IN RE THE MARRIAGE OF DANIEL J. REICKS AND JANETTE REICKS Upon the Petition of DANIEL J. REICKS, Petitioner - Appellee, And Concerning JANETTE REICKS, Respondent - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-705 / 07-1163
Filed October 29, 2008
IN RE THE MARRIAGE OF DANIEL J. REICKS AND JANETTE REICKS
Upon the Petition of
DANIEL J. REICKS,
Petitioner-Appellee,
And Concerning
JANETTE REICKS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, John C.
Bauercamper, Judge.
Janette Reicks appeals from the denial of her petition for modification of
her modified dissolution decree seeking a change in the physical placement of
the three children. AFFIRMED AS MODIFIED.
Kevin E. Schoeberl of Story & Schoeberl Law Firm, Cresco, for appellant.
Christopher F. O’Donohoe of Elwood, O’Donohoe, Braun & White Law
Firm, New Hampton, for appellee.
Patrick Dillon, guardian ad litem for minor children.
Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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SACKETT, C.J.
Janette Reicks appeals from the denial of her petition for modification of
her modified dissolution decree seeking a change in the physical placement of
the three children she had with Daniel Reicks.
She contends, among other
things, she should have been awarded primary physical care of the children. We
affirm as modified.
The parties’ marriage was dissolved in 1999.
The dissolution court
approved and incorporated in the decree a stipulation of the parties that provided
they would have joint custody and shared physical care of their children born in
1990, 1992, and 1994. In November of 1999, Janette filed a petition to modify.
In October of 2000, the decree was modified to award primary physical care of
the three children to Daniel.
Janette filed a second petition to modify in
November of 2002, asking she be given primary physical care of the children.
After a hearing, the district court in September of the next year denied her
request.
Then in October of 2006, she filed the petition to modify physical care that
led to this appeal. The matter came on for trial in April of 2007. A guardian ad
litem appointed for the children recommended to the court that custody not be
changed. In the same month as the hearing, the district court denied Janette’s
request for modification of the placement of the children but modified the
visitation to give Janette additional visitation.
The court denied both parties’
request for attorney fees, held each party responsible for court costs advanced
by them or their attorney on their behalf, and expenses incurred by them to
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secure witnesses and evidence at trial.
Janette was ordered to pay the
remaining court costs, including the fees and expenses of the guardian ad litem.
Post-trial motions filed by Janette were denied.
SCOPE OF REVIEW. We review de novo. Iowa R. App. P. 6.4. Prior
cases have little precedential value, and we must base our decision primarily on
the particular circumstances of the parties presently before us. In re Marriage of
Kleist, 538 N.W.2d 273, 276 (Iowa 1995). We give weight to the trial court’s
findings of fact, but we are not bound by them. Iowa R. App. P. 6.14(6)(g).
Courts are empowered to modify the custodial terms of a dissolution decree only
when there has been a substantial change in circumstances since the time of the
decree or the time of a modification of the decree, not contemplated by the court
when the decree was entered, which is more or less permanent, and relates to
the welfare of the children. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.
App. 2002); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996). The
parent seeking to change the physical care from the primary custodial parent to
the petitioning parent has a heavy burden and must show the ability to offer
superior care. Melchiori, 644 N.W.2d at 368; In re Marriage of Mayfield, 577
N.W.2d 872, 873 (Iowa Ct. App. 1998). This is the burden Janette bears in
seeking primary care of the children.
ISSUES ON APPEAL.
Janette contends she has met the burden to
support modification of the children’s custody because of (1) the children’s lack of
academic progress and behavior problems, (2) Daniel’s failure to supervise the
children, (3) her strong bond with the children and her ability to communicate with
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them and Daniel’s reluctance to communicate concerning the children’s needs,
(4) the children’s preference, and (5) her de facto custody. Janette alternatively
seeks additional overnight visits. In addition, she requests modification of her
child support obligation and attorney fees.
A review of the record shows that both parents are concerned about their
children yet their communication with each other is poor. The children have had
some problems and while not particularly serious, each parent seems prone to
blame the children’s problems on the other. As the district court noted and we
find to be clear, the children have suffered from the parties’ failure to
communicate and their attitudes towards one another.
