Opinion
No. 4-061 / 03-1493
Filed February 27, 2004
Appeal from the Iowa District Court for Page County, J.C. Irvin, Judge.
Teri Smith appeals the district court's custody modification awarding primary physical care of her son to James Gragg. AFFIRMED.
Lee Heithoff of Iowa Legal Aid, Council Bluffs, for appellant.
G. Elizabeth Otte, Council Bluffs, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
A mother appeals a custody modification ruling. We affirm.
I. Background Facts and Proceedings
Teri Rose Smith and James Jay Gragg are the unmarried parents of Chase. Under a decree entered in September 2001, Smith was awarded physical care of Chase, subject to reasonable visitation. Anticipating a move by Smith, the district court included the following provision:
Respondent may relocate within 150 miles of Shenandoah, Iowa, including Columbus, Nebraska. If Respondent relocates to Hawaii, the parties shall split custody with CHASE (sic) and Petitioner shall have custody of him for the first six months after Respondent relocates to Hawaii. The parties shall alternate having continuous custody of CHASE for six-month periods thereafter. In that event, neither party shall pay child support to the other.
Days after the decree was entered, Smith moved to Hawaii, leaving Chase in Shenandoah with his father. Physical care was not transferred to her after six months, as contemplated in the decree. Approximately fourteen months following entry of the decree, Smith moved again, this time to Columbus, Nebraska.
Another five months passed with no transfer of custody. Smith filed a contempt application. She claimed that Gragg was refusing to afford her visitation or relinquish custody of Chase. Gragg countered with an application to modify the decree, alleging that Smith "made no effort to exercise the split custody arrangement" set forth in the decree, following her move to Hawaii. The district court concluded that Smith did not meet her "heavy burden" of proof to establish contempt. With respect to Gragg's modification application, the court concluded that Chase should remain with Gragg, subject to visitation with Smith. Smith appealed the modification ruling.
II. Modification
Smith argues that Gragg failed to carry his burden of establishing a substantial change of circumstances not contemplated by the decree as well as superior caretaking ability. See Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002); In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). On our de novo review of the record, we disagree.
Smith also argues that her return to the Midwest automatically entitled her to "retain" physical care, pursuant to the terms of the decree. We reject this argument because she did not have physical care at the time of the modification action and, therefore, could not retain it.
Although Smith's move to Hawaii was contemplated by the decree, her failure to assume physical care of Chase after six months was not. Approximately eight months elapsed from the time Smith was to assume care of Chase until she made fruitful efforts to regain contact with her son. While she contacted attorneys in Hawaii and at Iowa Legal Aid about seeking a contempt order, she did not return to the Midwest to pursue this action until after it became apparent she was to be laid off from her job in Hawaii.
We acknowledge some evidence supporting Smith's contention that Gragg may have impeded her efforts to assume the care of Chase. For example, Gragg conceded he only spoke to Smith twice during the fourteen months that she was in Hawaii, lending credence to her belief that he was not serious about coordinating a transfer. However, there is also evidence that Smith told Gragg she would be returning to the Midwest and, accordingly, did not wish to have Chase transferred to her at that time. As the record does not unequivocally establish that Gragg refused to make the transfer, we conclude his lack of attentiveness to Chase's relationship with his mother does not mandate reversal of the modification ruling.
Despite this inattentiveness, we also are persuaded that Gragg established superior caretaking ability. When Smith left for Hawaii, Chase was five. He was schooled exclusively in Shenandoah and was doing well there. Additionally, he had begun several extracurricular activities and was close to Gragg's parents, who lived nearby. In contrast, Smith admitted that, following her move to Hawaii, she only telephoned Chase about twice a month and Chase's calls to her dwindled after the first two months. There is no evidence that Smith corresponded with her son during this period via regular or electronic mail. While Smith did take steps to regain contact with her son once she returned to the Midwest, by this time, Chase had not seen her for well over a year and had limited communication with her for about a year.
We conclude Gragg established the requirements for a modification of custody.
AFFIRMED.