Opinion
No. 0-351 / 99-1595.
Filed July 26, 2000.
Appeal from the Iowa District Court for Polk County, Richard G. Blane, Judge.
Petitioner appeals from the district court ruling modifying the parties' dissolution decree on the issue of visitation but not primary physical care. AFFIRMED.
David S. Wiggins and Paige Fiedler of Wiggins Anderson, P.C., West Des Moines, for appellant.
Susan L. Ekstrom, Des Moines, for appellee.
Heard by Sackett, C.J., Vaitheswaran, J, and Habhab, S.J., but decided by Sackett, C.J., Huitink, and Vaitheswaran, JJ.
Senior judge assigned by order pursuant to Iowa Code § 602.9206 (1999).
The primary issue we must decide is whether the district court acted inequitably in refusing to transfer physical care of five-year-old Sam from Lonnie Easter to Beth Townsend. We affirm.
I. Background Facts and Proceedings Townsend and Easter married in 1993. Sam was born in 1994. The parties lived and worked in California, Townsend as an attorney with the United States Air Force, and Easter as a dentist with the Air Force.
The parties formally separated in June 1996 and Townsend filed a divorce petition one month later. An independent custody evaluator met with both parents. Townsend told the evaluator she intended to move to Colorado Springs, where she would have fewer travel obligations than she had in the past. Easter advised her he had left the Air Force and planned to move back to his hometown of Clear Lake where he would work four days per week and would have family support to help with care of Sam. The evaluator recommended Easter assume primary care of Sam, but also recommended a liberal visitation schedule. The parties stipulated to these recommendations and were divorced in August 1997.
The same month, Easter moved to Clear Lake and Townsend moved to Colorado Springs, as planned. After eleven months in Clear Lake, Easter decided to set up his own practice in Johnston. As his practice was initially slow, Easter worked two to two and a half days at an established practice in Marshalltown.
In February 1999, Townsend filed an application to modify the decree to obtain primary physical care of Sam. In support of her application, Townsend relied heavily on conversations with Easter she taped without his knowledge, as well as messages he left on her answering machine. The district court declined to alter the primary care arrangement but granted Townsend additional visitation. The court also addressed difficulties relating to reimbursement for transportation expenses and ordered Easter to undergo counseling to improve his communication with Townsend. The district court denied both parties' request for trial attorney fees. Townsend appealed and Easter cross-appealed.
II. Primary Care We review modification proceedings de novo. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). While we give weight to the district court's fact findings, we are not bound by them. Id. The applicant must show there has been a substantial change in circumstances since the decree was entered that was not contemplated by the decretal court. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa App. 1998). "The change must be more or less permanent and relate to the welfare of the children." Id. This is a heavy burden. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa App. 1998). It is not sufficient to establish both parents are equally competent to minister to the child. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa App. 1997). The applicant must demonstrate a superior ability to minister to the child's needs. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa App. 1994).
Townsend maintains she should be allowed to assume primary care of Sam because: (1) she can better ensure he has continuing contact with Easter; (2) Easter has repeatedly made false statements under oath; and (3) she is a better parent. We will address each contention in turn.
A. Facilitate Relationship . Townsend contends she will foster rather than denigrate Sam's relationship with Easter, making her the better parent to assume his primary care. To support her contention that Easter has done the opposite, she cites taped derogatory comments Easter made about her. Without minimizing the anger and spite reflected in certain of the comments, the recordings taken as a whole reveal a father who desperately wanted Sam to maintain contact with his mother despite parental differences. Easter spontaneously and repeatedly stated it was in Sam's interests to have as much contact with Townsend as possible, despite his lack of respect for her. Additionally, on one of the tapes, Easter commented he always spoke well of Townsend in public and Townsend essentially agreed. Finally, Townsend admitted Sam was with her rather than Easter thirty-five to forty percent of the time, belying her assertion that Easter undermined her relationship with him. We have often stated that failure to support a parental relationship may constitute grounds to modify the physical care arrangement. Whalen, 569 N.W.2d at 629. This is not such a case. Easter, as custodial parent, has ensured that Sam retains both parents in his life. Townsend has not met her burden of proving the contrary.
