IN THE COURT OF APPEALS OF IOWA

No. 16-0274

Filed December 21, 2016

IN RE MARRIAGE OF TRACI L. MALLOY

AND MICHAEL R. MALLOY

Upon the Petition of

TRACI L. MALLOY,

Petitioner-Appellant,

And Concerning

MICHAEL R. MALLOY,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Marshall County, James C. 

Ellefson, Judge.

A mother appeals from the district court’s order denying the application to 

modify physical care, denying the removal of a school-district-residency 

restriction, and reducing the father’s child support obligation. AFFIRMED.

Melissa A. Nine of Nine Law Office, Marshalltown, for appellant.

Michael Marquess of Hinshaw, Danielson & Marquess, P.C., 

Marshalltown, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

Traci Malloy appeals from the district court’s order denying her petition to 

modify the physical-care provisions of the stipulated custody agreement 

concerning the two minor children she has with her ex-husband, Michael Malloy. 

Traci also appeals the district court’s refusal to remove a residency provision 

which requires the children reside in the West Marshall School District. 

Additionally, Traci contends that because she should have been awarded 

physical care under the modification, Michael should have been ordered to pay 

an increased child support amount, or alternatively, that the district court erred in 

reducing his obligation. Finally, Traci argues the district court erred in refusing to 

award her trial attorney fees and urges us to award appellate attorney fees here. 

Because we find no substantial change in circumstances and modification is not 

in the children’s best interests, we affirm the district court’s denial of the petition

to modify and refusal to remove the residency restriction. We also affirm the 

district court’s refusal to award attorney fees as we find no abuse of discretion. 

Because Traci has failed to make a clear argument concerning the alleged error 

in child support calculations, we affirm.

I. Background Facts and Proceedings.

Traci and Michael divorced and entered into a stipulation and agreement 

concerning their children, property, and debts. In that agreement, Traci and 

Michael agreed to “50/50” joint care of their three minor children.1 In the event 

Traci and Michael could not agree on the specific days the children would be with 

 

1 The eldest child has since reached the age of majority and has graduated from high 

school.
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them, they were to alternate care of the children every other week. Additionally, 

the parties also agreed, “The children shall reside in the West Marshall School 

District and remain enrolled there through their high school graduations.” 

Michael agreed to pay Traci $300 a month in child support, a figure apparently 

not based on the child support guidelines.

Traci filed this petition for modification on April 6, 2015.

Michael lives in Marshalltown and is self-employed. At trial, the court 

found, Michael averaged an annual salary of approximately $53,184. Traci lives 

in State Center. At the time of the divorce, Traci did not work outside of the 

home; however, she now has a full-time job and works in various locations. The 

court estimated Traci’s annual earnings in 2015 would equal approximately 

$39,312.

Since the entry of the stipulation and agreement, Traci and Michael have 

never exercised their respective parenting times according to any set schedule. 

Traci testified that even though they entered into a “50/50” shared agreement, 

she knew that would never be the situation. Traci contends she is and has 

always been the children’s primary caretaker, and the children continue to 

primarily reside with her. She alleged that prior to the filing of the instant 

modification action, Michael would only see the children about once per week. 

According to Traci, Michael only saw the children upon request and has never 

tried to enforce any sort of visitation schedule under the shared-care plan. The 

parties do agree they follow a set holiday schedule.

Traci argued Michael’s inconsistent and sometimes unannounced 

visitation with the children presents an interruption to her and the children’s lives. 
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She testified about incidents involving the children leaving home to have dinner 

with Michael while the dinner she had prepared went uneaten by the children. 

Traci also took issue with the fact Michael would frequently take the children out 

to eat at restaurants, arguing doing so was unhealthy and not in the best interest 

of at least one child who, according to Traci, struggles with a weight issue.

Traci contends she has never interfered with Michael’s requests to see the 

children, unless that request interfered with her prior plans. Michael apparently 

left the decision up to the children whether or not they would spend time with 

him. 

