Opinion
No. 5-551 / 05-0138
Filed November 23, 2005
Appeal from the Iowa District Court for Story County, William J. Pattinson, Judge.
David Dubendorf appeals from the denial of his petition to modify the custody provisions of the decree dissolving his marriage to Aimee Nelson. AFFIRMED.
Victoria A. Feilmeyer and Christine R. Keenan of Sharp, Jahn, Feilmeyer Keenan, P.L.C., Ames, for appellant.
Stephen Terrill of Terrill, Martens, Hulting Stockdale, Ames, for appellee.
Heard by Hecht, P.J., Vaitheswaran, J., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
David Dubendorf appeals from the denial of his petition to modify the custody provisions of the decree dissolving his marriage to Aimee Nelson. Because we agree with the district court's conclusion that David failed to establish that a substantial change in circumstances has occurred, we affirm.
We initially note that David has made a "Motion to Strike Appellee's Proof Brief and Final Brief and Resistance to Appellee's Request for Oral Argument." We deny this motion.
Background Facts and Proceedings.
David and Aimee were married in 1995 and had one daughter, Lauren, who was born in 1997. The marriage was dissolved by a decree entered on February 10, 2000. The court granted the parties joint legal custody of Lauren, but allocated to Aimee sole physical care. This court affirmed that decree in a decision rendered on November 20, 2000.
On February 12, 2004, David filed a petition to modify the decree, seeking sole physical care of Lauren for himself. He alleged Aimee had "demonstrated a continued pattern of interfering with, denying, and otherwise preventing Lauren . . . from having the maximum continuing physical and emotional contact with" him. Aimee responded by filing an answer requesting, among other things, dismissal of David's petition and an increase of child support.
Following a hearing on the petition, the court denied David's request, concluding "the record . . . fails to establish either a substantial change in circumstances warranting modification or that Mr. Dubendorf is the superior parent." The court partially granted Aimee's request and modified David's visitation schedule. In particular, the court set a specific time at which David's mid-week visitation shall begin. Finally, the court assessed the costs of the action to David and ordered him to pay Aimee $4000 for attorney fees.
David appeals, contending the court erred in (1) finding no substantial change of circumstances warranting a change of physical care, (2) rejecting the expert testimony of Dr. Arthur Konar, (3) failing to find that David is the superior parent, and (4) ordering David to pay attorney fees.
Modification of Custody.
As this is an appeal from an action to modify custody, our review is de novo. In re Marriage of Montgomery, 521 N.W.2d 471, 473 (Iowa Ct.App. 1994). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. In re Marriage of Anderson, 530 N.W.2d 741, 741 (Iowa Ct.App. 1995). Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties before us. Montgomery, 521 N.W.2d at 473.
The legal principles governing modification actions are well established.
To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children's well being. The heavy burden upon a party seeking to modify custody stems from the principle that once custody of children has been fixed it should be disturbed for only the most cogent reasons.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983) (citing In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980)).
We begin by noting our conclusion that although both parents possess certain shortcomings and disagree strongly on certain child-rearing approaches, they both clearly are suitable, loving providers of Lauren's physical care. In situations where both parents are suitable caretakers, we believe the district court's findings on physical care are entitled to particular weight because the court had the parties before it, was able to observe their demeanor, and was in a better position to evaluate them as custodians. See In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993).
The most contentious issue at trial involved Aimee's decision to home school Lauren. Both David and custody evaluator Dr. Arthur Konar testified about negative features of home schooling. In particular, Dr. Konar opined that if Lauren is home schooled, her socialization will be retarded, her educational options will be diminished, and she will be isolated from other children of a similar age. After carefully reviewing the record, however, we concur with the district court's observation that
[w]hile the [sentiment expressed by Dr. Konar] may or may not be true as a general proposition, the observable facts . . . do not support a conclusion that Lauren's development, on any level, will be stultified if she continues to be home schooled by Ms. Nelson.
The record establishes that Lauren is a well-adjusted child who exhibits age-appropriate academic progress, interacts socially with children of her age, and is exposed to a wide variety of activities and interests notwithstanding her home schooling. Thus, although David does not favor home schooling, the fact Aimee is home schooling Lauren does not constitute a circumstance warranting a change in modification under the circumstances of this case.
David maintains the district court erred in rejecting the expert testimony of Dr. Arthur Konar who strongly opined it is in Lauren Dubendorf's interests to live primarily with David and his current wife, Katy Dubendorf, rather than Aimee and her current husband, Joey Nelson. An expert's testimony must be accorded weight, but their final conclusions are binding neither on the trier of fact nor the appellate courts. Nicolou v. Clements, 516 N.W.2d 905, 909 (Iowa Ct.App. 1994). Courts give opinion testimony the weight we consider it deserves after considering, among other things, the expert's education, experience, familiarity with the case, reasons given for the opinion, and interest, if any, in the case. See In re Marriage of Scheffert, 492 N.W.2d 203, 205 (Iowa Ct.App. 1992).
While the district court clearly did not follow the recommendation of Dr. Konar, we cannot conclude the expert's opinions were ignored. In fact, the district court extensively referenced Dr. Konar's opinions and testimony in its modification order and concluded that, under applicable legal standards, a modification was nonetheless unwarranted. We also note that the district court's conclusion was strongly informed by credibility findings and first-hand observation of the witnesses. For example, the court noted it was particularly struck by David's tenor and mannerisms while on the stand and by the domineering attitude expressed in a series of David's letters to Aimee. In particular, the court found that David was "incredibly rigid and self-centered." We give deference to these findings from the district court. See In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
Accordingly, from our de novo review of the record, we find that David has failed to carry his burden of proving a change in circumstances. The conditions relied on for modification either existed at the time the paternity decree was entered, or do not constitute a substantial change in circumstances. While we have no doubt that David could effectively minister to the needs and wellbeing of Lauren were he to be her primary caretaker, we must keep in mind the law applicable to requests for changes in modification. We therefore affirm the district court's ruling on this issue.
Attorney Fees.
David claims the district court abused its discretion in awarding Aimee $4000 in attorney fees. Iowa trial courts have considerable discretion in awarding attorneyfees in dissolution actions. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). To overturn an award, the complaining party must show the trial court abused its discretion. Id. The amount of attorney fees awarded must be fair and reasonable. In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct.App. 1997). In light of the respective abilities to pay and the district court's resolution of the petition to modify, we affirm the award of attorney fees.
Aimee requests an award of attorney fees on appeal. David shall pay the sum of $1,500 for Aimee's appellate attorney fees. However, because Aimee failed to file a timely brief, provoking David's motion to strike her brief and her request for oral argument, we tax to her all the court costs of this appeal.