Opinion
No. 6-028 / 05-0911
Filed March 15, 2006
Appeal from the Iowa District Court for Hancock County, John S. Mackey, Judge.
A father appeals from the dismissal of his petition to modify the physical care provisions of the decree which established the legal custody and physical care of the parties' child. AFFIRMED.
Michael Cross of Cross Law Firm, Hampton, for appellant.
F. David Eastman of Eastman Law Office, Clear Lake, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Allan Zeigler appeals from the dismissal of his petition to modify the physical care provision of the decree which provided that he and Tessa Parcher would have joint legal custody of their child, and placed the child's physical care with Tessa. We affirm the district court.
I. Background Facts and Proceedings.
Allan Zeigler and Tessa Parcher are the unmarried parents of McKenzie Zeigler, born in 1997. Allan and Tessa separated in 1999, and McKenzie remained in Tessa's care. In 2000 the court approved a stipulation between the parties that awarded Allan and Tessa joint legal custody of McKenzie, placed McKenzie's physical care with Tessa, and awarded Allan reasonable but unspecified visitation. The stipulation expressly provided that both parties were to have full access to McKenzie's records, the parties were to keep each other advised of present addresses and telephone numbers, and Tessa was to keep Allan informed regarding McKenzie's school-related events.
In July 2004 Allan filed an application for contempt, asserting Tessa had refused to allow him visitation with McKenzie and had failed to provide him with school, medical, and other information regarding McKenzie. On September 7, the date of the contempt hearing, Allan filed a petition to modify the initial decree, seeking a change in McKenzie's physical care. On September 9 the district court filed a contempt ruling that concluded Allan had established Tessa's failure to identify Allan as McKenzie's father on various documents, and that this failure was a violation of the initial decree. However, the court concluded Allan had not established Tessa's violation of the decree's visitation provision, "since the Court finds that [Allan] has not been proactive in asserting his rights in attempting to have contact with his daughter." In light of the pending modification petition, the court determined the appropriate sanction for Tessa's violation was to allow Allan specified visitation with McKenzie pending the modification ruling.
Allan's modification petition came on for hearing in March 2005. The main areas of dispute concerned Tessa's stability following the parties' separation, and whether Allan's limited involvement in McKenzie's life was the product of Tessa's interference or Allan's apathy. Allan also objected to the admissibility of testimony that he had physically abused Tessa during their relationship. The district court allowed the testimony over Allan's objections that it was irrelevant and immaterial because it related to events occurring prior to the 2000 stipulation and decree.
In its April 2005 ruling, the district court dismissed Allan's modification petition. In support of its decision, the court stated:
Based upon the evidence presented, it appears to this court that both parties need to seriously improve their parenting skills, as well as communication between themselves for the purposes of facilitating visitation and adequate joint ministering to McKenzie's needs. Although the credibility of both parties appears to be also seriously lacking in several key respects, the court finds and concludes that Allan has not met the heavy burden required of him . . . mandating a showing of superior care for McKenzie. . . . While it is true that for quite some time following their separation Tessa physically moved often and was involved in two similar abuse relationships as she had had with Allan, she has, it appears to the court, achieved a stable residence and relationship with her present husband and the enrollment of McKenzie in the North Central Community School system. McKenzie appears to be reflecting this increased stability in her life by her improved and satisfactory school work. Visitations between the parties now appear finally to be going smoothly between these two young struggling parents. At present, it appears to the court that McKenzie's best interest in the long range would be better served by remaining in Tessa's primary physical care as originally stipulated between the parties and the cooperative facilitation of the visitation schedule set . . . in the contempt ruling.
In late May 2005, Allan filed a Motion to Reopen Trial and Allow Additional Evidence. Allan asserted Tessa had been charged with theft in the second degree on the eve of trial, and that he had learned of the charge only after the modification trial had concluded. Contending the charge impugned Tessa's credibility, Allan requested the court reopen the record to allow evidence regarding Tessa's involvement in the theft. The district court denied the motion, concluding that "[w]hile a conviction would shed light upon [Tessa's] credibility, she is presumed innocent until so proven guilty and, accordingly, . . . any evidence of said charge would be immaterial."
The same date he filed his motion to reopen, Allan filed his notice of appeal from the district court's decree. On appeal, Allan contends the court abused its discretion when it refused to reopen the record to admit evidence of Tessa's criminal charge, and when it admitted evidence of his physically abusive behavior. He further contends the court erred when it found he had not established that a change in McKenzie's physical care was warranted.
We recognize that "[o]nce an appeal is perfected [by filing the notice of appeal], the appellate court has jurisdiction [and] . . . the district court loses jurisdiction over the merits of the controversy. . . ." IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 628 (Iowa 2000). We further recognize that perfection of the appeal divested the district court of authority to consider either (1) "any posttrial motions filed after the notice of appeal," or (2) any posttrial motion previously filed by the appellant, which are "deemed . . . waived and abandoned. . . ." Id. However, as Tessa has not challenged the district court's jurisdiction to rule on the motion to reopen, we have chosen to bypass any error-preservation or jurisdictional concerns and address the merits of Allan's claim.
