Opinion
No. 5-812 / 05-0405
Filed January 19, 2006
Appeal from the Iowa District Court for Clay County, Patrick M. Carr, Judge.
Colin Frank appeals from the custody decree modification entered by the district court. AFFIRMED AND REMANDED.
Donald H. Capotosto of Capotosto Law Office, West Bend, for appellant.
Michael J. Houchins of Zenor, Houchins Borth, Spencer, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Colin Frank appeals from the custody decree modification entered by the district court. We affirm.
I. Background Facts and Proceedings.
Colin Frank and Heather Cother are the parents of David Frank, born March 16, 2001. Pursuant to a stipulation drafted by Colin's attorney, the parties agreed on July 12, 2001 that the decree should order joint legal custody and allocate David's physical care to Colin. However, the stipulated custody arrangement equally divided the parents' time with David, as Heather agreed to provide his care on alternating weeks.
Colin, who was married to Stacey Frank at the time the decree regarding David's physical care was entered, had previously been investigated by the Department of Human Services (DHS) in September of 2000, for allegedly failing to provide supervision of Stacey and Colin's two-year-old son. Colin was again investigated by DHS in June of 2002. DHS cited concerns about the safety of the children living with Colin as a result of domestic violence reports filed by Stacey in May of 2002. Colin later pled guilty to domestic abuse assault, and as a result, David was adjudicated a Child In Need of Assistance (CINA) by the juvenile court. As a consequence of the CINA adjudication, David was placed in Heather's temporary custody. When the jurisdiction of the juvenile court terminated on July 9, 2003, Heather refused to return David to Colin's care. Colin then sought and obtained an order from the district court requiring Heather to comply with the custodial provisions of the decree.
In 2000, Colin had also been the subject of domestic abuse charges, however those charges were dismissed when Stacey refused to testify against Colin. We note that no allegation that Colin abused David or his other children directly has been leveled against Colin.
Citing the unworkable nature of the original custody decree in light of David's upcoming entry into elementary school, Heather sought modification of the custody decree. The parties stipulated that it would be in David's best interest to reside with one parent during the school year and with the other parent during the summer months. They asked the district court to determine which parent would be the school-year parent.
At trial, Heather called several witnesses to testify concerning David's violent tendencies. Colin's estranged wife, Stacey, detailed the numerous assaults she allegedly suffered at Colin's hand. Stacey also testified that Colin violated protective orders entered against him in both Iowa and Minnesota.
Colin met this evidence by calling numerous neighbors and friends to attest to his parenting skills. These witnesses affirmed that Colin is attentive to the needs of his children and supportive of David's relationship with Heather. None of Colin's witnesses was aware of any instance of physical or emotional abuse directed at Colin's children.
David has suffered from respiratory problems since his birth, requiring daily nebulizer treatments. Heather and her current boyfriend are smokers, and have been counseled against smoking around David. The district court noted that "the record is equivocal as to whether Heather and [her boyfriend] have abstained as directed." The record also suggests that Colin has smoked around his other children, but it is unclear whether Colin continues to do so.
On February 11, 2005, the district court entered an order modifying the decree and designating Heather as David's school-year physical care provider. The district court found "Heather seems much more nurturing and flexible," and has the greater capacity to "provide [Colin with] maximum opportunities for continuing contact" with David. The district court found Colin to be "hard headed," and noted its concern that Colin's failure to obey protection orders calls into question his suitability as the parent who would provide David's primary physical care.
Colin now appeals, contending the district court erred in (1) concluding a substantial change in circumstances justified the modification Heather requested, and (2) impermissibly lowering Heather's burden to prove she is the superior parent.
II. Scope and Standard of Review.
We review all modifications of custody decrees de novo. Iowa R. App. P. 6.4.; In re Marriage of Benson, 545 N.W.2d 252, 253 (Iowa 1996). The district court is charged with making physical care determinations in accordance with its assessment of the child's best interest. Iowa Code § 598.41 (2003). We "accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity." In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996).
