Opinion
No. 3-595 / 03-0442
Filed March 10, 2004
Appeal from the Iowa District Court for Cass County, Charles L. Smith, Judge.
A mother appeals from the district court's denial of her petition to modify physical care of the parties' children. AFFIRMED.
Joseph Hrvol of Joseph J. Hrvol, P.C., Council Bluffs, for appellant.
J.C. Salvo and Bryan Swain of Salvo, Deren, Schenck Lauterbach, P.C., Harlan, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, J.J.
Cindy Cohrs appeals from the district court ruling that denied her petition to modify the physical care of the parties' children. We affirm.
Background Facts and Proceedings .
Cindy and Gregg Cohrs were married in Lewis, Iowa in July 1985. Their daughter Nichole was born in 1985, their daughter Tia was born in 1991, and their son Cable was born in 1993. The marriage was dissolved in July 1997. Cindy and Gregg were awarded joint legal custody, Cindy was granted physical care, and Gregg received visitation.
In August 1999 Gregg filed a petition for modification, requesting physical care of the children. The district court granted the petition, and awarded Cindy visitation. The court concluded Gregg, who still lived in the marital home in Lewis near the children's extended family, offered a more stable environment for the children. The change in the children's care was affirmed by this court on appeal. In re Marriage of Cohrs, No. 00-1310 (Iowa Ct.App. Dec. 12, 2001). While we noted that "Gregg's may not necessarily be a model home," we concluded "his lifestyle and family associations do appear to create a more stable environment."
In December 2002 Cindy filed a petition for modification, seeking a change in physical care. The district court determined that the only alleged change in circumstances relied on by Cindy was an incident of domestic abuse between Gregg and his new wife, Theresa. The court found the incident of abuse was isolated, that the couple was working on their problems and believed their marriage to be sound, and they had the "good sense to see to it that the children would stay with their maternal grandmother while they worked through this problem." Concluding there had not been an uncontemplated and material change in circumstances, and that it was in the long term best interests of the children to remain in Gregg's care, the district court dismissed the modification petition. Cindy appeals.
Scope of Review .
Our review is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, especially in determining witness credibility, but are not bound by them. Iowa R. App. P. 6.14(6)( g). Our overriding consideration is the children's best interests. Iowa R.App.P. 14(6)( o).
Discussion .
As the party seeking modification of the children's physical care, Cindy is required to establish, by a preponderance of the evidence, that a substantial change in circumstances has occurred since entry of the prior modification decree, and that the change was not within the contemplation of the district court when the prior decree was entered. See In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). The change must be more or less permanent, and relate to the children's welfare. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). Cindy must also show she is the parent who can more effectively minister to the children's well being. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000).
The substantial change in circumstances alleged by Cindy was the domestic abuse perpetrated by Gregg upon his new wife, Theresa. The evidence did establish an altercation between Theresa and Gregg where Gregg choked Theresa. As a result Gregg was charged with and pled guilty to assault. Although Nichole testified to past verbal fights between Gregg and Theresa, and seeing her father "slap" Theresa on occasion, Theresa denied being slapped in the face. Both Theresa and Gregg denied a history of domestic abuse. At most, Theresa's testimony amounted to an admission that on a few occasions prior to the choking incident, and always outside of the children's presence, she and Gregg had pushed each other.
Cindy testified the only change since the prior decree was "the fact that Gregg has a domestic abuse charge against him now." Moreover, no other substantial change appears in the record. We concur in the district court's conclusion that there was no credible evidence of drug use by Gregg or anyone else in his home. While there was evidence that Gregg has a problem with alcohol, the problem is longstanding, and not one that has arisen since the prior modification. It was also not relied on by the district court in concluding that no substantial change had occurred. If Cindy was alleging Gregg's alcohol problem constituted a substantial change in circumstances, to preserve error for appeal she was required to request a ruling on the issue in a post-trial motion. See In re Marriage of Rife, 529 N.W.2d 280, 282 (Iowa 1995). No such motion was filed.
The domestic abuse is a change occurring since the prior modification decree, and clearly an issue that impacts the welfare of the children. However, Cindy must also establish that the abuse is of a more or less permanent nature. Walton, 577 N.W.2d at 870. Significantly, Gregg and Theresa indicated they were working through their marital problems. Gregg has attended a batterer's education program, and there is no evidence any further domestic abuse has occurred. We agree with the district court that the domestic abuse shown by the evidence consisted of isolated incidents insufficient to demonstrate a substantial change in circumstances.
Moreover, Cindy failed to establish that she would be a superior caretaker for the children. As we recognized in our prior opinion, Gregg's home is not ideal. Gregg's history with alcohol does raise concerns, as do the problems in Gregg and Theresa's marriage. However, Gregg is seeking treatment, and he and Theresa appear to be committed to resolving the issues in their marriage. Gregg continues to maintain the same home and to hold the same job as he did at the time of the divorce. In Gregg's care the children can continue in the same school, where they appear to be doing well. The children will remain close to their extended family, in particular Cindy's mother, Hazel.
As Nichole is now eighteen years old and her physical care is no longer governed by the district court's decree, we limit our considerations to those affecting Tia and Cable.
In contrast, Cindy has been and continues to be estranged from her mother. This appears to be due to Hazel's belief that Gregg is a superior caretaker for the children. Cindy seems to be unable or unwilling to facilitate the children's relationship with Hazel, even though Hazel has so far played a significant role in the lives of her grandchildren.
Significantly, most of the negative testimony about Gregg's home, such as a lack of communication or the absence of care and supervision over the children, was presented by Nichole. The district court noted that Cindy's modification request was "motivated in part by Nichole's understandable affection for her mother and her desire to spend more time with her." While we do not discount Nichole's testimony, we must view it in light of the fact that then seventeen-year-old Nichole was clearly unhappy in her father's home and wished to reside with her mother.
The children stayed with Hazel for approximately three weeks while Gregg and Theresa were dealing with the incident of domestic abuse. When Gregg and Theresa arrived to pick up the children, Nichole refused to return to her father's house. Nichole continued to live with Hazel at the time of the hearing on Cindy's petition.
However, what is perhaps most damaging to Cindy's request is the lack of evidence regarding how the home environment she can provide is superior to that provided by Gregg. Cindy did present testimony that she is now happily married, is gainfully employed, and has a stable residence. She presented testimony that she loved her children, that she and her new husband Terry have a very good relationship with the children, and that the children truly enjoy the time they spend with Cindy and Terry every other weekend. However, Cindy did not demonstrate how or why she, on a daily basis, could more effectively minister to the children's needs.
The ultimate goal in these cases is to the place the children in the home environment most likely to cultivate a physically, mentally and socially healthy child. See In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Cindy has simply not proved that she is the person who can best provide this environment. Because Cindy has not met her burden to show either a substantial change in circumstances or an ability to more effectively minister to the children's needs, the district court correctly denied her modification request.