B. False Statements . At trial, when confronted with statements he made on tape about Townsend and her relationship with Sam, Easter essentially admitted his testimony in an earlier deposition may have been inaccurate. Townsend asks this court to consider her successful impeachment of Easter as grounds for transferring primary care of Sam to her. Like the district court, we decline to do so. While we are unwilling to condone anything but full and forthright disclosures to the district court, we have stated, "[t]he custody issue is a matter far too important to be used as a device to reward or punish a parent." In re Marriage of Bauder, 316 N.W.2d 697, 700 (Iowa App. 1981). The district court appropriately addressed certain of Easter's statements by issuing orders short of a change in the primary care arrangement. For example, Easter first denied and later admitted that he stated he would withhold visitation if Townsend did not timely pay travel expenses. In response, the court stated, "[if] you have a problem and you don't think you're getting paid you better come to the courts. We enforce our orders but it's not up to you to use that as a condition on whether or not my order gets enforced." Additionally, the court ordered Easter to attend counseling to address his animosity toward Townsend and to facilitate better communication between the parties. In the absence of a showing by Townsend that she is the better parent, we decline to transfer physical care on the basis of Easter's impugned credibility at trial.
C. Townsend's Parenting . Townsend contends the district court should have found she was the better parent. The record reflects Townsend is a good parent. Indeed, Easter conceded that fact. As we noted earlier, however, Townsend was required to show she was a superior parent in order to meet her burden. See Rosenfeld, 524 N.W.2d at 213. She did not do so.
Townsend first emphasizes that her travel commitments when Sam was a toddler had diminished substantially by the time of the modification trial. She notes most, if not all, her more recent travel was voluntary and during times when she did not have Sam. Easter takes issue with this contention. We find that both parties devote a significant amount of time to their professions, but both parties have demonstrated a laudable commitment to their son despite their time constraints. Therefore, the parties' positions on this issue are essentially in equipoise. Under these circumstances, we cannot say Townsend's reduced travel hours in the two years preceding trial and Easter's increased hours amount to a substantial change in circumstances warranting a change in the primary care arrangement.
Townsend next contends the court should weigh in her favor the fact she has purchased a large home, whereas Easter lived in an apartment at the time of trial. However, Townsend has not established Easter's apartment contained harmful conditions or otherwise failed to meet Sam's basic needs. Accordingly, we reject this factor as grounds for a change in primary care.
Townsend also maintains Easter discussed local kindergarten arrangements with Sam, in contravention of a doctor's recommendation he not do so, and denigrated Townsend in Sam's presence. The record reflects Easter discussed kindergarten with Sam to prepare him for the prospect of beginning school, not to sway Sam toward Johnston rather than Colorado schools, as suggested by Townsend. Additionally, while Easter made certain negative comments about Townsend in the heat of contentious discussions about Sam's future, we are not persuaded on this record that he routinely denigrated Townsend in Sam's presence.
Townsend additionally urges us to find that Easter's moves from California to Clear Lake to Johnston reveal an unstable lifestyle. We agree that Townsend was well-settled in Colorado Springs at the time of trial. However, we do not find Easter any less well-settled. Although Easter spent only eleven months in Clear Lake before moving to Johnston, the parties discussed the move before it happened as well as the reasons for it. Easter initially proposed moving to Manchester to increase his income. Townsend was adamant that she would have difficulty getting there for visitation and there would be few job opportunities if she decided to move there. Easter's move to the Des Moines metropolitan area was partially an attempt to accommodate Townsend, both in terms of visitation as well as employment, in the event she chose to move closer. Therefore, like the district court, we conclude Easter's moves do not warrant a change in the primary care arrangement.
There is no question Townsend is a loving and devoted parent to Sam. She has made the most of her non-custodial status, exercising substantially more visitation than called for under the decree, and affording Sam a nurturing and enriching environment. She has willingly negotiated time and distance to be an active part of Sam's life. However, the record reveals Easter has shown no less devotion to Sam. We conclude the arrangement ordered by the district court serves Sam's best interests. Accordingly, we decline to modify the primary care arrangement.
III. Cross-Appeal On cross-appeal, Easter contends the district court should not have (1) considered the tape recordings and (2) excluded expert testimony on parental alienation syndrome. The district court received the challenged evidence, then ruled post-trial on Easter's objections. See In re Estate of Evjen, 448 N.W.2d 23, 24 (Iowa 1989) (noting proper procedure in equity case was to admit evidence subject to objections).
