IN THE COURT OF APPEALS OF IOWA

No. 15-1531

Filed May 11, 2016

IN RE THE MARRIAGE OF JOHN JAY WALSH JR.

AND ANGEL NICOLE WALSH

Upon the Petition of

JOHN JAY WALSH JR.,

Petitioner-Appellant,

And Concerning

ANGEL NICOLE WALSH,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, 

Judge.

Petitioner appeals the district court’s decision denying his application to 

modify the physical care provision of the parties’ dissolution decree. AFFIRMED.

Richard R. Schmidt of Spaulding, Berg & Schmidt, P.L.C., Des Moines, for 

appellant.

Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for 

appellee.

Heard by Vogel, P.J., Doyle, J., and Goodhue, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

John Jay Walsh Jr. has appealed from the decision of the trial court that 

refused to modify the original decree granting physical care of his minor 

daughter, S., to the child’s mother, Angel Nicole Walsh. In addition John appeals 

from the decision of the trial court awarding Angel one-half of her attorney fees. 

We affirm the district court.

I. Statement of Facts

John and Angel were married in February 1995. The parties had two 

minor children, J. and S. The parties’ marriage was dissolved by a decree 

entered January 30, 2008. The parties were granted joint legal custody of their 

two children, but Angel was granted physical care. John was granted liberal 

visitation rights. J. is now over eighteen years of age and is presently living with 

John. S. became fifteen in July 2015. On June 30, 2014, John filed a petition to 

modify the dissolution decree requesting that he be granted physical care of S. 

John contends there has been a substantial and material change of 

circumstances and he has the ability to provide superior care for S. 

S. developed an anxiety disorder, talked to her mother about it, and was 

taken to see a doctor in February 2015. Initially, the problem appeared to be 

associated with her schoolwork. Sometime later, the anxiety led to thoughts of 

self-harm. Angel arranged for S. to see a child psychiatrist in April 2015 when 

she was advised of S.’s consideration of self-harm. S. was tearful in her 

discussion with the psychiatrist and indicated that her anxiety was primarily 

related to family issues and specifically her relationship with her mother. S. 

refused to have joint counseling with her mother. It developed that S. was quite 
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aware of the pending modification action, even though her mother had avoided 

discussing it with her. It was clear that John had discussed the matter in some 

depth with S. prior to the meeting with the psychiatrist. 

A request was made that a guardian ad litem (GAL) be appointed for S.,

and Diane Dornburg was appointed. She found S. consistently expressed a 

strong desire to live with John. The GAL carefully considered the appropriate 

factors in evaluating a child’s parental preferences. The GAL stated S. felt she 

had a strong, loving, close, and open relationship with her father but a tense and 

conflicted relationship with her mother that was stressful to her. The GAL 

specifically noted there could possibly be a long-standing attempt by John to 

influence S. in favor of him, but she was not able to conclude parental alienation 

had occurred. The GAL stated she could not say whether John could provide 

superior care apart from S. having a better relationship with him at the time of the

interviews. The record indicates that Angel has been obligated to provide the 

structure, stability, and discipline for S.

The trial court found and concluded

Angel provides a good, safe, structured, and stable home for 

S. She has always been S.’s primary caregiver. She assures that 

medical appointments are made and kept, homework is done, and 

confirmation classes are attended. She presents S. with healthy 

opportunities to enhance S.’s knowledge and expand S.’s interests. 

She regularly attends school conferences and S.’s extracurricular 

events.

The trial court could have also added there is little in the record to suggest 

that John has provided any of the above needs or particularly supported Angel in 

her efforts to do so.
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Angel and John have different expectations of their children and different 

methods of parenting. At this point in her life, S. prefers the less-structured 

parenting method of John. John contends physical care should be modified 

because of S.’s parental preferences, which John implies is based on Angel’s 

relationship with Mark McVey and S.’s concern of being the only child left in the 

home after J. departed.

