Opinion
No. 3-342 / 02-1895
Filed August 27, 2003
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrum, Judge.
Mother appeals from the physical care and visitation provisions of a district court modification order. AFFIRMED AS MODIFIED.
Anjela Shutts of Whitfield Eddy, P.L.C., Des Moines, for appellant.
Michael Oliver of Oliver Law Firm, P.C., Des Moines, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Kristina Polito appeals from the district court's modification order that placed physical care of the parties' sons, Trevor Allen and Andre John Allen, with their father Andre Allen, limited her visitation, and directed that communication regarding the children occur through a third party. We affirm the district court's ruling, with modification of its visitation provisions.
I. Background Facts and Proceedings . Kristina Polito and Andre Allen are the unmarried parents of Trevor Allen, born in 1996, and Andre John Allen (A.J.), born in 1997. In 1997 Andre petitioned for the establishment of paternity, visitation, and support, but did not seek physical care. The district court granted his petition, ordering joint legal custody of the children, awarding their physical care to Kristina, granting Andre specified visitation, and ordering Andre to pay support according to the Child Support Guidelines.
In February 2002 Andre filed a petition to modify the prior order, requesting that he be granted the children's physical care. In its December 2002 ruling the district court granted the petition, finding that Andre had demonstrated both a substantial change in circumstances and an ability to be the superior caregiver. The district court noted that while Andre's financial stability had increased since 1997, Kristina's fortunes had declined since she was fired for, and entered a guilty plea in relation to, theft from her retail sales employer. The court's primary emphasis, however, was on what it found to be "erratic" and "volatile" behavior by Kristina over the preceding eighteen months.
The court's finding was based not only upon testimony presented by Andre, but also twelve audio tapes, made by Andre, which contained numerous conversations with and messages from Kristina. The tapes, and testimony regarding other incidents, revealed a recent history of disconcerting behavior by Kristina, ranging from explosive outbursts of anger to suicidal threats. The statements and behavior by Kristina occurred in public as well as in private, and often in front of the children.
Voicing "grave concerns" for Trevor and A.J.'s safety, the court limited Kristina to supervised visits "until such time as a mental health professional certified to the Court that [Kristina] is appropriate for unsupervised visitation." Upon such certification Kristina was awarded reasonable and liberal visitation, to include visitation each Wednesday from 4:00 p.m. to 7:00 p.m. during the school year and 4:00 p.m. to 8:00 p.m. during the summer, alternating weekend visitation, alternating holiday visitation, and two weeks of summer visitation to coincide with her regular weekend visitation. The court further directed the parties to utilize Kristina's mother for all communications regarding the children.
Kristina appeals, arguing that Andre did not demonstrate a change in physical care was warranted, that the unsupervised visitation schedule is unduly restrictive, and that the parties should not be required to communicate through a third party.
II. Scope of Review . Our review of this matter is de novo. Iowa R.App.P. 6.4. We give weight to the fact findings of the district court, especially in determining the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g). Our overriding consideration is always the children's best interests. Iowa R.App.P. 14(6)( o).
III. Physical Care . As the party seeking modification of the children's physical care, Andre is required to establish, by a preponderance of the evidence, that there has been a substantial change in circumstances since the original decree was entered. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000). The change must be more or less permanent, and relate to the children's welfare. In re Marriage of Walton, 577 N.W.2d 869, 869 (Iowa Ct.App. 1998). Andre must also show that he is the parent who can more effectively minister to the children's well being. Thielges, 623 N.W.2d at 235.
A. Audio Recordings. The change in circumstances primarily relied upon by both Andre and the district court is the highly negative change in Kristina's behavior. Significant to this determination is the content of the twelve audio tapes. Kristina contends the tapes and their transcripts were inadmissible. Alternately, she argues they should be afforded little if any weight.
The threshold question on the admission of any evidence is the relevance of that evidence to a fact in issue. Iowa R. Evid. 5.401, 5.402. For an audio tape to be admissible there must also be a clear showing that the recording is accurate and trustworthy. State v. Russell, 261 N.W.2d 490, 495 (Iowa 1978). Stated another way, the tapes should be a truthful representation of the statements they purport to demonstrate.
