Opinion
No. 4-708 / 04-0207
Filed December 8, 2004
Appeal from the Iowa District Court for Union County, Gary Kimes, Judge.
Shelley Lynn Pool Carter appeals from the decision of the district court granting the father's modification petition seeking primary physical care of the parties' son. AFFIRMED.
Andrew Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellant.
Alexander Rhoads of Babich, Goldman, Cashatt Renzo, Des Moines, for appellee.
Heard by Huitink, P.J., Mahan, Miller, and Vaitheswaran, JJ., and Snell, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Shelley Lynn Pool Carter appeals from the decision of the district court granting the father's modification petition seeking primary physical care of the parties' son. We affirm.
I. Background Facts Proceedings.
Shelley Carter and Brad Rumple are the parents of Tavian Rumple, born on February 11, 1998. In June 1999 Shelley filed a petition for child support and custody of Tavian. In February 2000 the district court entered a judgment awarding Shelley custody of Tavian and granting Brad liberal visitation. Although Brad moved from Iowa to Arizona in July 1999, he attempted to maintain and exercise his visitation rights. However, Shelley rarely cooperated, and thwarted Brad's efforts to visit Tavian. By July 2001 Brad had filed two show cause actions alleging he had attempted to exercise his visitation rights but was denied access to Tavian. On December 27, 2001, the district court modified Brad's visitation schedule to accommodate his relocation to Arizona. On April 4, 2002, Brad filed his third show cause action alleging denial of visitation. On July 12, 2002, the court issued another order outlining in detail the terms of Brad's visitation. Per this order, Brad exercised visitation with Tavian from July 12 to July 15, 2002.
Beginning in September 2002, Shelley contacted numerous child services and law enforcement agencies to report Brad had sexually abused Tavian during his July 2002 visit. Approximately five different agencies in two different states investigated these claims, none of which filed any charges. After Shelley contacted the Mesa, Arizona, Police Department, one of the detectives stated that he felt Shelley was shopping for someone to cooperate with her agenda. A subsequent physical examination of Tavian did not reveal any evidence of abuse.
We note that the first Child Abuse Assessment generated by the Department of Human Services initially was determined to be founded and listed Brad as the perpetrator. However, this report was not supported by evidence and was amended to reflect the perpetrator as being unknown shortly after Brad took and passed a polygraph examination.
Shelley filed a petition to terminate Brad's parental rights on October 18, 2002. The district court issued a temporary restraining order and conducted a hearing on December 6, 2002. The court endorsed the parties' agreement to submit to individual polygraph tests and their stipulation to admit the results in evidence. Brad submitted to an exam, and the examiner concluded Brad was being truthful when he responded negatively to questions about whether he had ever sexually or physically abused Tavian. Shelley submitted to two different exams. During the second examination, Shelley was asked if she had told Tavian to lie about the allegations concerning Brad and if any of the abuse statements made by Tavian were false. The examiner concluded her denial was not truthful. Likewise, the examiner also concluded Shelley was being untruthful when she denied she had lied to any of the authorities about the allegations against Brad. After the examiner informed Shelley that she had failed the polygraph examination, she became visibly upset and immediately left the room.
On December 23, 2002, Brad filed his petition to modify Tavian's custody. After the parties filed several motions and the court granted several continuances, a hearing was held on February 26, 2003. After this particular hearing, a temporary order was entered placing Tavian in a neutral home. Further proceedings were scheduled to occur on June 12, 2003. In between the hearings, due to Shelley's behavior toward the Department of Human Services (DHS) staff, the DHS Central Office requested that the Polk County office reassess all allegations concerning Tavian. This investigation resulted in a founded report of denial of critical care and listed Shelley as the person responsible. On June 12, 2003, the parties informed the court they had reached a temporary agreement regarding the ongoing custody case. The district court approved the agreement and set a review hearing for September 5, 2003. However, due to ongoing disagreements, the parties notified the court that a trial was necessary to resolve the issues surrounding Tavian's custody. A trial commenced on September 30, 2003. The district court concluded Shelley had exhibited a long pattern of shopping for support to deny Brad a relationship with Tavian and that she acted without sensitivity to how her behaviors affected Tavian. Due to Shelley's failure to support Tavian's relationship with his father, the district court granted Brad's petition to modify custody. Shelley filed a motion for a new trial and to amend and enlarge the findings of fact and conclusions of law. On December 15, 2003, the district court filed an order nunc pro tunc that completely replaced, but did not substantively alter, the previous ruling. The court denied Shelley's posttrial motions on January 28, 2004. She appeals.
On appeal, Shelley first argues the district court abdicated its responsibility as the fact finder by adopting, nearly verbatim, the proposed findings of fact and conclusions of law submitted by one of the parties. She further contends the court's transfer of primary physical care was improper because the court erroneously considered the results of her polygraph examination and the father failed to prove he was able to provide Tavian with superior care. Finally, she challenges the district court's order of attorney and guardian ad litem fees. We address each of her arguments in turn.
II. Standard of Review.
Our review of child custody modifications is de novo. In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997). We give weight to the district court's fact-findings, particularly when considering the credibility of witnesses, but they do not bind us. Id.
