Opinion
No. 4-740 / 04-1500
Filed December 22, 2004
Appeal from the Iowa District Court for Jasper County, Darrell Goodhue, Judge.
In this custody modification action, Amy Scott appeals a district court order terminating joint physical care and granting primary physical care to Chad Maddison. AFFIRMED.
Leslie Babich and Alexander R. Rhoads, of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellant.
Lee Walker, of Walker, Knopf Billingsley, Newton, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
Chad and Amy Maddison divorced after a five year marriage. At the time of the divorce, the parties agreed to joint physical care of their two minor children, Brooklyn and Tanner.
Three years after the divorce, Amy filed a modification petition seeking physical care of both children. Chad answered, and countered with his own request for physical care. Following trial, the district court granted Chad's application. Amy appealed.
On appeal, Amy concedes she did not satisfy the standards for obtaining a modification of the original custody decree, but contends that neither did Chad. She claims the appropriate disposition under these circumstances was dismissal of both modification applications, effectively allowing the parties to continue with the existing joint physical care arrangement.
We deal first with Amy's request to revert to joint physical care. That request simply comes too late. In her modification petition, Amy asked the district court to "eliminate the joint physical custody of the minor children." At trial, the district court "implored" the parties to work out their differences and salvage the joint physical care arrangement. Amy refused to do so. She insisted that communication had broken down between the parties, making a joint physical care arrangement unworkable. She cannot change horses in midstream. Having pled and argued against joint physical care, she is foreclosed from now contending that this is the more desirable arrangement. Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 172 (Iowa 2002) (stating appellant was foreclosed from changing theory on appeal).
In light of Amy's concession that she did not establish the standards for obtaining a modification of the physical care arrangement, we turn to her contention that Chad also did not satisfy those standards. On our de novo review, we conclude he did.
I. Modification Standards A. Substantial Change.
A person seeking a change of a physical care decree must establish a substantial and relatively permanent change of circumstances not contemplated at the time of the decree. In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999).
In February 2003, Chad's Iowa National Guard unit was activated and sent to Iraq, where it remained for fourteen months. Chad prepared a durable power of attorney before he left, naming his mother as attorney-in-fact. Chad authorized his mother to "present my opinion regarding my children and to handle any necessary items for the benefit of my children." Amy received a copy of the power of attorney. She also had a telephone conversation with Chad, in which he reiterated that he did not want the children's routine to change any more than it had to during his absence. Despite these instructions, Amy refused to discuss the children with Chad's mother, stating she did not know whether his mother was truly expressing Chad's views. Against Chad's wishes, Amy transferred Brooklynn from a school in Newton to a school in Grinnell. Although Amy had moved from Newton to Grinnell before Chad left, she waited until Chad was deployed to make this change. We conclude her unilateral decision to move Brooklynn to another school district and her refusal to communicate with Chad or his mother about this and other decisions affecting the children amounted to substantial changes of circumstances. See In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996) ("When, following a dissolution decree providing joint custody, the actions of the parties indicate that they are no longer able to cooperate, a modification of the custody status is appropriate.").
For example, Amy unilaterally decided to curtail dance class for Brooklynn.
Amy now expresses a willingness to return Brooklynn to a school in Newton. Just as her renewed interest in joint physical care came too late, this offer comes too late.
In reaching this conclusion, we have considered Amy's contention that communication problems always existed and, therefore, were contemplated at the time of the decree. The record suggests otherwise. As the district court found, the evidence reflects that Amy instigated a breakdown in communication after Chad's deployment. She refused to consult with Chad about the children's welfare, stating she "had no way of contacting him." At the same time, she admitted she contacted the Judge Advocate General's Office of the military to complain about Chad. She also admitted she learned through her present husband's military involvement that contact with deployed National Guard members could me made through the Red Cross. Finally, she admitted she could have had Chad's mother forward a letter to Chad. She did not pursue any of these avenues. Her refusal to communicate with Chad, together with her refusal to acknowledge that Chad's mother spoke for him during his absence, were actions not contemplated at the time of the decree.
Amy claimed Chad was not paying his fair share of the children's expenses but she did not present receipts to Chad's mother for these expenses, as directed by Chad before he left.
She claimed this means of contact was limited to emergencies and she did not believe decisions about the children's school fell into this category. Chad countered that Red Cross contacts were made for this type of family issue.
We have also considered Amy's contention that the breakdown in communication was limited to the period of Chad's deployment and, therefore, was not permanent. Her own testimony belies this contention. Amy stated, "Chad and I don't get along. We can't communicate." In addition, the permanency requirement is satisfied by Amy's continued unwillingness to compromise with Chad on significant issues affecting the children. For example, until she lost her bid for physical care, she refused to consider moving Brooklyn back to the Newton school district. For these reasons, we are not persuaded by Amy's "lack of permanency" argument.
Chad established a substantial and permanent change of circumstances not contemplated at the time of the original decree. B. Superior Caretaking Ability Best Interests.
Amy argues the 2004 amendment to chapter 598 concerning joint physical care, see H.F.22 (amending Iowa Code § 598.41(5)), requires reversal. She argues this amendment establishes a presumption in favor of joint physical care. We need not resolve this issue because the amendment does not apply in this case. The statute only applies if either parent requests joint physical care. Here, neither parent did so in their pleading.
A parent seeking modification of custody must also demonstrate superior caretaking ability. See Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2003). We conclude Chad met this standard by virtue of the actions Amy took in his absence. The fact that the district court found both parents to be suitable does not detract from this conclusion in light of the court's further statement that Amy "set out" to render joint physical care unworkable. In addition, we note that Chad had recently moved into a home with a bedroom for each child. He had the support of his mother who also lived in Newton, as well as his new wife. He testified he was emotionally and physically able to care for the children and expressed a renewed commitment to his family following his deployment and return. Finally, we are swayed by the district court's statement in its post-trial ruling that
[c]onsidering the statements of each party, their demeanor on the witness stand, and their past conduct, Chad is far more likely to foster and promote a relationship between the children and the other parent than Amy would if she were to be the primary physical custodian.
See In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989) (stating "a trial court, as first-hand observer of witnesses, holds a distinct advantage over an appellate court, which necessarily must rely on a cold transcript"). Chad established superior caretaking ability and, for all the cited reasons, also established that the district court's physical care determination was in the children's best interests. See In re Marriage of Thielges, 623 N.W.2d 632, 635-36 (Iowa Ct.App. 2000).
II. Visitation.
Amy seeks additional visitation, if we affirm the custody decision. The visitation provided by the district court's order is reasonable, liberal, and in the best interest of the children. We decline to award additional visitation to Amy.