The children are involved in various after-school extracurricular activities, 

and the uncontroverted testimony at trial indicated Michael primarily transports 

the children to their various activities. The testimony indicated the activities 

occur nearly daily during the school year, and the children also participate in 

sports during the summer months. In addition to driving them to practices and 

rehearsals, both Traci and Michael testified Michael pays all of the expenses 

related to these activities for all three children—in addition to child support and 

insurance costs.

The testimony also indicated the children do not keep a regular schedule 

with their father when it comes to overnight visits at their father’s home. Traci 

testified at trial that one of the children suffers from anxiety issues and does not 

spend the night at Michael’s house very often. Traci attributes the anxiety issues 

to prior events that have occurred at Michael’s house, including the child being 

involved in a four-wheeler accident and incidents allegedly involving Michael 

being intoxicated. However, the record revealed the child displays the same 
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anxieties when attempting to spend the night at friends’ houses. Michael stated 

the child has shown resistance to spending nights at his house, and he indicated 

that he has never tried to force the child to do so.

The other child had not been sleeping at Michael’s house with any 

regularity; however, that recently changed when the child began spending 

approximately three to four nights a week at Michael’s home. 

Traci accuses Michael of having an alcohol-abuse problem. She links this 

problem to the children’s reluctance to spend the night at Michael’s home. 

Michael denies he has such a problem and indicated at trial that he has an 

occasional beer; he further denies ever being intoxicated in front of the children. 

Michael does not accuse Traci of being an unfit mother. However, Traci admitted 

at trial to having been convicted of operating while intoxicated since the entry of 

the last order.

Traci also asserts Michael engages in manipulative behavior with the 

children. For example, she testified the children have told her that Michael 

makes the children feel guilty by telling them they do not spend enough time with 

him and that he is lonely. Michael denies doing so.

At trial, Traci testified the youngest child had been receiving counseling for 

the several weeks leading up to trial. When asked about it, Michael said he had 

no knowledge that their child had been seeing a counselor. Traci contends the 

counseling center told her they were going to notify Michael about it, although 

Michael testified he had received no such notification.

In her petition for modification, Traci alleged the parties’ original 

agreement for “50/50” joint care needed to be modified so as to give her physical 
6

care. Traci claimed Michael had done nothing to enforce his rights under the 

existing agreement and had only suggested a visitation schedule once Traci filed 

this suit.

In addition to requesting physical care, Traci also asked the district court 

to remove the residency-restriction provision in the decree. Traci indicated no 

definite plans for wanting to move the children, but she testified she would like to 

have the freedom to do so at some later point in time should her job require it or 

if she would like to be closer to her or her fiancé’s relatives in another city.

Finally, Traci requested a recalculation of Michael’s child-support 

obligation.

The district court denied all of Traci’s requested modifications, with the 

exception of the child support calculations. In its holding, the court noted Michael 

had done everything possible to maintain a relationship with his children without 

“going to war with Traci” and ultimately held a modification would not be in the 

children’s best interest. When the court denied the request for the residencyrestriction to be lifted, the court stated Traci had failed to show a substantial 

change warranting a modification of that provision. Finally, the court recalculated 

Michael’s child support obligation using an average of his income, reducing his 

obligation from $300 a month to $110 a month for the three children with an 

eventual increase to $161 a month for the two younger children, with varying 

allocations of dependency exemptions.

Traci appeals. 
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II. Standard of Review.

Our review is de novo. See Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa 

Ct. App. 1996). “Prior cases have little precedential value, and we base our 

decision primarily on the particular circumstances of the parties presently before 

us.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2002). “We 

give weight to the trial court’s findings of fact, but are not bound by them.” 

Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). Moreover, “even if 

a substantial change is shown, we will not modify the terms of the decree unless 

its enforcement will be attended by a positive wrong or injustice as a result of 

changed conditions.” In re Marriage of Sjulin, 431 N.W.2d 773, 776 (Iowa 1988).

