Opinion
No. 6-194 / 05-1401
Filed April 12, 2006
Appeal from the Iowa District Court for Tama County, L. Vern Robinson, Judge.
Shannon Dostal appeals from the district court order that denied her petition to modify the child custody provisions of the parties' dissolution decree. AFFIRMED.
Barry Kaplan and Melissa Nine of Kaplan Frese, L.L.P., Marshalltown, for appellant.
Andrew Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Shannon Dostal appeals from the district court's order denying her application to modify the child custody provisions of the parties' dissolution decree. We affirm.
I. Background Facts Proceedings
Shannon and Tony Dostal were married in Tama in 1991. The parties' marriage was dissolved in October 2002. The dissolution decree incorporated a stipulation that awarded joint legal custody and provided the "primary residence" of the parties' two children, Rayne and Chance, would be with Tony. The stipulation stated Shannon was to have physical care of the children on a regular basis, including every Tuesday and Thursday as well as every other weekend.
Rayne was born in July 1997, and Chance was born in November 1999.
Shannon has continued to live in Tama since the dissolution decree was entered. She lives with Brad Grimes. Brad testified he and Shannon were married by common law in November 2004. Shannon and Brad have a daughter, Riley, who was born in July 2005.
Tony has also established a relationship with another person. Tony began living with Stacey Welder in December 2004. Stacey has a fourteen-year-old son from a prior marriage. Tony and Stacey moved to Marshalltown in the summer of 2005, shortly before the hearing on Shannon's petition to modify. At the time of the hearing, Tony and Stacey were planning to be married on August 20, 2005.
Both Tony and Shannon work at the same jobs they held at the time the dissolution decree was entered. Tony works for Ryerson Tull in Marshalltown, and Shannon is employed as a certified nurse's aide at the Iowa Veteran's Home in Marshalltown.
After the decree was entered, Shannon and Tony varied from the court-ordered visitation because of their work schedules. Tony would wake the children up before 5:00 a.m. and drop them off at Shannon's sister's home before he left for work. Shannon worked the 10:00 p.m. to 6:00 a.m. shift at the Veteran's Home, so she would pick the children up after 7:00 a.m. when she got off work and watch the children during the day. When Stacey moved in with Tony, she was able to watch the children during the day, making it unnecessary to wake them up before 5:00 a.m. to deliver them to Shannon's sister.
Stacey is licensed as a home daycare and foster care provider.
Stacey and Shannon do not get along. They have argued with each other on numerous occasions. Tony and Shannon's relationship has clearly deteriorated since Stacey moved in with Tony.
Shannon filed an application to modify the physical care provisions of the dissolution decree during November 2004. She contended a material and substantial change in circumstances had occurred that warranted a change in physical care, and she asked the court to make her the primary caretaker of the children. Following trial in August 2005, the district court denied Shannon's application. Shannon has appealed.
II. Scope Standards of Review
Our scope of review in custody modification proceedings is de novo. Iowa R. App. P. 6.4; In re Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995). We give weight to the fact findings made by the trial court, especially when we consider witness credibility, but we are not bound by those findings. Iowa R. App. P. 6.14(6)( g); In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). Prior cases have little precedential value; therefore, we predominantly base our decision on the facts and circumstances unique to the parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). Our primary concern is the best interests of the children. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988).
III. Modification of Physical Care
As the party seeking modification of the dissolution decree, Shannon was required to establish by a preponderance of the evidence that a substantial change in circumstances has occurred since the entry of the decree. In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). 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, 870 (Iowa Ct.App. 1998). The party seeking to alter physical care must also demonstrate he or she possesses the ability to provide superior care for the children. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998). This heavy burden stems from the principle that once custody of children has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
The record makes clear that Shannon's argument for a change in custody is based principally upon the conflict between Shannon and Stacey Welter. Shannon claims Tony's "new paramour" caused a complete breakdown in communication between the parties, frustrating her relationship with the children. Shannon testified that Stacey screams at her when she attempts to communicate with Tony or the children, and she complains Stacey and Tony accused her of being a thief. Shannon contends Stacey's behavior and Tony's decision to follow the visitation schedule outlined in the stipulation rather than a more flexible schedule constitute a substantial change in circumstances that justifies modifying the decree.
Tony and Stacey also have complaints about Shannon. They claim Shannon regularly walked into Tony's home uninvited, drove by Tony's home to spy on him, harassed Stacey's son, and routinely called Tony to yell at him about insignificant things.
After carefully considering the evidence presented at trial, the district court found Shannon and Stacey were equally at fault for any problems that existed between them. The court observed that each had acted "unreasonably and nastily," and both had "made comments and used epithets which were overheard by the children and placed the other in a negative light." Upon our de novo review of the record, we conclude the evidence supports the district court's conclusions. Like the district court, we conclude the poor relationship that has developed between Shannon and Stacey should not serve as a justification for changing custody, particularly in a situation where Shannon is equally responsible for the strife that currently exists.
The district court also found Tony's move to Marshalltown was not a substantial change in circumstances. We agree. Tama and Marshalltown are only about twenty-five miles apart. Both Tony and Shannon work in Marshalltown. Tony moved to Marshalltown to be closer to his employment and because he had a chance to purchase a larger home. The record simply does not support the conclusion Tony moved to impede Shannon's contact with the children. The district court properly rejected Tony's move as a basis for modifying custody. In re Marriage of Whalen, 569 N.W.2d 626, 630 (Iowa Ct.App. 1997) (holding that where there is good reason for moving the children, a change in the custodial parent's geographic location is not justification in itself for change of custody).
We also believe the district court was correct in concluding Shannon did not carry her heavy burden of proving she possesses the ability to provide superior care for the children. Mayfield, 577 N.W.2d at 873. The record reveals Tony is a good parent. He has an excellent relationship with the children, consistently meets their needs, and acts in their best interests. Shannon is also a caring and attentive parent; however, she has not proven her parenting abilities are superior to Tony's.
The district court found Shannon's home was less stable than Tony's.
As we have already mentioned, once the court has fixed custody of children, we will disturb that determination only for the most cogent reasons. Frederici, 338 N.W.2d at 158. The children are doing well in Tony's home. They are in a stable environment, and Shannon has not shown it would be in their best interests to change their physical care status. In re Marriage of Harris, 499 N.W.2d 329, 332 (Iowa Ct.App. 1993) (holding that our objective in making custody determinations in the children's bests interests is to place the children in an environment that will foster healthy physical, mental, and social maturity).
IV. Attorney Fees
Both Shannon and Tony request appellate attorney fees. An award of appellate attorney fees is within the discretion of the appellate court. Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). We award no appellate attorney fees and tax the costs of this appeal to Shannon.
V. Conclusion
Because Shannon has failed to show a substantial change in circumstances since the entry of the decree and has failed to prove she possesses the ability to provide superior care for the children, we affirm the trial court's decision to deny Shannon's application to modify.