Opinion
No. 03-1809.
March 16, 2005.
Appeal from the Iowa District Court for Jones County, Thomas L. Koehler, Judge.
Nathan Bartsch appeals from the trial court's ruling denying his petition for modification of the child custody, and visitation provisions of the decree granting primary physical care to Tara Bartsch (n/k/a Tara Flynn). AFFIRMED AS MODIFIED.
Janette Voss of Remley, Willems, McQuillen Voss, L.L.P., Anamosa, for appellant.
Lori Klockau of Bray Klockau, Iowa City, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
I. Background Facts and Proceedings.
Tara and Nathan Bartsch are the parents of Morgan Bartsch, born April 21, 1999. Their marriage was dissolved in Cooke County, Utah, on September 26, 2000. The Utah decree awarded Tara "primary residential custody and control" of Morgan. Final resolution of Morgan's "legal custody" and visitation issues was deferred pending completion of family counseling intended to address post divorce issues related to Morgan. For unspecified reasons, the Utah decree restricted Nathan's visitation with Morgan and ordered him to undergo counseling for "anger management/parenting" for six months. At the time the Utah decree was entered, Tara was in Iowa living with her parents.
The parties complied with the Utah court's directives and engaged the service of Claire Dickey, a registered play therapist and mental health counselor in Iowa City. In her October 8, 2000, report, Dickey summarized her experiences with Nathan, Tara, and Morgan as well as her recommendations for visitation. Notable observations from that report include the following:
Over all Morgan's General Development is comparable to a child of 21 months. She is a child who is developing quite nicely. . . .
Tara is clearly the psychological parent. . . . I give Tara credit for the wonderful job she is doing with Morgan. . . .
Tara consistently reported concerns about Nathan's behavior towards Morgan before their separation and during the recent visitations. . . . Those incidents include attempting to put Morgan in the trunk of the car to play a joke on Tara (with no apparent intention to close the trunk), dismantling the computer mouse and handing Morgan the metal ball within, randomly switching the lights off and on, putting car keys in his ears in front of Morgan, and putting small items in his mouth and spitting them out. The only incidents he disagreed with were his initiating conversations in front of Morgan about the parental conflict and divorce issues. . . .
Based on her observations, Dickey made the following recommendations: (1) both parents receive a psychological evaluation; (2) Nathan complete counseling to help him resolve post-divorce issues; (3) visitation continue to be supervised because of parental conflict; and (4) Nathan give Tara two week's notice of any intended visits.
Nathan engaged Ronald P. Houston, Ph.D., a clinical psychologist, to complete the requested evaluation. His December 15, 2000, psychological evaluation/parenting assessment included the following:
Findings from evaluation indicated that Mr. Bartsch is relatively healthy psychologically, exhibiting some mild dysfunction. There was nothing in the testing to suggest a mental disorder. Mr. Bartsch did exhibit enough traits to meet the diagnostic criterion for obsessive compulsive personality disorder (OCPD). Parenting assessment measures revealed no indication of problems or stressors commonly associated with parental dysfunction. A measure of child abuse potential showed that he is well within the norm and does not present as an "at-risk" parent. This evaluator's impression of Mr. Bartsch, as depicted in Ms. Dickey's report, is that he probably is not as "careless" as he was portrayed. Instead Mr. Bartsch's behavior may be better explained by his inexperience as a parent. This would be expected in light of the fact that Mr. Bartsch has had limited contact with his daughter Morgan who is his first and only child.
. . . .
In summary, Mr. Bartsch presents with far more positives than negatives in terms of his character, lifestyle, and parenting. There is no indication that he is in need of anger management training. Mr. Bartsch's time would be better spent in a short-term psychotherapy which addresses the trauma of his divorce and the anxiety he feels about not having "a real relationship with my daughter." Mr. Bartsch can benefit from parent education which teaches him about the various phases of child-development, especially as they pertain to the female gender. He would also benefit from a didactic therapy that addresses basic principles of child management including learning how to use time-out, how to facilitate child compliance by using optimal simple and single statement requests of the child, and the value of attending to child prosocial behavior via verbal praise and physical affection. The more access Mr. Bartsch has to Morgan the more likely he will be to acquire the skills needed to be a successful and loving parent. . . .
