Opinion
No. 5-043 / 04-1555
Filed April 13, 2005
Appeal from the Iowa District Court for Polk County, Leo Oxberger, Senior Judge.
Aimee Little appeals the district court's modification order. REVERSED IN PART, AFFIRMED AS MODIFIED IN PART, AND REMANDED.
Patrick Payton of Patrick H. Payton Assoc., P.C., Des Moines, for appellant.
Larry Ball, Jr., Altoona, for appellee.
Heard by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
I. Background Facts Proceedings
A dissolution decree for Daniel and Aimee Little was entered on October 3, 2001. The court granted the parties joint legal custody of their child, Ethan, who was born in February 1998. Aimee was awarded primary physical care, based in part on the recommendation of a child custody evaluation performed by Dr. Kelli Hill Hunt of the Des Moines Child Adolescent Guidance Center, Inc. Daniel was awarded extensive visitation, which included three days each week and six weeks in the summer. Daniel was ordered to pay child support.
When Ethan entered school, the parties mutually agreed that Daniel's visitation would be reduced to each weekend because Ethan was finding the change in physical care during the school week to be disruptive. Since the dissolution decree, Daniel became engaged to Rhonda Isaacson and lives with her and her two sons, who are fifteen and seventeen years old. Aimee is engaged to David Lockport and lives with him. Aimee also has a son from a previous marriage, Zachary, who was ten years old, and who lives in her household.
On February 6, 2003, Daniel filed an application for modification, seeking primary physical care of Ethan. The record before us fails to indicate any request by Daniel for joint physical care. In his request for primary physical care, he claimed Aimee attempted to alienate Ethan from him. In the modification order entered on September 9, 2004, the district court found there was a substantial change in circumstances due to Aimee's attempts to undermine Ethan's respect for his father. The court further stated as follows:
1. In the spring of 2004, the Iowa Legislature and the Governor of Iowa modified the dissolution law of Iowa, to order that if one of the parties request the court to order joint physical care of the parties' minor child and the court denies the request the court shall make specific findings of fact and conclusions of law that the awarding of such joint care is not in the best interest of the child. See [2004 Iowa Acts ch. 1169, § 1].
2. The court finds now the public policy of the State of Iowa is there is a preference for joint physical care of the minor child in dissolution custody cases.
3. The court cannot cite facts justifying a denial of the father's request for joint physical care of the minor child. Although the cooperation between the parties is not ideal it does not rise to the level that would make joint physical care inappropriate.
The court then ordered joint physical care of Ethan, with each party having physical care for six months of the year. Aimee appeals.
II. Standard of Review
Modification proceedings are reviewed de novo. Iowa R. App. P. 6.4. In child custody cases, the governing consideration is the best interest of the child. Iowa R. App. P. 6.14(6)( o).
III. Substantial Change in Circumstances
Aimee contends the district court improperly used the amendment found in 2004 Iowa Acts chapter 1169, section 1, now Iowa Code section 598.41(5)(a) (2005), to determine there had been a substantial change in circumstances. We do not believe the district court determined the enactment of the amendment was a substantial change in circumstances; the court specifically found there had been a substantial change in circumstances based on Aimee's conduct.
We turn then to the question of whether Daniel has sufficiently shown that Aimee's conduct created a substantial change in circumstances. To change the physical care set by a dissolution decree, the party seeking modification must establish by a preponderance of the evidence conditions have so materially and substantially changed since the decree the child's best interests make the requested change expedient. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.App. 1994). The parent seeking to take physical care from the other has a heavy burden to show an ability to minister more effectively to the child's well-being. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App. 1997). Once physical care has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Downing, 432 N.W.2d 692, 693 (Iowa Ct.App. 1988).
We note failing to cooperate and communicate with a child's other parent can result in a modification of physical care. See In re Marriage of Udelhofen, 444 N.W.2d 473, 476 (Iowa 1989); In re Marriage of Whalen, 569 N.W.2d 626, 629 (Iowa Ct.App. 1997). A change of circumstances may occur when a parent engages in hostile, unreasonable conduct directed at the other parent that adversely affects the child. See In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.App. 1994). On the other hand, as we have previously noted, "there are situations where one parent will seek to put the other parent in an unfavorable light. Some cases are slight and to be expected in our less than perfect society." Id.
In the present case, much of Daniel's testimony centered around Ethan's baptism in April 2002. Aimee did not reveal the time or location of the baptism to Daniel until the day it occurred. Daniel was able to attend the baptism, but remained angry because Aimee did not inform him about it sooner. Aimee responded that Daniel did not regularly attend church, and she did not think the baptism would be important to him.
Daniel was also upset because Aimee gave him pictures of himself with Ethan, along with his dog tags from the military. Daniel testified these items should have remained in Ethan's baby book, and he felt Aimee was trying to exclude him from Ethan's life. Aimee testified that at the time of the dissolution they did not divide pictures, and she felt Daniel would like some pictures from Ethan's younger years. She also thought Daniel might want his dog tags back. She stated these items were not taken from Ethan's baby book. Daniel had not discussed this issue with Aimee prior to the court hearing.
