Opinion
No. 5-661 / 04-1745
Filed October 12, 2005
Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.
A father appeals from a district court order that denied his petition to modify the parties' dissolution decree to place physical care of the parties' three minor children with him. REVERSED AND REMANDED.
Timothy Pearson of Laden Pearson, P.C., and Alexander Rhoads of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellant.
Robert Wright, Jr., of Wright and Wright, Des Moines, for appellee.
Heard by Vogel, P.J., and Zimmer and Miller, JJ.
Donald McDannald appeals from the district court's denial of his petition to modify the parties' dissolution decree to place physical care of the parties' children with him instead of his former wife, Andrea. He contends the district court erred in finding there had not been a substantial change in circumstances that would justify a change in physical care. He also maintains that the court's award of attorney fees to Andrea was excessive and an abuse of discretion. We reverse.
I. Background Facts Proceedings
Donald and Andrea were married in 1991. The district court dissolved their marriage in 1999. The dissolution decree awarded the parties joint legal custody of their three children, Jacob, born in July of 1992; Derrick, born in October of 1993; and Stephen, born in September of 1995. The decree placed physical care of the children with Andrea.
Andrea has continued to live in Des Moines since the decree was entered. Donald has remarried and resides in Shawnee, Kansas. Donald and his current spouse have two children.
Donald filed a petition to modify the physical care provisions of the dissolution decree on September 23, 2003. He contended that a substantial change in circumstances had occurred which warranted a change in physical care based on Andrea's failure to provide adequate supervision and an adequate physical environment for the children. Following trial, the district court expressed a number of concerns about Andrea's performance as the children's physical caretaker, but ultimately concluded that Donald had not shown a material change in circumstances. The court entered an order on October 8, 2004, that denied Donald's petition. Donald has appealed.
II. Scope Standards of Review
We review modification proceedings de novo. Iowa R. App. P. 6.4; In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). We give weight to the trial court's findings of fact, especially when we consider witness credibility, but we are not bound by those findings. Iowa R. App. P. 6.14(6)( g); In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). Prior cases have little precedential value, so we will predominantly base our decision on the facts and circumstances unique to the parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).
III. Modification of Physical Care
We will modify a custodial provision of a decree if there is a substantial change in circumstances since the entry of the decree; the change must be more or less permanent and relate to the welfare of the children. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The court must not have contemplated the change in circumstances at the time it entered the decree. Id. Donald, as the parent seeking to alter physical care, has a heavy burden and must prove that he possesses the ability to provide superior care for the children. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998).
At the time the dissolution decree was entered in 1999, the trial court noted that "[t]he record is clear the children are well behaved, loving children[,]" Andrea "is providing good medical care for the children[,]" and "[t]he quality of the parenting they have received from [Andrea] has been good." Upon our de novo review of the record, we conclude that circumstances have substantially changed.
In support of his application to modify, Donald offered convincing evidence that the home Andrea maintains for the children has often been filthy and cluttered, leading to the children's unkempt appearance and inability to find appropriate attire for school. Andrea has failed to take the children to the doctor or dentist until their health concerns required emergency room visits. Although Andrea has a good job and receives child support, she often fails to pay her bills on time, resulting in eviction notices, the withdrawal of utilities, and the school lunch program refusing to serve the children anything except peanut butter sandwiches. Andrea has called the police numerous times to locate the children when she did not know where they were.
The record includes a videotape made by Donald on October 9, 2003, depicting the filthy condition of Andrea's apartment, including open food containers, partially full medicine bottles, mattresses without bedding, garbage on the floor, and bathtubs filled with so much clutter that they could not be used. Although Andrea contends that the appearance of the apartment was an anomaly due to her illness, the record also includes pictures from September 12, 2003, depicting the apartment in the same condition. Furthermore, Donald testified that on the occasions when he visited Andrea's apartment to pick up the children in the years prior to 2003, he was not allowed to enter, but caught the pervasive smell of urine from the hallway.
Andrea works at Wells Fargo as a loan closer and processor, and she earns approximately $29,000 per year.
