IN THE COURT OF APPEALS OF IOWA

No. 22-0633

Filed December 7, 2022

IN RE THE MARRIAGE OF AUDREY SAMANTHA BOECK

AND KEENAN RUSSELL NELSON

Upon the Petition of

AUDREY SAMANTHA BOECK,

Petitioner-Appellee,

And Concerning

KEENAN RUSSELL NELSON,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Audubon County, Greg W. 

Steensland, Judge.

A father appeals from the order placing physical care of the parties’ children 

with the mother. AFFIRMED AS MODIFIED.

Jason S. Rieper of Rieper Law, P.C., Des Moines, for appellant.

Theodore R. Wonio of Rasmussen, Nelson & Wonio, P.L.C., Atlantic, for 

appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.

The timing of their children’s births—one before Audrey Boeck and Keenan 

Nelson’s divorce (E.N.) and one after (A.N.)—brings us to an issue in this appeal.1 

After the parties’ marriage was dissolved by decree, they reconciled for a while 

and had another child but never married again. After the parents separated the 

second time, in January 2021 Audrey petitioned to establish custody, support, and 

visitation of A.N. In the earlier stipulated dissolution decree, the district court 

granted the parties joint legal custody of E.N., placed physical care with Audrey, 

and ordered visitation with Keenan on Wednesday evenings and alternating 

weekends. So, now with Audrey’s pending petition on file as to A.N., Keenan filed 

a petition to modify physical care of E.N. The district court consolidated the cases 

to consider custody, care, and support of both children in the same proceeding. At 

the onset, the parties agreed on joint legal custody, but Keenan sought joint 

physical care of the children. Rejecting Keenan’s plan for joint physical care, at 

trial Audrey asked for physical care with a visitation schedule similar to that from 

the dissolution decree except Keenan’s Wednesday evening visitation would 

change to a Tuesday overnight visitation. The matter proceeded to trial on March 

1, 2022. Addressing both children, the court’s decree granted joint legal custody, 

placed physical care with Audrey, and continued the visitation schedule from the 

dissolution decree with slightly reduced visitation time. Keenan appeals. Audrey 

requests appellate attorney fees.

1 The parents were married from 2009 until 2011. E.N. was born in 2009. While 

the parents never remarried, they did reconcile from late 2012 until 2020, and it 

was during this time that A.N. was born (2013).
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I. Standard of Review

Proceedings to establish or modify physical care are held in equity, and we 

review the district court’s decision de novo. Hensch v. Mysak, 902 N.W.2d 822, 

824 (Iowa Ct. App. 2017); Christy v. Lenz, 878 N.W.2d 461, 464 (Iowa Ct. App. 

2016). We give weight to the court’s findings of fact, especially with regard to 

witness credibility, but they are not binding on us. Hensch, 902 N.W.2d at 824; 

Christy, 878 N.W.2d at 464. Our primary consideration for establishing and 

modifying physical care is the best interests of the children. Iowa R. App. P. 6.904.

II. Analysis

Two issues are raised on appeal by Keenan. He first asserts the district 

court should have awarded the parents joint physical care of the children. Then, 

in the alternative, Keenan seeks more visitation time than the district court 

awarded, claiming no evidence supported a reduction in the time compared to what 

he had under the dissolution decree. 

A. Joint Physical Care

We apply different standards when viewing the physical-care status of a 

child initially as opposed to when we are asked to modify an existing order. So, 

we address each child separately using the appropriate vantage point.

The Oldest Child—E.N.:

To change a custodial provision of a dissolution decree, the 

applying party must establish by a preponderance of evidence that 

conditions since the decree was entered have so materially and 

substantially changed that the children’s best interests make it 

expedient to make the requested change. The changed 

circumstances must not have been contemplated by the court when 

the decree was entered, and they must be more or less permanent, 

not temporary. They must relate to the welfare of the children. A 

parent seeking to take custody from the other must prove an ability 
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to minister more effectively to the children’s well being. The heavy 

burden upon a party seeking to modify custody stems from the 

principle that once custody of children has been fixed it should be 

disturbed only for the most cogent reasons.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The same burden 

applies to a parent seeking to modify physical care in favor of joint physical care. 

In re Marriage of Davis, No. 02-0314, 2002 WL 31641272, at *2 (Iowa Ct. App. 

Nov. 25, 2002).

Reconciliation of the parties and the subsequent birth of A.N. were certainly 

outside the parties’ contemplation at the time of the dissolution decree. Neither 

party disputes the existence of a substantial change in circumstances. But, we 

review Keenan’s request to modify the decree for a change to joint physical care 

over E.N. with this heavy burden in mind.

The Youngest Child—A.N.:

Without consideration of the heavy burden required to modify an existing 

decree, our review as to A.N. centers on evidence addressing the factors listed in

Iowa Code section 598.41(3) (2021). The controlling consideration is the best 

interests of the child. In re Marriage of Hansen, 733 N.W.2d 683, 695–96 (Iowa 

2007). When determining who will have physical care of the child, we will consider 

“stability and continuity with an eye toward providing the [child] with the best 

environment possible for [the child’s] continued development and growth.” Id. at 

700. “These factors favor a parent who was primarily responsible for physical care 

of the child[],” though we examine each case’s unique facts. In re Marriage of

Bain, No. 07-0333, 2008 WL 4325499, at *3 (Iowa Ct. App. Sept. 17, 2008).
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Finally, when a child is born of out wedlock, Iowa Code section 598.41 shall apply 

to the determination. See Iowa Code § 600B.40.

We start by considering four factors: “(1) stability, continuity of caregiving, 

and approximation; (2) ‘the ability of the [parents] to communicate and show 

mutual respect’; (3) ‘the degree of conflict between parents’; and (4) ‘the degree to 

which the parents are in general agreement about their approach to daily matters.’” 