At the time these evaluations and assessments were completed, Nathan was in Utah but subsequently relocated to Milwaukee, Wisconsin.
On April 4, 2001, the Iowa District Court for Jones County entered an order assuming jurisdiction of the parties' custodial dispute. After a June 29, 2001, hearing on Nathan's application on temporary matters, the trial court, over Tara's objections, granted Nathan limited monthly visitation (forty-eight hours) supervised by another adult. Tara subsequently sought injunctive relief curtailing Nathan's visits, citing emotional harm to Morgan. In support of her request, Tara submitted an affidavit, stating:
On Tuesday morning, January 15, 2002, my mother, Nancy Flynn, was sitting in a chair visiting. Morgan brought her little blue chair and sat directly in front of Nancy. Morgan took a large makeup brush that she plays with and pushed Nancy's legs apart and quickly placed the brush in her perineal area. Morgan said "I touch you Nana!" Nancy was caught off guard as this was extremely unusual behavior and it happened so fast. Morgan said Dada taught her how, and that he did that to her. She said Dada "tickled" her. Morgan also said she was alone with Dada in the room when this happened. This was witnessed by me and my brother as well.
The court denied Tara's request, finding "[t]here is, . . . no indication the child is at risk under the current visitation scheme. . . . I believe both Nathan and Morgan would benefit from more rather than less visitation."
The merits of the parties conflicting custodial and visitation claims were finally resolved by a decree entered on April 19, 2002. The trial court's findings of fact describe the parties' experiences with Dickey and Houston, as well as the results of the parties' ongoing litigation over visitation issues. Based on these findings, the court awarded the parties joint custody of Morgan. Tara was granted physical care subject to Nathan's specified visitation rights. Nathan's visitation schedule included two weekends per month, extended summer visits, and alternating holidays. Neither party appealed the trial court's decree.
These proceedings originated with Tara's August 23, 2002, application to modify the child support provisions of the September 26, 2000, Utah decree. Tara's application was premised on her allegation that Nathan's income had "increased between 20,000 and 30,000 since entry of the decree." In his answer, Nathan denied Tara's allegations concerning his income.
Nathan's responsive pleadings included an application to modify the custodial provisions of the decree, alleging Tara interfered with his visitation rights and failed to facilitate his relationship with Morgan. Nathan additionally claimed Tara's behavior "detrimentally impacted Morgan."
In June 2003, Tara moved with Morgan to Texas to pursue an educational and employment opportunity. The disruption in Nathan's visitation schedule resulted in contempt proceedings against Tara. On August 25, 2003, the trial court entered an "Order Approving Stipulation in Lieu of Contempt" granting Nathan extended summer visitation to compensate for the May, June, and July visitation he was denied. Nathan cited Tara's move from Iowa to Texas and resulting visitation issues as additional circumstances supporting his modification request.
The merits of the parties' respective applications were reached for trial in October 2003. Prior to trial, attorney Mona Knoll, Morgan's guardian ad litem, submitted a report to the court concerning her investigation into Morgan's circumstances. Her report included the following conclusions and recommendations:
RECOMMENDATION: Although I realize that it would be a very large adjustment for Morgan, I recommend that primary care be transferred to Nathan. Both parents are good parents and would do a very good job of parenting Morgan. From my conferences with a large number of potential witnesses and my personal observations of the parents and conversations with them under varying circumstances, I see no evidence that Tara will support and nurture Morgan's relationship with her father. I think it is extremely likely that Nathan would support and nurture Morgan's relationship with Tara. Up until May 2003, I was prepared to recommend that Tara retain primary care but that Nathan have more time with his daughter as long as Tara began efforts to learn how to support Morgan's relationship with her father and provided evidence that she was continuing those efforts.
. . . .
In May 2003, however, Tara demonstrated that she seemed to have gained no understanding of her deficiencies in that area, at least in my opinion, and, in a rather cavalier manner, left the state. In August, confronted with Contempt for failing to provide visitation, Tara made a sensible agreement to allow Nathan some make-up time. Even at that point, she wanted to check with Morgan's therapist because she was not sure that it was advisable for Morgan!
