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In re Marriage of Herriott

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)

Opinion

No. 5-498 / 04-1928

Filed October 12, 2005

Appeal from the Iowa District Court for Polk County, Carla Schemmel, Judge.

Melissa Thompson appeals the trial court's denial of her application for modification of the custody provisions of the decree dissolving her marriage to James Herriott. AFFIRMED AS MODIFIED AND REMANDED.

Andrew Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellant.

Michael Burdette of McEnroe, Gotsdiner, Brewer, Burdette Steinbach, P.C., West Des Moines, for appellee.

Heard by Sackett, C.J., and Mahan and Miller, JJ.


Melissa Thompson (formerly Melissa Herriott) appeals the trial court's denial of her application for modification of the custody provisions of the decree dissolving her marriage to James Herriott. She contends the court erred in failing to modify the decree to grant her physical care of one of the parties' two minor children. In the alternative, she argues that should the child's physical care remain with James the court improperly calculated her child support obligation. James requests appellate attorney fees. We affirm as modified and remand.

I. BACKGROUND FACTS AND PROCEEDINGS.

The parties' marriage was dissolved in Kansas on June 9, 2000. They are the parents of two children, Cameron, born October 2, 1990, and Morgan, born October 18, 1996. A subsequent settlement and separation agreement and November 27, 2000 court order provided for joint legal custody of the children with Melissa having physical care. On April 25, 2001, the Kansas court entered a stipulated order modifying the dissolution decree to place Cameron's physical care with James. Morgan remained with Melissa. In July 2001 Melissa filed a petition to have physical care of Cameron returned to her. She cited James's ongoing animosity toward her, Cameron's deteriorating behavior, and the fact she was intending to relocate to New Zealand as reasons justifying the modification. Following hearing the Kansas court entered an order on November 20, 2001, placing physical care of both children with James "due to the uncertainty of [Melissa's] immediate situations." The court also ordered that both children attend counseling and recommended that both parents attend anger management courses.

At the time of the November 2001 order Melissa was pregnant with the child of her now husband, Troy Thompson. Troy is a citizen of New Zealand and had a job opportunity there with the company for which he worked. Troy and Melissa moved to New Zealand on November 14, 2001. On September 1, 2003, they moved to Australia, again in connection with Troy's employment.

During the eleven months prior to moving from Kansas to New Zealand Melissa had worked one to two months as a full-time court reporter for the State of Kansas and thereafter as a freelance court reporter, earning approximately $16,800. Previously she had been a full-time court reporter for the state of Kansas, a job in which her highest annual earnings were $48,000. She had left her job as a full-time court reporter because she had developed tennis elbow and carpal tunnel syndrome in her right hand from her years of court reporting. Melissa stopped being a court reporter when she moved to New Zealand, in part because she had tennis elbow and carpal tunnel syndrome but also because other countries have different standards and practices for such work. James moved to Des Moines with the children on December 29, 2001, and has resided there with them since that time.

On September 3, 2002, Melissa filed in Polk County, Iowa, a petition for modification of custody and physical care of the children, as well as a contempt action against James. At Melissa's request the court appointed a guardian ad litem (GAL) for the children. James filed an answer, including a counterclaim seeking modification of child support. Following a hearing on the contempt action the court found James to be in contempt of court on several grounds, including that he denied phone conversations between the children and Melissa, failed to obtain a passport for Cameron, engaged in activity which was detrimental to the children's relationship with Melissa, and failed to consult with Melissa in regard to the health, welfare, and religious training of the children. Melissa was subsequently ordered to pay James seventy-five dollars per month in child support.

A hearing on Melissa's petition for modification was held on December 17, 18, and 22, 2003. Morgan was seven years old at the time of the hearing. The record shows that Morgan is a happy, healthy child who has done well in school while living with James. Cameron was thirteen at the time of the hearing. He began having emotional and behavioral problems while the parties were still married and these problems have steadily increased since the dissolution. They have manifested themselves in forms from disrespect for authority to criminal behavior. Cameron has been diagnosed with adjustment disorder, oppositional defiant disorder, and dysthymia. After being suspended several times at McCombs Middle School for various reasons, including aggressive behavior, Cameron was ultimately expelled from McCombs and sent to Bridges Public School. James admitted Cameron to Youth Emergency Services and Shelter (YESS) on October 8-10, 2002 for being disrespectful and verbally aggressive when he did not get what he wanted, and for disrespectful behavior at home and school. This was the first of three stays at YESS for Cameron. The second was for thirty days and the third was for approximately five weeks.

