Opinion
No. 5-721 / 05-0817
Filed November 23, 2005
Appeal from the Iowa District Court for Kossuth County, David A. Lester, Judge.
Appellant Karen Bode appeals the district court's decision to modify the 1996 dissolution decree dissolving her marriage to Steven Bode by transferring physical care of the parties' two children to Steven and ordering her to pay child support. AFFIRMED.
Margaret C. Callahan of Belin, Lamson, McCormick, Zumbach, Flynn, P.C., Des Moines, for appellant.
Eldon Winkel, Algona, for appellee.
Mark Laddusaw, Algona, guardian ad litem for minor children.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Appellant, Karen Bode, appeals challenging the district court's decision to modify the 1996 dissolution decree dissolving her marriage to Steven Bode by transferring physical care of the parties' two children, Ryan, born in 1990, and Ashley, born in 1992, to Steven and ordering her to pay child support. She contends the evidence does not support the modification and, alternatively, if the district court is affirmed she should be awarded further visitation. She also requests attorney fees on appeal. We affirm.
When the dissolution decree was entered the district court awarded Steven primary physical care of the two children. The children remained in Steven's physical care until 1998 when this court reversed the district court and placed primary physical care with Karen. In re Marriage of Bode, No. 96-1747 (Iowa Ct.App. Feb. 25, 1998). The children have lived with their mother at three separate addresses in the Des Moines area since 1998. Karen has been involved in the children's lives and at the time of the modification hearing they were doing well in school.
Steven filed the application for modification that led to this appeal in April of 2003, contending there was a material change in circumstances that warranted changing the primary physical care of Ryan and Ashley to him and asking that he be awarded their primary care or, in the alternative, that he be awarded Ryan's primary physical care.
In October of 2003 the district court appointed attorney Mark Laddusaw to serve as a guardian ad litem for the children. The matter came on for hearing in May of 2004. Steven testified his primary reasons for seeking physical care were the fact Ryan no longer wanted to live with his mother and his concern with Karen's substance abuse problems. Karen basically denied the problems existed.
Steven had expected Karen to bring the children with her on the day of the hearing so they could testify or the judge could have an opportunity to visit with them. Karen had Ashley with her but not Ryan. Karen claimed she got mixed signals from her attorney and the guardian ad litem about whether she should bring the children. The court left the record open for the children's depositions.
The guardian ad litem, after a careful study, recommended that Ryan be in his father's custody and Ashley remain with her mother. Subsequently the children's depositions were taken and submitted.
The children, most particularly Ryan, related concern with his mother's drinking, noting instances of her drinking to intoxication and hiding vodka in the home. Karen had been convicted of operating while intoxicated (OWI) and as a result had an ignition intoxolock system installed in her car. Ryan reported that one time Karen had him blow into the system so she could start the car. Ryan also related concerns about two times when she had men stay in their home. Ryan indicated a strong preference to be with Steven. Ryan also testified that on the day of the hearing he was dressed and wanted to go to Algona with his mother and sister but Karen locked him out of the car and he stayed home alone that day and did not go to school. Karen had testified at the modification hearing that Ryan could not come to the hearing because he had a school project.
At the time of this arrest in April of 1999 Karen had a blood alcohol concentration of 0.19. She underwent a substance abuse evaluation and to her credit then followed through with recommended treatment.
Ashley, in her deposition, also testified she was concerned about her mother's drinking and detailed a time Karen was impaired and driving and she and Ryan were in the car. Ryan also had testified to that event. Ashley however believed her mother was now drinking nonalcoholic wine. Ashley wanted to be with her mother but testified she would be fine living with her father if custody were changed.
In early January of 2005, before the district court made a ruling, Steven filed an application to reopen the record. The record was opened and additional evidence of events that transpired after the initial hearing was admitted, namely that Karen had been charged and ultimately pled guilty to second offense driving while intoxicated and, in the course of her arrest, she had attempted to run from the officer who stopped her. There was also evidence that Ryan's grades had dropped.
The guardian ad litem, who had made a careful investigation before an earlier recommendation that the primary care of the children be split with Ryan going to Steven and Ashley to Karen, indicated the new evidence caused him to equivocate regarding his earlier recommendation.
On March 28, 2005 the district court filed its decree finding Steven met the burden to modify and that he should have physical care of both children. In arriving at this conclusion the court found the relationship between Karen and Ryan had been damaged and Ryan no longer respected his mother. The court found Steven and his current wife Sandy have a stable marriage and could more effectively minister to the children's needs and that the children need this stability.
The court specifically found the stability in Karen's home to be compromised by her excessive use of alcohol, introducing strange men into her home, her uncertain employment situation, and her continued unlawful behavior. The court questioned Karen's credibility and noted that only a month after she had denied under oath in the initial modification hearing that she continued to consume alcohol to excess she had a second OWI arrest. The court also noted Steven has extended family in the Algona community where he lives who can assist in providing emotional and family support for the children. The court finally concluded that the long-term best interests of Ryan and Ashley were best served by transferring their physical care to Steven.