Daniel has allowed Janette additional visits which the oldest and youngest
children have exercised. An event in 2004 caused the middle child to become
angry with his mother and since that time he has had almost no contact with her
and she has made no real effort to correct this and re-establish a relationship
with the child. Nor has she, as the district court noted, attempted to arrange
counseling to improve their communication.
ACADEMIC PROGRESS. The children are not at the top of their class
but for the most part they do satisfactory work. Janette tends to blame any
problems they have had in school on Daniel, contending when the children are
with her they do better in school and he is not as concerned as is she about their
academic progress. The record does not support her contention. Both parents
are concerned about the children’s academic progress and both have been in
contact with their teachers and their schools. Daniel has shown considerable
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concern, for example, when one child had difficulty reading, he made provisions
for the child to attend the Sylvan Learning Center in a nearby community and
spent some $3000 or $4000 on tuition.
Janette was opposed to the child
attending the center because she did not feel the child would want to do this
during his summer vacation, and she did not think he should go to summer
school. There were transportation responsibilities for the child, none of which
she assumed. Daniel, also near time of trial, paid the fees so that his daughter
could join her Spanish class on a trip to Spain. The record does not support
Janelle’s argument that she is better able to meet the children’s academic needs.
FAILURE TO SUPERVISE. Janette contends she can better supervise
the children in that she has more regular work hours and consequently would be
more available to the children before and after school. Daniel’s hours are longer,
but he provides supervision for the children in the morning, and if he is not
available after school, his parents, who live a short distance from his home, are
available to check on the children, and do. Daniel is involved in the children’s
lives and they share household chores.
Janette also points to a situation where in March of 2004, some two years
prior to the petition here being filed, Daniel started a fire after cleaning out the
garage. Daniel went in the house. The children, then ages fourteen, twelve, and
ten, stayed around the fire and ultimately threw WD40 and other things into the
fire. There were no injuries. Janette learned of this when a child told her a can
of WD40 he had purchased was to replace one of his father’s cans he and his
siblings had thrown in a fire. The incident was reported to the Department of
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Human Services and an extensive investigation ensued. The Department found
Daniel had exercised a lack of supervision and he agreed to certain restrictions if
the children were around fires. We find, as did the district court, that there is no
evidence of a repeat of a similar problem, rather it was an isolated incident.
STRONG BOND AND CHILDREN’S PREFERENCE. Janette contends
she has a strong bond with the children and they want to be with her. The older
child, who at this writing is eighteen years old,1 indicated a preference to live with
her mother. The second child, now sixteen, is adamant that he will not live with
his mother. He has not exercised visitation with her for nearly three years and
she has made no attempt to reconcile with him. The younger child, fourteen,
says he would like to live with his mother but did not communicate a strong
preference and he has vacillated on this. There is little or no evidence to show
that the children may have a stronger bond with their mother than their father.
The Iowa courts have long recognized that deciding custody is far more
complicated than asking children what parent they want to live with. See In re
Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981). When we speak of what
is best for the child, we do not mean that which the child wants.
Lursen v.
Hendrichs, 239 Iowa 1009, 1015, 33 N.W.2d 383, 386 (1948). We give less
weight to a child’s preference in a modification action than in an original custody
decision. In re Marriage of Jahnel, 506 N.W.2d 473, 475 (Iowa Ct. App. 1993).
In assessing the children’s preferences, we look at, among other things, their age
and educational level, the strength of their preference, their relationship with
1
As an adult the issue of her custody is now moot though she qualifies for child support
until she completes high school.
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family members, and the reasons they give for their decision. In re Marriage of
Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct. App. 1985). We, as did the district
court, consider the children’s preferences but are not controlled by them. Nor do
we find good reason to separate the two younger children.
DE FACTO CUSTODY. Two of the children spent more time with Janette
than the modified decree provided.
Daniel cooperated with her having the
additional visitation. The middle child spent no time with her. She contends
Daniel in essence gave her primary physical care.
Daniel challenges her
records, and notes that her records do not show how many children stayed with
her and in many instances it was only one. There is no basis to this argument.
CHANGED CIRCUMSTANCES. After considering Janette’s arguments
above, we affirm the district court’s refusal to modify the decree to grant her
primary physical care. She has failed to show that she would be the superior
parent.
