Opinion
No. 3-567 / 03-0467
Filed August 13, 2003
Appeal from the Iowa District Court forStoryCounty, Timothy J. Finn, Judge.
Heidi R. Denio appeals the district court's modification of the shared custody provisions in the November 1999 decree dissolving her marriage to James L. Memmer. AFFIRMED.
James Stanton of Stanton Sorensen, Clear Lake, for appellant.
William Talbot of Parker Law Firm, Nevada, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Heidi R. Denio appeals, challenging the district court's modification of the shared custody provisions in the November 1999 decree dissolving her marriage to James L. Memmer. Heidi contends she, not James, should have been awarded primary physical care of their son, Leighton. We affirm.
Leighton was born on September 17, 1997. At the time of the dissolution of the parties' marriage Heidi and James agreed they would assume Leighton's primary physical care, that they would share his care, and that his time would be split equally between them. At the time they both lived in the town of Zearing, located in Story County, Iowa. The district court approved the parties' agreement, and it was incorporated into the dissolution decree. Following the dissolution Heidi and James were cooperative with each other in exchanging their son, and they both focused on his welfare. Consequently, the custody arrangement worked well.
In February of 2002 James filed an application for modification of the decree, asking that he be granted Leighton's primary physical care. He alleged Heidi had moved four times since the dissolution decree was entered, and she currently lived in Clear Lake, Iowa. He indicated the custodial arrangement in the original decree was not working because of Heidi's location. Heidi filed a responsive pleading admitting that the shared-care arrangement would not continue to work, as Leighton was preparing for preschool or school. She asked that she, not James, be named the primary physical custodian. The matter was submitted to the district court.
After hearing extensive evidence the district court found that both Heidi and James were excellent parents. The court found the balance between each of the parents to be nearly equal and modified the decree, giving weight to the fact that Heidi was the parent who had elected to move from the area where the couple had initially lived. Primary physical care was granted to James. Heidi was ordered to pay child support.
Heidi contends the district court, in granting James physical custody, put too much emphasis on the fact that she moved from Zearing. She further contends she is the better parent and should have been granted primary physical care.
In this equity action, our review is de novo. Iowa R.App.P. 6. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Hickey, 640 N.W.2d 846, 847 (Iowa Ct.App. 2001) (citing In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981)). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
The first question we need to address is whether the record shows there has been a substantial change of circumstances such as is necessary for a modification of the custody provisions of a dissolution decree. Courts are empowered to modify the custodial terms of a dissolution decree only when there has been a substantial change in circumstances since the time of the decree, not contemplated by the court when the decree was entered, which was more or less permanent, and relates to the welfare of the child. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996).
The shared custody provisions agreed to by these parties and incorporated into the decree have not evolved as envisioned by either of the parties or the court. Both parents appear to agree shared care will not continue to work because Leighton will soon be attending school. The fact the parties live seventy-five miles apart and in different school districts makes the current arrangement unworkable. A substantial change of circumstances has been shown. See Dale, 555 N.W.2d at 245.
Here the parents have shared equally the physical and primary care of Leighton. As a result of the dissolution decree they both were found suitable to be primary care parents. Melchiori v. Kooi, 644 N.W.2d 365, 368-69 (Iowa Ct.App. 2002). Consequently we address this as an initial custody determination, and the question is which parent can render better care. Id.
The district court carefully reviewed the record and in its decree reviewed and weighed the evidence and found James and Heidi both to be excellent parents. The court further found that the shared physical care arrangement had worked successfully and would continue to be successful had Heidi not moved from the town of Zearing. After considering the strengths and weaknesses of both parents, the court on balance found them to be equal. On our review of the record we find no reason to disagree with the district court's findings. The district court then found it did not believe, "James should be deprived of the close contact with his son based on Heidi's decision to move from the area."
We, as did the district court, find it difficult to choose between the two parents, knowing that they each want their son with them the majority of the time. However, it is Leighton's interest that is most important. Our decision is made less difficult knowing that he will be well cared for in either home.
The Iowa courts have recognized that in today's society parents can be mobile, and the fact that one parent moves for valid reasons does not necessarily mean, when considered with other factors, that that parent loses physical care. See Frederici, 338 N.W.2d at 160.
Since Frederici was decided, section 598.21(8A) (2001) has been added addressing a relocating parent, but that section is not applicable here.
James has given Leighton the stability of location. Heidi continues to have ties to Zearing, as she has extended family living there and maintains a close relationship with them. James, to his credit, has supported Leighton's relationship with his mother's family in Zearing, and Leighton will continue to benefit from their close proximity. We find no valid reason to reverse the district court's decision and affirm it in all respects.