IN RE THE MARRIAGE OF AMBER K. WHITESIDE AND HARRY L. WHITESIDE JR. Upon the Petition of AMER K. WHITESIDE n/k/a AMBER K. DEWITT , Petitioner - Appell ee , And Concerning HARRY L. WHITESIDE JR. , Respondent - Appell ant .
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IN THE COURT OF APPEALS OF IOWA
No. 8-579 / 08-0002
Filed September 17, 2008
IN RE THE MARRIAGE OF AMBER K. WHITESIDE
AND HARRY L. WHITESIDE JR.
Upon the Petition of
AMER K. WHITESIDE
n/k/a AMBER K. DEWITT,
Petitioner-Appellee,
And Concerning
HARRY L. WHITESIDE JR.,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Colleen D.
Weiland, Judge.
Harry Whiteside appeals from the trial court’s ruling dismissing his
application to modify the visitation provisions of the parties’ dissolution decree.
AFFIRMED AND REMANDED.
Harry Whiteside Jr., Ionia, pro se.
Karla Shea, Waterloo, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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HUITINK, P.J.
Harry Whiteside appeals from the trial court’s ruling dismissing his
application to modify the visitation provisions of the parties’ dissolution decree.
We affirm.
I. Background Facts and Proceedings
Harry and Amber Whiteside (n/k/a/ Dewitt) were married on November 1,
1997. They have two children: Olivia, born in April 1999, and Darin, born in
December 2000. The decree dissolving their marriage was entered on October
14, 2002. The decree granted physical care of both children to Amber. Harry
was granted visitation every other weekend, from Friday evening to Sunday
evening, two weeks in the summer and alternating holidays.
On October 4, 2006, Harry filed a petition seeking modification of the
current visitation schedule. He requested the court extend his weekend visitation
from Thursday evening to Monday morning, one mid-week overnight visitation,
six weeks summer visitation and visitation on Father’s Day.
Harry’s stated
reasons for requesting extended visits were: (1) Amber willfully, intentionally,
deliberately, and systematically has denied Harry visitation with the children;
(2) Amber failed, neglected, and refused to keep Harry apprised of the children’s
scholastic progress, athletic endeavors, extracurricular activities, medical
appointments, and the general state of their health and welfare; (3) Amber has
subjected the children to an environment of isolation, separation, and alienation
from the respondent, their natural and biological father; and (4) Amber has
subjected the children to an environment of inappropriate behavior lacking proper
discipline and poorly chosen radio and television programs.
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The trial court’s December 3, 2007 ruling states:
The law of Iowa is clear that to succeed in an action for
modification of dissolution terms, Harry must show a substantial
change in circumstances. The record here shows that the parties
continue to have difficulty with communication which affects their
ability to arrange visitation acceptable to both. However, as
elaborated upon by the court on the record at the time of trial, Harry
has not proven a substantial change in circumstances since the
entry of the decree or the prior modification action which was
denied on December 6, 2005. The court therefore concludes that
the petition for modification filed by Harry should be dismissed.
On appeal, Harry claims there has been a change in circumstances
warranting modification of the visitation schedule. In addition, Harry asks that we
find the district court failed to hold Amber accountable for the court ordered
“Children in the Middle” class. He additionally contends the trial judge abused
her discretion by awarding Amber trial attorney fees.
II. Standard of Review
Our review of these equitable proceedings is de novo. Iowa R. App. P.
6.4.
We give weight to the fact findings of the trial court, especially when
considering the credibility of witnesses, but are not bound by them. Iowa R. App.
P. 6.14(6)(g).
III. Merits
As the parent awarded physical care, Amy has the responsibility to
maintain a residence for the children and has the sole right to make decisions
concerning the children’s routine care. In re Marriage of Hynick, 727 N.W.2d
575, 579 (Iowa 2007). As a noncaretaker parent, Harry is relegated to the role of
hosting the children for visits on a schedule determined by the court to be in the
children’s best interests. Id.
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Liberal visitation rights are generally regarded as in the children’s best
interests. In re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa Ct. App. 1987). It
is the quality and not the quantity of contacts with the noncustodial parent that
are the key to the well-being of the children. In re Marriage of Hansen, 733
N.W.2d 683, 695 (Iowa 2007). The children’s best interests do not require the
court to apportion any specific percentage of the available visitation time to the
noncustodial parent. In re Marriage of Bunch, 460 N.W.2d 890, 892 (Iowa Ct.
App. 1990). There is a need to balance the statutory goals of maximum parental
contact and the avoidance of unnecessary disruption for the children. See, e.g.,
In re Marriage of Guyer, 238 N.W.2d 794, 796 (Iowa 1976). As always, our
primary concern is the best interests of the children and not an equitable
arrangement between the parents. Bunch, 460 N.W.2d at 892.
A parent seeking to modify child visitation provisions of a dissolution
decree must establish by a preponderance of evidence that there has been a
material change in circumstances since the decree warranting modification and
that the requested change is in the best interest of the child. In re Marriage of
Salmon, 519 N.W.2d 94, 95-96 (Iowa Ct. App. 1994). This burden is substantially
less than required to modify custody. In re Marriage of Wersinger, 577 N.W.2d
866, 868 (Iowa Ct. App. 1998).
Based on our de novo review of the record, we find Harry’s earlier-recited
allegations are overstated and lack significant evidentiary support. Contrary to
Harry’s claims, the record indicates Amber has not denied or otherwise interfered
with his visitation rights under the decree. The record also indicates that Amber
has generally accommodated Harry’s demands for extraordinary visitation.
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Although the parties’ communication on issues of mutual concern could use
improvement, Harry’s requested modification is a disproportionate remedy.
Moreover, Harry has failed to show how circumstances have changed since the
decree was entered or that his existing visitation is insufficient to accomplish the
goals of maximum continuing contact with the children. Lastly, we note that
Harry has also failed in his burden to show how modification of the decree in the
particulars requested is in the best interests of the children.
IV. Trial Attorney Fees.
An award of attorney fees is not a matter of right, but rests within the
court’s discretion. In re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa
1994); In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). The
award should be reasonable and fair and based on the parties’ respective
abilities to pay. Scheppele, 524 N.W.2d at 680. We find no abuse of discretion
and affirm the trial judge’s award of trial attorney fees to Amber.
V. Appellate Attorney Fees.
An award of appellate attorney fees is discretionary and not a matter of
right. In re Marriage of Sprague, 545 N.W.2d 325, 328 (Iowa Ct. App. 1996). We
must 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 trial court’s decision on appeal.” Id. All of these factors weigh in favor of
awarding Amber appellate attorney fees. We remand this issue to the trial court
to determine the amount of attorney fees Amber incurred on appeal and to award
Amber the full amount so determined.
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VI. Conclusion
We have carefully considered the remaining issues raised on appeal and
find they were either not preserved for our review or are controlled by the
foregoing. The trial court’s ruling dismissing Harry’s application to modify the
parties’ dissolution decree is affirmed and remanded for further proceedings in
conformity with our opinion.
AFFIRMED AND REMANDED.
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