ADDITIONAL VISITATION. The visitation provisions of the October 2000
modified decree, which appear to be the ones that controlled the visitation that
were in place at the time of this modification hearing, basically gave Janette
visitation on alternate weekends from 6:00 p.m. on Friday to 7:30 p.m. on
Sunday, as well as every Wednesday while school was in session from after
school until 7:30 p.m. There also was provision for specific summer and holiday
visitations. The district court modified the decree to give Janette overnight visits
on both Wednesday and Thursday nights. She asks here that she be given
alternate overnight Sunday visits. We affirm the district court on this issue.
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CHILD SUPPORT. Janette contends if she is awarded primary physical
care she should be awarded child support. If she is not, because she has 167
overnights a year, she contends she should receive a twenty-five percent credit
to the amount of guideline support and the credit should be retroactive to January
1, 2005, when she began exercising a number of mid-week overnights on a
regular basis. We have affirmed the denial of her request for primary physical
care. We address her claim for credit. Daniel argued against her claim for the
reduction noting that the middle child is never in her care.
Iowa Child Support Guidelines Rule 9.9, Extraordinary Visitation Credit
provides:
If the noncustodial parent’s court-ordered visitation exceeds
127 days per year, the noncustodial parent shall receive a credit to
the guideline amount of child support in accordance with the
following table:
Days
Credit
128-147
15%
148-166
20%
167 or more but less than equally
shared physical care
25%
For the purposes of this credit, “days” means over-nights
spent caring for the child. Failure to exercise court-ordered
visitation may be a basis for modification.
Janette contends she has the children for more than 167 overnights but
she fails to give us the benefit as to how she reached this calculation. We do
agree, however, that it appears she is getting in excess of 1672 overnights, but
2
With the modification she basically had two nights of visitation twenty times, and
seven nights of visitation six times, and the additional two nights of visitation forty-six
times. Additionally she had holiday visits which are difficult to compute because some of
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this is only with two children; for she has failed to exercise visitation with her
middle son and there is no evidence to support a finding she will do so in the
future.
Janelle’s child support obligation is a fixed sum for the three children.
Consequently, in accord with the permission given by Iowa Court Rule 9.9 to
modify the percentage of credit where a parent fails to exercise court-ordered
visitation, we provide that she shall have a 16.7 percent credit against her child
support obligation of $445.00 a month until such time as the older child is no
longer eligible for child support. At that time her credit shall be reduced to 12.5
percent of her child support obligation of $381.00 a month. When only one child
remains subject to support, her credit shall be twenty-five percent of her child
support of $289.00 a month.3 We modify accordingly. We deny her request for a
retroactive credit. Prior to the modification of visitation her court ordered visits
were less than the required number of days to receive a credit4 and she had no
visits with her middle son.
ATTORNEY FEES AND COSTS.
Janette contends she should have
been awarded attorney fees by the district court and the cost of the guardian ad
litem should be taxed in its entirety to Daniel.
the holidays would come during her regular visitation and some of Daniel’s holidays
would also come during her regular visitation.
3
These child support amounts were fixed by the court in the October 5, 2000,
modification and were not modified in the September 26, 2003, modification or in the
modified decree from which this appeal was taken.
4
Before the modification she basically had two nights of visitation twenty times, and
seven nights of visitation six times. Additionally she had holiday visits which are difficult
to compute because some of the holidays would come during her regular visitation and
some of Daniel’s holidays would also come during her regular visitation.
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A.
At the district court. The decision to award attorney fees rests
within the sound discretion of the court, and we will not disturb its decision absent
an abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa
1999). The district court did not abuse its discretion on this issue.
B.
Appellate attorney fees. Janette also requests appellate attorney
fees. Daniel did not file a cross-appeal requesting attorney fees but contends
that he should have appellate attorney fees to discourage Janette’s further
litigation of this matter.
Appellate attorney fees are not a matter of right, but rather rest in this
court’s discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).
In arriving at our decision, we consider the parties’ needs, ability to pay, and the
relative merits of the appeal. In re Marriage of Sullins, 715 N.W.2d 242, 255
(Iowa 2006). Applying these factors to the circumstances in this case, we award
Daniel $3000 in appellate attorney fees. Costs are taxed one-half to each party.
AFFIRMED AS MODIFIED.
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