IN THE COURT OF APPEALS OF IOWA

No. 13-1928

Filed January 28, 2015

IN RE THE MARRIAGE OF NATHAN ALLEN LOGEMANN

AND KERSTEN ASHLEY LOGEMANN

Upon the Petition of

NATHAN ALLEN LOGEMANN,

Petitioner-Appellee,

And Concerning

KERSTEN ASHLEY LOGEMANN,

n/k/a KERSTEN ASHLEY ABILD,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Cass County, J.C. Irvin, Judge. 

A mother appeals the district court’s decision modifying a custody 

arrangement. AFFIRMED.

Theodore R. Wonio of Cambridge Law Firm, P.L.C., Atlantic, for appellant.

Karen Atkinson Dales, Council Bluffs, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

MULLINS, J.

Kersten Abild appeals the district court’s grant of her former husband 

Nathan Logemann’s petition to modify the physical care provisions of a custodial 

arrangement regarding their two minor children. Kersten contends the district 

court erred in transferring physical care from Kersten to Nathan. She argues

Nathan did not meet the heavy burden of showing there was a substantial and 

material change in circumstances to justify modification of the care provisions. 

For the reasons stated below, we affirm the decision of the district court. 

I. BACKGROUND FACTS & PROCEEDINGS.

Kersten and Nathan are the parents of two minor children, C.L. and D.L. 

In 2008, the district court entered a decree dissolving their marriage. The decree

awarded Kersten and Nathan joint legal custody and placed physical care with 

Kersten with liberal visitation for Nathan. The court ordered Nathan to pay child 

support to Kersten. Nathan has since remarried, and Kersten has been in a 

relationship with Cory Harter for over five years. 

In 2009, Nathan filed an application to modify the child support order, 

which the court denied. In 2012, Kersten filed an application to modify the 

visitation provisions to reduce visitation. The court entered an order maintaining 

joint legal custody and physical care with Kersten, but inserted a number of 

provisions to assist the parents in cooperating in the children’s care. Among 

these, the court ordered that neither parent would enroll the children in an activity 

without first consulting with and obtaining the approval of the other party. If one 
3

party signs up the children for an activity without obtaining approval, the other 

parent is not responsible for that parent’s portion of the related fees. 

In March 2013, Kersten asked the court to review the modification order 

and reduce visitation as requested in her previous application to modify. Nathan 

filed a counter-application requesting physical care. The court granted Nathan’s 

application and awarded him physical care with Kersten having visitation and 

paying child support to Nathan. Kersten filed an application for new trial and a 

motion to enlarge, modify, and amend. The court made minor changes to its 

order but maintained the modification it entered. Kersten now appeals the 

modification. 

II. SCOPE AND STANDARD OF REVIEW.

Because an action to modify a custody decree is heard in equity, our 

review is de novo. Iowa R. App. P. 6.907; In re Marriage of Brown, 778 N.W.2d 

47, 50 (Iowa Ct. App. 2009). We give weight to the district court’s findings of 

fact, especially with regard to witness credibility, but we are not bound by them.

Iowa R. App. P. 6.904(3)(g); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 

1992). Prior cases have little precedential value, as we must base our decision 

on the particular circumstances of the case before us. Melchiori v. Kooi, 644 

N.W.2d 365, 368 (Iowa Ct. App. 2002). “The trial court has reasonable discretion 

in determining whether modification is warranted and that discretion will not be 

disturbed on appeal unless there is a failure to do equity.” In re Marriage of Kern,

408 N.W.2d 387, 389 (Iowa Ct. App. 1987).
4

III. ANALYSIS.

A. Modification of Physical Care.

Courts may modify the custody or care provisions of a decree only where 

the record reveals “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 burden is on the party seeking modification to show a 

substantial change by a preponderance of the evidence. In re Marriage of 

Feustel, 467 N.W.2d 261, 263 (Iowa 1991). In addition, the party seeking 

modification must demonstrate that he or she possesses a superior ability to 

minister to the needs of the children. In re Marriage of Whalen, 569 N.W.2d 626, 

628 (Iowa Ct. App. 1997). Once a custodial arrangement is established, “it 

should be disturbed only for the most cogent reasons.” In re Marriage of 

Frederici, 338 N.W.2d 156, 158 (Iowa 1983). As in any custody or care 

determination, our paramount concern is the best interests of the child. See In re 

Marriage of Bergman, 466 N.W.2d 274, 275 (Iowa Ct. App. 1990).

