Opinion
No. 3-907 / 03-0896.
Filed January 14, 2004.
Appeal from the Iowa District Court for Sac County, Joel E. Swanson, Judge.
James Schachtner appeals the district court's order denying his application to modify custody of the couple's children. AFFIRMED.
Mary Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellant.
Joseph Halbur, Carroll, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Lynda and James Schachtner divorced in 1997. The district court approved a stipulation and agreement under which Lynda assumed physical care of the parties' two children, Jacob and Emily. The parties agreed James would have visitation "at anytime mutually agreeable to Lynda and James" or on 1) the first weekend of the month from noon on Saturday until 5:00 P.M. on Sunday, 2) the second and fourth Sundays from 10:00 A.M. to 5:00 P.M., and 3) the first and third Thursdays of the month from 6:00 P.M. until 8:30 P.M.
In November 2002, James applied to modify the physical care arrangement, citing several confirmed reports of child abuse against Lynda. Following a hearing, the district court denied the application for a change in physical care, but, by agreement of the parties, modified the visitation provisions to provide for Friday through Sunday visitation every other weekend. James appealed the physical care portion of the ruling.
Lynda has not filed a responsive brief.
A party seeking a change in the physical care arrangement must establish a substantial change of circumstances since the decree was entered and an ability to provide superior care. In re Marriage of Mayfield, 577 N.W.2d 872, 873-74 (Iowa Ct. App. 1998). Our review is de novo. Iowa R. App. P. 6.4.
The record reveals Lynda has had significant parenting issues ranging from the use of physical force to a failure to properly supervise her son. At the modification hearing, Lynda maintained that these issues resulted from depression following the divorce and excessively prescribed medications for that condition. However, the child abuse reports were issued after she claims to have resolved these problems. For this reason, we believe James established a substantial change of circumstances not contemplated by the decree.
More troublesome is the issue of superior caretaking ability. The children were four years and nineteen months old when the parties divorced in 1997. Immediately after the divorce, James only exercised visitation with the children four or five times a year. After meeting and marrying his new wife, he increased the amount of visitation, but, between the date the modification application was filed and the date of the hearing, he missed nine out of his fifteen scheduled visits.
Also of concern is the children's resistance to visitation. Emily sometimes refused to go with her father and Jacob expressed his reluctance before, during and after visits. While a psychologist testified that part of Jacob's resistance could be attributed to the rules at his father's home, the record suggests the cause was more complicated. As the district court stated, Jacob "has had a history of anger problems" and both Jacob and Emily "are in need of special services." The court opined that "their adaptability is somewhat less than many children their age."
Notably, Jacob's situation improved substantially in 2003. His grades went from all F's to A's and B's and he became alert and outgoing. Lynda attributed these changes to improvements in her life, as well as James's involvement with his son.
In light of Jacob's improvement, both children's special needs and reduced adaptability, and James's irregular visitation, we conclude James was not able to establish that he was the superior caretaker at the time of the modification hearing. In reaching this conclusion, we emphasize as the district court did that the burden to establish a change in the physical care arrangement is a heavy one. Mayfield, 577 N.W.2d at 873. We also are mindful of the fact that, the district court's findings of fact are given weight, particularly in matters involving physical care. See In re Marriage of Udelhofen, 444 N.W.2d 473, 473 (Iowa 1989) (stating a "trial court, as first-hand observer of witnesses, holds a distinct advantage over an appellate court, which necessarily must rely on a cold transcript."). Finally, we note that our decision does not prevent James from actively participating in the children's lives. See In re Marriage of Kunkel, 555 N.W.2d 250, 254 (Iowa Ct. App. 1996). Under the modified decree, he has the opportunity to enhance his relationship with the children through regular and sustained visitation.
We affirm the district court's denial of James's application to modify the physical care provision of the dissolution decree.