In re the Marriage of Cerwick

IN THE COURT OF APPEALS OF IOWA

No. 20-0780
Filed January 21, 2021

IN RE THE MARRIAGE OF JUSTIN WILLIAM CERWICK AND MACHELLE
LYNN CERWICK,

Upon the Petition of
JUSTIN WILLIAM CERWICK,
Petitioner-Appellant,

And Concerning
MACHELLE LYNN CERWICK, n/k/a MACHELLE LYNN PETERSON,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Webster County, Kurt J. Stoebe,

Judge.

A father appeals the modification order placing the parties’ children in the

mother’s physical care. AFFIRMED.

Dani L. Eisentrager, Eagle Grove, for appellant.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee.

Considered by Mullins, P.J., and May and Schumacher, JJ.
2

SCHUMACHER, Judge.

Justin Cerwick appeals the modification order placing the parties’ children

in the physical care of Machelle Peterson, formerly known as Machelle Cerwick.

We find Machelle has shown a substantial change in circumstances and that she

can minister more effectively to the children’s best interests. We therefore affirm

the modification of the physical care provision of the parties’ dissolution decree.

We order Justin to pay $5000 toward Machelle’s appellate attorney fees. We affirm

the decision of the district court.

I. Background Facts & Proceedings

Justin and Machelle were formerly married. They are the parents of three

children—J.C., born in 2005; N.C., born in 2007; and S.C., born in 2010. A

dissolution decree filed in 2012 gave the parties joint legal custody and joint

physical care of the children. Justin appealed the physical care provision of the

dissolution decree. See In re Marriage of Cerwick, No. 12-1188, 2013 WL

2370722, at *1 (Iowa Ct. App. May 30, 2013).1 We found “the issue of joint physical

care was not properly before the district court as neither party requested such an

arrangement.” Id. at *5. We determined the children should be placed in Justin’s

physical care, as he had been acting as the primary caretaker after the parties’

separation and his home was “the environment most likely to foster the children’s

physical, mental, and social maturity.”2 Id.

1 Machelle did not participate in the 2013 appeal.
2 In general, the district court is better able to make a decision in these situations
based on its ability to physically observe the parties. Our supreme court has
stated:
A trial court deciding dissolution cases is greatly helped in making a
wise decision about the parties by listening to them and watching
3

The case was remanded to the district court for a determination of visitation

and child support. Id. The district court granted Machelle visitation on alternating

weekends, alternating Wednesday evenings, alternating holidays, and three

weeks during the summer. Machelle was ordered to pay child support of $449 per

month.

On January 11, 2019, Machelle filed a petition for modification, claiming

there had been a substantial change in circumstances as Justin was not

adequately supervising the children and was not meeting their educational needs.

Machelle asked to have the children placed in her physical care. In September

2019, before the trial on the modification petition, allegations arose that Justin had

problems with substance abuse. The parties successfully moved to continue the

trial to allow for a drug test. Justin did not submit to a drug test until December 5,

which was negative for illegal substances.3

On January 14, 2020, Machelle filed a motion requesting that Justin be

required to have a drug test. She stated the request was based on Justin’s

behavior, living environment, physical appearance, and his history of drug use.

Justin did not object to the test, and the court sustained the motion. A hair test

was positive for marijuana metabolites, but a urine test on the same day was

them in person. In contrast, appellate courts must rely on the printed
record in evaluating the evidence. We are denied the impression
created by the demeanor of each and every witness as the testimony
is presented.
In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (internal quotation
marks omitted).
3 Justin agreed to hair follicle testing in September 2019 but did not have sufficient

hair on his body to complete the test.
4

negative.4 Justin lost about 100 pounds over a short period of time, which he

attributed to a change in his diabetes medication.

At the modification hearing, Justin’s former girlfriend, Abi, testified she and

her son, T.D., lived with Justin for several months in 2017. T.D. stated that during

this time, when he was sixteen or seventeen years old, he and Justin would use

methamphetamine once or twice a week at the home of Justin’s cousin, Sharon.

Abi confronted Justin in March 2018 after T.D. told her about his drug use with

Justin. According to Abi, Justin stated, “Well, yeah, we did, but wouldn’t you prefer

it was me instead of some stranger?” During the hearing, Justin denied using

illegal drugs. Sharon testified that she had a substance-abuse problem with

methamphetamine. She stated T.D. might have used methamphetamine at her

house but stated she did not know of any occasion when Justin used

methamphetamine.

Machelle alleged Justin was not meeting their children’s educational needs.

J.C., who was fourteen years old, was failing two classes and did not have a good

attitude about school. N.C., who was twelve years old, was interested in school

but was not always getting good grades. S.C., who was ten years old, was doing

a satisfactory job in school. Justin testified he was in frequent contact with the

children’s teachers but was unable to name the teachers. The children went to the

paternal grandparents’ home, where they did their homework before Justin picked

them up when he was done with work. Justin would review to see if the children

4 Justin denied using marijuana. He stated the test reflected his recent use of
ibuprofen.
5

had completed their homework but did not help them with their homework.

Machelle testified Justin would not inform her about the children’s school activities.

Machelle was also concerned about Justin’s mental health. Justin

previously threatened to commit suicide; he did not deny making statements of this

nature but stated he was joking. In addition, Justin told Machelle he wished she

would die. Machelle testified Justin was very controlling and did not support her

relationship with the children. One of the children testified Justin was “scary” when

he got angry.5

Furthermore, there was an issue of whether Justin was meeting the

children’s medical needs. J.C. was prescribed medication for ADHD, but Justin

permitted J.C. to quit taking it because “he doesn’t like the way it makes him feel,”

although there were questions about J.C.’s ability to stay on task in school.

Similarly, S.C. was prescribed medication and Justin testified “she’s been going to

school without the medication and she’s been doing good.”

