Opinion
No. 06-109 / 05-1222
Filed March 29, 2006
Appeal from the Iowa District Court for Linn County, Thomas M. Horan, Judge.
Neil Erusha appeals from the denial of his petition to modify a child custody order. AFFIRMED.
Joseph G. Bertroche Jr. of Bertroche Law Offices, Cedar Rapids, and Ronald L. Ricklefs, Cedar Rapids, for appellant.
Karen A. Volz of Ackley, Kopecky Kingery, Cedar Rapids, for appellee.
Heard by Vaitheswaran, P.J., and Eisenhauer, J, and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
D. Neil Erusha and Carolyn C. Trinkle are parents of S.A.T., a daughter who was born in July 1990. In January 1993, the district court placed S.A.T. in the joint custody of the parties and in Trinkle's physical care. In November 2003, Erusha filed a petition to modify the 1993 custody order. In July 2005, the trial court denied the petition to modify, and Erusha appeals. We affirm.
I. Factual Background
Erusha is a bank president and Trinkle is a business office director at a residential care facility. Erusha has a bachelor's degree and Trinkle is a high school graduate with some postsecondary training. Both have children from other relationships. At the time of trial, S.A.T. was finishing her ninth grade year. She was involved in soccer, band, and a dance team. She was also informed she had made the cheerleading squad for the coming school year.
By all accounts, the parties had a positive relationship prior to September 2002, when Trinkle was involuntarily hospitalized by her mother and brother and Erusha took S.A.T. to his home. Although Trinkle was released the following morning, Erusha refused to immediately return S.A.T. to Trinkle's care. After this incident, Trinkle insisted on strict adherence to the visitation schedule and S.A.T. became less willing to have visitation with her father.
In October 2003, a court order adjusted Erusha's monthly child support obligation from $638.00 to $1,325.00. Erusha began demanding more visitation. Less than one month later, Erusha filed this action. At the time he and S.A.T. were attending counseling sessions because of their already strained relationship, which deteriorated more after the filing of the modification petition.
A.S.A.T.'s Declining Academic Achievement.
Erusha complains about S.A.T.'s grades and academic achievement. She has had some poor grades, which appear related to a failure to complete assignments. Erusha's approach was to contact S.A.T.'s teachers and monitor her grades, and he asserts the failure to complete assignments is a result of "a lack of supervision and enforcement on the studying issue by her mother." Trinkle tended to accept whenever S.A.T. stated she had no homework or had completed her homework already, and she stated she would be pleased if S.A.T. "did her best" in school. Trinkle explained:
I know that she knows if she's not doing her best that she will have to face the consequences because she is going to be fifteen years old, and I believe that she needs to learn because in three years, I'm not going to be there to monitor her every move, that there are consequences to pay if you don't do the job that you're supposed to do.
Trinkle also stated S.A.T. tended to rebel against her father whenever he pressured her on her grades. She also testified S.A.T. would be required to keep a C grade point average to maintain membership on the cheerleading squad, which she described as a very effective incentive for S.A.T. to keep her grades at an acceptable level.
Due to S.A.T.'s academic difficulties, the parties enrolled her in local Sylvan Learning Center for tutoring. Erusha paid the tuition, and one of the tutor's at Sylvan Learning Center is the sister of Trinkle's ex-husband. The record reflects the sessions at Sylvan Learning Center have helped S.A.T.'s grades.
B. Trinkle's Mental Health.
Erusha also contends Trinkle is unable to meet S.A.T.'s needs due to Trinkle's mental health diagnoses. The record reflects Trinkle has a history of mental illness; in fact, she was hospitalized for depression during her pregnancy with S.A.T. after Erusha would not accept her pregnancy. While the record is clear that Trinkle has a history of mental illness, no treating professional indicated Trinkle's diagnoses compromised her ability to meet S.A.T.'s needs.
Erusha points to Trinkle's month-long hospitalization in August 2004, preceded by a summer of panic attacks. After her hospitalization, Trinkle attended an outpatient program at the University of Iowa Hospitals and Clinics. At the time of trial, Trinkle's mental health conditions appeared to be well-managed with medication and counseling.