On appeal, Kersten contends Nathan did not meet the burden of showing

there has been a substantial and material change in the circumstances to justify 

modification. Nathan contends that subsequent to their dissolution decree, 

Kersten’s conduct with respect to the children and himself has created a 

substantial and material change in the custodial circumstances such that it is in 

the children’s best interest to grant him physical care. Nathan asserts Kersten is 

unable to communicate or cooperate effectively with him to further the children’s 
5

care. He claims she does not inform him of the children’s doctor appointments,

subjects the children to excessive medical treatment, enrolls them in activities 

without consulting him, and withholds visitation from him. 

At the modification hearing, the court heard testimony from, among others, 

Kersten, Nathan, and the guardian ad litem (GAL). Nathan testified to numerous 

occasions when Kersten withheld visitation from him in violation of the court 

order. In the summer of 2011, the parties had a two-week-on, two-week-off 

visitation schedule. Kersten refused to give the children to Nathan for the first 

two weeks of July because Nathan was late picking them up on the first day. 

She admitted she refused to give Nathan visitation on that occasion because she 

was angry at him. After a heated exchange, she also refused to give him the 

children for the first two weeks of August. On another occasion in 2009, she 

refused to give him the children because he had gotten temporarily behind in 

child support payments. Easter weekend of 2012, Kersten’s brother was in town, 

and Kersten informed Nathan he would not get the children even though the 

decree stated he had visitation over the Easter holiday. 

Exchanges of the children frequently involve Kersten yelling and 

screaming at Nathan in front of the children. Nathan made some audio 

recordings of these incidents. The GAL listened to some of these recordings and 

agreed that Kersten is the instigator of these exchanges. The GAL also reported

Kersten was angry, combative, and abusive when the GAL attempted to contact 

her. The children reported to the GAL that Kersten says negative things about

Nathan in front of them but they have not heard Nathan make similar statements. 
6

Nathan also testified Kersten does not consult him or obtain his approval 

before enrolling the children in activities. He stated she usually only informs him 

afterward. Nathan also complained Kersten signs the children up for events and 

activities during his visitation time without informing him until immediately before 

they are scheduled. On one occasion Kersten’s mother, who is often involved in 

caring for the children, signed one child up for golf; Kersten did not inform Nathan 

until afterward. Nathan also has had to cancel activities he planned during his 

visitation time because Kersten has enrolled the children in an activity without 

informing him. Kersten disagreed with Nathan’s characterizations. She stated 

Nathan gets the same information in emails that she gets from Boy Scouts and 

other groups the children are involved in. She also stated she gives Nathan 

receipts of their fees from activities to inform him they are enrolled. Kersten 

believes Nathan does not talk to her about the children’s activities because he 

does not want to pay for anything.

Nathan believes Kersten seeks excessive medical treatment for the 

children and does not involve him in medical decisions. D.L. has a number of 

medical issues including an as-yet undiagnosed metabolic disorder which causes 

him to have poor weight gain for his height and unstable blood sugar levels. A 

letter from a treating doctor indicates no specific diagnosis has been made. D.L. 

