Upon the Petition of Ashley M. Christenson, and Concerning Zachary L. McNew
16-1144
| Iowa Ct. App. | Oct 26, 2016Background
- Child S.M. born 2012 to Ashley Christenson and Zachary McNew; parents never married. Parties cohabited until May 2013.
- While cohabiting, they entered a stipulated decree: joint legal custody, Ashley awarded physical care, Zach awarded visitation (with alternate schedule if he moved from night to day shifts), and Zach ordered to pay child support.
- After separation Zach moved out and began the decree visitation schedule; both later changed jobs and now work day shifts. Parties informally increased Zach’s parenting time by agreement.
- District court concluded the parties’ practices had effectively modified the decree into shared physical care, reduced Zach’s child support, and allocated extracurricular expense sharing; it denied Ashley’s motion to enlarge/amend.
- Ashley appealed, challenging the change in physical care, denial to amend, and denial of attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether physical care may be modified based on parties’ conduct/shift change | Ashley: No substantial change; decree contemplated shift change and parties’ informal arrangements cannot alter decree | Zach: Parties’ conduct (shared care while cohabiting and increased parenting time) effected a modification to shared physical care | Reversed: No substantial change; shift change was contemplated and parties’ informal accommodations cannot convert custody under rule of law |
| Whether parties’ informal increased visitation converts to substantial change | Ashley: Generosity/flexibility by custodial parent cannot be leveraged to claim substantial change | Zach: Increased parenting time supports shared-care finding | Court: Parties cannot unilaterally alter decree by conduct; generosity does not constitute substantial change |
| Whether child support should be recalculated given changed incomes | Ashley: Support should be recalculated under guidelines reflecting new incomes | Zach: Lowered support awarded below guidelines by district court | Remanded: Child support must be recalculated in accordance with guidelines |
| Whether trial court abused discretion by denying attorney fees | Ashley: Trial court should have awarded fees | Zach: Trial court acted within discretion | Affirmed: No abuse of discretion in denying attorney fees |
Key Cases Cited
- Melchiori v. Kooi, 644 N.W.2d 365 (Iowa Ct. App. 2002) (standard for modifying custody requires substantial, permanent change relating to child welfare)
- In re Marriage of Brown, 487 N.W.2d 331 (Iowa 1992) (parties cannot alter decree terms by subsequent conduct; decree language must be given effect)
- In re Marriage of Wosepka, 836 N.W.2d 152 (Iowa Ct. App. 2013) (custodial parent’s generosity in visitation cannot be converted into a substantial-change claim)
- In re Marriage of Williams, 589 N.W.2d 759 (Iowa Ct. App. 1998) (de novo review of equitable actions)
- Markey v. Carney, 705 N.W.2d 13 (Iowa 2005) (attorney-fee awards in family law discretionary)
- In re Marriage of Kimbro, 826 N.W.2d 696 (Iowa 2013) (appellate review standard for denial of trial attorney fees)