During her hospitalization, Trinkle lied to Erusha and his spouse about her whereabouts. When they discovered Trinkle was hospitalized, they attempted to bring S.A.T. to their home, but she refused to go.
Erusha notes Trinkle denied she has a mental illness. She admits she has been diagnosed with depression, but does not consider depression to be a mental illness.
C.S.A.T.'s Mental Health and Relationships with Her Parents.
Erusha also asserts S.A.T.'s mental health justifies a change in custody. Trinkle was reviewing some of S.A.T.'s homework in February 2004 when she discovered some disturbing writings depicting violence against Erusha. S.A.T. was hospitalized. After her discharge, she began seeing Dr. Elizabeth Robins, a licensed psychologist. S.A.T. saw Dr. Robins regularly until November 2004, and saw her again prior to trial.
Dr. Robins describes S.A.T. as an oppositional child and states Trinkle "goes to great efforts to be able to work with her." In contrast, she suggested S.A.T.'s living in Erusha's household, with its "much less flexible rules," may provoke a "power struggle." Dr. Robins, noting S.A.T. wished to remain with her mother, stated there was no reason to modify custody. She also stated Trinkle has "over time . . . strengthened her parenting skills, and I think, as a result, has been improving her relationship with" S.A.T. Erusha wanted S.A.T. to see a different therapist. S.A.T. did not want to see a different therapist, and Trinkle resisted Erusha's attempts.
Erusha accused Trinkle of downgrading him in front of the child, which she denies. Based primarily on information obtained from the internet and friends, Erusha's wife testified that she and her husband were victims of "parental alienation syndrome" caused by Trinkle. Erusha offers no professional who has made this diagnosis, and Dr. Robins stated it was "very doubtful" Trinkle has caused parental alienation syndrome.
II. Standard of Review
Our review is de novo. Iowa R. App. P. 6.4.; In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct.App. 1992). We give weight to, but are not bound by, the district court's factual findings. Iowa R. App. P. 6.14(6)( g).
III. Discussion
Modifications of child custody orders are only permitted when there has been a material and substantial change in circumstances since the original decree. Mears v. Mears, 213 N.W.2d 511, 514-15 (Iowa 1973). The changes in circumstance must relate to the child's welfare, see In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998), and must be more or less permanent, and not temporary, see In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). The child's welfare is our paramount consideration, see Iowa R. App. P. 6.14(6)( o). The burden rests on Erusha to establish such a change of circumstances by a preponderance of evidence. Thayer v. Thayer, 286 N.W.2d 222, 223 (Iowa Ct.App. 1979). "The trial court has reasonable discretion in determining whether modification is warranted and that discretion will not be disturbed on appeal unless there is a failure to do equity." In re Marriage of Kern, 408 N.W.2d 387, 389 (Iowa Ct.App. 1987) (citation omitted).
Custody orders should be modified only for the most cogent reasons. In re Marriage of Bergman, 466 N.W.2d 274 (Iowa Ct.App. 1994). Our question is not whether Erusha's home is better, but whether he can offer superior care. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct.App. 1994). We do not use decisions in custody modification appeals to "reward or punish" parents. Zabecki, 389 N.W.2d at 398.
With these principles in mind, and after reviewing the record made in the district court, we conclude Erusha has not sustained his heavy burden of proving a material and substantial change in circumstances.
A.S.A.T.'s Academic Achievement.
We first note S.A.T.'s academic underachievement, while a cause of some concern, has not fallen to the level that her custody must be changed. In our view, the educational approaches of both parents have merit in the abstract: Erusha's push for success and Trinkle's attempts to prepare S.A.T. for accountability as an adult. Some balance of these two approaches, in fact, may better prepare S.A.T. for her rapidly approaching adulthood. That being said, in light of the unique facts of this case, we cannot say Erusha's more strict approach to education is so superior for this particular child, with her particular strengths and challenges, that the child must be placed in his custody.