Angel and the children have lived with McVey in the past, but Angel and 

McVey are not presently living together. McVey has a history of driving while 

intoxicated and presently has no driver’s license. He and Angel often argued and 

fought in front of the children and police were often called to the residence when

they were living together. McVey and Angel continue to have an ongoing 

relationship. Neither the treating psychiatrist nor the GAL who interviewed S. 

four times mentioned McVey or that S. had a problem with the relationship 

between McVey and her mother in their reports, nor was there any suggestion 

J.’s departure from the household created any source of anxiety or concern on 

the part of S.

II. Standard of Review

Dissolution matters are reviewed de novo. In re Marriage of Sullins, 715 

N.W.2d 242, 247 (Iowa 2006). Nevertheless, weight is given to the trial court’s 

findings of fact, especially as it is relates to a witness’s credibility. Id. A trial 

court’s award of attorney fees is reviewed for abuse of discretion. Id.

III. Discussion

The legal framework applicable to custody modifications has been long 

established and often repeated.
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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. In re Marriage of 

Frederici, 338 N.W.2d 156, 158 (Iowa 1983). 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. Id. They must relate to the 

welfare of the children. Id. A parent seeking to take custody from the other must 

prove an ability to minister more effectively to the children’s wellbeing. Id. 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. Id.

The trial court found that John failed to establish there had been material 

and substantial changes in circumstances, and neither do we find he established 

such changes. John’s claims for modification center around S.’s stated desire to

live with him and the reasons he contends she has arrived at that decision. The

trial court, as well as the GAL, carefully considered the factors that have been set 

out by the courts to consider when evaluating a child’s parental preference. See 

In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct. App. 1985). The 

GAL went ahead to state a trial would be damaging to S., and recommended a 

discussion between S. and Angel with the end result of a settlement agreement 

between the parties respecting S.’s expressed desire that the court grant

physical care to John. S. continued to refuse any direct discussion with her 

mother about her desires. Further, the GAL recommended that in the event of a 
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trial, S.’s parental preference be given considerable weight. However, a teenage 

child’s parental preference is given less weight in a modification action than an 

original custody determination. In re Marriage of Hoffman, 867 N.W.2d 26, 35 

(Iowa 2015).

The record did not establish S. was suffering from anxiety until long after 

the modification request was filed. Impeding actions requesting modification of a 

child’s physical care generally involve the possibility of changing one’s family of 

residence, parental rules, circle of friends, school attended, and a myriad of other 

factors important in a child’s life. Consideration of these factors and the 

balancing of freedom and restraint, the known and the unknown, and the impact 

on the relationship with each parent that would be affected is naturally going to 

leave a child confused and anxious. S. had been advised by John of the pending 

modification long before the anxiety disorder had been diagnosed.

Even if we are to consider the parental preference of S. to be a substantial 

change in circumstances, John must also meet the criteria to show he has the 

ability to minister more effectively to the needs of S. See id. at 32. John asserts 

that he has a better relationship with S. The GAL report would support that 

assertion but one must wonder about the foundation and source of that 

“relationship.” Angel has been the disciplinarian and the one who has been 

charged with addressing the educational, social, and religious needs and training 

of S. John has been primarily absent from assuming those responsibilities. It is 

true that Angel’s role as the primary caretaker naturally places those duties 

substantially on her. The trial court noted John’s parenting of S. has involved few 

expectations and rules. John has promoted his own parenting approach, 
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creating conflict and confusion. Once again, we agree with the trial court’s 

conclusion that John has established he can and would provide different care for 

S., but he has not established it is in S.’s best interest for her to be placed in 

John’s physical care.

The trial court awarded Angel one-half of her attorney fees. John has 

slightly greater income than Angel. We cannot say the award is an abuse of the 

trial court’s discretion. See Sullins, 715 N.W.2d at 247. Costs of the action are 

assessed to the appellant. No appellate attorney fees are awarded.

AFFIRMED.