A. Audiotapes . Easter contends the district court should have excluded audio tapes of conversations Townsend surreptitiously recorded, as well as recordings of messages he left on her answering machine, because they lacked a proper foundation. Sound recordings are admissible if they are accurate and trustworthy. State v. Weatherly, 519 N.W.2d 824, 826-27 (Iowa App. 1994). The district court admitted the tapes, reasoning:
The court finds them to be both accurate and trustworthy. Any argument by the respondent that they do not truly reflect or do not contain all portions of certain conversations go to their weight and not their admissibility. As indicated, I have listened to them, and particularly as to the telephone messages that were left on the answering machine, those were in full, they did not appear to be edited, or they were also not, let's say, induced by anything that was — as part of any conversation. They were obviously spontaneous on the part of Lon and not be subject to criticism as being only partial transcripts — partial tapes or transcripts. But in any event, the Court finds that all of the tape recordings offered and the transcripts are properly received into evidence. The Court has reviewed those in combination, and to the extent that there might be a slight variance in the transcript I don't think that their substance — and since I listened to the tapes and I'm relying on those that shouldn't make any difference.
We agree with the district court's reasoning. During trial, Townsend identified the dates of the conversations and answering machine messages. She also represented that she did not edit or tamper with the tapes after the conversations were recorded. It is true Townsend did not tape the entire conversations and conceded she only began to record when she believed Easter was "becoming ugly" with her or "was trying to manipulate Sam." We also note she stopped recording one conversation at a point when the conversation began to get heated. However, we agree with the district court that Townsend's conscious decision to edit the conversations during the taping process goes to the weight to be accorded the tapes and not to the admissibility of the tapes in the first instance. We find Townsend's testimony establishes a sufficient foundation for admission of the tapes. Cf. In re Marriage of Rebouche, 587 N.W.2d 795, 798 (Iowa App. 1998) (affirming exclusion of tape transcripts where some of the original tapes were missing, and tapes were transcribed by the party).
Easter additionally maintains we should exclude the tapes in light of Iowa ethics opinions which generally prohibit attorneys from tape recording conversations without the other party's knowledge. See Iowa State Bar Association Committee on Professional Ethics and Conduct, Formal Opinions 83-16 and 95-9. But see Iowa Sup. Ct. Bd. of Prof'l Ethics Conduct v. Plumb, 546 N.W.2d 215, 217 (Iowa 1996) (refusing to validate Opinion 83-16 as a whole). Given our conclusion that Townsend met the foundational requirements for admission of the tapes, we need not reach this issue.
B. Exclusion of Expert Testimony . Easter contends the district court should not have excluded testimony from expert Kathleen Ruyle concerning parental alienation syndrome.
Following trial, the district court granted Townsend's motion to exclude the testimony, stating it "did not offer anything to this Court that was specific to the determination of the issue concerning Sam and primary physical care." We agree with this conclusion. Ruyle opined that parental alienation syndrome, was primarily characterized by a child's refusal to visit one of the parents. Ruyle conceded she had not met or examined Sam, but based her opinions entirely on information received from Easter's attorney. Cf. Baysden v. Hitchcock, 553 N.W.2d 901, 905 (Iowa App. 1996) (holding testimony not relevant where witness did not have any first hand knowledge of the agreement between the parties). Ruyle also admitted her opinions were generalizations about most children in a given age group and application of those generalizations directly to Sam "would probably be difficult." Finally, the record contained little if any evidence to suggest Sam exhibited signs of alienation from either parent. Cf. Rosenfeld, 524 N.W.2d at 215 (noting expert opinion regarding parental alienation syndrome supported by evidence that father and new wife unreasonably limited contact with natural mother). For these reasons, we conclude, the district court acted equitably in excluding Ruyle's testimony.
IV. Attorney Fees A. Trial Attorney Fees. Iowa Code section 598.36 authorizes a district court, in its discretion, to award trial attorney fees to the prevailing party in a modification proceeding. See In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). The district court denied Townsend's request for fees on the ground she was not the prevailing party. Townsend contends this was an abuse of discretion because she prevailed on the visitation, transportation and dependency exemption issues. We disagree. Primary care was the main issue and the one that consumed most of the parties' and court's time. Townsend did not prevail on this issue. Therefore, we conclude the district court did not abuse its discretion in declining to grant her request for trial attorney fees.
B. Appellate Attorney Fees . Both parties have requested appellate attorney fees. The decision to award appellate attorney fees lies within the appellate court's discretion. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa App. 1999). We consider the requesting party's needs, the ability of the other party to pay, and whether the requesting party was obligated to defend the district court's opinion on appeal. In re Marriage of Barry, 588 N.W.2d 711, 714 (Iowa App. 1998). Because the difference between the parties' incomes is not large and both were required to defend aspects of the district court's ruling, we decline to award appellate attorney fees. We divide costs equally between the parties.
AFFIRMED.