In any event, Erusha has not demonstrated S.A.T.'s academic underachievement is more or less permanent. See Marriage of Zabecki, 389 N.W.2d at 398. A review of the record reveals a great deal of the decline of S.A.T.'s school performance followed the filing of Erusha's petition. In fact, the report card S.A.T. received just four days before Erusha filed his modification petition contained mostly As and Bs. It would be inappropriate to grant a custody modification based on changes in circumstances that were precipitated by the filing of the modification petition. Moreover, we conclude the cheerleading squad's requirement that S.A.T. maintain a certain grade average will likely provide an effective incentive for completing school assignments. For this reason, Erusha has not carried the heavy burden to prove a modification is warranted.
B. Trinkle's Mental Health.
In our view, Trinkle's mental health is also an insufficient reason to modify S.A.T.'s physical care. While a change in the custodial parent's physical or mental health may justify modification of a custodial order, see In re Marriage of Bergman, 466 N.W.2d 274 (Iowa Ct.App. 1990), Erusha cites no authority stating a mere diagnosis of a mental disorder is sufficient to justify granting a petition to modify. We doubt such authority could be found, for relying solely on the diagnosis of a physical or mental illness to grant a custody modification is inconsistent with the civil rights of parents with disabilities and, more importantly, the child-centered, situation-specific standards for modifying custodial orders in Iowa. See, e.g., Marriage of Walton, 577 N.W.2d at 870.
In our view, all Erusha demonstrates is that Trinkle has been diagnosed with mental disorders. There is nothing in the record suggesting Trinkle's parenting ability is so compromised by her conditions that Erusha would be a superior caregiver. See, e.g., Marriage of Rosenfeld, 524 N.W.2d at 213. In fact, S.A.T.'s therapist testified that Trinkle's parenting skills are improving. We give great weight to this testimony.
Erusha places great weight on Trinkle's testimony that she does not have a mental illness. This weight is misplaced. What is important is not how Trinkle characterizes her diagnosis of depression, but whether she follows recommended treatment and controls her depression with the help of her treatment providers. From our review of the record, she has done so.
While we disapprove of Trinkle's lying to Erusha about her whereabouts during her August 2004 hospitalization, cf. Marriage of Zabecki, 389 N.W.2d at 399, this does not rise to the level of justifying a modification.
C.S.A.T.'s Mental Health and Relationships with Her Parents.
We cannot conclude S.A.T.'s mental health justifies modification. We give great weight to the testimony of her therapist. Any suggestion made by Erusha that S.A.T.'s therapist is also one of Trinkle's treating professionals (and is consequently biased in Trinkle's favor) has no support in the record.
Erusha argues his daughter needs more structure than her mother provides. In this respect, we defer to S.A.T.'s therapist, who testified Trinkle was becoming more adept at parenting a very "oppositional" child and who testified placing S.A.T. in Erusha's care may bring about a "power struggle."
We cannot see how Trinkle has improperly interfered with Erusha's relationship with his daughter. Specifically, we cannot conclude Trinkle did anything inappropriate by insisting on compliance with the 1993 decree's visitation schedule. While this may have been grounds to seek additional visitation, under the particular facts of this case we cannot say Trinkle's adherence to the court-ordered schedule should carry any weight in our decision about S.A.T.'s custody. Erusha's assertions at trial of parental alienation syndrome have no credible support in the record. Rather, we conclude S.A.T. is difficult and occasionally hateful to both of her parents. While Erusha points to the violent words and imagery his daughter directed against him, the record also contains a copy of a hateful and sexually vulgar note S.A.T. wrote to her mother.
We give no weight to Erusha's complaints that Trinkle refused to allow S.A.T. to see another therapist. We see no reason to doubt Dr. Robins's qualifications or question the quality or appropriateness of the care she provided. Moreover, if Erusha wished to have his daughter see another therapist in preparation for this litigation, he could have sought such an examination pre-trial.
D. Summary.
Erusha's asserted grounds for modifying custody, whether viewed separately or together, do not rise to the level that would permit a court to modify S.A.T.'s custody. We cannot say the district court's decision denying Erusha's modification petition failed to do equity. See, e.g., Marriage of Kern, 408 N.W.2d at 389.
IV. Conclusion
We have considered all issues presented and affirm the judgment of the district court. We also grant Trinkle's request for appellate attorney fees, and award her $2500 in attorney fees.