Opinion
No. 2-736 / 02-0185
Filed October 30, 2002
Appeal from the Iowa District Court for Pottawattamie County, Leo F. Connolly, and Timothy O'Grady, Judges.
Respondent appeals the district court's order modifying the visitation provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED.
Suellen Overton, Council Bluffs, for appellant.
Jon Heisterkamp of Peters Law Firm, Council Bluffs, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Curtis McKeon appeals from the district court's order modifying the visitation provisions of the parties' dissolution decree. He contends the district court erred in finding a substantial change in circumstance warranted modification. In the alternative, he argues the district court erred in the manner in which it modified visitation. He also contends the court erred in finding him in contempt of court. Sandra McKeon requests an award of appellate attorney fees. We affirm the district court's order as modified.
I. Background Facts and Proceedings. Curtis and Sandra's seven-year marriage produced two children, now aged nine and seven. Their October 2000 dissolution decree memorialized their agreement as to child custody and visitation issues. Curtis, a fire fighter, was awarded primary physical care of the children. With respect to visitation, the decree states:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that since the respondent is a fireman and works ten 24 hour days per month, the petitioner shall have visitation on six to eight of the ten 24-hour shift days with two extra days to extend her weekends if the respondent is already working on those weekends to allow her a longer block of time. The petitioner shall have her choice out of the six to eight 24-hour work periods that the respondent is working each month and the petitioner shall provide the respondent with her monthly schedule as soon as he receives the same. Petitioner shall also have such other and further visitation as the parties may from time to time agree as the schedule set forth herein shall be considered a minimum visitation schedule. Petitioner shall also have two one-week periods throughout the year in which to have visitation with the children after providing to the respondent a 60 day notice of her intent to exercise that visitation.
In January 2001, Sandra filed an application for contempt, alleging Curtis was denying her visitation. After a hearing, the district court dictated a specific visitation schedule for the remainder of January, February, and March. The district court later filed supplemental orders specifying visitation for various months.
In April 2001, Sandra petitioned for modification of visitation, alleging Curtis's lack of cooperation with visitation constituted a substantial change in circumstance warranting modification of the visitation schedule. Curtis filed a motion to establish visitation and reasonable telephone contact in May. In August, trial was held on the modification and contempt. The district court found a substantial change in circumstance warranted modification of the dissolution decree. The court additionally found Curtis in contempt.
The new visitation schedule provides Sandra with visitation every other weekend and every Wednesday. Sandra is also allowed four weeks of visitation over the summer months, which may be exercised in two-week intervals. Curtis appeals, alleging the court erred in modifying visitation and in finding him in contempt.
II. Modification of Visitation. Curtis first contends the district court erred in finding a substantial change of circumstance exists to warrant modification of the visitation provisions of the parties' dissolution decree. We review Curtis's claim de novo. See Iowa R.App.P. 6.4. We have a duty to examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996). We give weight to the trial court's findings of fact, particularly when considering the credibility of witnesses, but we are not bound by them. Iowa R.App.P. 6.14(6)(g).
To justify a change in visitation, a party must show there has been a change of circumstances not contemplated by the trial court at the time the decree was entered. See In re Marriage of Rykhoek, 525 N.W.2d 1, 3 (Iowa Ct.App. 1994). The burden to change a visitation provision in a dissolution decree is substantially less than to modify custody. In re Marriage of Wersinger, 577 N.W.2d 866, 868 (Iowa Ct.App. 1998).
We find a substantial change in circumstance warrants the modification of visitation. Curtis and Sandra have not been able to arrange a visitation schedule without intervention by the court. Curtis alleges Sandra has requested visitation with just hours notice and that she demands visitation on days he is not working, during his planned vacations, or for only a few hours or at times that did not coincide with his 24-hour shifts. Sandra alleges Curtis has not made the children available for visitation on the days she has requested and has changed the visitation schedule without consulting her. Both parties allege they have not been allowed phone contact with the children when the other party has them in their care. It is clear the parties have been unable to cooperate or communicate regarding visitation in a way envisioned in the decree. These difficulties qualify as a substantial change in circumstance. See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998).