The main focus of the modification hearing was allegations of Cameron's aggressive behavior toward Morgan and questions of whether he was a threat to her physical safety. Melissa testified that during the summer of 2003 Cameron and Morgan traveled together to visit Melissa in Australia. They were to stay with Melissa from June 10 through mid-August. However, Cameron went back to Des Moines almost a month early after his behavior deteriorated to the extent Melissa could not control him, including an incident when he struck and pushed Morgan. Melissa stated that she feared not only for Morgan's safety but for that of herself and the two small children she and Troy by then had. The GAL testified that during a phone call from Australia Morgan expressed her fear of Cameron to him. After Melissa consulted with James and the GAL it was determined Cameron should return home immediately while Morgan would stay with her mother for the full visit. Melissa testified that Cameron would almost daily physically assault, attack, or threaten Morgan, Melissa or other members of her family.

In Melissa's modification petition, which was filed prior to the incidents in Australia during the children's summer 2003 visitation, she sought sole custody and physical care of both children. However, at the time of the hearing after the summer visitation incidents Melissa stated she was seeking physical care of Morgan alone because she feared for Morgan's physical safety and emotional well-being if Morgan stayed with Cameron and James. She stated she was afraid of Cameron, for herself and her children, and thus thought it would be in Morgan's best interests to separate the children and have Morgan live with her while Cameron stayed with James. The GAL's report recommended that Morgan be placed with Melissa, Cameron remain with James, and that because of the volatile situation between the parents and children this physical care arrangement be reviewed after one year.

Several persons in addition to the parties testified at the hearing. They included Dr. Cavallin who was appointed by the court to prepare a custody study, various counselors and therapists who had seen Cameron and Morgan, and Cameron's teachers and school officials. Dr. Cavallin opined that both parents seemed to be effective parents and could adequately parent both children. However, she believed that the parties' hostility toward each other was causing the children to suffer. She also stated that Morgan could comfortably adjust to either home. Dr. Cavallin's ultimate recommendation was that Morgan spend the ensuing school year with Melissa while Cameron stayed with James during that time, with each parent having substantial visitation. However, like the GAL, she recommended this as simply a temporary solution or a trial period that should be reassessed at the end of the school year. She made no recommendation concerning whether there should be a permanent change of physical care.

While the testimony of the children's teachers and counselors varied somewhat, they all agreed on certain things, including that James had been responsive and cooperative with all of them in attempting to deal with Cameron's problems, and that although Cameron clearly has some serious emotional and behavioral issues with which to deal he is not so assaultive or aggressive as to place Morgan's physical safety at risk. In addition, Dr. Cavallin and at least two others testified they believed Cameron and Morgan were bonded as normal siblings.

After the close of the evidence the GAL and Melissa moved jointly to reopen the record. The court granted the motion and received additional evidence, including that Cameron had been charged with theft in the fifth degree and fifth-degree criminal mischief and a supplemental report by the GAL in which he recommended that both children be placed with Melissa, thereby changing his earlier recommendation.

On July 8, 2004, the district court entered an order denying Melissa's application to modify custody and physical care of the children. The court found Melissa had failed to establish that Cameron's contact and interaction with Morgan placed her physical safety at risk. The court concluded Melissa had not shown there had been a substantial and material change in circumstances, such as a substantial change in Cameron's behavior, that had not been contemplated by the Kansas court at the time of the November 2001 custody order. The court further concluded that Melissa had not met her heavy burden to show she was better able to meet the long term needs of the children, she could provide superior care for the children, or that placing either child in her care was in their best interests. In addition the court found Melissa had not overcome the presumption siblings should not be separated, because she had not shown that separating them would better promote their long-range interests. Accordingly, the court concluded it was in the best interest of the children to remain in James's physical care.

Finally, the district court concluded it was appropriate in the circumstances to consider Melissa's earning capacity rather than actual earnings in setting her child support obligation. The court attributed an earning capacity of $48,000 per year to Melissa. Based upon this imputed income, James's actual earnings, and the child support guidelines, the court concluded Melissa should pay $847.64 per month in child support to James. However, based on the facts Melissa is responsible for the entire cost of the children's travel expenses for visitations and has two pre-school age children at home, the court deviated from the guideline amount and set Melissa's child support obligation at $400 per month.

