IN THE COURT OF APPEALS OF IOWA

No. 22-0304

Filed November 17, 2022

IN RE THE MARRIAGE OF STEPHANIE KAY MAKELA

AND WAYNE L. MAKELA

Upon the Petition of

STEPHANIE KAY MAKELA,

Petitioner-Appellee,

And Concerning

WAYNE L. MAKELA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Henry W. Latham II, 

Judge.

Stephanie Makela appeals the district court’s order on Wayne Makela’s 

petition to modify the parties’ dissolution decree. AFFIRMED IN PART AND 

MODIFIED IN PART.

M. Leanne Tyler of Tyler & Associates, PC, Bettendorf, for appellant.

Dawn D. Long of Howes Law Firm, Cedar Rapids, for appellee.

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

In this appeal from an order modifying a dissolution of marriage decree, we 

are asked to resolve questions of legal custody and visitation. 

Wayne and Stephanie Makela married in 2011, had two children in 2012 

and 2014, and divorced in 2016. The trial court granted Stephanie sole custody of 

the children in light of Wayne’s conviction and incarceration in Wisconsin for 

second-degree sexual assault of a child. The court denied Wayne in-person visits 

with the children but granted a motion to allow telephone contact and 

correspondence. The court of appeals affirmed the decision. See In re Marriage 

of Makela, No. 16-1034, 2017 WL 2181544, at *5 (Iowa Ct. App. May 17, 2017). 

Approximately four years later, Wayne filed a petition to modify the decree.

He sought joint rather than sole legal custody and “appropriate temporary and 

permanent orders for visitation.” He cited several factors, including his prison 

release the prior year, his “successful completion of [s]ex [o]ffender 2 treatment,”

his “additional training and employment to be able to provide financially for the 

children,” and Stephanie’s “limited willingness to provide information in the best 

interest of” the children. 

Following a hearing, the district court (1) found a material and substantial 

change of circumstances for modification of legal custody and visitation;

(2) modified the decree to provide for joint legal custody of the children, with carve 

outs for education and medical care; and (3) afforded Wayne immediate “video 

contact” with the children “twice weekly,” “supervised visitation . . . for a period of 

two hours” after sixty days, “supervised visitation . . . for a period of four hours” 

after ninety days to last for four months, and six-hour supervised visits thereafter. 
3

Finally, the court ordered supervised overnight visits “on a monthly basis” to “begin 

on a mutually agreed upon Saturday at 11:00 a.m. and conclude on Sunday at 

5:00 p.m. Stephanie appealed.

“To change a custodial provision of a dissolution decree, the applying party 

must establish by a preponderance of the 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.” In re 

Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). The legislature 

has identified certain circumstances that may or must constitute a substantial 

change. See, e.g., Iowa Code §§ 598.21D (2021) (allowing the court to consider 

relocation of 150 miles or more “a substantial change of circumstances”),

598.41A(2) (requiring the court to consider a convicted sex offender’s conditional 

release and successful completion of a treatment program as “a substantial 

change of circumstances” for purposes of visitation).

The district court found a substantial change of circumstances warranting a 

modification of legal custody and visitation. The court based its conclusion on Iowa 

Code section 598.41A(2), which states:

Notwithstanding section 598.41, an individual who is a parent of a 

minor child and who has been convicted of a sex offense against a 

minor as defined in section 692A.101, is not entitled to visitation 

rights while incarcerated. While on probation, parole, or any other 

type of conditional release including a special sentence for such 

offense, visitation shall be denied until the parent successfully 

completes a treatment program approved by the court, if required by 

the court. The circumstances described in this subsection shall be 

considered a substantial change in circumstances.

(Emphasis added.) That provision applies to visitation rights. A court is obligated 

to find a substantial change of circumstances for purposes of modifying visitation
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following a sex offender’s conditional release and successful completion of a 

treatment program. It does not appear the same circumstances will amount to a 

substantial change for purposes of modifying legal custody. Accordingly, we apply 

the general modification standard to Wayne’s request for a modification of legal 

custody. See In re Marriage of Hute & Baker, No. 17-0046, 2017 WL 3283382, at 

*6 (Iowa Ct. App. Aug. 2, 2017) (“As a general rule, a party seeking to modify the 

custodial provisions of a decree must prove ‘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 [change legal 

custody]’” (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983))).

