In re the Marriage of Aaron C. Schneider and Sarah A. Schneider

IN THE COURT OF APPEALS OF IOWA

No. 21-0124
Filed November 23, 2021

AARON C. SCHNEIDER,
Petitioner-Appellant,

vs.

SARAH A. SCHNEIDER,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.

Aaron Schneider appeals from the district court’s denial of his petition to

modify visitation. AFFIRMED AND REMANDED.

Abigail L. Brown of Leff Law Firm, L.L.P., Iowa City, for appellant.

Alison Werner Smith of Hayek, Moreland, Smith & Bergus, L.L.P., Iowa City,

for appellee.

Considered by Mullins, P.J., and May and Ahlers, JJ.
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AHLERS, Judge.

Sarah and Aaron Schneider divorced in 2013. At the time, they had no

children. After they divorced, the parties conceived a child, who was born in 2014.

Aaron filed an action to establish custody and address related issues. The parties

agreed to settlement terms that were incorporated into a stipulated decree filed in

2016. Under that decree, the child was placed in the joint legal custody of both

parents, with Sarah having physical care subject to Aaron’s visitation rights.

In 2018, Aaron filed a petition seeking modification of the decree to place

the child in the shared physical care of both parents or, alternatively, to grant Aaron

more visitation. The parties settled this modification action, leading to the filing of

a stipulated modification decree that kept the child in Sarah’s physical care while

increasing Aaron’s visitation time. Aaron’s increased visitation time included:

(1) alternating weekends from Friday night to Sunday night; (2) overnight every

Tuesday night; (3) holidays and birthdays on a schedule split between the parents;

(4) one-half of spring and Christmas breaks; (5) four weeks of annual vacation

time; and (6) unspecified phone or videoconference time.

A little over eight months after the 2018 modification decree was entered,

Aaron filed another petition for modification, again seeking shared physical care

or, alternatively, further increases in his visitation time. This time, the parties could

not reach a settlement, so a trial was held.

At trial, Aaron focused on several purported changes in circumstances since

the 2018 stipulated modification decree was filed. He claims the bond between

him, the child, and his family has strengthened; he has even more stability now

that he has married the person he had only been dating when he entered into the
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2018 stipulation; he has moved from renting an apartment to owning a home; he

has attained his doctorate degree and obtained full-time employment; and the

parties’ communication difficulties show an inability to co-parent that warrants a

change to shared physical care.

Following trial, the district court found there were no changed circumstances

warranting modification of physical care or visitation. The district court also

increased Aaron’s child support obligation and ordered Aaron to pay $12,868.00

of Sarah’s trial attorney fees. Aaron appeals, claiming the district court improperly

denied increasing Aaron’s visitation time and abused its discretion in ordering

Aaron to pay $12,868.00 of Sarah’s trial attorney fees. Both parties make a claim

for appellate attorney fees.

I. Standards of Review

As visitation modification proceedings are heard in equity, our review is de

novo. Christy v. Lenz, 878 N.W.2d 461, 464 (Iowa Ct. App. 2016). With de novo

review, we give weight to the district court’s factual findings, especially as to

witness credibility, but we are not bound by them. Id.

We review the district court’s award of trial attorney fees for abuse of

discretion. In re Petition of Fiscus, 819 N.W.2d 420, 424 (Iowa Ct. App. 2012).

II. Discussion of the Merits

We separately address the issues raised by the parties.

A. Modification of Visitation

In comparison to the change of circumstances needed to modify physical

care provisions of a decree, a much less extensive change in circumstances is

generally required to modify visitation. In re Marriage of Brown, 778 N.W.2d 47,
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51 (Iowa Ct. App. 2009). A parent seeking to modify visitation must establish by a

preponderance of the evidence that there has been a material change in

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

child’s best interests. In re Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct.

App. 1994). The parent seeking modification of visitation is not required to show

a substantial change in circumstances, as would be required if the parent were

seeking modification of physical care. Nicolou v. Clements, 516 N.W.2d 905, 909

(Iowa Ct. App. 1994).

Following our de novo review, we agree with the district court that Aaron

failed to meet his burden of showing a material change in circumstances not within

the court’s contemplation at the time of the 2018 modification. This modification

was filed just eight months after the 2018 stipulation was approved. Aaron asserts

largely the same purported changes in this modification petition as he asserted in

the petition he filed to start the 2018 proceeding. These alleged “changes” include

his academic progress; his housing situation; his relationship with his significant

other (now wife); a strengthened bond between the child, Aaron, and his family;

and Sarah’s alleged inflexibility and unwillingness to co-parent. Asserting largely

the same reasons for a modification in both petitions supports the conclusion there

is in fact no change in circumstances. Further, none of these circumstances relied

on by Aaron were outside the court’s contemplation just eight months earlier. As

the district court accurately noted, it was not unforeseen that Aaron would finish

his studies, remain in stable housing, marry his long-time girlfriend, or continue to

develop a bond with the child. Finally, the fact the parties experienced

communication problems since the 2018 modification decree was entered does
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not establish a material change in circumstances considering the evidence

showing those problems also existed before, especially when the nature of Aaron’s

communications contributes significantly to the problems.1

Accordingly, we affirm the district court’s denial of Aaron’s request for more

visitation.