also has ADHD, Asperger Syndrome, and some developmental delays. Although 

Kersten has taken the children to numerous doctors for testing no doctor has 

given a specific diagnosis for D.L.’s metabolic issues. 
7

Nathan testified that when he is aware of the children’s doctor 

appointments he attends but Kersten often does not inform him when they are 

scheduled. Nathan testified he usually finds out about the children’s 

appointments after they have taken place from medical providers, the insurer, 

teachers, and the children. Kersten occasionally informs him afterward about 

test results or what occurred at an appointment. Kersten testified she keeps 

Nathan aware of the appointments by text, telephone, and informing him in 

person. She produced a photograph of one text she sent Nathan informing him a 

doctor’s appointment had been cancelled. Nathan later discovered she had 

rescheduled the appointment and did not inform him of the new date. On one 

occasion, it appeared that Kersten deliberately misled Nathan and his wife about 

taking the children to a doctor’s appointment. Kersten asked Nathan to drop the 

children off at her house on a Monday morning instead of at school because they 

needed to pick up some things from her house. Nathan later discovered that 

instead of taking them to school, Kersten took the children to a doctor’s 

appointment. With regard to these issues, the district court found Nathan’s 

testimony was more credible than Kersten’s. 

Kersten’s mother testified that she attends most of the children’s doctor’s 

appointments and was able to name seven or more doctors the children had 

seen throughout Iowa and in Omaha. Nathan was unaware the children had 

seen several of the named doctors and had never attended those appointments. 

Upon examining the children’s medical records during the process of discovery, 

Nathan became aware for the first time of some of the medical concerns Kersten 
8

has about the children, especially D.L. Kersten has reported symptoms and 

concerns to medical personnel that Nathan and his wife have never observed in 

the children while in their care. Nathan also became aware for the first time 

through discovery that C.L. was seeing a therapist twice monthly. Kersten has 

also told the children’s school that D.L. has diabetes and enforced a strict routine 

and schedule for his snacks and meals. D.L. has never been diagnosed with 

diabetes, and the school eventually declined to follow the routine Kersten 

specified without medical documentation of his condition. 

The GAL reported that both parents love the children, are close with them, 

believe they are acting in their best interests, and maintain appropriate homes 

where the children are well-cared for. She testified both parents can meet the 

children’s needs, including special medical needs. However, she also reported

that it was in the children’s best interest to transfer physical care to Nathan. She 

reported:

The children will maintain active and meaningful contact with both 

parents if in Nathan’s care. I do believe that Kersten inhibits the 

relationship between the children and their father. . . . The parents 

are not able to effectively communicate at this time regarding the 

children’s needs. They do not listen to each other or respect each 

other. . . . Kersten unilaterally makes decisions and does not 

include Nathan in the decisions. . . . There are major issues with 

the health and well-being of [D.L.]. It is very concerning to me that 

Kersten does not communicate with Nathan about the doctor’s 

appointments or the results. 

The GAL also testified she had originally planned to recommend a shared care 

arrangement, however, Kersten refused to talk with the GAL about it. This and 

her previous experience with Kersten convinced the GAL a shared care 

arrangement would be infeasible between these parents. The GAL considered a 
9

number of factors including the children’s best interests; their emotional, 

psychological, and mental well-being; the parents’ ability to communicate and 

make decisions with each other; and the parents’ ability to facilitate a relationship 

with the other. The GAL stated that the children were under constant stress and 

pressure from being between Kersten and Nathan and that this affects their 

mental health and emotional well-being. 

Although Kersten challenged the inclusion of the GAL’s report and 

testimony in the record based on various complaints about the GAL’s 

investigations in this case, the district court specifically found the GAL

[h]as done extensive work in this case. She has been in contact

with professionals from both the children’s schools. She has 

reviewed medical records, some of which the Court also has 

reviewed. There is no indication that she has acted 

unprofessionally or has been more predisposed to one parent over 

the other during her investigation. The Court find[s] [the GAL’s] 

report and testimony helpful to the Court and relies upon it along 

with the other evidence presented in making its decision. 

On our review of the record, we agree with the district court and will give 

deference to its credibility determinations. The court found Nathan’s testimony 

was generally credible. Nathan blamed the communication issues on Kersten 

and the court agreed with him. 

The court found “there has been a substantial and material change in 

circumstances that warrants the Court changing primary physical care of the 

children to Nathan with Kersten having reasonable and liberal rights of visitation.” 

In so deciding the court found particularly significant the difficulties the parents 

have communicating, Kersten’s withholding of visitation from Nathan, Kersten’s 

failure to involve Nathan in the children’s medical treatment, Kersten’s failure to 
10

obtain Nathan’s approval of the children’s activities, and Kersten’s failure to 

promote the children’s relationship with Nathan. The court also noted Kersten 

had not acted in the children’s best interests. 