We review the district court’s refusal to award attorney fees for an abuse 

of discretion. See In re Marriage of Michael, 839, N.W.2d 630, 635 (Iowa 2013).

III. Discussion.

A. Modification of Physical Care.

Courts may modify custody only when the party seeking modification has 

shown “there has been a substantial change in circumstances since the time of 

the decree, not contemplated by the court when the decree was entered, which 

was more or less permanent, and relates to the welfare of the child.” Melchiori, 

644 N.W.2d at 368. The party seeking modification “must also prove [s]he has 

an ability to minister more effectively to the children’s well-being.” In re Marriage 

of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). Where parents have 

exercised joint physical care of the children, both have been found to be suitable 

physical-care parents. See Melchiori, 644 N.W.2d at 369. If the joint physical

care order must be modified, “[t]he parent who can administer most effectively to 
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the long-term best interests of the children and place them in an environment that 

will foster healthy physical and emotional lives is chosen as primary physical

caregiver.” In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct. App. 1998). 

The controlling consideration is the best interest of the child. Thieges, 623 

N.W.2d at 235-36. “The objective of a physical care determination is to place the 

children in the environment most likely to bring them health, both physically and 

mentally, and to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 698 

(Iowa 2007). “These principles clearly place a heavy burden on a parent 

requesting a modification. The burden is necessarily a heavy one undergirding 

the fundamental policy that ‘once custody of children has been fixed it should be 

disturbed only for the most cogent reason.’” In re Marriage of Hoffman, 867 

N.W.2d 26, 32 (Iowa 2015) (quoting In re Marriage of Frederici, 338 N.W.2d 156,

158 (Iowa 1983)).

Traci asserts that despite the parties having agreed to a joint-custody 

arrangement at the time of the divorce, they have never actually followed it. She 

contends the child custody portion of the agreed decree should be modified to 

eliminate the joint-physical-care provisions and she should be appointed physical 

caretaker of the two minor children.

After careful consideration of all the evidence, the district court concluded 

the joint-physical-care provisions should not be modified. Upon de novo review, 

we reach the same conclusion.

Traci testified Michael has not attempted to exercise his shared-care time 

with the children. She stated his time with the children is hardly ever scheduled 

in advance and is not consistent. She argues this inconsistency interrupts the 
9

schedule she has implemented in her home with the children. Further, when 

asked whether she encourages her children to spend time with Michael, Traci 

testified “I have encouraged it somewhat but not—.” She further stated she had 

not forced the children to go with Michael because “it’s not that important I don’t 

believe to Mick that they stay overnight.”

Michael testified he does not spend as much time with the children as he 

would like. Although he remains active in the children’s lives almost daily with 

their extracurricular activities, he testified the children, especially the older ones, 

do not spend the night at his home very often. When questioned why Michael 

has not attempted to enforce the decree with Traci and push for his allotted time, 

Michael testified “I hate to argue” and “I like to keep things without arguments.”

Both Traci and Michael agree that Michael remains active in the children’s 

lives; both of their testimony reveals Michael takes the children to their 

afterschool activities on nearly a daily basis and he takes the children to dinner 

often. He has remained as active as possible in their children’s lives.

As to overnight visitation, both Traci and Michael acknowledge the 

children do not spend the night at Michael’s home very frequently. Michael 

testified the oldest child is busy with extracurricular activities and an afterschool 

job, so he understands the child’s schedule is not always permitting. As to his 

middle child, both Michael and Traci acknowledge the child suffers from some 

anxiety issues which make overnight visits difficult; Traci contends the child’s 

apprehensions come from Michael’s alleged alcohol abuse. Finally, both parties 

agree the youngest child does spend considerably more time with Michael and 

spends the night at his home about three to four nights a week.
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As to the allegations Michael has an alcohol-abuse problem, Traci testified 

at trial Michael’s alcohol use has existed since before the divorce. The district 

court found and we agree this is not a new circumstance; it existed before the 

entry of the last order. Therefore, without more, Traci cannot rely on it as a 

ground of substantial change. See Frederici, 338 N.W.2d at 158 (holding “[t]he 

changed circumstance must not have been contemplated by the court when the 

decree was entered”).