Melissa appeals from the district court order denying her petition for modification. She contends the court erred in failing to modify the custodial provisions of the dissolution decree to place physical care of Morgan with her. In the alternative, she argues that if we determine physical care of Morgan should remain with James the district court improperly calculated her monthly child support obligation.

II. SCOPE AND STANDARDS OF REVIEW.

This action for modification of a dissolution of marriage decree is an equity case. See Iowa Code § 598.3 (2003) ("An action for dissolution of marriage shall be by equitable proceedings. . . ."); Id. § 598.21 (providing for modification of orders for disposition and support when there is a substantialchange in circumstances). Our review is thus de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct.App. 1999). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). Prior cases have little precedential value on custodial issues, and courts must make their decisions on the particular circumstances unique to each case. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct.App. 1995).

III. MERITS. A. Physical Care.

The legal principles governing modification actions are well established.

To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children's well being. The heavy burden upon a party seeking to modify custody stems from the principle that once custody of children has been fixed it should be disturbed for only the most cogent reasons.

In re Petition of Anderson, 530 N.W.2d 741, 741-42 (Iowa Ct.App. 1995) (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).

Here, unlike in an original custody determination, the question is not which home is better, but whether the parent seeking the change has demonstrated he or she can offer the child superior care. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct. App. 1994). If the parents are found to be equally competent to minister to the children, custody should not be changed. Id. The burden upon the parent seeking to change custody is heavy "because children deserve the security of knowing where they will grow up, and we recognize the trauma and uncertainty these proceedings cause all children." Id. at 213-14. Children's preference of where to live is given some weight, but less weight in a modification than in an original custodial determination. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998); In re Marriage of Behn, 416 N.W.2d 100, 101-02 (Iowa Ct.App. 1987).

As set forth above, the trial court concluded that Melissa had not proved there had been a substantial and material change in the conditions since the last custody order. In doing so the court concluded that Cameron's behavior had not substantially changed in a manner not contemplated by the Kansas court. We respectfully disagree with this latter conclusion.

We find that although Cameron did have some behavioral issues prior to and at the time of the last prior custody order in November 2001, the record shows Cameron's behavioral problems have in fact become substantially worse and have resulted in more severe consequences since that time. Since November 2001 Cameron has been expelled from McCombs Middle School and sent to Bridges, a specialized school for youths who have behavioral or emotional problems. At Bridges Cameron had twenty-eight referrals to the school psychologist in four months. The psychologist testified Cameron is one of the school's most referred students. At the time of trial Cameron had been suspended from Bridges. James had placed Cameron at YESS on three separate occasions between November 2001 and the time of the present modification hearing, and had contemplated action to have him adjudicated a child in need of assistance. Finally, criminal charges for fifth-degree theft and fifth-degree criminal mischief were brought against Cameron in February 2004.

Accordingly, we disagree with the trial court's conclusion that the "changes in Cameron's behavior, if any, are not substantial and material" and that the changes in his behavior "would have been reasonably foreseen by the Kansas Court at the time of the entry of the Modification Order" in November 2001. We conclude there has in fact been a material and substantial change in Cameron's behavior that was not reasonably foreseeable at the time of the prior custody order.

However, we do agree with the trial court that a preponderance of the evidence does not establish that Cameron's behavior or his contact and interaction with Morgan have placed her physical safety at risk. Almost all of the counselors and teachers who testified regarding Cameron's behavior stated the problem behaviors were not assaultive, stated they were not concerned with Morgan's safety with Cameron in the same home, and believed Cameron did not pose a risk to Morgan's physical safety. They also all agree that James has been actively involved and cooperative with the children's counselors, teachers, and therapists. This has been especially true with regard to James being proactive in attempting to provide Cameron with the services he needs to resolve his behavioral, educational, and emotional issues.

The record demonstrates that James has devoted his time, energy, and money to the physical and emotional support of his children since their physical care was placed with him in November 2001. He has done his best to provide a stable, secure, nurturing home for the children, and Morgan has thrived in the environment he has provided. Although Melissa has had contact with school officials and counselors regarding Cameron, we agree with the trial court that "it is James who has provided on a consistent basis the parenting necessary to meet the short-term and long-term needs of his children." Furthermore, while Melissa does have regular phone contact with the children, her decision to move to New Zealand and then Australia interferes with her ability to have a close and stable relationship with the children and to deal on a regular basis with their day-to-day issues. We agree with the trial court that James provides the love and services expected of a parent daily and has been the parent available to and for the children whenever required. The children have stability in James's care that enhances the long-term interests of the children.