The trial judge's findings of fact pertaining to Nathan's fitness for physical care of Morgan include the following:
He is a deacon at the Grace Christian House of Prayer and is extremely concerned with Morgan's "religious upbringing," it being important to him as to "when Morgan accepted Jesus.". . . The Court has had the opportunity to witness his in-court demeanor for three days, his testimony, and his obvious disrespect for the court system which he believes has wronged him in the past. He has purposely used Morgan as a pawn in an attempt to punish Tara, who he believes, through the teachings of his churches, has come under the influence of Satan.
Although Tara admits that she has faults and could have been more accommodating in some respects to Nathan, her actions pale in comparison to those of [Nathan]. The Court finds that the testimony of [Nathan] is not credible and that he has engaged in improper contact with Morgan, some of which should have been reported to authorities at least to investigate possible criminal charges. . . . Although Nathan attempts to skirt the issue, the "House of Prayer" website, to which he subscribes, indicates that its members, among other matters, believe that men are superior to women, that women should not hold positions in the church, that talking of death is good for very young children, that divorce should only be granted for abuse and adultery, and that a person should only marry one time. Although Nathan denies it, the Court is convinced that he did tell Morgan that her mother can only marry once and "needs to go back" to him. Obviously, these statements are clearly inappropriate by a father to a child of tender years.
Based on these findings, as well as Tara's greater primary care experience, the trial court rejected Nathan's request for physical care based on Tara's interference with his visitation rights and failure to support his relationship with Morgan. The trial court declined to follow the guardian ad litem's recommendation, noting "that had the Guardian ad Litem heard the testimony presented over three days, the recommendation would have been different."
The trial court also rejected Nathan's claims based on Tara's move to Texas, citing her constitutional right to travel, propriety of her motives, and resulting career advantages. The court, however, found it necessary to modify the parties' visitation schedule to accommodate the increased distance between their homes and related travel expenses. The resulting decree provides:
1. Custody. Tara shall continue to have physical care of Morgan, and Nathan shall have visitation as provided in the following paragraphs.
2. Visitation. Nathan shall have visitation as follows:
(a) Weekend Visitation. Nathan shall have Morgan on the first weekend of each month from 9:00 a.m. on Saturday until 5:00 p.m. the following Sunday, except that Nathan may have Morgan beginning on Friday evening by 8:00 p.m. of his weekend visitation on those months where the visitation occurs in Texas. If Nathan requests visitation on Friday evening under this paragraph, he will arrange this visitation with Tara in advance. During months in which Nathan has holiday visitation or summer visitation, he shall not have the weekend visitation provided under this paragraph.
(b) Summer Visitation. Nathan shall have two weeks of summer visitation, which may be taken consecutively. Beginning when Morgan is thirteen (13) years of age, Nathan shall have four weeks of summer visitation, to be exercised in no more than two-week increments. Nathan shall provide Tara with written notice by May 1st of each year of the dates he wishes to exercise his summer visitation for that year.
(c) Holidays and Other Times. The holiday schedule in the prior decree will continue to apply in the year 2003. Beginning in 2004, Nathan will have the following holidays in even-numbered years: a four-day period over the Christmas school vacation to include Christmas Day. Nathan may also arrange to have weekend visitation on Easter in even-numbered years. Beginning in 2004, Nathan shall have the following holidays in odd-numbered years: Thanksgiving Day with the adjoining weekend, and a four-day period over the Christmas school vacation not to include Christmas Day or Christmas Eve.