III. Discussion.
A. Heather's Burden of Proof.
We begin by noting that the district court properly enunciated the standard on which the need for an alteration of the settled custody arrangement is judged. The party seeking modification of the physical care arrangement must demonstrate (1) that a substantial change in circumstances justifies the modification requested, and (2) that the parent seeking primary physical care possesses "an ability to administer more effectively to the children's needs." In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa 2005).
In general, where the custody decree designates one party as the physical care provider, a presumption exists that that party is the parent best able to administer to the child's needs. This presumption explains why our courts have required the party seeking a modification to prove they are the superior parent. See id. The district court referenced this presumption when it stated "stability and continuity in the life of a child is best achieved by maintaining existing custodial arrangements in place." The district court also observed that
[i]n this case, the reality of the parties' situation erodes the strength of the presumption to some extent. Although the existing custodial order characterizes Colin as primary caregiver . . . the reality of the situation was that Heather had David with her half the time.
We find no error of law in the district court's analysis. Although the stipulation approved in the decree designated Colin as the physical care parent, the court ordered what would typically be characterized as a joint physical care arrangement contemplated by Iowa Code section 598.41(5) (2001). As such, the district court properly concluded that the presumption in favor of Colin flowing from his status as the physical care designee was more easily rebutted than it might have been if Colin had in fact provided a majority of David's physical care. We therefore affirm on this issue.
B. Substantial Change of Circumstances.
The record clearly demonstrates a substantial change in circumstances necessitating a modification of the physical care arrangement. David will soon be attending elementary school. Because the parties do not live in the same community, David's upcoming school attendance clearly renders the weekly alternating physical care schedule quite impractical.
The record reveals that Colin currently resides in Armstrong while Heather resides in Spencer, some fifty miles away.
We must next decide whether Heather is the superior parent, best able to both meet David's needs as a child, and promote Colin's relationship with David. See Iowa Code section 598.41(c), (e) (2003); see also In re Marriage of Bolin, 336 N.W.2d 441, 447 (Iowa 1983) (stressing the importance of the physical care parent's promotion of the other parent's relationship with the child). Colin contends no basis exists in the record on which to differentiate between the parties' ability to successfully care for David, and as such, the district court erred when it concluded Heather is the superior parent. We disagree.
We adopt as our own the district court's finding that Heather is "more likely to promote maximum opportunities for continuing contact on the part of Colin." Colin has been unsuccessful in setting aside the ill-will that seems to pervade his relationship with Stacey despite the needs of the children he shares with her. This inability to place the needs of his children above his disagreements with Stacey is clearly a factor we must consider when assessing the respective abilities of Colin and Heather to facilitate the other's relationship with David.
Although Heather improvidently refused to return David to Colin after the juvenile court proceeding terminated in July of 2003 until ordered by the court to do so, we find she was motivated in that instance by concerns for David's safety. We do not find evidence that she will fail, prospectively, to promote Colin's relationship with David.
Additionally, in determining David's best interests we must also consider Colin's propensity for domestic abuse. Iowa Code section 598.41(3)(j) requires us to consider any history of domestic abuse, including whether the party (1) has been convicted of domestic abuse assault, or (2) is the subject of a protective order. Colin was the subject of protective orders in two states, and he violated them on several occasions. He also pled guilty to domestic abuse assault against Stacey in 2002. Finding no equitable basis on which to depart from the custody decree modification ordered by the district court, we therefore affirm. See Spiegel, 553 N.W.2d at 319. The costs of this appeal are taxed to Colin.
C. Appellate Attorney Fees.
Heather has requested $3,500 for appellate attorney fees associated with her successful defense of the modification ordered by the district court. Whether a party is entitled to appellate attorney fees is within the court's discretion. In re Marriage of Gaer, 476 N.W.2d 324, 326 (Iowa 1991). Our discretion is guided by "the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal." Id. We are unable to assess on this record the relative abilities of the parties to pay, the nature and quality of legal services provided, or the reasonableness of the amount requested. Having affirmed the decision of the district court, we nonetheless remand this case to the district court for appropriate adjudication of Heather's claim for appellate attorney fees.