Opinion
No. 5-891 / 05-0239
Filed February 1, 2006
Appeal from the Iowa District Court for Taylor County, David L. Christensen, Judge.
Jennifer Gebhardt (f/k/a Jennifer Beemer) appeals from the denial of her petition to modify the custody provisions of the decree dissolving her marriage to James Beemer. AFFIRMED.
Beverly Jones Kimes of Jones Law Office, Tarkio, Missouri, for appellant.
Arnold O. Kenyon, III of Kenyon Nielsen, P.C., Creston, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Jennifer Gebhardt (f/k/a Jennifer Beemer) appeals from the denial of her petition to modify the custody provisions of the decree dissolving her marriage to James Beemer.
I. Background Facts and Proceedings
Jennifer and James have two children: Fallyn, born in 1997, and Jett, born in 1999. The parties' marriage was dissolved by decree entered in April 2003. Pursuant to the parties' stipulation, the decree provided for joint custody with primary physical care and control of both children awarded to James. Jennifer was granted reasonable visitation of not less than every other weekend, alternate holidays, and two weeks during the summer months. Jennifer was ordered to pay $100 child support per month. James was ordered to pay Jennifer $2,000 per month for a period of ten years. According to Jennifer, the parties agreed to the monthly payments so she could stay home with the children. Jennifer moved from Bedford, Iowa, to Maryville, Missouri, prior to the dissolution, based on discussions between the parties that James and the children would move to Maryville after the decree was entered.
Maryville, Missouri is thirty miles from Bedford, Iowa.
Prior to and for a short time after entry of the decree, the children and James lived with Jennifer in her apartment in Maryville. They also lived with James's parents in Bedford. In May 2003 James and the children moved in with James's parents in Bedford, Iowa. The move was necessitated by the failure of the business jointly owned by James and Jennifer during the marriage. Due to the failure of the business, James, James's parents, and Jennifer separately filed for bankruptcy.
James enrolled the children in school in Bedford without informing Jennifer. Due to statements made by James to school officials, Jennifer experienced difficulty getting information about the children from the school and participating in school activities with the children until her attorney notified the school of her legal rights.
In September 2003 James was arrested for stopping payment on a check. At the time of his arrest, James was on his way to pick up the children from Jennifer in Maryville. As a result, James sent a friend to pick up the children, without telling the friend why he (James) could not pick them up. Jennifer refused to allow the friend to take the children, and refused to return the children to James later that evening. The following morning when James arrived with the police at Jennifer's to pick up the children, she had taken them to a babysitter's and would not tell James where to find them. Following this incident, James refused to allow Jennifer visitation until she signed a document promising to comply with the dissolution decree by returning the children at the end of her visitation period. Jennifer did not have visitation with the children again until she signed the document in December 2003.
Jennifer filed an application for modification in December 2003. She alleged that James had interfered with her rights and ability to parent the children during her custody periods and had degraded her in front of the children.
James's parents eventually lost their home in Bedford as a result of the bankruptcy. In January 2004 James, the children, and his parents moved to a home in St. Joseph, Missouri, with financial assistance from James's sister and her husband. James began working as a manager at the Maryville furniture store owned by his sister and brother-in-law. He typically works from 10:00 a.m. to 6:00 p.m. Monday through Friday and at least part time on most Saturdays. He shares housekeeping duties and household expenses with his parents. He is the primary caretaker for the children, although his parents are retired and assist as needed.
St. Joseph, Missouri, is forty-five miles from Maryville, Missouri.
Jennifer, unemployed at the time the decree was entered, was working one full-time job and one part-time job at the time of the modification hearing. She typically works from 6:00 a.m. until 7:00 or 8:00 p.m. during the week, and on alternate Saturdays. She was living with her boyfriend in Maryville, paying him rent and sharing living expenses. She planned to enroll in college part-time beginning in May 2005.
Jennifer did not learn until a few days prior that James and the children were moving to St. Joseph. James chose not to involve Jennifer in decisions surrounding the selection of schools or medical providers in St. Joseph. Jennifer was not informed of school events in a timely manner. James enrolled the children in extracurricular activities in St. Joseph without consulting Jennifer.
The modification application came on for hearing in December 2004. At the end of the hearing, the court entered its findings of fact and conclusions of law on the record. Among its findings, the court found that:
It's clear to this court that [James and Jennifer] love their children, they're devoted to their children, and it's clear that both of them are good parents.