The crux of Traci’s basis for modification is that Michael has not actively 

tried to enforce the shared physical care agreement. Although we agree with her 

contention that Michael has not done everything possible to enforce the existing 

order, we find he remains actively involved in the children’s lives on a near daily 

basis and has attempted to respect the children’s wishes and keep the peace 

with Traci. The evidence indicates the children are healthy and thriving, so we 

see no need to interrupt that. 

Traci relies on three cases to support her position that it is a material 

change in circumstances when the shared-care schedule is not followed. She 

first cites to In re Marriage of Brown, where this court found a child’s anxieties 

and frustrations with having to go between each parent’s home mid-week 

amounted to a sufficient material change and warranted a modification to a “more 

regular and predictable schedule during the week” allowing each parent 

“maximum continuing contact with both parties.” 778 N.W.2d 47, 55 (Iowa Ct. 

App. 2009). She also relies on In re Marriage of Harris, where the court found a 

material change when the parents, who had initially agreed to shared care, could 

no longer communicate with each other civilly. 877 N.W.2d 434, 440 (Iowa 
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2016). The court there also noted the parties’ original agreement had “not 

evolved as envisioned and the children [would] benefit from a modification that 

designates a primary physical caregiver.” Id. at 441. Finally, she cites to In re 

Marriage of Walton, where this court found a material change where the parties 

failed to cooperate with each other, interfered with the other’s rights to the 

children, and their shared-care agreements had “not evolved as envisioned.” 

577 N.W.2d 869, 870 (Iowa Ct. App. 1998).

On our review, we do not find these cases helpful for Traci’s contention. It 

is true there is a child with anxiety issues here as in Brown; however, the court in 

Brown found the sufficient change because the shared-care arrangement caused

the child’s anxieties. Here, there is nothing to suggest the child’s anxieties stem

from the shared-care agreement. The child’s anxieties were not limited to 

overnight visits at Michael’s house; it also included sleepovers at friends’ houses. 

Also, both parties agree the child’s anxieties have improved in recent years. This 

does not amount to a change of circumstances. Furthermore, like in Harris and 

Walton, both parties acknowledge they do not communicate with each other as 

well as they could; however, the record reflects they are able to communicate, 

whether by telephone or text, concerning their children. Additionally, we do not 

see how the shared-care agreements have not evolved as envisioned by the 

parties. While the parties did not contemplate every situation that could arise in 

trying to execute their agreement, nothing has occurred that has made their 

agreement unworkable.

The common thread among the three cases Traci relies upon is that a 

modification was necessary because the current arrangement was not working. 
12

However, unlike those three cases, the arrangement here does work. The record 

reflects the children have thrived and maintained a close relationship with both 

parents. We, therefore, find there has been no substantial change in 

circumstances since the decree’s entry to warrant a modification and the current 

order is in the children’s best interests.

Even if we were to find a substantial change in circumstances to support a 

modification, Traci has not met her burden to show she can offer superior care. 

See In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). Traci 

“must show an ability to minister to the children’s needs superior” to Michael’s 

ability. Id. “If both parents are found to be equally competent to minister to the 

children, custody should not be changed.” Id.

The evidence indicates both Traci and Michael are highly involved in their 

children’s lives. There is no proven indication that either parent is deficient in any 

way. Although Traci is now employed and is not at home as much as she 

previously was at the time of the last order’s entry, we do not find this makes her 

more or less superior than Michael. We find that both parents are equally 

competent. Therefore, Traci has failed to establish she is the superior parent 

and has not met her burden.

We affirm on this issue.

