In re Marriage of Frazier

IN THE COURT OF APPEALS OF IOWA

No. 22-0686
Filed June 21, 2023

IN RE THE MARRIAGE OF MARY C. FRAZIER
AND SHANNON L. FRAZIER

Upon the Petition of
MARY C. FRAZIER, n/k/a MARY C. STREICHER,
Petitioner-Appellant,

And Concerning
SHANNON L. FRAZIER,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, John Telleen, Judge.

A parent appeals the denial of an application for vaccination determination.

REVERSED AND REMANDED.

Jacob R. Koller and Ryan C. Shellady of Simmons Perrine Moyer Bergman PLC,

Cedar Rapids, for appellant.

Richard A. Davidson of Lane & Waterman LLP, Davenport, for appellee.

Heard by Tabor, P.J., and Schumacher and Chicchelly, JJ.
2

CHICCHELLY, Judge.

Mary Streicher, formerly known as Mary Frazier, appeals the district court’s order

dismissing her application for vaccination determination. Citing an impasse with her ex-

husband, Mary requested the court decide whether their children should be vaccinated

against COVID-19. The district court held it did not have jurisdiction to resolve a post-

decree dispute between joint legal custodians absent a petition for modification.

However, Iowa Code section 598.1(3) (2022) defines “joint legal custody” to mean that

“neither parent has legal custodial rights superior to those of the other parent.” To give

effect to this statute, it is necessary for the court to break the occasional impasse between

joint legal custodians and decide matters under the custodial umbrella.1 When the parties’

dissolution or other relevant decree does not address the issue, an application like Mary’s

is the appropriate vehicle to request the court’s tie-breaking intervention. Accordingly, we

reverse and remand with instructions that the district court hear Mary’s application on the

merits and make a determination consistent with the children’s best interests.

Mary and Shannon Frazier divorced in 2014. At the time of their dissolution, the

district court granted the parents joint legal custody of their two children. Mary was

awarded physical care. The decree required the parents to attend mediation prior to

initiating court proceedings should a conflict arise. Following an unsuccessful mediation,

Mary filed an “Application for Vaccination Determination” on January 31, 2022. Shannon

filed a resistance to the application, arguing that (1) Mary failed to properly invoke the

district court’s jurisdiction because she did not petition to modify the dissolution decree

1 Under Iowa Code section 598.1(3), this would include “decisions affecting the child’s
legal status, medical care, education, extracurricular activities, and religious instruction.”
3

and (2) the court lacks tie-breaking authority. The district court agreed with Shannon and

denied the application. Mary filed a timely appeal, which we review de novo. See Iowa

R. App. P. 6.907 (“Review in equity cases shall be de novo.”).

Our supreme court recognized the judiciary’s tie-breaking authority in Harder v.

Anderson, 764 N.W.2d 534, 538 (Iowa 2009): “When joint legal custodians have a

genuine disagreement concerning a course of treatment affecting a child’s medical care,

the court must step in as an objective arbiter, and decide the dispute by considering what

is in the best interest of the child.” We have held this authority extends beyond medical

care. See, e.g., In re Marriage of Bakk, No. 12-1936, 2013 WL 5962991, at *2 (Iowa Ct.

App. Nov. 6, 2013) (“Our supreme court has previously held the courts must step in as

arbiter when joint custodians disagree on issues with the care of a child. We find

educational decisions fall within this category.” (internal citation omitted)).

Despite the apparent consensus as to the court’s tie-breaking authority during the

original dissolution or custody proceeding, and appeals therefrom, the case before us

begs the question whether the court subsequently has such authority. Shannon argues

that any later tie-breaking authority is limited to petitions for modification. But in

modification actions, is the court truly serving in a tie-breaking capacity? For purposes of

modification, the court’s inquiry is different because it first must determine whether the

circumstances “have so materially and substantially changed that the children’s best

interests make it expedient to make the requested change.” In re Marriage of

Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

Moreover, what is there to modify in cases like these? See Hemesath v. Bricker,

No. 09-1064, 2010 WL 446990, at *4 (Iowa Ct. App Feb. 10, 2010) (“Although we accept
4

our role as a final arbiter in disputes between legal custodians, when the decree does not

address the issue in dispute, a modification action is not the appropriate vehicle to

address the issue.”). The parties’ decree does not address vaccinations. Mary does not

request a change to the award of joint legal custody or ask that the parties’ decision-

making authority be unbundled—nor may she. See In re Marriage of Makela, 987 N.W.2d