There can be no doubt that the contents of these tapes are relevant on the question of physical care, and in reviewing the tapes it soon becomes clear that all the statements, even those not specifically dated, occurred at times relevant to these proceedings. Kristina even knew, in many instances, the she was being recorded. More importantly, however, Kristina admitted to making the statements contained in the recordings. Even if Andre had not sufficiently demonstrated the accuracy of all the tapes, Kristina's own testimony demonstrated the recordings' admissibility. See United States v. Biggins, 551 F.2d 64, 67 (5th Cir. 1977) (quoted in Russell, 261 N.W.2d at 495-96) ("If there is independent evidence of the accuracy of the tape recordings admitted at trial, we shall be extremely reluctant to disturb the trial court's decision even though at the time that decision was made the [offering party] had not carried its particularized burden of going forward.").
Even if an inadequate foundation had been laid to demonstrate that the transcripts were an accurate reproduction of the audio tapes, the tapes themselves were admitted into evidence.
Kristina argues that the tapes should nevertheless be afforded little weight or credibility, because they represented only a small portion of her overall communications with Andre, and many of the taped conversations were incomplete, leaving the court without an accurate context for the recorded portions. The district court was well aware of these limitations, yet found the tapes credible and worthy of considerable weight. We not only give credence to such a decision, Iowa R.App.P. 6.14(6)( g), we concur in it.
The fact that Kristina often engaged in appropriate contact with Andre and his fiancé, Justean, does not ameliorate the troubling nature of the statements that Kristina has admitted making. Many if not most of the recorded statements need no further explanation, and the tapes, though sometimes segmented, are adequate to convey the tenor and drift of the conversations. Andre's testimony also provided a good deal of surrounding context.
Although Kristina claims that Andre provoked her into making many of the statements, having reviewed the tapes we can conceive of few if any circumstances that would justify or reasonably explain Kristina's comments. Moreover, this claimed excuse was from a party the district court specifically found "was not a credible witness." We give weight to this credibility assessment, particularly as it is borne out by the record. Iowa R.App.P. 6.14(6)( g).
B. Merits. Reviewing the totality of record in this matter, a disconcerting picture emerges. Whether or not the court was aware, in 1997, that Kristina and Andre had a "tumultuous relationship," the record establishes that Kristina's attitude towards Andre worsened after the initial decree was entered, and that her behavior underwent a serious change in 2001, about the time Andre began dating his now fiancé, Justean Ross. The district court was correct in concluding that Kristina began engaging in volatile and erratic behavior, and that such behavior was a substantial change from the time of the 1997 decree.
On numerous occasions Kristina engaged in public outbursts, screaming and cursing at Andre in front of the children. Many of the private, recorded conversations and messages were even more vitriolic, and a number of these also took place in the children's presence. Kristina has threatened to take the children of state, threatened to commit suicide a number of times, and in one instance even informed Andre that she had killed the children. On occasion Kristina was so caught up in her anger toward Andre that she turned the verbal abuse on her children, and even drove in a dangerous and erratic manner with the children in her vehicle. She has attempted to damage Andre's property, and has obstructed his visitation.
As concerning as we find the behavior itself, even more concerning is the fact that Kristina seems to have little appreciation for how this behavior can affect her children. Even though Kristina is a loving mother, and even though she continued to meet her children's physical needs, she has allowed her anger towards Andre and Justean to take priority over her children's best interests. Neither this nor the district court need be presented with evidence of behavioral or emotional problems in Trevor and A.J. to conclude that Kristina's actions have negatively affected her children.
The alteration in Kristina's behavior and attitude is not only a substantial change from the time of the 1997 decree, it is the primary reason why Andre has demonstrated that he is the superior caretaker. While we are not blind to Andre's faults, it is clear that Andre loves his children, has a good relationship with them, and is capable of providing them the care, support and nurture they require. Given Kristina's continued unemployment, and the resulting need to rely on her mother for housing, he also offers the children better financial security.
Most importantly, however, Andre understands that the children need to be insulated from any difficulties that may exist in his relationship with Kristina. See In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999) (noting that goal of courts is to select the environment most likely to cultivate a physically, mentally and socially healthy child). He also understands that the children's physical caregiver must be able to fully support the children's relationship with the other parent. See Iowa Code § 598.41(5) (2001). Based on the record below, Kristina is either unable or unwilling to reach similar understandings. We agree with the district court that Andre has met his burden in establishing the need for a change in physical care.