Upon our de novo review, we agree with the district court that Nathan has 

met his burden to demonstrate there has been a substantial and material change 

in the circumstances. In cases where one parent has physical care, Iowa Code 

section 589.41(5)(b) (2015) provides:

[T]he parent responsible for providing physical care shall support 

the other parent’s relationship with the child. . . . Rights and 

responsibilities as joint legal custodian of the child include but are 

not limited to equal participation in decisions affecting the child’s 

legal status, medical care, education, extracurricular activities, and 

religious instruction.

It is clear in this case Kersten has frustrated Nathan’s right to equal participation 

in the children’s medical care, education, and extracurricular activities. The more 

credible evidence was that she has not kept Nathan informed of their schedules, 

appointments, and events. We are particularly troubled by Kersten’s failure to 

ensure Nathan has the opportunity to be an equal participant in the children’s 

medical treatment. Clearly, the children have some special needs, particularly 

D.L. Nathan has a right not only to be informed of appointments and tests, but to 

have an equal hand in determining if and when they take place, and to provide 

doctors his own observations of the children’s symptoms and his opinions of their 

needs. Kersten is very protective of the children but her conduct toward Nathan

is inconsistent with her responsibilities as a joint legal custodian, and it is not in 

the children’s best interest because it inhibits their relationship with their father. 

By withholding visitation, speaking negatively about Nathan in front of the 
11

children, and failing to cooperate and coordinate care of the children with Nathan, 

she has demonstrated she is not able or willing to provide the necessary support 

for their relationship with Nathan. This is a substantial change that the court did 

not contemplate when it initially granted Kersten physical care. A preponderance 

of the evidence supports our finding of a substantial change in circumstances 

that justifies modification.

Having found there is a substantial change in circumstances, we must 

next determine whether Nathan has met the burden to show he can provide 

superior care. The evidence supports a finding that both parents are capable of 

caring for the children and meeting their needs. However, in considering what 

custody arrangement is in the best interest of the children, the court must weigh 

the factors set out under Iowa Code section 598.41(3). Relevant here are the 

questions of “[w]hether the parents can communicate with each other regarding 

the child[ren’s] needs” and “[w]hether each parent can support the other parent’s 

relationship with the child[ren].” See Iowa Code § 598.41(3)(c) and (e). The 

GAL reported that Nathan was more likely to support the children having active 

and meaningful contact with Kersten, but Kersten inhibits contact between the 

children and Nathan. We find the evidence supports this finding. The children 

report Kersten speaks negatively about Nathan outside his presence; Nathan 

reports Kersten is abusive to him when he picks up the children and in the 

presence of the children; and Kersten does not support Nathan’s involvement in 

their activities and medical treatment. The children do not report that Nathan 

speaks negatively about Kersten in their presence. The GAL reported Nathan is 
12

willing to have a shared physical arrangement, but Kersten does not want shared 

physical care and wants to reduce Nathan’s visitation time. When writing the 

original decree in 2008, the district court could not have contemplated how 

Kersten’s inability to communicate and cooperate with Nathan in the children’s 

care could come to impact the children’s relationship with Nathan and 

consequently their mental and emotional well-being. We believe this change in 

circumstances constitutes a cogent reason to modify the decree. Accordingly, 

we affirm the district court’s modification of the custodial arrangement. 

B. Attorney Fees.

“Attorney fees are not a matter of right, but rest in the court’s discretion.” 

In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Factors the court 

considers 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 Geil, 509 N.W.2d 738, 43 (Iowa 1993)). We may also consider 

“whether the party making the request was obligated to defend the trial court’s 

decision on appeal.” In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa 1981). 

We award no attorney fees, and assess costs to Kersten. 

IV. CONCLUSION.

For the foregoing reasons, we affirm the district court’s modification of the 

care provisions of the parties’ custodial arrangement. We award no attorney fees

and assess costs to Kersten. 

AFFIRMED.