467, 471 (Iowa Ct. App. 2022) (concluding “the statutory definition of ‘joint legal custody’

leaves no room for a parceling of rights”).

Parents cannot possibly conceive of every possible disagreement they may

encounter and settle it during the initial custody proceedings. Nor will every dispute arise

from the requisite change in circumstances to warrant modification. In Vogt v.

Hermanson, No. 17-0303, 2017 WL 2875697, at *2 (Iowa Ct. App. July 6, 2017), a panel

of our court concluded a child should remain in the school district stipulated by the

parents’ decree because the party requesting modification failed to prove a material

change in circumstances. What if the decree had not named a school district? Our courts

still find it necessary to resolve such deadlocks. See Hemesath, 2010 WL 446990, at *4

(determining that although modifying the decree was inappropriate, it was necessary to

consider the issue of school determination). Under these circumstances, the district court

should consider the dispute an additional determination within the original dissolution

proceedings. See In re Marriage of Teepe, 271 N.W.2d 740, 742 (Iowa 1978) (concluding

the court properly considered the parties’ custody dispute to be within their original

dissolution proceeding because the wife was pregnant and unaware of it at the time of

the dissolution); In re Marriage of Smith, 269 N.W.2d 406, 408 (Iowa 1978) (treating

custody action as incident to original dissolution proceeding rather than a modification).
5

Further support for settling this dispute outside the realm of modification stems

from the court’s general equity powers described by Justice Carter’s special concurrence

in In re Quirk, 504 N.W.2d 879, 882 (Iowa 1993):

The question that the present case really presents is how a legal challenge
to such unilateral action is to be mounted. . . . On further reflection, I submit
that the correct view should be that the authority of a court to referee
disputes over the initial naming of a child, in which the parents cannot agree,
is found among the court’s general equity powers. While those powers may
be properly exercised in a pending dissolution action to resolve a then
current dispute over a child’s original name, there is no reason why they
may not also be exercised in an independent action brought for the single
purpose of resolving an original naming dispute. . . . It is not necessary nor
legally appropriate for this court to suggest that this issue be settled by filing
a modification petition in the now final dissolution action. There is no
provision concerning the child’s name in the original decree to modify. Nor
does the matter of a change of circumstances since the original decree (the
sine qua non for success in a modification action) have anything to do with
the issues of naming the child. This is an original issue that has not before
been ruled on.

Similarly, our supreme court has recognized “that a court of equity has inherent power

and jurisdiction in all proceedings involving the custody of minor children, and, that in

exercising that power and jurisdiction i[t] acts in the capacity of parens patriae, as a

department and agency of the State.” Helton v. Crawley, 41 N.W.2d 60, 71 (Iowa 1950).

Shannon argues that permitting applications like Mary’s will result in a flooding of

joint custody disputes in the courts. He points out that disputes could range from choosing

a religion to participation in extracurricular activities. However, this concern is more

appropriately a matter of public policy to be taken up with the legislature. And in the event

the relationship between joint legal custodians becomes too contentious, courts can and

will determine when it is appropriate to modify the arrangement and award sole legal

custody. See In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996) (concluding
6

parties’ inability to cooperate warranted modification from joint to sole legal custody).

Furthermore,

[m]ost litigants in dissolution proceedings do not want the court to
micromanage their lives, nor does any judicial officer wish to invade such
parental decision[-]making issues. Nevertheless, if the parents have
reached impasse, the final arbiter is the court, not the physical caretaker.
To conclude otherwise would result in the abdication of the other joint legal
custodian’s right to “equal participation” in such decisions.