Stephanie argues Wayne failed to establish a material and substantial

change of circumstances to support modification of sole legal custody. She notes 

that, despite his release from prison, Wayne was on “lifetime parole/supervision by 

the State of Wisconsin including lifetime monitoring by a global positioning device.”

“‘[J]oint legal custody’ means an award of legal custody of a minor child to 

both parents jointly under which both parents have legal custodial rights and 

responsibilities toward the child and under which neither parent has legal custodial 

rights superior to those of the other parent.” Iowa Code § 598.1(3) (emphasis 

added). “Rights and responsibilities of joint legal custody include but are not 

limited to equal participation in decisions affecting the child’s legal status, medical 

care, education, extracurricular activities, and religious instruction.” Id. (emphasis 

added). 

The district court modified the dissolution decree to afford the parents joint 

legal custody, stating the modification was necessary “to provide Wayne the 
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opportunity to be involved at a level that would provide him access to the children’s 

teachers, educational records, medical providers, and medical information.” The 

provision was actually a hybrid form of legal custody. See In re Marriage of Milne, 

No. 20-0228, 2020 WL 5230461, at *4 (Iowa Ct. App. Sept. 2, 2020). While 

putatively affording the parents “joint legal custody,” certain joint legal custodial 

rights were “unbundled.” Id. Stephanie “retain[ed] the sole responsibility for 

determining the place of education for the benefit of the children” and “the sole 

responsibility of determining individuals providing medical care for the benefit of 

the children.” 

In Milne, the court of appeals questioned whether this type of unbundling is 

permissible. See 2020 WL 5230461, at *4. We stated, “Chapter 598 appears to 

consider joint custody and sole custody as all-or-nothing propositions.” Id. We 

also stated chapter 598 does “not mention assigning sole decision-making 

authority for some responsibilities of child-rearing and joint participation for others.”

Id. Ultimately, we found it unnecessary to resolve the legality of unbundling in light 

of our conclusion that the father was entitled to sole legal custody. Id. at *5; see 

also Moses v. Rosol, No. 21-1091, 2022 WL 949749, at *3 n.5 (Iowa Ct. App. Mar. 

30, 2022) (“We do not consider whether it is permissible to maintain joint legal 

custody while giving one parent sole decision-making authority over medical care 

issues”).

We find it necessary to confront the issue in order to decide whether there 

was a substantial change of circumstances warranting modification of the legal 

custody provision. As we suggested in Milne, the statutory definition of “joint legal 

custody” leaves no room for a parceling of rights. Indeed, we have indicated that 
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a less-than-complete award of joint custodial rights is actually an award of sole 

rather than joint legal custody. See, e.g., Armstrong v. Curtis, No. 20-0632, 2021 

WL 210965, at *4 (Iowa Ct. App. Jan. 21, 2021) (“In unbundling the authority to 

make medical and educational decisions and awarding that power to [the father], 

the court in effect awarded [the father] sole legal custody over those issues.”); 

Kocinski v. Christiansen, No. 20-1721, 2021 WL 5106051, at *4 (Iowa Ct. App. 

Nov. 3, 2021) (addressing district court’s award of joint legal custody, subject to 

“boundaries on the terms of legal custody,” and stating that, “[b]ecause [the father] 

concede[d] the language of the modification ruling grant[ed] [the mother] sole legal 

custody”, it was unnecessary to “address the issue of hybrid legal custody”).

1 We 

find the reasoning persuasive. When a court grants one parent a greater share of 

the legal rights subsumed within the definition of joint legal custody, we conclude 

the award is one of sole legal custody rather than joint legal custody. It follows 

that the district court’s decision to grant Stephanie exclusive control over selection 

of the children’s schools and medical providers maintained her award of sole legal 

custody. 

In effect, the court concluded Wayne was not yet ready to exercise the full 

panoply of legal rights. By declining to afford Wayne the entire bundle of joint 

1

In the instances where we have affirmed a less-than-equal allocation of joint 

custodial rights, we have done so without addressing whether the unbundling of 

rights makes the award one of sole legal custody. See Sloan v. Casey, 

No. 15-0921, 2015 WL 9451093, at *7–8 (Iowa Ct. App. Dec 23, 2015) (affirming 

joint legal custody provision with a limitation that the father would “be the sole 

parent to schedule all routine medical appointments”); In re Marriage of Bates, 

No. 11-1293, 2012 WL 1440340, at *3–4, (Iowa Ct. App. Apr. 25, 2012) (affirming

the district court’s award of joint legal custody “with the restriction that [the father]

was to have the exclusive right to make health care decisions for the children”).
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custodial rights, the court effectively determined that circumstances since his 

incarceration had not substantially changed. See Frederici, 338 N.W.2d at 160 (“A 

finding that either parent is a suitable legal custodian is an essential predicate to 

an award of joint custody.”); cf. In re Marriage of Smith, No. 07-1253, 2008 WL 

2746316, at *6 (Iowa Ct. App. July 16, 2008) (denying a challenge to modification 

of sole legal custody to the father and limiting the mother to supervised visitation, 

where the child had “been sexually abused a third time while in the care of her 

mother”). The record supports the court’s determination.