. . . .
The court finds that both parties have displayed lack of maturity in their dealings with one another over the issues that they might have and that they both need to work on putting the best interests of the children to the forefront any time they deal with one another and deal with issues relating to the children.
The court went on to remind James of the rights and responsibilities of joint custodians and emphasized that the visitation set out in the decree "is the minimum visitation and that it's his responsibility to work closely with [Jennifer] in providing maximum opportunity for contact between" Jennifer and the children. The court ordered both parties to attend Children in the Middle classes again "with the hope that by going to the programs, that they will learn to communicate better."
The district court filed its written order of modification in February 2005, denying Jennifer's application for modification of primary care and ordering Jennifer to pay James $485 per month in child support. The court also ordered James to provide transportation for visitation and directed both parties to complete the Children in the Middle class a second time. The district court denied Jennifer's post-trial motions in a ruling filed April 12, 2005.
Jennifer appeals, arguing that the district court erred in awarding physical custody of the children to James. She requests an award of child support if this court modifies physical custody; in the alternative, she requests a variance in the amount of child support ordered by the district court due to her current financial condition. Jennifer requests trial and appellate attorney fees.
II. Scope of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties before us. In re Marriage of Montgomery, 521 N.W.2d 471, 473 (Iowa Ct.App. 1994).
III. Modification of Custody
The courts can modify custody only when there has been a substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered. In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.App. 2004). The change of circumstances must be more or less permanent and relate to the welfare of the child. Id. The parent seeking to change the physical care has a heavy burden and must show the ability to offer superior care. Id. This strict standard is based on the principle that once custody of a child has been determined it should be disturbed for only the most cogent reasons. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996).
Jennifer argues James's move from Bedford to St. Joseph and the resulting change in schools, medical care providers, and extracurricular activities, all without her knowledge or consent, constitutes a substantial change in circumstances. She also cites ongoing interference in her relationship with the children from James and his family, and the provision of primary care of the children by James's mother as a substantial change in circumstances requiring modification of physical custody. She contends she presented substantial evidence of her superior ability to care for the children.
We agree with the district court's assessment that this case presents "a close call." It is clear from the record that both parents love their children and are good parents. It is equally clear that the parties have had trouble communicating as it relates to the children. James's move with the children to St. Joseph without Jennifer's consent does not, standing alone, constitute a substantial change in circumstances justifying a change in custody. See In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996) (holding that the parent with primary physical care makes the determination where the children will live). As for the other unilateral decisions made by James, we agree with the district court's admonishment of James and its reminder to him of the rights and responsibilities of joint custodians. We emphasize, as the district court did, that the visitation outlined in the decree is a minimum, and that James should make every effort to insure maximum opportunity for contact between Jennifer and the children. We trust that both parties will use the court-ordered Children in the Middle classes as an opportunity to improve their communication as it relates to visitation and the children's welfare.
The parties presented conflicting testimony at trial, particularly as it related to the extent of James's parents' care of the children and James's family's alleged interference with Jennifer's relationship with the children. The district court recognized the conflicting testimony and found James and his witnesses more credible. We give deference to the district court's credibility assessment, considering it had the opportunity to view firsthand the demeanor of the witnesses when testifying. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct. App. 1995). After reviewing the record and giving the appropriate deference to the district court's credibility determinations, we agree with the district court that Jennifer failed to meet the heavy burden of proving a substantial change of circumstances to warrant a change in physical custody. We affirm the district court on this issue.
IV. Child Support
The district court ordered Jennifer to pay $485 per month to James in child support. The amount of child support ordered by the district court was based on application of the "extraordinary visitation adjustment" to the guideline amount. On appeal, Jennifer requests a further deviation based on tax liability as a result of the parties' failed business and other financial considerations.
The child support guidelines are to be strictly followed unless their application would lead to an unjust or inappropriate result. In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992). Based on our review of the record, we find no reason to deviate further from the amount ordered by the district court. We affirm the district court's order of child support.
V. Attorney Fees
Jennifer requests an award of trial and appellate attorney fees. An award of trial attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). The district court ordered each party to pay his or her own attorney fees. We will not disturb the court's order 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 Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider 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 district court's decision on appeal. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Each party shall be responsible for his or her own appellate attorney fees. Costs shall be taxed equally between the parties.