Gaswint v. Robinson, No. 12-2149, 2013 WL 4504879, at *5 (Iowa Ct. App.

Aug. 21, 2013).

Prohibiting applications like Mary’s effectively gives greater authority to the road-

blocking party in any custodial dispute. It further encourages contempt proceedings,

which are of no assistance in the actual making of the decision and do not protect the

parents’ equal rights or the children’s best interests. See In re Marriage of Rigdon,

No. 19-1497, 2020 WL 7868234, at *2 (Iowa Ct. App. Dec. 16, 2020) (Ahlers, J., specially

concurring) (“The quasi-criminal nature of contempt actions, with the corresponding

burden of proof being beyond a reasonable doubt, may raise the bar too high to give

meaningful protection to the joint custody rights of the parent who does not have physical

care of the child.”). The court’s tie-breaking authority is necessary to fulfill the “equal

participation” mandate set forth in Iowa Code section 598.1(3). Applications for

determination of issues undecided by the original dissolution or custody proceeding are

an appropriate and necessary vehicle to invoke the court’s tie-breaking authority. Mary

properly invoked this authority. Therefore, we reverse and remand with instructions that

the district court hear Mary’s application on the merits and make a determination

consistent with the children’s best interests.

REVERSED AND REMANDED.
7

Tabor, P.J., concurs; Schumacher, J., dissents.
8

SCHUMACHER, Judge (dissenting).

In oral argument, counsel for Mary framed this case as follows:

From a fact specific perspective this case is about the COVID
vaccine. But this isn’t really a case about the COVID vaccine. It’s much
bigger than that. It’s about whether the court has the ability to decide
disputes between divorced parents as joint legal custodians when they have
a dispute concerning a child’s legal status, medical care, education, extra-
curricular activities, or religious instruction.

I respectfully dissent from the majority opinion that holds that a modification petition

is not required under these facts.

First, a determination must be made as to whether Mary properly invoked the

district court’s jurisdiction by filing what she captioned as an “Application for Vaccination

Determination.” On this record, I would conclude she failed to do so. District courts have

original jurisdiction of the subject matter of Iowa Code chapter 598 (2022). See Iowa

Code § 598.2. However, “[t]he issue here is not whether the district court lacked subject

matter jurisdiction. Rather the issue is whether the court lacked authority to hear” the

case. See Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa 1989). While often

confused, the concepts have important distinctions. “Subject matter jurisdiction refers to

‘the authority of the court to hear and determine cases of the general class to which the

proceedings in question belong.’” Id. (citation omitted). In contrast, the authority of the

court focuses on the ability of the court to decide a particular case. Id. That authority can

be derived by following statutory procedures. Id. “A party who ignores one or more of

the procedures does not invoke [the court’s] authority.” Id.

While the district court had subject matter jurisdiction of the claim, Mary failed to

invoke the court’s authority. “For all purposes, a civil action is commenced by filing a
9

petition with the court.” Iowa R. Civ. P. 1.301(1) (emphasis added). Mary did not petition

for modification, but filed an application for determination.2

While Mary cites a few examples of such applications being used, none of them

involved an actual dispute concerning the validity of instituting a proceeding on the basis

of an application for determination rather than a petition for modification. See, e.g., In re

Marriage of Jacobs, No. 16-2005, 2017 WL 5185435, at *1 (Iowa Ct. App. Nov. 8, 2017)

(noting an application for determination was used to modify a child support obligation to

a postsecondary education subsidy four years prior to the instant action); In re Marriage

of Bieber, No. 10-1273, 2011 WL 1136273, at *1 (Iowa Ct. App. Mar. 30, 2011) (treating

an “application for determination of school district” as a petition to modify physical care);

In re Marriage of Beal, No. 05-0636, 2006 WL 1279054, at *1 (Iowa Ct. App.

May 10, 2006) (observing the parents had instituted two applications for determination in

prior proceedings). Based on the clear language of rule 1.301, Mary failed to properly

invoke the district court’s authority to decide the case.