Although Wayne sought modification of the legal custody determination 

based on his participation in the “treatment 2” program in prison, he testified at his 

dissolution trial that the program was “the shortest program available to all sex 

offenders.” Wayne testified at the modification hearing that he also “did a sex 

offender treatment aftercare program” for “approximately three or four months” 

following his release, which met “once a week for two hours.” But he 

acknowledged his visits with the children would remain fully supervised and subject 

to approval by his parole officer. And he acknowledged he would need time to 

develop a relationship with the children. He also required time to gain an 

understanding of Iowa’s sex offender rules, including limitations on his access to 

certain venues. In short, Wayne was not in a position at the time of the modification 

hearing to gain full legal custodial rights to the children. See Hute & Baker, 2017 

WL 3283382, at *3 (“It is not in the children’s best interest to vest [the father] with 

equal participation rights in fundamental decisions regarding the children when he 

has sexually abused one of them, is a stranger to them, and lacks experiential

history to make an informed choice for them.”). 
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We recognize Stephanie rebuffed Wayne’s efforts to obtain educational and 

medical information about the children. But, as the court noted in Hute and Baker, 

“less drastic remedies were available to provide [the father] with information 

regarding the children . . . without a change in the custody provisions of the 

decree.” Id. The court cited Iowa Code section 598.41(1)(e), which affords “both 

parents . . . legal access to information concerning the child, including but not 

limited to medical, educational and law enforcement records.” Id. We agree with 

this reasoning. On our de novo review, we conclude Wayne did not establish a 

substantial change of circumstances warranting modification of the legal custody 

provision 

The same cannot be said of visitation. As discussed, section 598.41A(2) 

requires a finding of a substantial change of circumstances in Wayne’s situation. 

In light of the statutory language, Stephanie concedes the substantial-change 

requirement was satisfied for purposes of modifying visitation. But she strenuously 

argues the expansion of visits and the supervisors named to oversee them did not 

serve the children’s best interests. On our de novo review, we partially agree. 

Stephanie called a social worker as an expert witness. She opined visits 

with the father were not in the children’s best interests. The district court declined 

to rely on her opinion because “the expert did not have any direct contact with any 

individual in the case and spoke in generalities.” We agree that her opinion was 

to some extent premised on generalities. But she also relied on a risk assessment 

prepared by the correctional facility, which rated Wayne as a high risk for 

supervision. The social worker opined that anyone “in a high-risk category is not 

working their treatment plan, is not working that safety plan and is not being honest 
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about” triggering factors. She further opined that the risk assessment author’s 

concerns about Wayne’s ability to avoid risky situations “[a]bsolutely” would give 

her pause. This specific testimony drawn from Wayne’s history supported the 

district court’s gradual implementation of a visitation plan. At the same time, the 

testimony leads us to conclude that the last phase of the plan authorizing monthly 

overnight visits is not in the children’s best interests. Accordingly, we affirm the 

phased-in two- to six-hour visits but we modify the plan to eliminate the monthly 

overnight visits. 

Both parents seek appellate attorney fees. An award rests within our 

discretion. In re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013). As in 

Michael, both parties partially prevailed, and both parties have the resources to 

pay their own fees. Accordingly, we deny their requests.

Our disposition is as follows. Because the award of less than equal 

custodial rights meant that Stephanie retained her rights as sole legal custodian of 

the children, we modify the determination that there was a substantial change of 

circumstances warranting modification of the legal custodial relationship. We 

conclude she maintained sole legal custody of the children. We affirm the district 

court’s conclusion that there was a substantial change of circumstances warranting 

a modification of the visitation provision of the decree, and we affirm all portions of 

the visitation plan except the overnight visits. We modify the decree to eliminate 

those visits.

AFFIRMED IN PART AND MODIFIED IN PART.