Opinion
No. 2-634 / 01-2034
Filed September 25, 2002
Appeal from the Iowa District Court for Jasper County, Jerrold W. Jordan, Judge.
Brenda Gill appeals the district court's denial of her application to modify the physical care provisions of the parties' dissolution decree. VACATED AND REMANDED.
Barry Kaplan of Fairall, Fairall, Kaplan, Hoglan, Condon Frese, Marshalltown, for appellant.
Brian Earley of Early Law Office, Montezuma, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
I. Background Facts and Proceedings.
Brenda and Michael's marriage was dissolved in September 1997. The original decree provided for joint custody of their children, Lee Michael Blythe (born July 11, 1984) and Forest Anthony Blythe (born October 31, 1987). Brenda was granted primary physical care of the children, subject to Michael's reasonable rights of visitation.
Brenda married Tony Gill on December 31, 1998. The children resided with Brenda and Tony until June 2000 when the court modified the September 1997 decree by awarding Michael physical care of both children. While the record does not include the court's findings supporting modification, the parties' testimony in these proceedings suggests it was based on Tony's troubled relationship with the children.
These proceedings originated with Brenda's March 22, 2001, application to modify the physical care of the children. Brenda claimed Michael "has been engaged in illegal activity that is not in the best interests of the children" necessitating modification of the decree. The illegal activity included Michael's two convictions for possession of marijuana and related violations for driving while his driver's license was suspended. Brenda's evidence also included testimony concerning a March 5, 2001, drug task force raid on Michael's home during which both children were detained at gunpoint by task force officers. As a result Michael was charged and convicted of possession of marijuana. Barb McClure, a woman living with Michael and the children, was also charged with possession of methamphetamine. Michael did not dispute his or Barb's drug abuse or the presence of marijuana and methamphetamine in his home. He claimed, however, that these circumstances did not justify modification citing the children's academic and social success. He also cited the circumstances necessitating modification of physical care in June 2000, including allegations that both Tony and Brenda physically abused the children.
The district court denied Brenda's application, stating:
I think he's had a [drug] problem, and I think if he doesn't address it pretty soon, it's going to get bigger, and this next time, frankly, it may be big enough that it's going to cause him and his family significant problems so — so to walk out of this courtroom with maintaining the custody of the children as this order is going to indicate — frankly, I'll tell you right now I'm not going to change the custody. But I'll tell you that to continue the behavior as it's been — as he's been doing it, that together with a substantial probability that he also lied here in court concerning some other matters; namely his driving the vehicle without having the license, to do that does give me concern, and I'm not excusing it, but those aren't — that is not the test that we are required to apply on a change of custody after an initial decree.
* * * *
It sounds as though the probable relationship between her husband and the children is getting better, may not have been good in the past but is getting better. . . . And I believe that this record does not support the granting of a change in circumstances so as to affect the welfare of these children. They are thriving. They may be somewhat ambivalent, frankly, as to where they want to live, and I could certainly understand that.
There's two households here that have been disruptive in their lives over the years. They've had trouble in both of them, but I think to a certain extent staying in one and working things out is a lot better than bouncing back and forth and becoming pawns in effect for the affection of their parents.
On appeal, Brenda contends Michael's drug convictions and dishonesty regarding driving without a license justify modification. Michael argues the record supports the result below and the trial court should be affirmed. He also requests $1000 appellate attorney fees.
II. Standard of Review.
Our review in this equitable matter is de novo. Iowa R. App. P. 6.4; see In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We are not bound by the district court's findings but give them deference because the district court had an opportunity to view, firsthand, the demeanor of the parties and evaluate them as custodians. In re Marriage of Daniels, 568 N.W.2d 51, 53 (Iowa Ct. App. 1997).
III. Modification of Child Custody.
Modification of the custodial terms of a dissolution decree may be ordered only when there has been a substantial change in circumstances since the time of the original decree which was not contemplated by the court when the decree was entered. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996). The change must be more or less permanent and relate to the welfare of the children. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). The trial court has reasonable discretion in determining whether modification is warranted, and such discretion will not be disturbed on appeal unless there is failure to do equity. State ex rel. Pfister v. Larson, 569 N.W.2d 512, 514 (Iowa Ct. App. 1997).
The question is not which home is better, but whether Brenda has demonstrated she can offer the children superior care. See In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). Brenda must show an ability to minister to the children's needs superior to Michael's. Id. If both parents are found to be equally competent to minister to the children, custody should not be changed. Id.
To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of the 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. In re Marriage of Smiley, 518 N.W.2d 376, 378-79 (Iowa 1994). We have declined to modify based on sparing substance abuse by a custodial parent that did not endanger the children. In re Marriage of Montgomery, 521 N.W.2d 471, 474 (Iowa Ct. App. 1994). We have, however, modified physical care based on evidence of chronic alcohol abuse that endangered the children. In re Marriage of LeGrand, 495 N.W.2d 118, 120-21 (Iowa Ct. App. 1992).
Contrary to the trial court's conclusions, we believe Michael's undisputed and repeated criminal convictions for drug possession and substance abuse are a sufficient change of circumstances justifying modification. Michael's continued drug abuse strongly suggests that he is oblivious to the negative implications his conduct holds for the children. While we share the trial court's concern for the untimely disruption of the children's physical care, we refuse to condone Michael's criminal behavior. Unlike the trial court, we find the fact that the children appear to be otherwise thriving in Michael's care insufficient reason for them to remain in their current environment. Based on this evidence we find Michael is unsuited for physical care of the children.
We also reject Michael's claims that Tony's troubled relationship with the children and allegations that Brenda previously abused the children precludes their placement with Brenda. As noted earlier, the record contains no direct evidence concerning Tony's relationship with the children necessitating modification in 2000. In any event, the only evidence of his current relationship with the children indicates that it has improved. The record also indicates that the allegations of Brenda's abusive behavior were investigated by the Department of Human Services and determined to be unfounded. We additionally note that the children are familiar with Brenda's home environment and will attend school in the same community as they did while living with Michael. On this record we conclude Brenda has met her burden to show she can offer superior care for the children.
The trial court's ruling denying Brenda's application to modify physical care is vacated. We remand with instructions for entry of a modified decree placing the children in Brenda's physical care. On remand, the trial court shall also consider modification of child support, visitation, and other matters necessary to implement modification of physical care.
The trial court's modification decree is vacated and this case is remanded for further proceedings in conformity with this opinion. Michael's request for appellate attorney fees is denied.