Andrea's inability to provide the children with a stable, structured, and organized lifestyle has clearly had a detrimental impact on them. The children have frequently been late for school and have had numerous unexcused absences. They fail to finish homework and often perform poorly at school. Derrick has been suspended from school on three occasions because of disciplinary problems. Donald signed a permission slip for Derrick to attend anger management classes, but Andrea refused to allow him to see the counselors at school to resolve this problem. Donald testified that when the children came to visit him, they arrived wearing inappropriate clothing. The children often wore no socks or underwear and clothing with holes, and they frequently lacked personal hygiene to the point that they smelled. Donald tried to address these issues by regularly mailing new clothing and shoes to the children; however, he abandoned this practice after more than seventeen packages he mailed to Des Moines were returned undelivered because Andrea refused to pick them up at the post office.
Dr. Barbara Cavallin, a clinical psychologist ordered by the court to conduct a custody evaluation for the parties, testified that she contemplated reporting Andrea to the Iowa Department of Human Services due to the condition of her apartment. She observed that when Donald interacts with the children, they "seemed a great deal more under control; and controlling themselves rather than control from the outside[.]" Dr. Cavallin noted that one key to children's success is stability, structure, routine, and appropriate discipline, and she testified that Donald would provide superior parenting in these areas for the children.
When the parties' original decree was entered, we do not believe the trial court contemplated the children's declining attendance and performance at school, the deteriorating condition of Andrea's household, the lack of attention to the children's hygiene, Andrea's refusal to take the children to the doctor or dentist until their medical problems necessitated emergency room visits and dental work, or the lack of supervision leading to calls to the police to locate the children. Andrea is a good person, and she obviously loves her children very much. However, the record demonstrates a five-year pattern of poor parenting by Andrea. We conclude Donald has met his burden to show that a substantial change in circumstances has occurred since the decree was entered.
We further find Donald has met the heavy burden of proving that he possesses the ability to provide superior care for the children. See Mayfield, 577 N.W.2d at 873. At the time the dissolution decree was entered, the court found that Donald is "a stable individual, well organized and very much in control of his emotions. He loves his children and will be a steady influence in their lives[.]" During the past five years, Donald had demonstrated that he is a competent parent who will make a significant, positive impact on his children's future maturation.
Donald is currently serving as a major in the United States Army. He works as the chief of the improvised explosive device task force at Fort Leavenworth, Kansas, and he anticipates remaining at that location for six to seven years. He earns approximately $80,000 per year.
Even though Donald lives in Kansas, he has expended extraordinary effort to address the children's problems in their classes at school in Des Moines. In the past five years, he attended all of the children's parent-teacher conferences even when he lived in Texas and Georgia, and he maintained continual correspondence with the school regarding the children's progress. In contrast, Andrea's level of disorganization and inability to provide a clean, safe, and structured household has adversely impacted the children and led to recurring tardiness, absenteeism, and incomplete homework at school in addition to other problems.
We believe Donald has demonstrated he possesses the ability to provide superior care for the children.
IV. Attorney Fees
Iowa Code section 598.36 (2003) provides that in a proceeding for the modification of a decree, the court may award reasonable attorney fees to the prevailing party. The trial court possesses considerable discretion in awarding attorney fees. In re Marriage of Ranniger, 423 N.W.2d 558, 560 (Iowa Ct.App. 1988). The trial court ordered Donald to pay $10,000 of Andrea's attorney fees. Because we reverse the trial court's determination to deny Donald's application to modify custody, we also reverse the award of attorney fees. We order each party to pay his or her own attorney fees for the modification proceeding and this appeal. The costs of this appeal are taxed to Andrea.
V. Conclusion
Because Donald has shown a substantial change in circumstances since the entry of the decree and has proven that he possesses the ability to provide superior care for the children, we reverse the trial court's decision to deny Donald's application to modify. We modify the dissolution decree to award physical care to Donald and remand this case to the district court for application of the child support guidelines and a determination of an appropriate visitation schedule.