B. Residency Restriction.

Next, Traci urged the trial court to lift the residency restriction from the 

agreement. Traci and Michael agreed to remain living in the West Marshall 

School District for the children until the children graduated from West Marshall

schools. Now, Traci asks for the restriction to be removed in the event that at 
13

some point in the future, she would have the ability to move for either her work or 

to be closer to other members of her or her fiancé’s families.

Again, Traci must show that removing this provision from the decree is 

warranted because there has been a substantial change in circumstances not 

contemplated by the district court when the decree was entered. See Frederici, 

338 N.W.2d at 158. 

A review of the evidence indicates Traci cannot prove a substantial 

change warranting a modification. By Traci’s own admission, the only reason 

she would like the restriction removed from the decree is so that she has the 

ability to potentially move at some point in the future. At trial, when asked about 

her plans to move, Traci indicated, “We don’t have plans to do so now but 

eventually.” Without a more concrete plan in place by Traci, it is impossible for 

us to discern if a move out of the school district would amount to a substantial 

change and if it would be in the children’s best interests. See, e.g., Thielges, 623 

N.W.2d at 232.

Therefore, we affirm the district court’s denial of Traci’s request to remove 

the residency-restriction provision.

C. Child Support.

Traci next contends if we find a modification was warranted and do modify 

the existing order, then we should remand the case to the district court to 

recalculate Michael’s child support obligation. In the alternative, Traci argues 

that if we do not modify the existing joint physical care order, we should review 

the lowered child support obligation imposed by the district court.
14

Prior to this action, Michael agreed to pay Traci $300 a month. At trial in 

this case, Michael’s obligation was lowered to $110 per month for three minor 

children and then was set to increase to $161 for the two minor children. Having 

reviewed the record, we find only the worksheets proposed by Michael based 

upon $50,000 annual income. The court indicated in its order it used an annual 

income for Michael of $53,184 to calculate his obligation and a health insurance 

premium of $600.00. Using those figures, the court designated Michael as a

child support payor. Michael asks us to affirm the court’s child support 

calculations and argues that Traci has failed to assign any specific error in her 

argument.2 As a general rule, “we will not speculate on the arguments 

[appellant] might have made and then search for legal authority and comb the 

record for facts to support such arguments.” Hyler v. Garner, 548 N.W.2d 864, 

876 (Iowa 1996). In most cases the appellant's “random mention of an issue, 

without analysis, argument or supporting authority is insufficient to prompt an 

appellate court's consideration.” State v. Mann, 602 N.W.2d 785, 788 n. 1 (Iowa 

1999). We affirm the trial court’s ruling on child support.

D. Attorney’s Fees.

Traci next contends she is entitled to both trial and appellate attorney fees. 

Specifically, Traci argues she should have been awarded trial attorney fees 

because she should have prevailed. 

Iowa Code section 598.36 (2015) provides, “In a proceeding for the 

modification of an order or decree under this chapter the court may award 

 

2 Traci agreed at oral arguments the income figures used by the district court were 

correct and she had not specified the basis for her argument the child support was 

incorrect, except to say the calculated totals seemed skewed.
15

attorney fees to the prevailing party in an amount deemed reasonable by the 

court.” “An award of trial attorney fees rests in the sound discretion of the trial 

court and will not be disturbed on appeal in the absence of an abuse of 

discretion.” McKee v. Dicus, 785 N.W.2d 733, 740 (Iowa Ct. App. 2010). Here, 

the district court declined to award Traci attorney fees because she did not 

prevail; similarly, the court declined to award attorney fees to Michael due to his 

better ability to pay. We therefore find it was not an abuse of discretion for the 

court to decline to award attorney fees to Traci. 

Traci also requests an award of appellate attorney fees. “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 considering

whether to award appellate attorney fees, we consider “‘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 Geil, 509 N.W.2d 738, 743 (Iowa 

1993)). After carefully considering each of these factors, we decline to award 

Traci appellate attorney fees.

AFFIRMED.