Opinion
No. 3-988 / 03-1204
Filed March 10, 2004
Appeal from the Iowa District Court for Mitchell County, Paul W. Riffel, Judge.
Petitioner-appellant Keith A. Low appeals following the district court's refusal to modify his dissolution decree to transfer primary physical care of his two children from respondent-appellee, Hollie R. Toppin, to him. REVERSED AND REMANDED.
John Lander of Brown, Kinsey Funkhouser, P.L.C., Mason City, for appellant.
Evelyn Ocheltree of Iowa Legal Aid, Mason City, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Keith A. Low appeals following the district court's refusal to modify his May 25, 2001 dissolution decree to transfer primary physical care of his two children from their mother, appellee Hollie R. Toppin, to him. We reverse and remand.
The parties have a son, Thomas, born September 24, 1996, and a daughter, Amanda, born April 2, 1998. In granting the dissolution the district court approved a stipulation entered into by Keith and Hollie where they agreed they would have joint legal custody of the children, and Hollie would have primary physical care. Keith was given extensive visitation, and as a result, his child support was reduced thirty percent from the amount computed under the child support guidelines. It was further agreed the children would continue to live within twenty miles of Osage, Iowa, so they could attend the Osage Schools.
On September 24, 2002, about a year and a half after the dissolution decree was entered, Keith filed the application seeking primary physical care that led to this appeal. Hollie subsequently filed a counterclaim seeking a modification to reduce Keith's visitation and to strike the provision that the children remain within twenty miles of Osage. The district court heard evidence on March 12 and 13, 2003, and on June 27, 2003 dismissed Keith's petition and Hollie's counterclaim.
Keith contends he met the necessary burden to support a modification of physical care and that it should have been transferred to him.
We review de novo. Iowa R. App. P. 6.4. Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court's findings of fact, but we are not bound by them. Iowa R. App. P. 6.14(6)( g).
Courts are empowered to modify the terms of a custodial decree only when there has been a substantial change in circumstances since the time of the decree, not contemplated by the court when the decree was entered, which was more or less permanent, and relates to the welfare of the child. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996).
Keith contends he has shown a substantial change of circumstances and he can give the children superior care. His primary argument is that Hollie's decision to move with the children into a home with Jon Harris put the children at risk. He also contends Hollie has not been attentive to the children's school needs, and she does not cooperate with him receiving his scheduled visits at times.
Hollie and Jon established a home shortly after Hollie's dissolution was finalized. At the time of trial, Hollie and Jon had an eight-month-old daughter. According to Jon's trial testimony, he and Hollie had been engaged for a year and a half. Jon is an electrician and operates a business out of his home. He gets little work. He frequently works less than fifteen hours a week, spends a lot of time at home, and currently is looking for another job. He believes if he moves to Florida he will find one. Hollie works as a housekeeper, earning about $400 a month, and it appears Jon cares for the children when she works, as he testified they make limited use of babysitters.
Keith lives alone, but intends to marry in the immediate future. Hollie has moved with the children into Jon's home and intends to marry him. The anticipated remarriage of the parties and their bringing new adults into the home is a substantial change of circumstances. SeeIn re Marriage of Smiley, 518 N.W.2d 376, 379-80 (Iowa 1994). So too is the fact Hollie has diminished her ability to provide a stable home environment by moving herself and her children into Jon's home. See id.
Having found a substantial change of circumstances, the next question is whether Keith has shown he can render superior care.
If a parent seeks to establish a home with another adult, that adult's background and his or her relationship with the children becomes a significant factor in a custody dispute. In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct.App. 2003). There are at least two reasons for this: (1) because of the place the companion will have in the child or children's lives, and (2) not less significantly, because the type of relationship the parent has sought to establish and the manner he or she has established it is an indication of where that parent's priority for his or her children is in his or her life. See id. Additionally, we need to consider whether the companion has or may present a danger to the children. Consequently, we look carefully at Jon's exposure to the children, his background, and his current situation. Jon has a number of marks on his record.
Keith filed the action for modification shortly after an incident at the home of Hollie and Jon on August 12, 2002. The police report entered into evidence indicated Officer Dean Anderson of the Osage Police Department was called to the home where Hollie and Jon were living at about six o'clock in the evening. The officer rang the bell, Hollie opened the door and ran outside, and Jon subsequently closed and locked the door. Hollie was yelling that Jon socked her and tried to kill her and that he was in the house alone with the children. Hollie's neck was red, and had scratch marks on the left side, handfuls of loose hair hung from her head, and her left foot was bleeding. The officer attempted to get in the house, and eventually Jon opened the door and Amanda and Hollie's newborn were alright.
Hollie reported to the officer that Jon was walking around with his boot in his arms and acting weird, and when he put the boot down she looked inside and saw a glass pipe and a large ball of white powder in a small baggie. She thought it was crank and confronted Jon. He grabbed her, threw her to the floor, stepped on her throat, pulled her hair and began to choke her, and only quit after the baby started crying. Jon let Hollie call her mother, and Hollie's mother called the police. The officer believed that Jon had locked the door to give him enough time to flush or hide the drugs. Jon was transported to jail.
The judicial magistrate signed an order on the same day that Jon should have no contact with Hollie. Jon was charged with domestic assault for attacking Hollie. Jon admitted he lost his temper, grabbed Hollie around her collar and shoved her down on the floor. He also admitted Hollie called her mother, her mother called the police, and that he was arrested. He said he did not put his foot on her. He denied this was the result of Hollie finding a glass pipe and a big white lump of drugs in his boots.
Jon failed to appear after his initial appearance, and in September 2002 an arrest warrant issued for his failure to appear. He pled guilty to simple domestic assault, served two days and had not attended the batterer's program at the time of trial.
