Opinion
No. 5-270 / 04-1430
Filed April 28, 2005
Appeal from the Iowa District Court for Scott County, David H. Sivright, Jr., Judge.
Petitioner-appellant Aaron Clinton appeals from an order modifying the custodial arrangement of his daughter, placing her primary physical care with respondent-appellee Lakendra Bacon. REVERSED AND REMANDED.
Dennis Jasper of Stafne, Lewis, Jasper Preacher, Bettendorf, for appellant.
Lakendra Bacon, Savannah, Georgia, appellee pro se.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Appellant Aaron Clinton appeals from an order modifying the custodial arrangement of his daughter Aaliyah and placing her primary physical care with her mother Lakendra Bacon. Aaron contends he, not Lakendra, should have been named Aaliyah's primary custodian. We reverse and remand.
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). 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).
Lakendra was fourteen and Aaron was sixteen when Lakendra became pregnant. The parties were yet in high school. They have never married but in June of 1995 Lakendra and Aaron, together with Aaron's parents Diane and Ernest Clinton and Lakendra's mother Jennifer Mitchell, entered into an agreement subsequently approved by the court which established Aaron as Aaliyah's father and provided that the parents would share the care of Lakendra and no child support would be paid.
Initially Jennifer assumed primary care of Aaliyah and Diane Clinton, Aaron's mother, assisted her. In 1996 Diane became Aaliyah's primary care taker. Aaron went to college in Fort Dodge, Iowa for a year and than to Friends College in Wichita where he was recruited to play football for one year. Meanwhile Lakendra spent a year at Western Illinois University.
Then in June of 1999 Lakendra and Aaliyah moved to Savannah, Georgia, to stay with an aunt of Lakendra. Aaliyah was with her mother in Georgia for less than four months, for in October of that year Lakendra returned to Davenport and she and Aaliyah stayed with Diane for about three months, until January of 2000, when Lakendra returned to Georgia leaving Aaliyah with Diane. During the summer of 2000 Lakendra stayed with Diane until mid-August, returning to Savannah with Aaliyah where Aaliyah was enrolled in school. Lakendra returned to Davenport with Aaliyah at Thanksgiving. Aaliyah did not want to return to Georgia so she stayed in Iowa in Diane's care. During this time Lakendra made an effort to spend time with her daughter and telephoned her frequently. In the summer of 2002 and the spring of 2003 Lakendra spent time in Davenport with Aaliyah and Diane. Lakendra was in an automobile accident which cancelled one planned visit.
At Christmas time in 2003 Lakendra made arrangements for Aaliyah to fly from Chicago to Georgia. Diane took the child to Chicago. Once Aaliyah was with Lakendra in Georgia she refused to return Aaliyah to Iowa at Aaron's request.
On January 16, 2004 Aaron filed in the Iowa court an application to modify custody and the court entered an order providing that Aaliyah should be in the temporary custody of Aaron and scheduled a temporary custody hearing for February 17, 2004. Aaron went to Georgia to pick Aaliyah up but Lakendra refused to return Aaliyah to him.
Lakendra filed a motion to dismiss the modification stating it failed to state a claim, there was no subject matter jurisdiction and no statutory basis for a temporary modification, in that Iowa was not the appropriate state to determine the controversy. Lakendra asserted Georgia was the child's home state. The district court found (1) Iowa remained the Aaliyah's home state, (2) she had attended school in Davenport in Scott County, Iowa for the past several years until Lakendra enrolled her in school in Georgia in conjunction with a holiday visit in December of 2003, (3) there was substantial evidence concerning the child's interests and needs available in Iowa, and (4) no other state had a pending case relating to the child. The district court denied Lakendra's motion to dismiss. The court did not address the issue of Aaliyah's custody or current placement but did order that the temporary custody order of January 16, 2004 remain in effect and Aaliyah's custody remain with Aaron subject to Lakendra's rights to telephone and personal contact with the child. On May 7, 2004 Lakendra filed a counter claim in the modification action asking that she be named the physical custodian.
Aaliyah was to live with Aaron until the matter came on for hearing on the modification. Aaron then and at the time of hearing was living with his girlfriend, her parents, one of her children and their child, in Moline. Aaliyah lived with them and was taken to school in Davenport. Aaliyah spent many weekends with her paternal and maternal grandmothers. Aaron testified he was looking for a home in Davenport so Aaliyah could continue to attend school there.