In re Marriage of Hansen, 886 N.W.2d 868, 874 (Iowa Ct. App. 2016) (quoting In 

re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007)).

As to stability and continuity, Keenan asserts the parties co-parented during 

their relationship. However, he acknowledged Audrey was the children’s primary 

caregiver whenever the parties separated. He also acknowledged Audrey has 

always been primarily responsible for doctor visits and medical decisions, even 

while the parties were in a relationship. Further, Keenan’s lack of involvement with 

the children’s schooling did not support a co-parent role. The history of care by 

Audrey detailed in the testimony reflected her role as the primary caregiver over 

the children. Thus, stability and continuity favor Audrey continuing to act as the 

primary caregiver.

As to the other three factors involving communication and conflict, Keenan 

asserts the parties’ “struggles” are in the past and related to jealousy at the end of 

their relationship. He further described their conflict as “now virtually nonexistent” 

as they co-parent effectively. But the record is replete with examples of the parties’ 

disrespect, conflict, and disagreement both before and after their relationship 

ended. And with this dynamic in mind, Audrey offered reasons why minimizing 

stress for the children was important for their best interests.
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Text messages in the record show the parties appropriately co-parenting at 

times, but the messages also show open hostility and insults between the parties 

at other times. Keenan was charged with domestic assault from an August 2020 

incident with Audrey, and he eventually pled guilty to simple assault. Keenan 

testified he believes Audrey filed her petition seeking custody and care of A.N. 

because she was upset he had a new girlfriend, which indicates the same tensions

that ended their relationship were still present at trial. In December 2021, Keenan 

unilaterally decided to install monitoring software on the children’s cell phones and 

refused to share details of the software with Audrey; this conflict was only resolved 

when Audrey’s father bought the children new phones. 

An incident from summer 2021 is illustrative of the parties’ ongoing 

difficulties. On the day in question, Keenan took the children to the county fair. 

Audrey separately attended the fair at the same time. At a certain point, A.N. 

became separated from Keenan. Audrey testified she noticed A.N. alone and 

confused in a crowd, so they sat together on a bench to figure out what happened. 

Keenan soon found the two of them together on the bench. Audrey testified 

Keenan started “screaming” at both of them before she could say anything to him. 

Keenan denied yelling but acknowledged he “became extremely upset because 

Audrey never told” him she had A.N. Neither party’s version of events describes 

appropriate co-parenting that day. Our review of these factors does not support 

an award of joint physical care for A.N.

For the same reasons, we conclude Keenan failed to carry his burden that 

a change in physical care is in E.N.’s best interests. We find that Audrey is the 
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superior parent to address both E.N.’s and A.N.’s needs. Therefore, we affirm the 

court’s decision to place both children in Audrey’s physical care.

B. Visitation

As an alternative to the physical-care request, on appeal, Keenan 

advocates for more expansive visitation time with the children. In tandem with 

Audrey’s arguments visitation should be exercised with both children together, we 

review the visitation schedule recognizing that while Keenan did not specifically 

ask for more visitation time, he did ask for expanded time. For reasons unknown, 

the district court granted less visitation than Audrey offered at trial and less than 

Keenan exercised under the dissolution decree as to the older child.

2 Keenan has 

followed that same schedule with the younger child. We note that in her proposed 

parenting plan, Audrey requested that the “Court modify the . . . Decree and award 

[Keenan] every Tuesday overnight.” In her testimony, she reasoned that the 

overnight would make it easier for Keenan to have time with the children together 

given the busy activity schedule of the older child.

The parties live about fifteen minutes from each other and in the same 

school district. Despite the concerns with co-parenting, Audrey testified Keenan is 

a good father who is bonded with the children. And there was no evidence that 

there were serious problems with visitation as framed under the dissolution decree. 

On appeal, Audrey does not provide any reason to reject her own request to 

increase Keenan’s parenting time other than to assert the court already “provided 

equitable and reasonable visitation.” Seeing no argument to the contrary, we find 

2 The change would go from a five-hour Wednesday evening visit to an overnight 

on Tuesdays.
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Audrey’s request at the trial to increase visitation with Keenan is in the children’s 

best interests. We modify the decree as follows:

Keenan will be granted reasonable and liberal visitation to 

include a minimum of every other weekend commencing Friday after 

school (or at 4:00 p.m. if the child is not in school) until Sunday at 

8:00 p.m.; every Tuesday commencing after school (or at 4:00 p.m. 

if the child is not in school) and concluding the following day when 

school begins (or at 12:00 p.m. if the child is not in school).

C. Appellate Attorney Fees

Audrey requests appellate attorney fees. “Appellate attorney fees in a 

dissolution-of-marriage action are not awarded as a matter of right but rather rest 

in our discretion.” In re Marriage of Towne, 966 N.W.2d 668, 680 (Iowa Ct. App. 

2021). “Factors to consider in determining whether to award appellate attorney 

fees include ‘the needs of the party seeking the award, the ability of the other party 

to pay, and the relative merits of the appeal.’” Id. (quoting In re Marriage of Sullins, 

715 N.W.2d 242, 255 (Iowa 2006)). Audrey is employed full-time and has the 

means to pay her attorney fees. Each party had some success on this appeal and 

so we decline to award appellate attorney fees to Audrey. 

III. Conclusion.

We find joint physical care is not in the children’s best interests and confirm 

Audrey as the physical-care parent as to both children. We modify visitation with 

Keenan to Tuesday overnights and alternating weekends, as Audrey requested at 

the district court. We decline to award appellate attorney fees.

AFFIRMED AS MODIFIED.