The parents also disagree on whether they reserved the district court’s authority in

their dissolution decree. I would determine they did not. While frowned upon, “[i]n some

circumstances, a district court can reserve jurisdiction to modify the custodial provisions

of the decree in the absence of proof of a material and substantial change in

circumstances.” In re Marriage of Hute, No. 17-0046, 2017 WL 3283382, at *1–2 (Iowa

2 Counsel for Mary argues that the filing of an application for the court to act as a tie-
breaker is a common practice. Counsel for Shannon argues it is not common and not
permitted by statute, and that the remedy is to modify the rights of the parents once legal
custodial status has been established. The oral arguments highlight the lack of uniformity
across the judicial districts on this issue, at least between these two neighboring districts,
judicial districts six and seven.
10

Ct. App. Aug. 2, 2017). “To effectively reserve jurisdiction, the decree must explicitly

provide the parties are relieved of the burden to show a material and substantial change

in circumstance as a prerequisite to modification of the custodial provisions of the decree.”

Id. at *2. Such language is lacking in the parties’ decree. Instead, the decree merely

notes that the parties must engage in mediation prior to beginning legal proceedings. The

decree thus did not reserve jurisdiction for the district court.

Finally, Mary claims that the district court’s determination that the court lacked

jurisdiction undermines case law that commands district courts to act as the final arbiter

in certain matters when joint-legal custodians come to an impasse. See, e.g., Harder v.

Anderson, 764 N.W.2d 534, 538 (Iowa 2009). The majority has joined in this rationale.

But Shannon asserted in oral arguments that the language in Harder is dicta, as that case

involved a request for injunctive relief. Shannon highlights, by allowing parents to file

these applications without a petition to modify custody, a district court is placed in a

position to decide issues ordinarily left to joint custodians, such as which religion a child

should be raised in, or whether a child will participate in sports.

Since Harder, this court has repeatedly noted district courts cannot unbundle

custodial rights between the parents by allowing one joint-custodian more power over

certain matters than the other. See, e.g., Armstrong v. Curtis, No. 20-0632, 2021

WL 210965, at *3 (Iowa Ct. App. Jan. 21, 2021) (collecting cases and noting that “joint

custody and sole custody [are] all-or-nothing propositions”); see also In re Marriage of

Comstock, No. 20-1205, 2021 WL 1016601, at *2 (Iowa Ct. App. Mar. 17, 2021) (reversing

a temporary order following the filing of a petition for modification that gave the parent

with physical care “tie-breaking” authority).
11

And our supreme court recently endorsed the determination that custodial rights

cannot be unbundled, upholding a decision on custody by this court that reversed a

provision in a dissolution decree because it granted one joint-custodian final decision-

making authority over the rights of the other joint-custodian. See In re Marriage of Sokol,

985 N.W.2d 177, 182 (Iowa 2023) (affirming as to the court of appeals’s decision on joint

custody, but reversing as to the court’s alimony determination). While not framed as a

request to unbundle, Mary is asking the court to override Shannon’s opposition to the

COVID vaccine. In the original decree, the parties were granted joint legal custody, which

would include medical decisions. While the majority opinion asserts vaccinations were

not addressed in the decree, joint legal custody concerning medical decisions would

appear to cover this issue.

Shannon asserts that by making a ruling on the merits, the court would effectively

be depriving one parent joint-decision-making authority on the matter. Even putting that

issue aside, the district court’s authority must still be properly invoked. As the district

court noted,

All the cases cited [by Mary] involved situations where the court was forced
to step in to decide a dispute concerning things such as schooling or
medical care in situations where the parties were properly before the court
on either a trial of the initial dissolution action or through an application for
modification of the decree. We have neither here.

Mary did not seek to modify the legal custodial status. And she does not allege a

material and substantial change since the entry of the decree in her application. Mary’s

application can be read as a request to unbundle a medical decision from the joint legal

custodial status. And to the extent Mary did not petition for modification, her application
12

for determination failed to invoke the district court’s authority. Accordingly, I would affirm

the district court dismissal.