Opinion
No. 2-738 / 02-0272.
Filed December 30, 2002.
Appeal from the Iowa District Court for Monroe County, DANIEL P. WILSON, Judge.
A father appeals the district courts' denial of his application to modify physical care. AFFIRMED.
Steven Goodlow, Albia, for appellant.
Lynn Wiese of Barker, McNeal, Wiese Holt, for appellee.
Kevin Maughan, Albia, for child.
Considered by HECHT, P.J., and VAITHESWARAN and EISENHAUER, JJ.
A father appeals the district court's denial of his application to modify the physical care provisions of a prior decree. We affirm.
I. Background Facts and Proceedings
Dennis and Kathryn Graham divorced in 1991. Kathryn was awarded physical care of the parties' three children, Erik, Heather, and Brett. She retained physical care of the children for the next nine years. In 1999, Dennis applied to modify the physical care portion of the decree. The district court granted the application but our court reversed. Dennis filed another modification application. By this time, Erik was an adult and the parties stipulated Heather could remain with her father, leaving only thirteen-year-old Brett's placement unresolved. The district court concluded Dennis "failed to carry his very heavy burden to show that Brett's physical care should be placed with him." On our de novo review, we agree.
II. Modification
Dennis contends the district court: 1) considered too narrow a time frame to decide the modification issue and 2) placed too heavy a burden on him to establish modification. We are not persuaded.
The standards governing modifications of dissolution decrees have been summarized as follows:
A party seeking modification of a dissolution decree must establish by a preponderance of the evidence that there has been a substantial change in the circumstances of the parties since the entry of the decree or of any subsequent intervening proceeding that considered the situation of the parties upon application for the same relief. Mears v. Mears, 213 N.W.2d 511, 514 (Iowa 1973). Other well-established principles govern modification: (1) not every change in circumstances is sufficient; (2) it must appear that the continued enforcement of the decree would, as a result of the changed circumstances, result in positive wrong or injustice; (3) the change in circumstances must be permanent or continuous rather than temporary; and (4) the change in circumstances must not have been within the contemplation of the district court when the original decree was entered. In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983). The district court has reasonable discretion in determining whether modification is warranted, and we will not disturb that discretion unless there is a failure to do equity.In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). In addition, a parent seeking to change physical care must show an ability to offer superior care. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998).
Applying these standards, the pertinent time frame for consideration was "from any subsequent intervening proceeding that considered the situation of the parties upon application for the same relief." Id. The district court pointed out that the last proceeding was the appeal before our court. The court properly considered any changes after that date but, assuming a broader time frame was appropriate, the court's opinion reflects it received and considered evidence outside the time frame.
As for the burden of proof issue, we believe the "substantial change" and "superior parenting" principles articulated above clearly apply in this situation. These standards were not met. Brett's expressed preference to live with his father was conveyed to the district court during the first modification proceeding. Therefore, it was not alone a basis for a subsequent modification. Additionally, Dennis did not prove he was a superior parent. The following exchange is instructive:
Q: In fact, you do not represent to the Court that you would provide a superior parenting situation for Brett than Kathy does, do you?
A: No.
We conclude the district court acted equitably in declining to shift physical care of Brett to his father. Although there is no question Dennis is a loving and devoted parent, so is Kathryn. While Brett missed his school and friends in Dennis's hometown and enjoyed the less structured environment of Dennis's home, the record reflects he had readjusted to his mother's home and school environment. Accordingly, we affirm the district court's ruling.
III. Appellate Attorney Fees
Kathryn seeks an award of appellate attorney fees. Such an award rests in our discretion. Maher, 596 N.W.2d at 568. We order Dennis to pay Kathryn $500 toward her appellate attorney fees.