Opinion
No. 2-552 / 01-1825.
Filed August 14, 2002.
Appeal from the Iowa District Court for Linn County, AMANDA POTTERFIELD, Judge.
Bradley Covington appeals from the district court's denial of his application to modify the physical care portion of his divorce decree. AFFIRMED.
Stephen Greenleaf of Lynch, Greenleaf Michael, L.L.P., Iowa City, for appellant.
Jeffrey Taylor of Klinger, Robinson Ford, Cedar Rapids, for appellee.
Considered by VOGEL, C.J., and MILLER and VAITHESWARAN, JJ.
A father sought to modify the physical care portion of his divorce decree. The district court denied his application. We affirm.
I. Background Facts and Proceedings
Bradley and Jana Covington divorced in 1995. Pursuant to a stipulation, Jana assumed physical care of the parties' two children, Allyson and Mitchell, born in 1991 and 1994 respectively.
Bradley and Jana both actively parented their children after the divorce. Although Jana had physical care, Bradley regularly exercised visitation two evenings per week and on weekends.
Immediately following the divorce, visitation was easy, as both parties lived within minutes of each other in Cedar Rapids. Later, Jana moved to Fairfax and Bradley to Marion, making the commute about forty-five minutes. Eventually, Bradley remarried and decided to purchase a home in Fairfax to be closer to his children. After he made the move, Jana sold her home in Fairfax and moved to Coggon, forty-two miles away, to facilitate a relationship she was having with the police chief of that city.
Bradley applied to modify the physical care arrangement. The district court denied his application and this appeal followed. Our review is de novo. Iowa R. App. P. 6.4.
II. Physical Care
To modify physical care, Bradley has the heavy burden of establishing a substantial and material change of circumstances not contemplated at the time of the decree as well as superior caretaking ability. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). The modification also must be in the best interests of the child. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). The district court determined Bradley had shown a substantial and material change of circumstances but concluded a transfer was not in the children's best interests. Bradley takes issue with this conclusion.
A. Substantial and Material Change in Circumstances . As a preliminary matter, Bradley contends Jana failed to establish a substantial and material change in circumstances. We assume without deciding that Bradley satisfied this first element of proof and move to the second element: proof of superior caretaking ability.
B. Superior Caretaking Ability . On our de novo review, we cannot conclude that Bradley satisfied this second element. A neutral custody evaluator opined that, based on her evaluation of both parents and their new partners, "all four adults were of reasonably sound physical and mental health, and expressed a strong commitment and desire to parent." She further stated that while their parenting styles were different, she had no scientific evidence "to indicate that one would be superior at this point." Although Bradley points to certain evidence that the evaluator failed to consider, such as Allyson's stomach complaints and depression, we find the evaluator's opinion to be well documented and thorough. She spoke to the parents and children, observed the children with each parent and with Jana's fiancée, and administered a battery of psychological tests. She also independently evaluated Jana's fiancée and determined he was neither suffering from any mental illness that would affect his ability to parent nor was at risk to abuse the children. For these reasons, we agree with the district court's decision to place substantial weighton the evaluator's report.
In addition to the evaluator's opinion placing the parents on an equal footing with respect to parenting abilities, the record establishes that Jana has been the primary physical caretaker since the parties separated in 1994, a factor we may consider in deciding who is the superior caretaker. See In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct.App. 1998) (primary caretaking role persuasive but not controlling factor in deciding who would better foster a healthy environment for the children). The children spent two-thirds of their time with Jana on a month-to-month basis and the record does not reflect that their physical or emotional needs were neglected while in her care. By most accounts, Jana groomed them satisfactorily, sent them to school regularly, enrolled them in extra-curricular activities, and monitored her daughter's stomach and mood problems.
Bradley contends Jana was unaware of the depth of Allyson's despair following the move to Coggon. However, the custody evaluator noted only a mild elevation in depressive symptoms at the time of the evaluation and stated that a family drawing prepared by Allyson "did not exhibit signs of trauma and was age-appropriate in content and quality."
While conceding Jana's role as primary caretaker, Bradley points out that the circumstances surrounding the children's move to Coggon were less than ideal. We agree. Jana's home in Fairfax was sold before she could obtain suitable housing in Coggon and the transition into her fiancée's family was rocky. However, we are not convinced her living situation was as tumultuous as Bradley contends. Many of the problems were related to merging Jana's family with her fiancée's. These problems worked themselves out over time. Additionally, to the extent Bradley argues Jana's depression was the cause of these problems, we note that Jana obtained treatment and the custody evaluator opined that her mental health issues would not affect her parenting abilities.
Finally, we agree with Bradley that Jana's failure to adequately inform Bradley of her impending move to Coggon is troublesome. However, we believe this was a temporary lapse in judgment. Commendably, Jana did not obstruct visitation in any way during the modification proceedings and stated she would continue to facilitate the children's relationship with their father. Both Jana and Bradley conceded that, once the stress of the modification trial abated, they would be able to effectively communicate about the children's needs and wants.
In sum, we conclude that Bradley established he was as good a parent as Jana but did not establish he was a superior parent.
C. Children's Best Interests . We agree with the district court that the overarching factor, the best interests of the children, also militates in favor of keeping the children where they are. The record reflects that, after a period of adjustment, the children made friends, performed adequately at school, coexisted with the children of Jana's fiancée, and were scheduled to undergo therapy to address any additional problems they were experiencing with the transition. While there is no question Bradley is a loving parent who has played an active role in raising his children, he has not shown sufficient grounds to remove his children from their mother's care.
AFFIRMED.