(d) Transportation. The cost of travel for visitation shall be shared by Tara and Nathan in proportion to their respective net incomes under the child support guidelines, with Tara being responsible for 25% of transportation costs and Nathan being responsible for 75% of transportation costs. Transportation costs to be shared under this paragraph include the cost of air fare for the child, the cost of air fare for the parent in order to effectuate the visitation, and the cost of reasonable lodging for the parent traveling to effectuate the visitation not to exceed $100.00 per night. The parent that purchases the airfare ticket and/or lodging shall provide copies of receipts to the other parent within fourteen (14) days of obtaining the receipts. The other parent shall then reimburse the parent prepaying the expense within fourteen (14) days of receiving the receipts. Unless otherwise agreed by the parties, Tara shall be responsible for bringing the child to Iowa for visitation every other visit, and Nathan shall pick up the child from Tara's residence in Texas for the alternate visitations. Transportation arrangements under this paragraph shall be agreed in writing by the parties in advance of each visitation period. Tara's responsibility under the terms of this paragraph for travel to Iowa for visitation will be limited to no more than six (6) visitations per year.
. . . .
3. Counseling. The parties shall attend family therapy with Susan Schmidt of St. Luke's Family Services, or another mutually agreeable counselor. The parties may attend counseling sessions telephonically. The parties will meet with the counselor at a frequency and duration as recommended by the counselor.
On appeal, Nathan raises the following issues for review:
I. DID THE TRIAL COURT ERR IN FAILING TO MODIFY THE DECREE TO AWARD NATHAN PRIMARY PHYSICAL CARE OF THE CHILD?
II. EVEN IF THE COURT WAS CORRECT IN NOT MODIFYING THE CUSTODY PROVISIONS OF THE DECREE, DID IT ERR IN FAILING TO MODIFY VISITATION?
III. DID THE TRIAL COURT ERR IN AWARDING TARA ATTORNEY FEES?
II. Standard of Review
Our review in this equity action is de novo. Iowa R. App. P. 6.4. We generally give weight to the trial court's findings of fact, especially when considering the credibility of the witnesses but are not bound by them. Iowa R. App. P. 6.14(6)( g).
Our confidence in the trial court's findings of fact and assessment of the parties' and witnesses' credibility is diminished by the trial judge's noticeable impatience with Nathan. These sentiments are evident in the trial judge's sua sponte cross-examination and impeachment of Nathan's testimony concerning the allegations made in Nathan's modification application. We also note the trial judge's finding that Nathan should have "allowed Tara her constitutional right to relocate for better employment without contest." As a result, we withhold our customary deference to the trial court's in person perspective on the parties' and witnesses' credibility. See, e.g., In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997).
III. Physical Care
In child custody proceedings the controlling concern is the best interests of the child. Iowa R. App. P. 6.14(6)( o). To change the custody set by an existing 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 custody from the other must prove 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). This heavy burden stems from the principle that once custody 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).
Iowa courts look askance at hostility by one parent towards another. In re Marrriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct. App. 1998). Denial by one parent of the children's opportunity for meaningful contact with the other parent is a significant consideration in resolving physical care issues. In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992). Failure to cooperate and communicate with a child's other parent can result in the loss of custody. In re Marriage of Udelhofen, 444 N.W.2d 473, 476 (Iowa 1989); Whalen, 569 N.W.2d at 629.
Iowa Code section 598.21(8A) (2003) provides that a relocation of residence by a joint custodial parent of 150 miles or more may be considered a substantial change in circumstances. In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct.App. 1998). Once such a change is established, the requesting parent still must prove an ability to render superior care. Id. With these principles in mind, we return to the merits of the parties' contentions on appeal.
We initially disavow the trial judge's characterization of Nathan's religious convictions and resulting negative inferences concerning his character and fitness to care for Morgan. The website information underlying the trial court's findings actually states:
Grace Christian House of Prayer Church believes that God created men and women equal. Men and women share equally in the Grace of Salvation and any Spiritual gift. God has designated that certain roles in the church are to be assumed by men. Those roles include the office of Elders, the ministry of pastor (who is an Elder), and the personal disciplining of men (we do recognize that a Deaconess might on occasion be excising her teaching gift and men may be sitting under her ministry). Other than these, women may serve in any function in the church with the clear idea that the husband is to be the Spiritual Leader in the home. Unfortunately, that is not always the case, even in homes with a Christian husband.
Women are never encouraged or counseled to be submissive to an abusive husband and should seek out all the protective and legal resources available to remove herself or her children from an abusive environment. Only in the most severe cases, as abuse (physical and/or mental) or continued adultery (with no repent or remorse) should divorce be considered.
