In re the Marriage of Fox

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-0213
                             Filed February 17, 2021


Upon the Petition of

And Concerning

      Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.

      Gina Fox appeals the order modifying the child custody and support

provisions of the decree dissolving her marriage to Jeremy Fox. AFFIRMED.

      Michael E. Motto of Bush, Motto, Creen, Koury & Halligan, P.L.C.,

Davenport, for appellant.

      Catherine Z. Cartee of Cartee Law Firm, P.C., Davenport, for appellee.

      Considered by Doyle, P.J., and Tabor and Ahlers, JJ.

DOYLE, Presiding Judge.

       Gina Fox appeals the order modifying the child custody and support

provisions of the decree dissolving her marriage to Jeremy Fox. The August 2017

decree incorporated the parties’ stipulation to joint physical care of their daughter,

born in 2012. Jeremy petitioned to modify the decree in December 2018, seeking

physical care of the child. Gina filed an answer and counterclaim for physical care.

After a trial in November 2019, the court modified the decree to grant Jeremy

physical care and ordered Gina to pay child support.

       We review modifications of child custody de novo. See In re Marriage of


877 N.W.2d 434

, 440 (Iowa Ct. App. 2020). The district court’s fact findings

do not bind us, but we give them weight, especially when they involve witness

credibility. See Thorpe v. Hostetler, 

949 N.W.2d 1

, 5 (Iowa Ct. App. 2020). The

burden is on the party seeking modification to prove that a substantial change in

circumstances has occurred since the decree’s entry and that modification is in the

child’s best interests. See 

Harris, 877 N.W.2d at 440

. If a substantial change in

circumstances has occurred, the court may modify custody only if the party seeking

modification proves an ability to minister more effectively to the child’s well-being.


id. Gina first contends

Jeremy failed to prove a substantial change in

circumstances has occurred that warrants modifying physical care of their child.

But her counterclaim, which alleges she and Jeremy are no longer able to

effectively co-parent because of a breakdown in communication between them,

undermines her argument. “A party cannot take a position contradictory to or

inconsistent with [the] pleadings, and the facts that are admitted by the pleadings

are to be taken as true against the pleader, whether or not they are offered as

evidence.” Beyer v. Todd, 

601 N.W.2d 35

, 41 (Iowa 1999) (alteration in original)

(quoting Miller v. AMF Harley–Davidson Motor Co., 

328 N.W.2d 348

, 352 (Iowa

App.1982)). By Gina’s own admission, the parties are unable to co-parent, which

establishes a substantial change in circumstances. 

Harris, 877 N.W.2d at 441

(noting Iowa courts have modified joint physical custody “when the parents simply

‘cannot cooperate or communicate in dealing with their children’” (citation


       Gina also contends Jeremy failed to prove an ability to minister more

effectively to the child’s well-being. We disagree. Though Gina and Jeremy have

both acted as physical caretakers to the child, the record shows that Jeremy can

offer superior care. The record shows that since the parties’ divorce, Gina’s

alcohol and drug use has increased. While helping remodel Gina’s bathroom in

April 2018, Jeremy found and photographed bottles of prescription narcotics,

including a bottle of fentanyl. As a result, in November 2018, Gina’s employer fired

her from her job as a nurse at a hospital on reasonable suspicion of diverting

narcotics. In the same month, Gina tested positive for cannabinoids, which led the

Iowa Board of Nursing to issue her a citation for unauthorized use of a controlled

substance, and a warning that future violations may result in disciplinary action.

The record also shows that Gina used alcohol while caring for the child and while

driving the child from and to school.

       Gina responds to the evidence of her alcohol and drug use by implying that

Jeremy fabricates or exaggerates his claims, painting him as someone who

documents her alleged misdeeds in a manner calculated to make her look bad.

But the district court repeatedly found Jeremy’s evidence more credible.

Considering the court’s superior ability to view the witnesses and assess credibility,

we give weight to the court’s credibility findings. See In re Marriage of Vrban, 

359 N.W.2d 420

, 423 (Iowa 1984) (stating that because appellate courts “must rely on

the printed record in evaluating the evidence” and are “denied the impression

created by the demeanor” of the witnesses, there is “good reason for us to pay

very close attention to the trial court's assessment of the credibility of witnesses”).

       Since the divorce, Gina has been engaged in much conflict.              Jeremy

testified that Gina has caused trouble by threatening school officials and those

running the child’s extracurricular activities. Gina has caused a scene during

custody exchanges. And a 2019 report from the child’s therapist documents

concerning behavior at the child’s therapy sessions, observing: “In sessions with

Gina present, Gina wanted to be sure that ‘her attendance at therapy was on

record.’ . . . It was disturbing as to how negatively she discussed [Jeremy] in [the

child]’s presence.” The same report notes how much the tension between Gina

and Jeremy bothers the child, stating that the child “appears to be very much

disturbed and negatively affected by the conflict between her parents.”

       The evidence shows Jeremy is more mature, stable, and better positioned

to act in the child’s best interests as her physical caretaker. We affirm the order

modifying the decree to place the child in Jeremy’s physical care.


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