IV. Visitation . Kristina does not challenge the district court's order that she have only limited supervised visitation until such time as a mental health professional certifies the appropriateness of unsupervised visitation. Rather, she focuses on the visitation schedule imposed by the court once such a certification has been made, arguing it is too restrictive. She seek to expand her summer visitation under that schedule from two weeks to four weeks, and additionally requests one-half of the children's winter and spring breaks from school. She also contends that her Wednesday visitation should begin at 3:00 p.m., rather than the 4:00 p.m. ordered by the district court, so she can pick up the children directly from school.
The primary goal of visitation is to assure the opportunity for maximum continuing physical and emotional contact between the children and their parents. Iowa Code § 598.41(1). Courts should therefore order reasonable and liberal visitation to effectuate that goal, unless to do so would likely result in direct physical or significant emotional harm to the children. Id. Here, the court's restrictive visitation schedule seems to be driven, at least in part, by its concerns over Kristina's mental health. However, the unsupervised visitation schedule does not apply until Kristina has supplied the mandatory certification that unsupervised visitation is appropriate. Presumably, the purpose of such a certification is to verify that the children are not likely to come to physical or emotional harm in Kristina's unsupervised care.
We note that such a certification letter was filed approximately three weeks after the notice of appeal.
With those thoughts in mind, we agree with Kristina that the current visitation schedule is inadequate to meet the goal of maximum continuing contact. We therefore modify the district court's visitation schedule to grant Kristina a total of four weeks of summer visitation. We further modify the schedule to award her visitation during the children's spring break, to occur every other year, and an additional three days of visitation each year, to occur during the children's winter school break.
Finally, we agree that Kristina's Wednesday visitation should be modified during the school year. While such a modification is not necessary to assure maximum continuing contact, as a practical matter her Wednesday visitation should commence at the end of the children's school day. The same rational does not apply, however, to her weekday visitation during the summer months, and we decline to modify Wednesday visitation while the children are on summer vacation.
V. Third-Party Communication . As part of the modification order Andre and Kristina were ordered to utilize Kristina's mother to communicate regarding the children. Kristina contends that she should be allowed direct communication with Andre, as the court's order "flies in the face" of the concept of joint legal custody. She correctly notes that when parents share legal custody, they are required to set aside their differences, communicate with one another, and support each other, for the benefit of the children. See In re Marriage of Fortelka, 425 N.W.2d 671, 673 (Iowa Ct.App. 1988). Given these requirements, a court should not prohibit joint custodians from communicating, or interfere with their ability to communicate, regarding their children.
The order in this case, however, does not prohibit or interfere with Andre and Kristina's ability to communicate about Trevor and A.J. It merely governs the means by which such communication shall occur. We would not ordinarily endorse such a restriction on the means of communication, as it is preferable for parents to communicate directly about their children. Unfortunately, this is not an ordinary case.
In this instance it is not the court's order, but Kristina's own behavior, that flies in the face of the precepts of joint legal custody. It is Kristina who has demonstrated an inability to set aside her differences with Andre, and work with him for the children's benefit. The district court was faced with the dilemma of how the parties could most effectively communicate about the children, given Kristina's past behavior. Kristina's suggestion that the court should simply order the parties to "act like `mature adults'" did not appear to be a viable solution, given that Kristina continued to minimize her own inappropriate behavior. Under the unique circumstances of this case, the district court's approach was justified. We decline to alter this provision of the decree.
VI. Attorney Fees . Andre requests that this court award him appellate attorney fees. Such an award is discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). We decline to award appellate attorney fees in this matter.
VII. Conclusion . We affirm the district court's decision to award Andre the physical care of Trevor and A.J., and its requirement that the parties communicate regarding the children through a third party. We modify Kristina's scheduled visitation as follows: (1) Kristina is granted a total of four weeks of visitation in the months of June, July and August. Unless otherwise agreed to by the parties, this visitation is to be exercised in two-week segments occurring at least two weeks apart, with each segment to include Kristina's regularly-scheduled weekend visitation. (2) We award Kristina visitation during the children's spring break every other year, to be exercised in odd-numbered years. We further award her three days of visitation during the children's winter school break, to be exercised every year. These three days shall be in addition to any holiday or other regularly scheduled visitation during that time. (3) We modify Kristina's weekly visitation so that, during the school year, she shall have visitation each Wednesday beginning at the end of the children's school day, and lasting until 7:00 p.m. Kristina's Wednesday visitation remains unchanged during the summer months.
We decline to award appellate attorney fees. The costs of this appeal are to be divided equally between the parties.