Thus although we have determined there has in fact been a substantial change in circumstance with regard to Cameron's behavior, we cannot conclude this changed circumstance warrants a change of Morgan's physical care. We agree with the trial court that Melissa has not established she could provide superior care for the children or would be better able to meet their short-term and long-term needs. "If both parents are found to be equally competent to minister to the children, custody should not be changed." Rosenfeld, 524 N.W.2d at 213. As stated by the trial court:

Melissa simply has not met the heavy burden required of her to show placing [Morgan] in her care is in [Morgan's] best interests or to establish that she is the superior parent. It is clearly in the best interest of the children for the children to remain in James's physical care.

Furthermore, there is a presumption that siblings should not be separated. In re Marriage of Pundt, 547 N.W.2d 243, 245 (Iowa Ct. App. 1996). Split physical care is generally opposed because it deprives children of the benefit of constant association with one another. Will, 489 N.W.2d at 398. The rule is not ironclad, however, and circumstances may arise which demonstrate that separation may better promote the long-range best interests of children. Id. Good and compelling reasons must exist for a departure. In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993).

Dr. Cavallin, one of Cameron's counselors from YESS, and the Dean of Students at McCombs Middle School, all three testified there was a bond between Morgan and Cameron as siblings despite the fact they engage in typical squabbles and rivalry. We conclude, as did the trial court, that Melissa did not overcome the presumption that siblings should not be separated by showing how separating these children would better promote their long-range best interests.

Finally, the trial court felt compelled to note the following regarding the parties:

[B]oth [Melissa] and [James] have continuously demonstrated their inability to work together as parents. This behavior is having an extremely negative impact on their mutual children resulting in an already troubled child having increasing problems, and the untroubled child learning to manipulate her parents to her own detriment. The court would have a very difficult time faulting one of these parents more than the other since they both have been equally uncooperative and unsupportive of each other as parents. The court has to the best of its ability attempted to provide for the care of these children in their own best interest, but until these parents learn to work together their children's difficulties will continue and neither child will be able to mature to a healthy and secure adult. The court urges both these parents to put aside their own differences to avoid further trauma to their children, and to live up to the requirements of joint legal custody by cooperating as parents to these children.

We fully agree with and adopt the trial court's insight on these matters.

B. Child Support.

Melissa next claims the trial court improperly calculated her child support obligation for the two children. More specifically, she contends the court improperly attributed to her an earning capacity of $48,000 per year instead of $16,800 per year, and wrongly considered her husband Troy's income in determining her support obligation. She further argues the language of the order is incorrect and in violation of Iowa Code section 598.1(9) with regard to when her child support obligation should end for each child.

"Both parents have a legal obligation to support their children, not necessarily equally but in accordance with his or her ability to pay." Moore v. Kriegel, 551 N.W.2d 887, 889 (Iowa Ct.App. 1996). Support may be based on a payor's earning capacity rather than actual earnings. Id. "While we respect a parent's wish to remain at home with his or her children, we cannot look at this fact in isolation in determining earning capacity." Id.

We first address Melissa's contention that the trial court wrongly considered Troy's income in determining her earning capacity for child support purposes. Although the court did note in its findings of fact what Troy currently earned per year, we find nothing in the court's conclusions to indicate it took into account or in any way utilized Troy's income in determining Melissa's earning capacity or what amount of income to impute to her. Thus, we find this contention to be without merit.

Melissa testified she earned $48,000 in 2000 as a court reporter for the State of Kansas. This was the most she had ever earned as a court reporter. However, she developed tennis elbow and carpal tunnel syndrome in her right hand as a result of her work as a full-time court reporter, so she became a part-time, freelance reporter in 2001 and earned approximately $16,800. This was the last year she was able to work as a court reporter, due to her health condition and the fact she moved to New Zealand and was not certified as a reporter there. She did work for about six months in New Zealand in 2002, earning approximately seven dollars per hour. She has not been employed since.

