Opinion
No. 2-705 / 02-0314
Filed November 25, 2002
Appeal from the Iowa District Court for Plymouth County, FRANK B. NELSON, Judge.
Appellant appeals the district court decision modifying the physical care of the parties' son. AFFIRMED.
R. Scott Rhinehart of Richard Rhinehart Associates, L.L.P., Sioux City, for appellant.
Francis Goodwin of Baron, Sar, Goodwin, Gill Lohr, Sioux City, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Appellant Vicki Lee Davis appeals the district court decision modifying the primary physical care of her son, William Douglas Davis, who was born on January 6, 1989. In the November 12, 1999 decree dissolving Vicki's marriage to appellee Jay Douglas Davis, the court awarded the parties joint legal custody of William. Vicki was then named the primary physical custodian of both William and an older daughter, Katie. The October 29, 2001 modification made by the district court provided that Vicki and Jay should have joint physical care of William, and that William should change homes each week. Provisions were also made for an equal division of holiday times. Jay's child support obligation was not modified. Vicki contends (1) the district court should not have modified the decree when it found no changed circumstances, and (2) the evidence did not support the modification. We find there was a change of circumstances, and the evidence supported the modification.
Katie remains in her mother's primary physical care, and her custody is not at issue here.
Vicki and Jay were married twenty-two years and had three children. The oldest child is now an adult. At the time of the modification action William and his older sister, Katie, born September 25, 1984, were both living with Vicki, and Jay was exercising visitation. Jay filed a petition for modification in April of 2001, seeking to be named William's joint physical custodian. The district court heard the matter on September 7, 2001, and on October 29, 2001 filed its decision. The district court found that Jay's visits with Katie had been sporadic, but that he had more than exercised all of his visitation with William. The court noted this was primarily because Jay was intensely involved with William's numerous athletic pursuits and that he assisted in coaching many of the sports that William participated in, especially wrestling. The court further found it appeared Jay had contact with William on at least half of the days in the two years preceding the modification hearing.
The court found that the record did not support a finding Jay was more capable of ministering to William's well-being. The district court correctly noted that as joint legal custodians, both Vicki and Jay had equal responsibilities to William and had an equal right to participate in decisions affecting his legal status, medical care, education, extracurricular activities, and religious instruction. The district court determined that its modification was in effect a change of visitation. The court correctly noted that changing visitation requires less of a burden than changing custodial care. See In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa Ct.App. 1985).
As the district court recognized, although there has been a common law rule that divided care of the children in a dissolution is not favored, see, e.g., In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct.App. 1996); In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.App. 1994), the Iowa legislature has since recognized joint physical care as an option for divorcing parents if in the best interests of the children. Iowa Code § 598.41(5) (2001).
The district court considered the apparent success the previous summer of changing William's home every two weeks and accordingly modified the decree to provide for joint physical care. Vicki first contends that the district court incorrectly equated this to changing visitation and applied the wrong burden in modifying custody.
We review de novo. Iowa R.App.P. 6.4. Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court's findings of fact, but we are not bound by them. Iowa R.App.P. 6.14(6)( g). Courts are empowered to modify the custodial terms of a dissolution decree only when there has been a substantial change in circumstances since the time of the decree not contemplated by the court when the decree was entered, the change was more or less permanent, and it related to the welfare of the child. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). A parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden and must show the ability to offer superior care. See In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980); In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998).
The result of the finding in the dissolution decree was that both parents were found suitable to be physical care parents. See Frederici, 338 N.W.2d at 160 (finding either parent suitable custodian is a predicate to joint custody). Yet where one parent has been named the primary care parent there has been a determination that parent is the better parent. See id. Jay is benefited in seeking joint 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 Leyda, 355 N.W.2d 862, 864 (Iowa 1984). Clearly if Jay were seeking physical care, he would carry a burden similar to that imposed on a parent seeking a change of custody. Id. That is, he would have the burden to establish by a preponderance of evidence that conditions since the dissolution decree was entered have so materially and substantially changed that William's best interests make it expedient to transfer his physical custody to Jay. Id. at 865; Frederici, 338 N.W.2d at 158.
The question we are presented with is whether Jay, in seeking joint physical care rather than sole physical care, has a lesser burden. There appears to be no justification here to charge Jay with a lesser burden of proof because he seeks only shared physical care instead of sole physical care, and on our de novo review we apply the burden of a parent seeking sole physical care.
We conclude he has met that burden. In making that conclusion we consider the district court's finding, with which we agree, that the modification reflected what the actual custodial arrangement had been during the preceding year. We also look to Jay's motive in seeking the change. He apparently was not looking to reduce his child support obligation, and this obligation was not modified. Rather, it is clear the petition to modify was filed because it reflected William's wish. William testified and made it clear that his wish was to alternate weekly at the home of each parent. William also testified that he loves both of his parents and wants to spend time with each of them. He also testified that his father is easier to talk with, and that is father is more helpful to him in doing homework. William indicated that Jay is willing to allow him to go to his mother's for legitimate reasons during visitation time, and that Vicki generally allows him to go to Jay's for the same reasons. William said he wants more time scheduled with his father because he feels he hurts his mother's feelings when he asks to go to his father's during time he is in her care.
Both parties are loving and capable parents and are concerned with William's upbringing. They live about ten minutes apart and in the same school district. Jay retained the family home. Consequently, his home is where William lived at all times prior to the dissolution.
The driving force behind this modification is William's preference. We therefore focus on assessing what weight we give to William's preference. Deciding custody is far more complicated than asking children with which parent they want to live. In re Marriage of Behn, 416 N.W.2d 100, 101 (Iowa Ct.App. 1987); In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct.App. 1985).
Iowa Code section 598.41(3)(f) provides:
In considering what custody arrangement . . . is in the best interest of the minor child, the court shall consider the following factors:
. . .
f. Whether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity.
In determining the weight to be given William's testimony, we consider, among other things, the following factors: 1) William's age and educational level; 2) the strength of William's preference; 3) William's relationship with family members; and 4) the reasons he gives for his decision. Behn, 416 N.W.2d at 102; see also Ellerbroek, 377 N.W.2d at 258-59. William's preference is entitled to less weight in this modification action than it would be given in the original custody proceedings. Behn, 416 N.W.2d at 102, (citing Smith v. Smith, 257 Iowa 584, 591, 133 N.W.2d 677, 681 (1965)).
William is twelve years old and a good student. He was clear in his testimony as to his preference. He had talked it over with his school counselor. He experienced a rotation between homes the preceding summer and felt it worked well for him. He testified he loved both of his parents, he needed time with his father, and felt it would be better to have it structured because of his fear of hurting his mother's feelings by asking for additional time with his father. While this is a modification, it is not a case where William is attempting to change homes. Rather, he is seeking a peaceful continuation of what the situation has already been, and he is seeking a peace between his parents. Having considered these factors, we give William's preference substantial weight.
Considering William's preference, the school counselor's support of the arrangement, the close relationship William has with his father including his ability to discuss problems more freely with his father, the close proximity of the parties' homes to each other, and the fact that upon seeing the parties and hearing all the evidence the district court believed the decree should be modified, we affirm.