B. Trial Attorney Fees

As Sarah was the prevailing party at the district court, the district court had

the authority to order Aaron to pay her reasonable attorney fees. See Iowa Code

§ 600B.26 (“In a proceeding . . . to modify a . . . custody[] or visitation order under

this chapter, the court may award the prevailing party reasonable attorney fees.”).

The district court has considerable discretion in awarding attorney fees. Bowlin v.

Swim, No. 19-1021, 2020 WL 2988537, at *9 (Iowa Ct. App. June 3, 2020).

Whether fees should be awarded depends on the parties’ respective ability to pay.

Id. The fees awarded must be fair and reasonable. Id.

1 Aaron seeks to portray the communication issues between the parties as Sarah
interfering with his rights as a joint legal custodian. In doing so, he relies
extensively on this author’s concurring opinion in In re Marriage of Rigdon to assert
such interference warrants the requested increase in his visitation. See No. 19-
1497, 2020 WL 7868234, at *1–2 (Iowa Ct. App. Dec. 16, 2020) (Ahlers, J.,
specially concurring). The focus of the special concurrence in Rigdon is on what
procedures are acceptable to resolve a bona fide dispute between joint legal
custodians over one of the five joint-legal-custodian issues stated in Iowa Code
section 598.1(3) (2019) (i.e., legal status, medical care, education, extracurricular
activities, and religious instruction). Id. Here, Aaron does not seek the court’s help
to resolve a disagreement over any of those five issues—indeed, it is not clear that
there even is a disagreement over the decisions ultimately made on any of those
issues. Rather, he seeks to use his claim that Sarah did not consult him on the
issues as a tool to leverage a change in visitation. Given these differences
between the concepts addressed in the Rigdon special concurrence and Aaron’s
attempted use of them here, we find the concepts embodied in that special
concurrence inapposite to the issue at hand.
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Sarah claimed $17,158.50 of attorney fees. The district court ordered Aaron

to pay $12,868.00 of Sarah’s fees. On appeal, Aaron contends this was an abuse

of discretion because he does not have the reasonable ability to pay the fees and

the district court never “directly found” Aaron had the ability to pay. We disagree.

The district court had at its disposal evidence of the parties’ financial situation as

well as current income information. In determining its fee award, the district court

noted the fees Sarah incurred were “reasonable and the services rendered were

necessary.” The court also noted it had balanced “the parties’ respective incomes

and the fact that Sarah is the prevailing party.” Given the parties’ respective

incomes, the reasonable and necessary nature of Sarah’s claimed fees, and the

fact Sarah was the prevailing party, we find no abuse of discretion in the district

court’s fee award to Sarah. We affirm on this issue.

C. Appellate Attorney Fees

Each party requests an award of appellate attorney fees against the other

party. Iowa Code section 600B.26 permits an award of appellate attorney fees to

the prevailing party. McCullough v. Cornette, No. 20-1211, 2021 WL 1399746,

at *3 (Iowa Ct. App. Apr. 14, 2021). An award of appellate attorney fees is not a

matter of right. Id. Instead, it rests in our discretion. Id. “In determining whether

to award appellate attorney fees, we consider the needs of the party making the

request, the ability of the other party to pay, and whether the party making the

request was obligated to defend the decision of the trial court on appeal.” Id.

(quoting In re Marriage of Hoffman, 891 N.W.2d 849, 853 (Iowa Ct. App. 2016)).

As Aaron is not the prevailing party, there is no statutory authority to award

him fees. As a result, his request for appellate attorney fees is denied.
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As Sarah is the prevailing party on appeal, she is eligible for an award of

appellate attorney fees. After considering Sarah’s needs, Aaron’s ability to pay,

and the fact Sarah was obligated to defend the decision of the district court on

appeal, we determine Aaron should be ordered to pay Sarah’s appellate attorney

fees in some amount. As we do not have an affidavit or other evidence of Sarah’s

appellate attorney fees available to us, remand is necessary to determine the

amount Aaron should pay. See Wendt v. Peterson, No. 20-0060, 2020 WL

4814153, at *4 (Iowa Ct. App. Aug. 19, 2020). On remand, the district court shall

determine the reasonable amount of Sarah’s appellate attorney fees and order

Aaron to pay an appropriate amount of those reasonable fees after considering

Sarah’s need, Aaron’s ability to pay, and Sarah’s obligation to defend the district

court’s decision on appeal.

III. Conclusion

We affirm the district court’s ruling in its entirety. We reject Aaron’s claim

for appellate attorney fees. We grant Sarah’s request for appellate attorney fees

and remand to the district court to determine an appropriate amount to order Aaron

to pay. Costs of appeal are assessed to Aaron.

AFFIRMED AND REMANDED.