In addition, there was also evidence that Aimee had switched Ethan's doctor, but had discussed this with Daniel first. Daniel remained unhappy about the decision to switch doctors. Daniel also testified that he expected to get e-mails from the school about Ethan's school events, and had not been getting them, but he did not know why. It is unclear whether he blamed Aimee for this or the school. Aimee testified she gave Daniel information about school events if she thought it was important.
While we do not condone Aimee's behavior, we do not believe Daniel has shown a substantial change in circumstances. Even if the events testified to by Daniel constituted a substantial change in circumstances, on our de novo review, we do not find that Daniel has shown that a change in the physical care arrangements is in Ethan's best interests. Moore, 526 N.W.2d at 337. Daniel has not shown that Aimee engaged in hostile, unreasonable conduct directed at him that adversely affected Ethan. See Rosenfeld, 524 N.W.2d at 215. The evidence showed Ethan had done very well in Aimee's care.
Furthermore, in our consideration of this case, we take note of some events in which Daniel clearly placed his own interests above those of Ethan. On one occasion, Ethan was sick, and a doctor had prescribed medicine and recommended bed rest. When Daniel came to pick Ethan up for visitation later that day he insisted that Ethan get up and come to his house for visitation. Furthermore, Daniel and Rhonda continue to smoke around Ethan, even though he has asthma and is not to be around smoke.
There was also an incident in which Daniel "happened" to drive by Aimee's house, and saw Ethan and Zachary getting in a car with Zachary's father, Robert. Daniel followed the car, which was traveling to the home of Robert's parents for a Christmas party. Zachary's paternal grandparents had purchased Christmas presents for both boys. Daniel admitted he knew it was not his time for visitation with Ethan, but he called the police and requested assistance in removing Ethan. After talking to Aimee, the police told Daniel that Ethan could remain at the party. This incident clearly shows a lack of respect by Daniel for Ethan's time with others.
We conclude Daniel has failed to establish by a preponderance of the evidence that conditions have so materially and substantially changed since the dissolution decree that it would be in Ethan's best interests to change the physical care arrangements. See Moore, 526 N.W.2d at 337. We also note, based upon the record before us, that Daniel did not request joint physical care. Therefore, we will not apply the provisions of amended section 598.41(5)(a) in this case. Even if this section were applicable, our decision would remain the same. We reverse the decision of the district court to modify the parties' dissolution decree by placing Ethan in the parties' joint physical care.
We note that under the proper circumstances, a court could, in its discretion, grant joint physical care even when not requested by one of the parties, if such an arrangement was in the best interests of the child. We do not believe this case presents such special circumstances.
Because we have determined Daniel failed to show a substantial change in circumstances, we need not address the parties' claims regarding whether amended section 598.41(5)(a) applies to modification proceedings. We would note, however, that a child's physical care should not be modified unless there has been a substantial change in circumstances and it is in the child's best interests to change the present physical care arrangement, whether the change is to joint physical care or primary physical care with the other parent. See Moore, 526 N.W.2d at 337.
We point out to the parties that as joint legal custodians, they are entitled to "equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction." Iowa Code § 598.41(5)(b). As the parent having physical care, Aimee "has a responsibility of communicating to the other parent the need to make decision[s] and making the necessary information available." In re Marriage of Fortelka, 425 N.W.2d 671, 673 (Iowa Ct.App. 1988). Both parents have a responsibility to discuss problems with each other. Id.
IV. Visitation
Aimee has requested that if we continue Ethan in her care, that we modify the visitation provision of the dissolution decree. Once Ethan started school the parties found the visitation schedule to be detrimental to Ethan, and they informally agreed to limit Daniel's visitation to each weekend. Aimee asks to have the decree reflect this change, so that Daniel would have visitation each weekend from 5 p.m. Friday evening until 8 a.m. Monday morning. We make this change to the parties' dissolution decree.
The decree awarded Daniel six weeks of summer vacation. Daniel claimed he still received each weekend during the summer, and as a result, he had Ethan most of the summer. Aimee asks that the parties each have Ethan for one-half of the summer break from school. We determine Daniel may have six weeks of visitation in the summer, but weekend visitation will not be "tacked on" to this time. During the remainder of summer break, Daniel will only have visitation on alternating weekends. This should allow Aimee time to go on vacation with Ethan if she wishes to. We leave the remainder of the parties' visitation schedule as set forth in the dissolution decree.
V. Child Support
At the modification hearing, Aimee testified she had recently started working as a home health aide for Generations, Inc., in addition to her job delivering papers. Aimee's income from Generations was not included in the record. We remand to the district court to permit the parties to file new child support worksheets, and to allow the district court to set Daniel's child support obligation.
We reverse the decision of the district court modifying physical care, we modify the parties' visitation schedule, and we remand for further proceedings. Costs of this appeal are assessed to Daniel.