Opinion
No. 1-471 / 00-1712.
Filed November 16, 2001.
Appeal from the Iowa District Court for Cedar County, NANCY S. TABOR, Judge.
Kevin Puls appeals from a modification order transfering primary care of the parties' minor child to the mother, Sandra Eiselstien. AFFIRMED.
Stuart Werling, Tipton, for appellant.
Robert DeKock of DeKock Law Office, P.C., Muscatine, for appellee.
Heard by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Kevin J. Puls appeals from the district court's modification order transferring physical care of the parties' minor child from him to her mother, Sandra L. Puls, n/k/a Sandra Eiselstein. Kevin contends the court's decision should be reversed and Sandra should be directed to pay child support. Sandra requests an award of appellate attorney fees. We affirm.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS
Kevin and Sandra Puls, n/k/a Sandra Eiselstein, were divorced on May 2, 1990 by stipulated decree. Sandra and Kevin are the parents of two children, Stephanie, born October 24, 1979, and Chelsea, born September 30, 1985. Under the terms of the stipulated decree it was agreed and ordered the parties would have joint custody of the children. It was also agreed Sandra had been the children's primary caregiver during the course of the marriage and the decree placed physical care of the children with her. Kevin filed an application to modify the decree on May 1, 1991 seeking to change physical care of the children, alleging Sandra was interfering with his parental rights. The court denied the application but did provide for more specific visitation by Kevin.
Stephanie was no longer a minor at the time of the modification action at issue here and therefore is not a subject in this appeal.
On September 13, 1995 Kevin filed a second petition for modification again seeking to change the physical care set forth in the stipulated decree to have both children placed with him. The district court granted Kevin's second petition on December 31, 1996, changing physical of the children from Sandra to him. It found Sandra had continuously interfered with Kevin's visitations and parental relationship with the children. Sandra appealed the court's modification order. The district court's judgment was affirmed by operation of law by an equally divided court of appeals on October 29, 1997.
Sandra filed an application for modification of physical care on November 18, 1997. By this time Stephanie had been living with Sandra for several months, and had turned eighteen years of age. The district court denied Sandra's request on May 13, 1998. In doing so it declined to make a determination concerning Stephanie's physical care, because of her age. The court found that although the change of custody had been very traumatic for the children and Chelsea had exhibited negative behaviors there had not been sufficient time for Chelsea to adapt to or accept the change of physical care due to the court proceedings and the circumstances surrounding the conflicts between Kevin and Stephanie. The court determined there was no evidence to demonstrate that Chelsea's change in conduct was more or less permanent.
Sandra filed a second application for modification, seeking a change of Chelsea's physical care, on January 7, 2000. After a trial on the merits the district court granted Sandra's request and transferred physical care of Chelsea from Kevin back to Sandra on September 15, 2000. Kevin appeals from the court's grant of Sandra's request for modification.
At the time of the modification at issue here Kevin was forty-five years old and Sandra was forty-two. Since the dissolution Kevin has remarried and has one child from his new marriage. He and his wife both work as locksmiths for the University of Iowa in Iowa City. Sandra has also remarried and has two children from her new marriage. She is a full time homemaker and her husband is an auto mechanic.
II. SCOPE AND STANDARD OF REVIEW
In this equity case our review is de novo. Iowa R. App. P. 4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). 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. 14(f)(7). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). Prior cases have little precedential values with respect to custodial issues, and the court must make its decision on the particular circumstances unique to each case. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct.App. 1995).
III. MERITS
The legal principles governing modification actions are well established.
To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of the 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. 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. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children's well being. 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 for only the most cogent reasons.
Petition of Anderson, 530 N.W.2d 741, 741-42 (Iowa Ct.App. 1995) (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). Many of the criteria for determining child custody are also applied in modification proceedings. In re Marriage of Hubbard, 315 N.W.2d 75, 80 (Iowa 1982); In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.App. 1996). Our first and foremost consideration here, as in all cases involving questions of custody or physical care, is the best interest of the children. In re Marriage of Sprague, 545 N.W.2d 325, 327 (Iowa Ct.App. 1996).
Here, unlike in an original custody determination, the question is not which home is better, but whether the parent seeking the change has demonstrated he or she can offer the child superior care. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct.App. 1994). If both parents are found to be equally competent to minister to the child, custody should not be changed. Id. The burden upon the parent seeking to change custody is heavy "because children deserve the security of knowing where they will grow up, and we recognize the trauma and uncertainty these proceedings cause all children." Id. at 213-14. The children's preference of where to live is given some weight, but less weight in a modification than in an original custodial determination. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998); In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct.App. 1987).