There were earlier incidents after Hollie moved in with Jon. In one, Hollie was stopped in a traffic stop by Osage Police Officer Gregg Halback, who asked her about a scrape on her nose. Hollie said she was assaulted by Jon but did not want to press charges. Later Hollie denied she told the officer Jon assaulted her and said the mark on her nose was only a pimple. Several days later, officers went to the couple's home and arrested Jon for domestic assault.
Jon was a convicted felon, and there had been a report there were guns in the house. Officers went back to the couple's home. Hollie answered the door, initially denying there were guns, but eventually showing the officer to a closet. The officer subsequently searched a bedroom, finding a handgun, two shotguns and a rifle and marijuana seeds. Jon admitted at trial that the shotguns and rifle were in the house, but he denied there was a handgun. He further testified the guns were his father's, and he was keeping them for him. Jon contended that he had had the marijuana seeds since he was eighteen but had forgotten they were there, he did not even know they were marijuana seeds, and that they were with memorabilia like concert tickets.
Jon was charged with possession of the firearms as a felon, but the charges were subsequently dismissed after the district court sustained a suppression motion filed by Jon. The court found that the weapons were taken as a result of a warrantless search and there was not consent for the search.
Prior to Jon's relationship with Hollie, Jon, who at the time of trial was without a driver's license as a part of a twelve-year revocation, had at least four convictions for operating a motor vehicle while intoxicated. He was given a five-year sentence some years earlier and served six and a half months, during which time he received substance abuse counseling. On June 16, 2002, after he moved in with Hollie, Jon had an accident driving a car that was not equipped with an ignition interlock required as a condition of a recently-issued temporary restricted driver's license. Jon had been drinking alcohol that day and was charged with second offense driving while intoxicated and with refusal to take a urine or breath test. Jon was hospitalized as a result of the accident, and apparently a blood alcohol test taken some time later showed his blood alcohol content to be point eight. It also appears Jon was able to get this charge dismissed.
At the time of trial Jon had a pending charge of prohibited acts, a Class C felony. The State's charge was based on the allegation that on December 30, 2002, Jon attempted to obtain the prescription drug Narcotab or Lortab, Hydrocodone, a Schedule III controlled substance, by a forged prescription at three Mason City area pharmacies. Since this charge was filed Jon had a substance abuse evaluation and is having outpatient treatment. He said he had gone to treatment ten times. He also testified he is attending Alcoholics Anonymous. Jon said he has not drunk alcohol since the domestic incident in August of 2002 except for a couple of glasses of wine before Christmas. Jon wants to go to Florida for more job opportunities, and Hollie wants to take the children there.
Since the dissolution Hollie has had three third-degree theft charges as the result of writing insufficient fund checks. She blames it on not getting child support, but it appears the child support has been timely paid. She had earlier alcohol-related offenses, but contends she quit drinking alcohol at the time Jon entered treatment.
Tommy and Amanda are good children, well-adjusted, developing normally, and making satisfactory progress in school. They have a good relationship with both of their parents, but have spent more time with their mother than with their father. Keith has substantial visitation, has exercised it, and has a strong bond with the children. The children at issue here have a relationship with their half-sister, but there is a substantial difference in the children's ages.
Hollie and Jon attempt to seriously minimize the two instances where Jon was charged with domestic abuse. Many of the facts testified to at trial are in direct conflict with police reports of statements Hollie made at or near the time of the event. These contradictory statements put Hollie's and Jon's credibility in jeopardy.
Hollie argues Keith has not established any clear connection between Hollie's and Jon's relationship and harm to the children. We give little credence to this argument. Clearly Jon injuring Hollie, being arrested and taken away in handcuffs, using drugs, violating laws, driving under the influence, and his outbursts of temper have a negative effect on the children. We also note that Hollie was extremely frightened Jon would hurt the children when he locked himself in the house with them. Jon shows little regard for laws and rules. We hope for his sake and the sake of Hollie and their child that he may be combating his problems with drugs and alcohol. Yet, even if we believe his testimony that he no longer uses illegal substances, we cannot determine on the basis of his spending only ten weeks in outpatient treatment that he has turned over a new leaf, particularly when viewed in light of his past history.
Though Hollie professes she will protect the children from Jon, her attempts to cover up his behavior causes us to question whether she will or can.
Hollie also contends Keith abused her, and he did not get help. She noted he had, as did she, earlier alcohol-related arrests. Keith denied he abused Hollie. After reporting Keith's alleged abuse Hollie changed her story and saw that the charges were dropped. This past conduct was before the district court when joint custody was ordered. Even if we consider it, there is nothing to show that Keith's behavior harmed either Hollie or the children or put them at serious risk.
Hollie also argues that Keith continues to use alcohol. She introduced into evidence a picture of his refrigerator showing one shelf full of beer. The picture was taken when Keith gave her permission to enter the house to get a piece of clothing one of the children had left there. Other than his one arrest, there is no evidence to show that Keith abuses alcohol. Hollie rightly contends she is a better housekeeper than Keith.
Keith, who has been employed as a subcontractor for a construction company, also sells real estate and worked regularly in the evening at a bar owned and operated by his parents. At trial he said he was no longer working at the bar. Evidence indicates he has been a reliable employee.
Keith too has formed a new relationship. He is engaged to marry Ellen Eastman. Ellen has never married and has been an employee of United Parcel Service for the past twenty years. Ellen testified she has a good relationship with the children. There is no evidence that Ellen would present any risk to the children; rather, the only evidence is that she has a positive effect on them.
Keith has shown both a substantial change of circumstances and the ability to render superior care. We reverse the district court and name him as the primary custodian.
We remand to the district court for purposes of fixing Hollie's visitation in a manner that will assure the children are protected and in further fixing her child support obligation.