In establishing visitation rights, our governing consideration is the best interest of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). Generally, liberal visitation is in a child's best interest as it maximizes physical and emotional contact with both parents. See Iowa Code § 598.41(1)(a) (2001). We find the district court's modified visitation schedule does not maximize contact with both parents and is not in the children's best interest.
The district court modified visitation to allow Sandra visitation every other weekend and every Wednesday night. Although this schedule was easier for Sandra, our governing consideration is the best interest of the children, not those of the parent seeking visitation. In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.App. 1994). The court's order fails to take into account the uniqueness of Curtis's work schedule. The record contains no information concerning Sandra's work schedule. The trial court referred to its modified visitation order as "the standard court order". Under the unique circumstances of this case, this visitation order will only serve to minimize the children's contact with both parents and increase the amount of time they spend in day care. This is not in the children's best interest. Accordingly, we modify the district court's order. The changes we make from the original decree are not dramatic as the visitation plan would have been in the best interest of the children if the parents had been able to cooperate. The changes seek to remedy this problem.
We order that Sandra have her choice of visitation during six of Curtis's work shifts per month. Visitation hours on these days shall be from 6:45 a.m. until 7:15 a.m the next day. Sandra is also granted up to two additional days of visitation each month on Saturday if Curtis is working on Friday and Sunday. Additionally, Sandra is entitled to four weeks of visitation in the summer, which may be taken in two-week blocks. Sandra will provide transportation for the visitation.
Curtis receives his work schedule in January of each year. Curtis is entitled to block out two one-week blocks in which Sandra is not allowed visitation, so that he may vacation with the children. After delineating which two weeks he wishes to take vacation, Curtis must provide his schedule to Sandra. Sandra may then take her pick of visitation days as provided above. Sandra must provide Curtis with notice of her intent to exercise visitation thirty days in advance of the scheduled visitation.
Finally, each party shall be allowed phone visitation with the children when they are not in their care at anytime before 5 p.m. and after 7 p.m., but no later than 9 p.m.
III. Contempt. Curtis next contends the district court erred in finding him in contempt. He argues substantial evidence does not establish he willfully disregarded the court's order. We review his claim for errors at law. Polk County Sheriff v. Iowa Dist. Court, 594 N.W.2d 421, 423 (Iowa 1999).
A finding of contempt must be established by proof beyond a reasonable doubt. Gizmo v. Iowa Dist. Court, 561 N.W.2d 833, 835 (Iowa Ct.App. 1997). Sanda has the burden of proving Curtis 1) had a duty to obey the court order, and 2) willfully failed to perform that duty. See Christensen v. Iowa Dist. Court, 578 N.W.2d 675, 678 (Iowa 1998). The burden then shifts to Curtis to produce evidence that the violation was not willful. See id. However, the burden to prove willfulness beyond a reasonable doubt always rests with Sandra. See id.
Evidence establishes willful disobedience if it demonstrates: Conduct that is intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with unconcern whether the contemnor had the right or not.
Gizmo, 561 N.W.2d at 835 (citation omitted). Curtis may show that his failure to comply with the order was not willful if the order was indefinite or if he was unable to perform the act ordered. Christensen, 578 N.W.2d at 678.
Curtis and Sandra gave conflicting testimony regarding the difficulties they encountered while attempting to effectuate visitation. Each party blames the other for these difficulties. However, the district court found Sandra's testimony to be more credible. We recognize the value in listening to and observing the parties and witnesses. See Iowa R.App.P. 6.14(6)( g). Therefore, we give weight to the district court's finding of credibility, although it is not binding. Id. We find the district court did not err in finding Curtis in contempt.
IV. Attorney Fees. Finally, Sandra requests an award of appellate attorney fees. Attorney fees are not a matter of right but rest within the sound discretion of the reviewing court. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). We decline to award Sandra appellate attorney fees.