We conclude $16,800 represents a more reasonable and equitable gross annual earning capacity for Melissa than the $48,000 found by the district court. This amount is more representative of her earning capacity at the present time due to her health condition, her lack of certification in Australia as a court reporter, and the fact she has two pre-school age children at home. This figure is actually higher than the earning capacity suggested by her most recent earnings when employed other than as a court reporter. We conclude the case should be remanded to the trial court to determine Melissa's child support obligation based on an annual earning capacity and imputed income of $16,800.

Finally, Melissa claims the trial court erred regarding when her child support obligations should end. She raises two claims of error. The first is arguably rendered moot by our modification of the trial court's order concerning her earning capacity and imputed income and our remand to the trial court to redetermine her support obligation. However, because the issue may arise on remand we choose to address it.

The trial court applied the child support guidelines to James's income and the income it imputed to Melissa and calculated Melissa's child support obligation to be $847.64 per month. It then noted Melissa's obligation to bear the cost of travel expenses for visitations and the fact she had two pre-school age children at home. The court's order, as amended in its ruling on Melissa's motion to enlarge, amend, and reconsider, then varies from the guidelines and requires Melissa to pay James child support of $400 per month "until both children reach the age of eighteen or graduate from high school, which ever comes later."

Melissa first argues the trial court erred because there is no legal basis for her child support obligation to continue at an unreduced amount when one of the two children is eligible for support. However, upon application of the child support guidelines to the parties' incomes as determined by the trial court, Melissa's support obligation for one child would still greatly exceed $400 per month. Under such circumstances we find no error or inequity in not reducing the ordered support obligation when only one child remains eligible for support.

Melissa also argues the trial court's language violates Iowa Code section 598.1(9). The statute in question provides, in relevant part, that a child support obligation

shall include support for a child who is between the ages of eighteen and nineteen years who is engaged full-time in completing high school graduation or equivalency requirements in a manner which is reasonably expected to result in completion of the requirements prior to the person reaching nineteen years of age. . . .

Iowa Code § 598.1(9). Melissa asserts that, contrary to the statutory language, the trial court's order continues her obligation to pay support for a child beyond the age of nineteen if the child has not graduated from high school. We agree. Melissa argues her obligation to pay support should terminate when the child in question "reaches the age of eighteen or graduates from high school or its equivalent, whichever occurs last, but in no event [should the obligation continue] past the child's nineteenth birthday." We again agree. Upon remand the trial court should modify its language to reach this result.

IV. APPELLATE ATTORNEY FEES.

James seeks appellate attorney fees from Melissa. An award of appellate attorney fees is not a matter of right but rests within our 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 trial court's decision on appeal. Id. After considering all of the relevant factors we conclude each party should be responsible for their own appellate attorney fees.

V. CONCLUSION.

Based on our de novo review we conclude that although there has been a substantial and material change in circumstances, Cameron's significantly worsening emotional problems and behavior, Melissa has not proved such changes require a change in Morgan's physical care. Melissa did not meet her heavy burden to show she could provide Morgan with care superior to that provided by James, or to overcome the presumption that siblings should not be separated. Thus, the trial court was correct in concluding it is in the children's best interest to remain in James's physical care. We further conclude the court erred in finding Melissa has an annual earning capacity of $48,000 and imputing that income to her. The more reasonable and equitable amount is $16,800. Accordingly, the case should be remanded to the district court to determine a proper support obligation based on Melissa having an imputed gross annual income of $16,800. In addition, upon remand the language of the decree should be modified to correctly reflect the time or times at which Melissa's child support obligation ends. Each party is responsible for their own appellate attorney fees. Costs on appeal are taxed one-half to James and one-half to Melissa.

AFFIRMED AS MODIFIED AND REMANDED. Sackett, C.J., concurs in part and dissents in part.


I concur in part and dissent in part.

The amount of child support fixed by the district court is reasonable even if the income attributed to Melissa may have been too high, and it should be affirmed. In all other respects I concur with the majority opinion.


Summaries of

In re Marriage of Herriott

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)
Case details for

In re Marriage of Herriott

Case Details

Full title:IN RE THE MARRIAGE OF MELISSA A. HERRIOTT and JAMES L. HERRIOTT. Upon the…

Court:Court of Appeals of Iowa

Date published: Oct 12, 2005

Citations

707 N.W.2d 336 (Iowa Ct. App. 2005)