We are unable to reconcile the trial court's interpretation of these statements of belief with a complete reading of the information contained on the website. In any event, the trial court's findings of fact concerning Nathan's religious convictions are superfluous because they depart from our stated preference for neutrality in such matters. See, e.g., In re Marriage of Anderson, 509 N.W.2d 138, 141 (Iowa Ct.App. 1993) (recognizing the parties' constitutional rights to practice religion of choice and not favoring one religion over another in custody cases).
We also find the record insufficient to support the trial court's finding that Nathan has engaged in inappropriate contact with Morgan. This oblique reference to sexual contact is based on allegations made by Tara's extended family that were presumably rejected by both the trial court in the original Iowa custody proceedings and the Department of Human Services when reported to them by Morgan's therapist. Moreover, the ominous implications of such a determination are hopelessly irreconcilable with the consensus opinion that Morgan should spend more time with Nathan, as well as the trial court's decree allowing Nathan continued visitation with Morgan. We additionally note Tara's testimony denying that she was the source of such allegations.
Even if we assume without deciding that Nathan has established the requisite change of circumstances, his application to modify Morgan's physical care nevertheless fails because he has not met his burden to prove he can administer more effectively to Morgan's well-being. Our review of the record indicates that the parties' comparative primary care abilities remain as originally described in the Dickey and Houston reports quoted earlier. By all accounts, Morgan is thriving in Tara's physical care. Tara's greater and generally successful primary care experiences continue to distinguish her as Morgan's preferred physical care provider. In reaching this conclusion, we do not suggest that Nathan is not making progress in the resolution of the parenting issues cited in the referenced reports.
Unlike the trial court, we do not believe the investigatory conclusions and recommendations made by Morgan's guardian ad litem can be so easily dismissed. We share the guardian ad litem's concerns for Tara's contumacious behavior. We are, however, unwilling to vindicate the court's authority at the expense of unforeseen and presumably negative consequences to Morgan. We continue to view the parties' joint custodial relationship as a work in progress, with room for considerable improvement by both. We believe the post-divorce issues underlying the parties' ongoing conflicts are best resolved through court-ordered counseling. We, however, caution both parties that our patience is not without limitation. For the reasons stated, we affirm on this issue.
IV. Visitation.
In order to modify visitation, a party must show a change of circumstances since the filing of the decree. Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct.App. 1994). The degree of change required to modify visitation rights is much less than the change required in a modification of custody. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000). "Although liberal visitation is the benchmark, our governing consideration in defining visitation rights is the best interests of the children, not those of the parent seeking visitation." In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.App. 1994). Generally, liberal visitation rights are in the best interest of the child. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App. 1992).
We, like the trial court, find Tara's relocation to Texas necessitates modification of the visitation schedule included in the April 2002 decree. After reviewing the trial court's modified visitation schedule, we find it affords Nathan inadequate summer visitation and unreasonably allocates the resulting transportation costs. The visitation schedule set forth in the October 2003 modification decree is modified in the following particulars:
1. Nathan shall have four weeks of consecutive summer visitation beginning in the summer of 2005. The contrary provisions of the modification decree are vacated.
2. The costs of transportation for visitation shall be shared equally by the parties. The contrary provisions of the modification decree are vacated.
3. Tara shall, unless otherwise agreed, transport Morgan to Milwaukee, Wisconsin, or the city of Nathan's residence for every other visit. The contrary provisions of the modification decree are vacated. We also vacate the provision of the modification decree limiting Tara's obligations under the transportation paragraph to six visitations per year.
In all other respects the trial court's modified visitation schedule is affirmed.
V. Attorney Fees.
Iowa Code section 598.36 authorizes an award of attorney fees to the prevailing party in a modification proceeding. 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 consider the needs of the party, the ability of the other party to pay, and whether the requesting party was defending the trial court's decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct.App. 1981). Although we disagree with the trial court's stated reasons for awarding Tara trial attorney's fees, we nevertheless find the award was justified based on the parties' needs, comparative financial resources, and the result obtained below. For the same reasons, we order Nathan to pay $1500 of Tara's appellate attorney fees.