The matter came on for hearing on June 24, 2004, and on August 5, 2004 the district court found the evidence showed both Aaron and Lakendra were good parents as were the two grandmothers and that Aaliyah thrived with beneficial contacts with her entire extended family.
The court also found Lakendra's move to Georgia is a material and substantial change in circumstances and shared physical care is no longer feasible. The court found that because both parents were able to care for the child continuation of physical care with Diane should not be an option.
The court continued the joint legal custody with Lakendra and Aaron and named Lakendra the parent having primary physical care. The court specifically found she would be able to more effectively provide her daughter an environment that would foster healthy physical, mental, and social growth and maturity. The court further found that though Lakendra's role as care giver had been sporadic and infrequent, she was more directly involved with this role than was Aaron, for until Aaliyah moved to Moline Aaron for the most part assumed the role of the noncustodial parent exercising visitation while his mother raised Aaliyah. The court also noted Lakendra has grown up and is married to a loving and supportive provider and is seeking higher education toward well-established career goals. The court found her life in Georgia more stable than Aaron's whose relationship with his girlfriend is more tenuous than Lakendra's marriage. The court noted that Aaron's wish to get a home close to Aaliyah's school in Davenport may be wishful thinking given his limited resources.
Aaron contends he should be Aaliyah's caregiver. Lakendra has not filed an appellate brief.
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 paternity decree. Courts are empowered to modify the custodial terms of a paternity 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. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002); see also 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. They live in separate states. A substantial change of circumstances has been shown. See Dale, 555 N.W.2d at 245.
In the original decree the parents were to share the physical and primary care. As a result they both were found suitable to be primary care parents. Melchiori, 644 N.W.2d at 368-69. Consequently we address this as an initial custody determination, and the question is which parent can render better care. Id.
Aaron contends he was more involved in Aaliyah's care than the district court gave him credit for and he had substantially more contact with and responsibility for his daughter than Lakendra did. Aaron said during her first two years of life he had visits with her every other weekend and a day a week at his mother's home. He points out that in 1998 Lakendra's mother moved to Macomb, Illinois, leaving Aaliyah with Diane and Lakendra attended college there for a year. He contends he kept in contact with Aaliyah when he attended college and visited with her on a regular basis. He further contends that after Lakendra's unsuccessful attempt to take Aaliyah to Georgia she came back to Davenport, and by this time Aaron had returned from college and was living with Diane. He said he was responsible for taking care of her when she was home and Diane only assisted. He noted Lakendra again returned to Georgia with Aaliyah but again it was not successful, and again Aaliyah stayed with Diane. He notes that Aaliyah attended Jefferson Elementary School in Davenport from kindergarten to third grade, and through this entire time he lived with Diane and helped care for his daughter.
He says from March 2001 to December of 2003 Lakendra did not see Aaliyah despite Diane's offer to take Aaliyah to Georgia to see her mother. It was not until December 2003 that Lakendra saw Aaliyah, again when Diane took the child to the Chicago airport so Aaliyah could visit Lakendra in Georgia. He said Lakendra did not return Aaliyah to Davenport. When the court gave Aaron temporary custody he drove to Georgia to pick up Aaliyah but Lakendra refused Aaron's request to take her and did not let him see her. He further notes that Aaliyah was returned to Davenport in January and lived with him until the hearing in June of 2004.
We agree with the district court that (1) Aaliyah at the time of trial was a popular, above-average student in the Davenport, Iowa school system and has a number of friends; (2) she also is active in church and other after-school activities; (3) Diane has been her primary care taker; and (4) both parents are devoted to Aaliyah and are able to meet her basic needs.
We also agree with the district court that continuation of her care with Diane is not an option because she has two capable parents. However the fact that Diane should not be awarded her primary physical care does not totally dismiss Diane from our consideration.
Diane not only has assumed primary physical care, she has further seen that both parents have a relationship with their child, has encouraged them to assume responsibility for her, has cooperated with their assuming responsibility for Aaliyah to the extent that Diane has provided transportation on more than one occasion so that Lakendra can have visits with her daughter. Both parents have allowed Diane to assume this responsibility. The record reflects the child has a strong bond with Diane and it would be fair to say the fact that Aaliyah is a good student and well-adjusted is the result of Diane's and not Aaliyah's parents' care and attention. While Lakendra wishes to remove Aaliyah from Diane's influence now, Lakendra was given more than one opportunity with Diane's support to take Lakendra to Georgia. Lakendra's trial attempts at primary physical care were not successful and the child was returned to Diane.