After hearing the testimony during the modification hearing, the district court

found Justin was not a credible witness. The court found Justin’s “demeanor to be

overbearing and his reasoning to be convoluted. His testimony was driven by the

goal of retaining custody. He has limited insight into the predicament of his children

and does not objectively understand their best interests.” The court determined

T.D. gave credible testimony about using methamphetamine with Justin in 2017.

5 A further concern in the case were reports that Justin had used a paddle to
discipline the children. Justin and the children agreed this practice stopped after
the Iowa Department of Human Services investigated the reports.
6

Also, T.D.’s testimony was corroborated by the testimony of Abi. The court noted

this period coincided with Justin’s “sudden and dramatic weight loss.”

The district court found there was a substantial change in circumstances,

noting the children’s poor performance in school and their mental-health needs.

The court stated it had “serious concern for the children’s mental health after

hearing their testimony.” The court found the children were under “great stress,”

were at “great risk,” were “suffering,” and “[t]heir school performance is declining.”

The court found Machelle “appears to have a better grasp of the emotional needs

of her children. These needs are great, much a result of [Justin’s] quirky

personality and lack of introspection.” The court concluded the children should be

placed in Machelle’s physical care. Justin was granted visitation and ordered to

pay child support.6 Justin now appeals the district court’s decision.

II. Standard of Review

In this equitable action, our review is de novo. In re Marriage of Vaughan,

812 N.W.2d 688, 692 (Iowa 2012). We examine the entire record and adjudicate

the issues anew. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

We give weight to the fact-findings of the district court, especially in determining

the credibility of witnesses but are not bound by these findings. Iowa R. App.

P. 6.904(3)(g); In re Marriage of Olson, 705 N.W.2d 312, 313 (Iowa 2005). Our

6 Following the court’s ruling, Justin filed a motion pursuant to Iowa Rule of Civil
Procedure 1.904(2). The court modified the visitation schedule and adjusted
Justin’s child support obligation. Machelle then filed a rule 1.904(2) motion based
on the modifications. The court again adjusted the child support obligation. Justin
filed a second rule 1.904(2) motion, which the court sustained. Justin’s child
support obligation was set at $816 per month.
7

overriding consideration is always the children’s best interests. Iowa R. App.

P. 6.904(3)(o).

III. Discussion

Justin claims the district court should not have modified the parties’

dissolution decree to place the children in Machelle’s physical care.

The Iowa Supreme Court has stated:

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). “A party seeking

modification of a dissolution decree must prove by a preponderance of the

evidence a substantial change in circumstances occurred after the decree was

entered.” In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). Our

controlling consideration is the best interests of the children. In re Marriage of

Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000).

The children’s less than optimal performance in school, especially that of

J.C., was a substantial change in circumstances. In addition, Justin had not been

giving J.C. and S.C. prescribed medication that may have enhanced their

performance in school. The district court also found the children had mental-health

needs, stating the court had “serious concern for the children’s mental health after
8

hearing their testimony.” Furthermore, there was evidence Justin did not support

Machelle’s relationship with the children. He did not keep her informed of school

events and did not permit the children to speak to her on the telephone while they

were in his care. In addition, there was evidence Justin had been using illegal

drugs. Even if Justin was not using methamphetamine himself, he permitted T.D.,

who he knew had a substance-abuse problem, to live in the home with his children.

These are all changes that occurred after the dissolution decree was

entered, were more or less permanent, and affected the welfare of the children.

See Harris, 877 N.W.2d at 440. We conclude Machelle met her burden to show

there was a substantial change in circumstances affecting the welfare of the

children.

In order to modify physical care, a party must also show an ability to provide

superior care for the child. See In re Marriage of Malloy, 687 N.W.2d 110, 114

(Iowa Ct. App. 2004). “Our focus is on the long-range best interests of the

children.” In re Marriage of Grabill, 414 N.W.2d 852, 853 (Iowa Ct. App. 1987).

The primary goal is to place a child “in the environment most likely to bring that

child to healthy physical, mental and social maturity.” In re Marriage of Kunkel,

555 N.W.2d 250, 253 (Iowa Ct. App. 1996).

Machelle has shown she can better meet the children’s educational needs.

When Justin was incapacitated by a broken hip, Machelle worked with J.C. to

improve his grades. Justin told Machelle her help was no longer needed when he

felt better, and J.C.’s grades decreased again. Also, Justin was not giving J.C.

and S.C. their prescribed medication. The court found Justin did not recognize or

take steps to address the children’s mental-health needs. The court found
9

Machelle “appears to have a better grasp of the emotional needs of her children.”

Moreover, Machelle was willing to let the children communicate with Justin while

they were in her care. Machelle was able to support Justin’s relationship with the

children.

We conclude Machelle met her heavy burden to show she could minister

more effectively to the children’s best interests. See Frederici, 338 N.W.2d at 158.

We determine the district court properly modified the parties’ dissolution decree to

place the children in Machelle’s physical care.

IV. Appellate Attorney Fees

Justin and Machelle each seek attorney fees for this appeal. “Appellate

attorney fees are not a matter of right, but rather rest in this court’s discretion.” In

re Marriage of Stenzel, 908 N.W.2d 524, 538 (Iowa Ct. App. 2018) (quoting In re

Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006)). 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.

Justin’s attorney fee affidavit shows he has fees of $5780, while Machelle’s

attorney fee affidavit shows fees of $12,250. The child support worksheets show

the parties earn about the same amount of income. Justin was not successful on

appeal. Based on these factors, we conclude Justin should pay his own attorney

fees and pay a portion of Machelle’s appellate attorney fees in the amount of

$5000. Machelle shall be responsible for the remainder of her attorney fees for

this appeal.

AFFIRMED.