III. Proposed Findings Conclusions.
Shelley first contends the district court's decision should be reversed because the district court improperly adopted wholesale the proposed findings of fact and conclusions of law submitted by one of the parties. The order nunc pro tunc entered by the district court is nearly identical to the original order entered on November 25, 2003 with the exception of one sentence. This sentence in the original ruling read, "For this attorney, the question is who will provide Tavian with the emotional and psychological stability that will allow Tavian to mature and to grow in his relationships with both parents." The order nunc pro tunc changed the word "attorney" to "judge." While we agree this change reflects the judge may have adopted nearly wholesale the guardian ad litem's proposed findings of fact and conclusions of law, we do not agree that reversal is warranted. We have previously approved the practice by trial judges of requesting counsel for both parties in a case to submit proposed findings and conclusions following trial, provided counsel are also permitted to comment on the proposal submitted by the other. See Production Credit Ass'n v. Shirley, 485 N.W.2d 469, 475 (Iowa 1992). The increasing demands on trial courts to dispose of a growing number of cases, as well as the technical nature of a particular case, may periodically justify the practice. See Kroblin v. RDR Motels, Inc., 347 N.W.2d 430, 435 (Iowa 1985). At the same time, however, we do not encourage the practice of adopting verbatim the proposed findings and conclusions submitted by one of the parties. See Care Initiatives v. Board of Review, 500 N.W.2d 14, 16 (Iowa 1993). We particularly condemn this practice in the context of a child custody modification proceeding. A judge-written opinion enhances the quality of the decision, assures litigants their claims were fully and fairly considered, and allows appellate courts to readily ascertain the bases for the decision. Kroblin, 347 N.W.2d at 435. It is one thing for a party to lose a case, and another to lose with a decision written by another party. The latter outcome can undermine the public confidence in our system of justice, and promote further litigation and appeals. In re Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct.App. 1996). Trial judges can utilize proposed findings and conclusions responsibly by refraining from wholesale, or nearly wholesale adoption of a proposed decision. Rather, the proposed decision should serve as a guide and be incorporated into the independent thoughts of the trial judge. Id.
Shelley contends Brad's attorney submitted the proposed findings of fact and conclusions of law. It is clear, however, these were submitted by the guardian ad litem.
Although we strongly criticize the district court's actions in this case, Shelley is not entitled to a new trial. Even when a proposed order is adopted verbatim, it does not necessarily follow that the decision was not a product of independent judicial judgment. Quality Refrigerated Servs., Inc. v. City of Spencer, 586 N.W.2d 202, 205 (Iowa 1998). We reject Shelley's claim the case should be reversed because upon our independent review we conclude the record supports the findings made by the trial court.
IV. Modification of Custody.
Shelley next alleges the district court incorrectly modified Tavian's custody. The court can modify custody only when there has been a material and substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). The change must be more or less permanent and relate to the welfare of the child. Id. The burden to modify custody provisions is a heavy burden. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998). The question is not which home is better, but whether the parent seeking modification can offer the child superior care. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App. 1997). Therefore, the parent seeking custody must prove an ability to minister more effectively to the child's well being. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996).
At the outset, Shelley argues the district court gave improper weight to the results of her polygraph exam. Typically, the results of a polygraph examination are inadmissible because the reliability of such examinations has not been adequately demonstrated. See State v. Losee, 354 N.W.2d 239, 242 (Iowa 1984). However, where both parties stipulate to the admission of polygraph evidence, such evidence may be admitted. In re E.H. III, 578 N.W.2d 243, 247 (Iowa 1998). Here, the parties stipulated to the admission of the polygraph results. While the results themselves were not actually admitted during trial, a prior transcript containing a discussion of the results was entered into evidence. Due to the parties' stipulation, the district court was free to consider the evidence. Further, the results were not mentioned in the district court's order, nor in the order nunc pro tunc that replaced the original ruling. We conclude the district court did not act improperly.
Turning now to the merits, we conclude, as did the district court, that a material and substantial change of circumstances has occurred. The record establishes Shelley has not only failed to foster and support Tavian's relationship with Brad, but has also impeded and frustrated that relationship. Such conduct sufficiently establishes a material change of circumstances to justify a change in custody. In re Marriage of Wedemeyer, 475 N.W.2d 657, 659 (Iowa Ct.App. 1991). Because we believe the present circumstances were not contemplated by the court when the initial custody order was entered, our inquiry now turns to whether Brad has shown an ability to more effectively minister to the child's well being. We agree with the trial court's conclusion that Brad is more likely to assure Tavian the opportunity for a stable and safe environment. There is no credible evidence in the record indicating Brad has ever sexually or physically abused Tavian or any other child. This record reveals Brad is more willing and able to foster a strong relationship with both parents than is Shelley. For these reasons, we conclude Brad has shown a superior ability to minister to Tavian's needs. Tavian's best interests are served by granting primary physical care to Brad. Accordingly, we affirm the district court's ruling.
V. Attorney Fees.
Shelley next argues the district court's award of $10,000 in trial attorney fees to Brad should be reduced. The decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its decision absent a finding of abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). We find no abuse of discretion under the facts of this case.
VI. Guardian Ad Litem Fees.
The district court ordered Brad and Shelley to each pay one-half of the guardian ad litem fees. Both of the parties jointly challenged this order in a posttrial motion and raise the same issue again on appeal. Martha Johnson was appointed to represent the interests of Tavian during the court proceedings relating to Shelley's application to terminate Brad's parental rights. The record is devoid of any order appointing Martha as the attorney for the child during the action to modify Tavian's custody. However, neither party objected to the services that were received from Martha during the modification of custody proceedings. Equity demands she be compensated for the value of services she rendered. As a result, we decline to tamper with this discretionary decision.
VII. Appellate Attorney Fees.
Brad also requests attorney fees on appeal. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). In addition to the factors discussed above, we consider whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). However, a successful party does not have a vested right to appellate attorney fees. In re Marriage of Vieth, 591 N.W.2d 639, 641 (Iowa Ct.App. 1999). After a consideration of these factors, we deny Brad's request for appellate attorney fees. Costs on appeal are taxed one-half to each party.