Opinion
No. 5-612 / 05-0648
Filed October 26, 2005
Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.
Respondent appeals the district court's denial of a petition to modify a paternity order to award him physical care of the parties' minor children. AFFIRMED.
Suelllen Overton, Council Bluffs, for appellant.
Lloyd Bergantzel, Council Bluffs, for appellee.
Heard by Mahan, P.J., Hecht, J. and Schechtman, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
Midori Raymore and John Scales are the parents of twin daughters, Jerilyn and Darcie, born on November 22, 1995. The parents were never married to each other. They met at Denali National Park, Alaska. Shortly after, in August 1994, they began living together. Midori was employed as an administrative support person by the National Park Service at Denali in July 1995. John had seasonal employment in maintenance at campgrounds near the park, receiving unemployment for the non-tourist months.
In July 1999, the parties moved to Bellevue, Nebraska. Midori has continued her employment with the National Park Service. She is presently a technical representative with the Lewis and Clark National Historic Trail. John was employed by a refrigeration firm which piqued his interest in refrigeration, air conditioning and heating. This persuaded him to obtain an associate's degree in these specialties from an Omaha technical institute in February 2001.
The parties had separated in July 2000. On March 16, 2001, an order of paternity was entered in Sarpy County, Nebraska. It granted the parties joint legal custody of the twins, with Midori receiving physical care. The order incorporated a liberal visitation schedule, set forth a list of parenting responsibilities, and awarded Midori child support.
At that time, John was employed in the engineering department for the City of Omaha. In May 2001, he was severed from his employment, arising from an incident of intoxication. This prompted his enrollment in an out-patient addiction recovery program. John asserts that he has been drug and alcohol free since that time. He had a short stint as a technician with an apartment complex. John was unemployed for a few months before obtaining employment as a boiler technician. He transferred to Lincoln, Nebraska, in early 2002, eventually moving to Lincoln in the fall of 2003.
After the parties' separation, Midori and the children moved to Council Bluffs. A year later she purchased a two-bedroom home a few blocks from school. In May 2002, after a short romance, Midori married Arnoldo Cantu. This marriage appeared to spur John into believing that Midori had a new family and he should be entitled to a change in physical care. Midori and Arnoldo have one son, Martin, born in October 2003.
The girls were in third grade at Roosevelt Elementary School in Council Bluffs at the time of trial. They are each excellent students. Each is enrolled in a program for gifted students and excel at enrichment activities. Instructors report their conduct, attendance, effort and attitude are outstanding.
There was an incident of domestic violence between the parties on March 15, 2003, when Midori slapped John after he returned the girls late from visitation. John reported the incident to police officers. Midori was not arrested for eighteen months. Midori was convicted of domestic abuse assault. She received a deferred judgment, which was on appeal at the time of trial.
Each child is overweight. Midori has sought nutritional input resulting in increased physical activity, limiting portions, monitoring intake, and avoiding fast food. At Midori's instance, Darcie has been treated for depression and attended counseling for her problems.
The girls were baptized in John's Roman Catholic faith while in Alaska. Midori attended the baptisms. A hiatus from church activities followed, until John started taking them to CED class in Lincoln on Wednesday evenings during his weekday visitations. John takes them to church on his weekends. Midori takes them sometimes. Although not her faith, Midori and Arnoldo fully support the girls' attendance and belief.
Midori has allowed John frequent and liberal visitation. This includes several weeks in the summer with his parents in Georgia. When John worked weekends in Lincoln, Midori allowed visitation during the weekdays. When he has weekends free, she has agreed to the change.
Each parent participates in school functions and encourages outdoor activities as their employment permits.
In April 2004, Darcie informed her counselor that she wished to live with John. When questioned, Jerilyn also stated that she wanted to reside with John. Based on these assertions, Midori was asked to voluntarily modify the physical care provisions of the paternity order. Midori concluded it was not in the children's best interests and there were more legitimate concerns. In May 2004, Midori chose to file this petition to enroll the Nebraska decision in Iowa. John filed a cross-petition, claiming there had been a substantial change of circumstances and asking that the children be placed with him.
A guardian ad litem (GAL) had been appointed for the children. The GAL recommended that the children be placed with John. He noted that both parents have done a good job of taking care of the children. He further stated that "John admits that Midori is a good mom and the children do seem to get along with her husband." The GAL based his recommendation on the children's express preference to reside with John.
The district court did not specifically find the absence of a substantial change in circumstances. The district court did find:
Midori has fostered a relationship between John and the girls, and she has helped to maximize their time together. The children are clearly well loved and well cared for in Midori's care. They have for the most part, thrived. John has not met his burden to prove that he can provide care for the children which is superior to the care Midori has provided.II. Standard of Review
Our standard of review in this equitable proceeding is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct.App. 1999). We give weight to the district court's findings of fact, especially in determining the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Physical Care
John contends that the district court should have modified the parties' paternity order to award him primary physical care of Jerilyn and Darcie. John asserts that he can provide a more stable environment because he keeps in close contact with extended family members, that he has engaged in many activities with the children and has been the parent to involve the children in religious instruction. John avers that Midori is not doing enough to address the children's weight problems. John also points out that Midori was charged with domestic abuse assault against him. Furthermore, John stresses that the children have expressed a preference to live with him, and the GAL recommended that the children live with John. Lastly, he argues that the girls' living environment is suspect.
To change the physical care set by an original decree, the party seeking modification must establish, by a preponderance of the evidence, conditions have so materially and substantially changed since the decree that the children's best interests make the requested change expedient. See Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct.App. 2002); In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.App. 1994). The parent seeking a modification of physical care has a heavy burden to prove an ability to minister more effectively to the children'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 determine John has failed to show a substantial change in circumstances. Even if such a change were shown, John has failed to meet his heavy burden to show that he could minister more effectively to the children's well-being. The record reflects that John does a good job of taking care of the children. John has been committed to spending time with them and being involved in many of their activities. It is gratifying and commendable that John now has a full-time job, has quit drinking, and is active in his church. Yet Midori does not drink or smoke, has continually been employed, and supports John's faith (which is also her husband's). The fact remains that the children have thrived in Midori's care. Jerilyn and Darcie are doing excellent work in school. They are involved in extra-curricular activities. Midori is taking steps to address the children's weight problems and Darcie's depressed state, which has significantly abated. She has shown to be extremely flexible in permitting quality visitation. Midori may not be the perfect parent, but she has demonstrated her ability to effectively minister to the girls' long-term well-being.
Although the GAL supported John's position, that role is different than the court's. The district court stated:
A Guardian ad Litem is appointed to determine and represent the best interests of the children. The Court must determine the best interests of the children, but must also consider whether the petitioning parent can provide superior care. The evidence presented does not support a conclusion that John will provide care for the children which is superior to the care Midori has provided.
We agree with the district court that the single incident of domestic abuse in March 2003 is not a sufficient factor to change the physical care of the children. Also, while the preference of the children should be given some weight, given their ages it should not be a deciding factor in determining their placement. See In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa Ct.App. 1991) (noting that we give less weight to the children's preference in custody modification actions than in original custody proceedings).
IV. Attorney Fees
Midori seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We determine John should pay $1000 for Midori's appellate attorney fees.
We affirm the decision of the district court.