Kevin argues the district court erred in granting Sandra's modification petition to change physical care of Chelsea from him back to her. The district court determined there had been a substantial change in circumstances since the court's prior order denying Sandra's previous application for change of physical care. The court's findings include the following:
The child has not been treated with the dignity and respect that she deserves, and it is no wonder that she is rebelling in the manner that she is. She feels an allegiance to her mother and a need to respond to that allegiance. She further feels a lack of dignity and respect from her father and a need to respond to that. Although the Court cannot condone a 14-year-old determining custody, it is clear that there has been a substantial breakdown in the relationship between the father and daughter in this case. It is further clear that the circumstances that appeared to be temporary adjustment problems at the time of the last modification hearing have now developed into a more permanent nature. Neither the authoritarian parenting by Dad nor the permissive parenting by Mom is the optimal scenario for the child; however, the mother has shown an ability to take steps to change her parenting style, whereas the father has not.
We agree with these findings and adopt them.
There has been a substantial change in circumstances since the prior refusal to modify physical care in 1998. The relationship between Chelsea and Kevin, which was already strained in 1998, has since only become more antagonistic despite efforts at counseling. The relationship had deteriorated to the point where Kevin physically held Chelsea down to attempt to put soap in her mouth, limited the time she could speak to Sandra, took back gifts, and called Chelsea derogatory names. The family counselor who had been working with the parties acknowledged that Chelsea was very angry with her father and angry about being forced to leave her mother's home. The counselor further testified Chelsea referred to Kevin as the "enemy," Kevin's derogatory comments to Chelsea were "completely inappropriate," and in her overall assessment of the situation Chelsea was well bonded with her mother but had not been able to develop the same sort of bond with her father.
Furthermore, it is evident from Chelsea's testimony at the hearing, as well as her words and actions since the time physical care was initially modified, that she has continually had a very strong preference to live with her mother. Our overriding concern is Chelsea's best interest. Her preference of where to live, while not controlling, cannot be completely ignored. When a child is of sufficient age, intelligence and discretion to exercise enlightened judgment, his or her wishes may be considered, together with other relevant factors, in determining custody. In re Marriage of Thielges, 623 N.W.2d 232, 239 (Iowa Ct.App. 2000); In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa Ct.App. 1991). While the analysis involved in deciding a physical care issue is far more complicated than merely determining with which parent the child wishes to live, here the child has continually and consistently expressed her strong preference to live with her mother for over five years now. Chelsea was just short of fifteen years old at the time of trial and we believe of sufficient age and intelligence to have an informed opinion on this matter. Her preference was clearly considered by the district court and we give it consideration as well.
We conclude Sandra has met her heavy burden of proving there has been a substantial change of circumstances since the entry of the last modification order such that Chelsea's best interests make it expedient to make the requested change. We agree with the district court that these changed circumstances now appear more or less permanent and no longer temporary or merely the result of a period of adjustment, as they may have been at the time of the last modification order.
We further conclude that Sandra has proven her ability to minister more effectively to Chelsea's well being at this point in Chelsea's life. Kevin has been unable to effectively and appropriately deal with Chelsea's problems. Although it might have been apparent that Kevin's attempts to deal with these issues by implementing more and stronger restrictions on Chelsea's life were not working and were in fact increasing her resentment towards Kevin and her stepmother, he continued to pursue these means until the situation escalated to the point where he and his wife were physically restraining Chelsea on the kitchen floor to put soap in her mouth. We fully agree with the district court's observation that although Chelsea's actions were totally inappropriate and cannot be condoned, Kevin's response was also probably inappropriate and at a certain point "both the parents and the child were out of control." In such situations it is expected the parent will be the one to remain in control and respond appropriately. Kevin has not shown an ability to do so despite genuine efforts made through counseling. We can find no reason, given Chelsea's clear desire to live with Sandra, Kevin's apparent problems dealing with Chelsea's issues in an a manner that is both effective and appropriate, and Sandra's demonstrated ability to provide Chelsea with a good and loving home, why at this point in Chelsea's life she should be required to continue in Kevin's physical care.
It is evident from the protracted history and repeated litigation in this case that Kevin and Sandra do not get along and are unable or unwilling to reach agreement or compromise when it comes to the custody of their children. Their unfortunate inability to communicate and work out their problems has negatively affected their children. Both parties claim they are only seeking to do what is in Chelsea's best interests when in fact they have been putting her in the middle of the problems they have with each other. Chelsea deserves to have Kevin and Sandra put aside whatever problems they have with one another and truly begin to do what is in Chelsea's best interest. We urge them to do so.
IV. APPELLATE ATTORNEY FEES
Sandra has requested appellate attorney fees. Appellate attorney fees are discretionary. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). We consider the needs of the party making the request, the ability of the party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. Id. After considering these relevant factors we find Sandra was obligated to defend the district court's decision on appeal and has done so successfully. We award Sandra $1000 in appellate attorney fees.
V. CONCLUSION
Based on our de novo review of the entire record, for the reasons set forth above we conclude Sandra has met her heavy burden to show there has been a material and substantial change in circumstances such that Chelsea's best interests make it expedient to make the requested change. We further conclude that Sandra has shown she has an ability to minister more effectively than Kevin to Chelsea's needs, including but not limited to her emotional and social development. We therefore affirm the district court order changing physical care of Chelsea from Kevin to Sandra. Sandra is awarded $1000 in appellate attorney fees.
AFFIRMED.