The court then went on to establish a specific visitation schedule and determined that Steven provide all transportation until Karen's driving privileges were restored, at which time she should be responsible for picking the children up at the commencement of each visit and Steven should be responsible for picking them up at the conclusion.
Karen's support obligation was fixed at seventy-five dollars a month. Karen's request for attorney fees was denied and the cost of the guardian ad litem was divided between the parties.
We review de novo. Iowa R. App. P. 6. 4; In re Marriage of Festal, 467 N.W.2d 261, 263 (Iowa 1991). We examine the entire record and adjudicate anew the parties' rights on issues properly presented. In re Marriage of Gail, 509 N.W.2d 738, 740 (Iowa 1993).
Steven was made a joint custodian in the dissolution decree. He consequently is benefited in seeking physical care by the inference he has met the joint custody tests set forth in In re Marriage of Burham, 283 N.W.2d 269, 274 (Iowa 1979). See In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App. 1997). However, in seeking a change in physical care, he carries a burden similar to that imposed on a parent seeking a change of custody. Id.
The question is not which home is better, but whether Steven has demonstrated he can offer the children superior care. Id.; see also In re Marriage of Morton, 244 N.W.2d 819, 821 (Iowa 1976). Steven must show an ability to minister to the children's needs superior to Karen's. See In re Marriage of Ivins, 308 N.W.2d 75, 78 (Iowa 1981). If both parents are found to be equally competent to minister to the children, custody should not be changed. In re Marriage of Smith, 491 N.W.2d 538, 541 (Iowa Ct. App. 1992). The burden for a party petitioning for a change in dissolution is heavy. See In re Marriage of Downing, 432 N.W.2d 692, 693 (Iowa Ct.App. 1988). Children deserve the security of knowing where they will grow up, and we recognize the trauma and uncertainty these proceedings cause all children. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct.App. 1994). Custody, once fixed, should be disturbed only for the most cogent reasons. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000).
Karen argues Steven failed to show the type of changed circumstances necessary to support the modification. She challenges the district court's findings and its considering (1) her relationships with men, (2) the fact she lost her job, (3) her problems with alcohol, and (4) evidence of events that occurred after the modification application was filed and after the modification hearing but before the order modifying was filed. She also contends the district court should not have given the credence it did to Ryan's testimony or his wishes to live with his father and that the court should have given stronger consideration to Ashley's desire to live with her.
Karen points out correctly the only evidence of men in her home is once she had a male in her bedroom while the children were home and once she failed to get a man out of her bedroom before Ryan came home from school. She contends there is no showing this had a negative impact on the children or that the men presented a threat to the children. She argues that dating after a dissolution is within the contemplation of the court when an initial dissolution decree is entered. Because Ryan and Ashley voiced concerns about the way these visits were handled we give them some consideration but, as we will discuss later, the fact they happened is not the reason we affirm the modification.
Karen further contends the fact she lost her job is not a material change in circumstances and there was no finding she was permanently unemployed. She strongly contends that her problems with alcohol are not sufficient to support the modification. She argues that her drinking does not rise to the level of alcohol dependence or abuse. She notes that, while she has had two OWI convictions that were five years apart since the original decree was entered and that both children say on one occasion she was under the influence while driving a car in which they were passengers, three incidents do not establish a substantial and permanent change. She contends we should disregard facts recited by the district court which came from minutes of testimony about her alleged conduct at the time of her second arrest for OWI as this was hearsay testimony. Furthermore, she says the court should not have considered Ryan's testimony as to her alcohol use because his testimony is by deposition, it is inconsistent, and Ryan was determined to be with his father.
Karen also contends Steven has not shown he can minister more effectively to Ryan's and Ashley's wellbeing. She points out correctly that Ashley is doing well socially and academically and that Ryan was doing well until the modification hearing. She argues that Ashley should not be uprooted because of Ryan's preference.
Steven argues Karen's drinking problem is serious and she constantly denies it. He contends that she did not object to the admission of the trial information and the minutes of testimony concerning her second OWI at trial and cannot do so now. He points out these documents show she was speeding when stopped by a Des Moines police officer who determined she was intoxicated. She denied she was even drinking and, when asked to get out of her car, she sped away going the wrong way up an exit ramp and nearly colliding with another car, ending up in the ditch, and then driving out and nearly colliding with several other vehicles, finally being stopped by another officer who forcibly took her from her car where an open bottle of tequila was found in the trunk. Steven noted Karen was charged with OWI second offense, eluding, interference with official acts, speeding, failure to yield to an emergency vehicle, and driving the wrong way on a one-way street. He further points out that, while she pled guilty, she said she only did so because she did not have the money to prove herself innocent. He contends the district court correctly questioned her credibility because of her denials that (1) she had Ryan breathe into her ignition intoxolock system, (2) she had driven with the children in the car while she was impaired, and (3) she had men in the house as the children reported.
