Opinion
No. 5-121 / 04-1374
Filed April 28, 2005
Appeal from the Iowa District Court for Clinton County, David H. Sivright, Jr., Judge.
Dale Jones appeals the district court's denial of his petition for modification of the physical care provisions of the decree dissolving his marriage to Jennifer Jones. AFFIRMED.
Kyle Williamson, Davenport, for appellant.
Mary Wolfe of Wolfe Law Offices, Clinton, for appellee.
Heard by Vogel, P.J., Miller and Hecht, JJ.
Dale Jones appeals the district court's denial of his petition for modification of the physical care provisions of the decree dissolving his marriage to Jennifer Jones. He contends the court erred in denying his petition to change the physical care of the parties' thirteen year old son, Keith, from Jennifer to him, asserting it is not in Keith's best interest to remain with Jennifer. Jennifer seeks an award of appellate attorney fees. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Dale and Jennifer's marriage was dissolved by a decree filed on July 23, 2002. The decree granted the parties joint custody of their children, Kristen, born December 16, 1986, and Keith, born December 23, 1990. Responsibility for the physical care of the children was placed with Jennifer. Dale was ordered to pay child support and granted visitation. On February 5, 2004, Dale filed a petition for modification of the dissolution decree, alleging a substantial change in the parties' circumstances had occurred since the entry of the decree requiring modification to place physical care of Keith with him. Physical care of Kristen, now graduated from high school and attending college, is not an issue in this case. A hearing was held on Dale's petition for modification.
The record reveals the following facts. Dale was thirty-nine years of age at the time of the modification hearing. At that time he resided with his girlfriend, Melissa, in a house they had been renting for approximately one year in Clinton. He has been employed as a bench technician in Clinton since March 2003 earning gross wages of $14.50 per hour. Jennifer was thirty-six at the time of the hearing. After the divorce Jennifer and the children had to leave the marital home. They first stayed temporarily with a friend and then with Jennifer's mother for a short time because Jennifer's finances were limited. Jennifer purchased a house in Camanche in April 2004 where she and the children have lived since. The district court found that Jennifer's moves since the divorce were not indicative of instability on her part nor were they symptomatic of any insensitivity to Keith's well-being. Jennifer is employed by the City of Fulton, Illinois, in a clerical position. Her child support worksheet showed her gross annual income to be $25,771.
Dale filed the present action for modification because Keith had expressed to Dale a desire to live with him. Keith testified at the hearing outside the presence of his parents. He stated that he had wanted to live with Dale for some time because there is less yelling and stress with him. Keith described his relationship with his mother as tense and stated that she yelled and shouted at him about household rules and his behavior, resulting in Keith feeling angry and sad. Keith and Jennifer's verbal exchanges had at times ended with one or both in tears. However, Keith testified that his mother is not physically abusive, she does not drink or smoke, she meets his basic needs, and they sometimes have fun together. Keith is active in band and tae kwon do, and is a member of his school's talented and gifted program.
Kristen also testified and confirmed that Keith and Jennifer had argued frequently. She stated Jennifer has referred to Dale as lazy and unreliable but does not say "completely horrible" things about him. She testified Jennifer had called Melissa bad names, which she thought Keith had heard. She also testified Dale had called Jennifer "rude." When questioned about Keith's truthfulness Kristen stated he can sometimes exaggerate.
Keith was diagnosed with borderline attention deficit/hyperactivity disorder at an early age and takes medication for the condition. However Keith stopped taking the medication during the summer of 2004 because Dale told him he did not have to take it if he did not want to. Jennifer believes Keith should continue on the medication, at least during the school year, because Keith's physician recommends that he take the medication.
Gary DeLacy, Keith's middle school principal also testified at the hearing. He described Keith as very bright but stated he is emotionally immature for his age and has a tendency to blame others for his bad choices. Keith had a difficult period during the last school year when he was suspended for fighting and his grades slipped. However toward the end of the school year both Keith's behavior and grades improved. DeLacy testified that in his opinion Keith requires structure and tends to resist rules. He stated Jennifer has been very involved in Keith's academic progress and pays close attention to his schooling and problems at school, working closely with his teachers to reinforce their rules and help him with his homework.
At the time of the hearing Keith was seeing psychotherapist Dan Fullerton. Counseling was suggested by staff at Keith's school, and was initiated by Jennifer, when Keith began having problems at school. Jennifer is also participating in separate family counseling with another therapist. Kristen testified that the counseling has helped her brother and mother get along better and their relationship has improved.
Fullerton also testified at the hearing. He agreed Keith is immature for his age and they have been dealing in counseling with Keith's issues of minimizing, blaming others for his behavior, and denial. He stated Keith has problems handling authority and does not enjoy obeying rules and regulations. Fullerton opined that Keith's expectations things will be different if he lives with his father and everything will be "all fun and games" is "not very well grounded" in fact.
The district court denied Dale's modification petition and awarded Jennifer trial attorney fees in an August 10, 2004 ruling. The court considered Keith's preference to live with his father but did not find it dispositive due to his age and emotional immaturity. After making detailed findings regarding the parties, Keith, and events and circumstances, the court concluded:
Jennifer has demonstrated a sincere, endeavored desire to parent Keith, and offers him a stable and comfortable home. She has been attentive to his needs, and her own need to improve her parenting skills, to address the challenges of raising a teenage boy. The Court is not persuaded that Keith's best interests require modification of the decree of dissolution of marriage, to transfer the child's physical care to Dale. There have not been substantial changes in the circumstances of the parties, and Dale has not proven an ability to more effectively meet Keith's daily needs and assure his well-being. There is no compelling reason shown in the record to disturb Keith's placement in Jennifer's physical care, as ordered merely two years ago.
Dale appeals from the court's denial of his petition, contending it is not in Keith's best interests to remain with Jennifer. He argues Keith's emotional needs are not being met and Keith should not have to continue being exposed to Jennifer speaking poorly about Dale and experiencing the stress he feels as a result of the "extremely strained" relationship he has with his mother.
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 substantial change 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.
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.
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).
Upon our de novo review of the entire record we fully agree with the district court and adopt and incorporate its findings of fact and conclusions of law as our own. We affirm the court's denial of Dale's petition for modification of the parties' dissolution decree to change physical care of Keith from Jennifer to Dale.
Jennifer seeks appellate attorney fees from Dale. 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 taking these relevant factors into consideration we award Jennifer $1,000 in appellate attorney fees.