The district court has suggested that Aaron was no more than a visiting parent. While this may be true in part we disagree with the district court's conclusion that Lakendra was more directly involved in her care. Aaron has had substantially more contact with Aaliyah in recent years than has Lakendra. Aaliyah lived in his mother's home and he assumed responsibility for his daughter while he was there. Furthermore he was in constant and continuous contact with her.
We recognize as did the district court there are substantial factors in Lakendra's favor. She is in a marriage relationship, has two children, is gainfully employed and is hopeful of completing her education to become a graduate nurse. Her husband is apparently in a trucking business. He admitted he had been jailed twice but contends this was the result of actions of his employees rather than his own action.
Aaron, on the other hand, is in a less stable relationship. He served a ninety-day term of shock probation and a short term in a jail for violation of his probation. He contends he got in trouble because he followed a group that was burglarizing a house, although he contends he did not participate in the burglary. He is not advancing his education.
The evidence tells us little about the neighborhood where Lakendra lives nor does it provide any information as to the type of school Aaliyah will attend if the custodial award is affirmed. What we learn from the record is that Lakendra's husband will provide child care while Lakendra is working and attending school. Lakendra testified she is a nurse tech and that she works two twelve-hour shifts a week but may work more if her husband is home. She also testified she is in a nursing program at Armstrong Atlantic State University hoping to obtain the R.N. bachelor's of science and hopes to finish in 2005. It is unclear how many hours a week she attends school. She lives in Regency Mobile Home Park. Lakendra and her husband own their own home there. Lakendra testified there is a school two to five miles from their home. The record tells us nothing more about the school or how or if Aaliyah would be transported there.
If Aaliyah is placed in Aaron's primary physical care she will remain in a school and environment where to this time she has done well. She will retain contact with her grandmothers — not only Diane but also Jennifer who lives in the area.
Either parent will need assistance in caring for Aaliyah. Diane will assist Aaron as she has done in the time since Aaliyah returned the last time from Georgia. The issue of grandparents' assistance in child care has been considered by the Iowa courts in assessing custody awards. In In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982), the court said, "[i]n the present case the trial court found, and we agree, that both parties love the child and each is capable of providing her with a good home and proper environment." The court went on to find:
[o]n the other hand, when Kent [the father] had Holly [the child], he assumed the responsibility of caring for her with the assistance of his parents. His parents took over much of the physical care and day-to-day control. They are both able and willing to continue this relationship. Holly has rarely been left with babysitters and has had the care and attention of both her father and her grandparents. We are convinced this arrangement offers the best hope for Holly's future. The home she had and the care she received while there are superior to the conditions which Kelly [the mother] is presently able to provide. This is not a criticism of Kelly, but merely a conclusion as to where the child's best interests lie.
Welbes, 327 N.W.2d at 758.
In In re Petition of Purscell, 544 N.W.2d 466, 469 (Iowa Ct.App. 1995) we considered, in awarding a father custody, that he would have the help of his parents in caring for the child. See also Melchiori, 644 N.W.2d at 369.
We have concern also as to whether Lakendra if granted primary physical care will cooperate with seeing that Aaron has visitation. Lakendra has not been denied access to her child when cared for by Aaron and Diane. In fact, Diane was always ready to assist Lakendra in spending time with her daughter and supported Lakendra when she took Aaliyah to Georgia, the last time providing part of the transportation. Despite this fact Lakendra made no effort to be honest about her intentions before Diane took Aaliyah to the Chicago airport so she could fly to Georgia. Rather Lakendra waited until Aaliyah got to Georgia before she made it known that she was not going to have the child returned.
We believe Aaliyah's interests are best served by her remaining in her father's care as he in the past has been more directly involved in Aaliyah's care than has Lakendra. Furthermore, in her father's care she will have contact with her grandmother, Diane, who has been the central figure in her life. Furthermore, in her father's care Aaliyah will have an opportunity to maintain contact with her maternal grandmother. We find that Aaron, as he has in the past, will support Lakendra's relationship with their daughter.
There is no evidence that Lakendra has made any significant contribution to the support of Aaliyah during the time she has resided in Diane's home nor since she has resided with Aaron. Lakendra is gainfully employed and is capable to contributing to Aaliyah's support.
We reverse the district court and order that Aaron have primary care of Aaliyah and remand to the district court to fix Lakendra's child support obligation.