II. Scope and Standards of Review.
Our scope of review is de novo. Iowa R. App. P. 6.4. Although not bound by the district court's factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)( g). We reverse an evidentiary ruling of the district court only if the court abused its discretion, to the complaining party's prejudice. Horak v. Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002); R.S. Fox, L.L.L.P. v. Board of Review, 656 N.W.2d 809, 811 (Iowa Ct.App. 2002). Discretion is abused when it is exercised to a clearly unreasonable extent, or for reasons or on grounds that are clearly untenable. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
III. Law Governing Modification of Physical Care.
As the party seeking modification of McKenzie's physical care, Allan bears a heavy burden. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). This is because once the custody and care of a child has been fixed, it should be disturbed only for the most cogent reasons. Id. The overriding consideration in such cases is always the child's best interests. Iowa R. App. P. 14(6)( o); In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997).
To demonstrate that a change in physical care is warranted, Allan is required to establish by a preponderance of the evidence that a substantial change in circumstances has occurred since entry of the initial decree, which was not within the contemplation of the district court when the decree was entered. See 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 McKenzie's welfare. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). Allan must also show he is the parent who can more effectively minister to McKenzie's well-being. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000).
IV. Discussion.
Before we address the issue of physical care, we turn to Allan's two assertions of evidentiary error. We easily dispose of both claims.
As the district court correctly noted, a theft charge is not tantamount to a theft conviction. It is an accusation, not an act. While evidence of the latter is admissible to attack a party's credibility, evidence of the former is not. See Iowa Rs. Evid. 5.608, 5.609. We find no abuse of discretion in the court's refusal to reopen the record to allow Allan to present evidence of the theft charge.
Nor do we see any abuse of discretion in the court's decision to admit evidence that Allan physically abused Tessa. Allan contends admission of this evidence was improper because the evidence addressed actions predating the stipulation and initial decree, and the initial decree was "final as to all circumstances then in existence." He cites the case of Huston v. Huston, 255 Iowa 543, 122 N.W.2d 892 (1963) in support of his position. However, the principle that a decree is final to all matters then existing refers to whether the party seeking modification has established a substantial change in circumstances. Huston, 255 Iowa at 555, 122 N.W.2d at 900; see also Maher, 596 N.W.2d at 564-65.
The case was overruled on other grounds by Phillips v. Iowa Dist. Court, 380 N.W.2d 706, 709 (Iowa 1986).
While Allan's pre-stipulation behavior would not be relevant to establishing a substantial change in circumstances, it is relevant to the questions of whether he would prove the superior caretaker, and whether it would be in McKenzie's best interests to be placed in his physical care. See In re Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa Ct.App. 1997) ("[Domestic] abuse discloses a serious character flaw in the batterer, and an equally serious flaw in parenting. . . . [It] is, in every respect, dramatically opposed to a child's best interests."). Moreover, even if we decline to consider this evidence, as we may do upon de novo review, we still reach the same conclusion as the district court: Allan has not met his heavy burden to demonstrate a change in physical care was warranted.
We note the district court did not determine whether a substantial change in circumstances had occurred. However, even if we assume Allan has met his burden in this regard — that he has demonstrated a substantial change in circumstances has occurred since entry of the initial decree, which was not within the contemplation of the district court when the decree was entered, is more or less permanent, and relates to McKenzie's welfare — he still does not prevail. We have reviewed the record, and find no reason to disagree with the district court's conclusion that Allan had failed to demonstrate he would be a superior caretaker for McKenzie.
Allan spends substantial time attacking what he perceives as errors by the district court. However, most of these attacks relate to the weight Allan asserts should be given to various items of evidence, and to the credibility of various witnesses. We have reviewed the record, and find no reason to discard the court's weight and credibility assessments, as Allan suggests. While it does appear that some of the fact findings challenged by Allan are not well-supported by credible evidence, we conclude those findings have little bearing on the ultimate question to be addressed in this case.
We give weight to the district court's finding that, contrary to Allan's assertions, Tessa did inform Allan of her whereabouts after the couple's separation. While Tessa clearly was not wholly compliant in this regard, the record indicates the relatively low level of Allan's involvement in McKenzie's life must be laid, in large part, at his own door. As the district court found, Allan "failed to actively exercise his visitation rights or cut visits short, because he `couldn't deal with' McKenzie." We also give weight to the district court's findings that Tessa has achieved a stable residence and is currently in a stable relationship, and that this increased stability has benefited McKenzie. Whatever problems McKenzie may have experienced in the past, at the time of the modification hearing she was doing well both at home and at school. We also note that Tessa, who does not work outside the home, is better able to devote herself to the care of McKenzie than is Allan, an over-the-road truck driver.
Based upon the record made before the district court, and giving weight to the court's fact findings and credibility assessments, we conclude Allan has not demonstrated that he would prove a superior caretaker for McKenzie. We also agree that McKenzie's interests are best served by remaining in Tessa's physical care. The district court did not err in dismissing Allan's modification petition.