Both parties are well educated. They both have adequate housing. They both are interested in and help the children in their education pursuits. They both have financial problems. But as the district court and the guardian ad litem determined they are both adequate parents. Having said that, we are concerned about the situations involving Karen's alcohol use because her alcohol use clearly has put the children's safety at risk.
Karen obviously has problems with alcohol and, as the district court found, is not ready to admit them. Despite having a court-ordered evaluation after her second arrest she has not sought treatment. There is a suggestion that Karen's drinking problem may have led to the loss of her job and her inability to find other employment.
Steven and his current wife drink. Steven had an OWI in 1995 but there is no evidence of any current problems nor is there evidence that Steven has put the children at risk because of his drinking.
The ultimate question of whether Steven can provide a superior home is far more complicated than merely asking Ryan which parent he wants to live with. In re Marriage of Jahnel, 506 N.W.2d 473, 475 (Iowa Ct.App. 1993). The guardian ad litem tempered some of Ryan's critical testimony about his mother reasoning that Ryan may be biased because of his strong desire to live with Steven. We give consideration in assessing Ryan's testimony to this opinion of the guardian ad litem, but we also recognize, as did the district court, that Ryan's strong feelings would make further residence in Karen's home difficult and that Ryan's preference was driven at least in part by Karen's documented abuse of alcohol. Also, Ryan reported an argument between his father and stepmother where Steven pushed her and Ryan intervened which shows he was not entirely biased. We have considered Ryan's report of this event against Steven in assessing the modification.
In determining the weight to be given to Ryan's testimony, we consider (1) his age and educational level, (2) the strength of his preference, (3) his intellectual and emotional make up, (4) his relationship with family members, and (5) the reason for his decision. In re Marriage of Ellerbroek, 377 N.W.2d 257, 260 (Iowa Ct.App. 1985). Ryan is intelligent and articulate. He is understandably concerned about his mother's drinking. He lived with his father and stepmother for some period after the district court's ruling granting Steven primary physical care and prior to our reversal of the ruling; consequently, he understands what his living situation will be if the modification is affirmed. We give Ryan's opinion weight in assessing the custody modification.
Karen correctly argues that Ryan's preference should not determine Ashley's fate. She contends we should give stronger consideration to Ashley's preference. We do also give Ashley's preference weight. We consider too that siblings should not be separated absent compelling reasons to do so. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993). We recognize as Karen argues that given the age difference between the children, their preferences as to where they want to live, and their diverse interests, that consideration should be given as the guardian ad litem initially recommended to splitting their physical care. However, Karen's decision to drink and put her children at risk causes us concern about leaving Ashley with her mother without Ryan's protection.
Karen also argues that we should only consider events that occurred before the petition to modify custody was filed and not consider or give little weight to events that occurred after the petition was filed. While we agree that a modification petition should not be filed only to gather evidence against the other parent, that certainly was not Steven's purpose in filing the petition for modification. At the time Steven filed the petition for modification Ryan had shared with his father his concerns about Karen's drinking and Ryan had initially refused to return to Karen's care after a visitation with Steven and only returned because Steven insisted he do so. Steven had justification for filing the petition initially. The children's interests are our primary consideration. See In re Marriage of Frederici, 338 N.W. 2d 156, 158 (Iowa 1983). Karen's behavior following the modification hearing put her credibility at issue and was relevant and was given proper weight by the district court.
Karen contends the district court should not have considered the trial information filed in her second OWI. The objection she now makes was not made at trial. Error was not preserved. See Peters v. Burlington N.R.R. Co., 492 N.W.2d 399, 401 (Iowa 1992).
Karen further contends weight should not have been given to the fact that Steven has a large extended family in the Algona area. The Iowa Supreme Court has recognized that grandparents may be better childcare providers than strangers and their availability to their child in assisting with childcare may be a factor in assessing a custodial claim. In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982). Grandparents are to be preferred over the "ministrations of strangers." In re Petition of Purscell, 544 N.W.2d 466, 469 (Iowa Ct.App. 1995). In awarding custody we have considered that the parent would have the help of grandparents in caring for the child. Melchiori v. Kooi, 644 N.W.2d 365, 639 (Iowa Ct.App. 2002). That said, in this case we need give scant consideration to the presence of Steven's family in the Algona area as the other factors clearly support the modification.
Karen contends her visits should be extended. Steven contends what she has is fair, particularly with the requirement that he supply all the transportation. We find no reason to disagree with the district court on this issue.
Karen contends she should have been awarded attorney fees in the district court and should have them on appeal. The district court did not abuse its discretion in not ordering trial attorney fees. See In re Marriage of Cooper, 451 N.W.2d 507, 510 (Iowa Ct. App. 1989). We award no fees on appeal. Costs on appeal are taxed to Karen.