverage the grant of extra visitation or

flexible visitation given by the custodial parent into a substantial change of

circumstance claim. In re Marriage of Wosepka, 836 N.W.2d 152 (Iowa Ct. App.

2013). Allowing one parent to take advantage of the other’s generosity and

willingness to accommodate changes in schedules would discourage cooperation

and effective co-parenting. Therefore, we find there has been no substantial

change of circumstances to justify a change in physical care. Ashley also claims

the district court erred in denying her motion to enlarge and amend; we find it

unnecessary to address this claim.
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IV. Child Support

Ashley further claims Zach’s child support obligation should be

recalculated in line with the parties’ new incomes. We agree and remand to the

district court to calculate the amount of child support in accordance with the

guidelines.

V. Attorney Fees

Ashley also claims the district court erred by refusing to award attorney

fees. An award of attorney fees is not a matter of right but rests within our

discretion. Iowa Code § 600B.26 (2015); Markey v. Carney, 705 N.W.2d 13, 25

(Iowa 2005). We review the denial of trial attorney fees for an abuse of

discretion. In re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013). We find

the trial court did not abuse its discretion and so we deny Ashley’s request for

attorney fees.

REVERSED AND REMANDED.