Opinion
No. 5-123 / 04-1497
Filed April 28, 2005
Appeal from the Iowa District Court for Scott County, Mark Smith, Judge.
A mother appeals and a father cross-appeals from a district court ruling which denied the mother's application for modification of custody, visitation, and support. AFFIRMED.
Timothy J. Tupper, Davenport, for appellant.
Michael J. Koury, Jr. of Bush, Motto, Creen Koury, P.C., Davenport, for appellee.
Heard by Mahan, P.J., and Zimmer, J., and Beeghly, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
A mother appeals from a district court ruling which denied her petition for modification of the parties' dissolution decree. She contends the district court erred in finding there had not been a substantial and material change in circumstances that would justify a change in physical care. She also contends the court erred by allowing the father to introduce irrelevant and misleading evidence at trial. The father cross-appeals from the court's ruling claiming the court erred in failing to impose sanctions against the mother. We affirm the district court.
I. Background Facts Proceedings
The marriage of Ronald and Laura Mott, now Laura Dwyer, was dissolved in 1993. The dissolution decree awarded the parties joint legal custody of their two children, Justin, born in March 1987, and Jessica, born in February 1991, and placed primary physical care with Ronald.
On May 21, 2004, Laura filed a petition for modification arguing that a material change in circumstances had occurred necessitating a change in physical placement of the parties' two children as well as visitation and support. Following trial, the district court entered an order in August 2004 which denied Laura's petition. Laura appeals and Ronald cross-appeals.
II. Scope of Review
Our review of modification proceedings is de novo. Iowa R. App. P. 6.4; In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of the witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g); In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997).
III. Modification of Primary Physical Care
Laura contends the district court erred in finding there had not been a substantial and material change in circumstances that would justify a change in physical custody. We disagree.
The legal principles governing modification actions are well established. The court can modify a custodial provision of a dissolution decree only when there has been a substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). The change must be more or less permanent and relate to the welfare of the children. Id. Additionally, the parent seeking custody must prove an ability to minister more effectively to the children's well-being. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). This strict standard is premised on the principle that once custody of children has been determined it should be disturbed for only the most cogent reasons. Id.
In support of her application to modify, Laura contends the children are subjected to undue stress in the home of their father and stepmother. She argues the children would be in a "happier, healthier, and more constructive environment" if they were placed in her physical care. Laura also contends modification is warranted because of Ronald's failure to give her timely notification that he had accepted a temporary assignment that would require him to leave Germany and spend four months in Iraq.
Ronald has been employed by the Army Corps of Engineers for many years. In 2002 he accepted a three-year tour of duty in Germany. Laura unsuccessfully attempted to modify physical care at that time.
The record reveals this is Laura's sixth attempt to modify the physical care provisions of the parties' dissolution decree. Her previous attempts to modify physical care have all been unsuccessful. In its ruling denying Laura's application to modify, the district court concluded that any stress the parties' children were experiencing was due in large part to Laura's repeated attempts to modify custody. The court stated, "Laura's past attempts to obtain custody have only resulted in mixed signals being sent to the children concerning which parent is in charge and whether household rules apply to them." The court found that Ronald is concerned about the well-being of his children, imposes reasonable rules upon them, and requires respectful behavior toward both himself and his wife. After finding that Laura failed to prove that there had been a substantial and material change in circumstances that did not exist at the time of the last order, the court denied Laura's petition.
Upon our de novo review of the record, we find no reason to upset the district court's ruling. The record reveals that Ronald is a good parent. He has a good job and he maintains a home suitable for raising a family. In contrast, the record amply supports the concerns the district court expressed about Laura's disruptive behavior.
The record reveals Ronald volunteered to go to Iraq for approximately four months for the purpose of helping our troops establish basic services. His temporary assignment did not impact Laura's visitation in any way. We affirm the district court's decision to deny Laura's application to modify.
IV. Evidence Offered at Trial
Laura next claims the district court erred by admitting irrelevant and misleading evidence at trial. Her complaint concerns Ronald's Exhibits A and B. Exhibit A is a poster board titled "Mott Trial History." Exhibit B is a photocopy of Exhibit A. The exhibits provide a brief summary of the hearings the parties have been involved in since their marriage was dissolved.
Iowa Rule of Evidence 5.402 provides:
ll relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States or the state of Iowa, by statute, by these rules, or by other rules of the Iowa Supreme Court. Evidence which is not relevant is not admissible.
Iowa Rule of Evidence 5.403 further provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
We review the district court's decision to admit relevant evidence for an abuse of discretion. See McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000). An abuse of discretion occurs when the court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Waits v. United Fire Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law. Id. Not every erroneous admission of evidence requires reversal. See McClure, 613 N.W.2d at 235. Only when a substantial right of the party is affected is reversal warranted. Id.
We conclude that the district court did not abuse its discretion when it admitted Ronald's Exhibits A and B. The exhibits at issue are neither irrelevant nor misleading. They consist simply of information extracted from a voluminous court file. The exhibits provide a brief chronological history of the judicial proceedings initiated by Laura since the parties' original decree was entered. They are relevant to the court's consideration of Ronald's contention at trial that there were no new facts not previously contemplated by this district court when it denied Laura's prior applications to modify physical care. Laura does not contend that the exhibits contain inaccurate information. We reject this assignment of error.
V. Sanctions
Ronald contends the district court erred when it failed to impose sanctions against Laura pursuant to Iowa Rule of Civil Procedure 80(b). Rule 80(b) has been renumbered and is now Rule 1.413(2). The rule provides:
Rule 80 was renumbered and amended November 9, 2001, effective February 15, 2002.
If a party commencing an action has in the preceding five-year period unsuccessfully prosecuted three or more actions, the court may, if it deems the actions to have been frivolous, stay the proceedings until that party furnishes an undertaking secured by cash or approved sureties to pay all costs resulting to opposing parties to the action including reasonable attorney fees.
We conclude Ronald has failed to preserve this issue for review.
We find nothing in the trial record which indicates the court was asked to impose sanctions pursuant to Rule 1.413(2). The trial judge was not asked to determine whether or not Laura's previous actions were frivolous and the court did not address the issue of sanctions in its ruling. Ronald did not ask the district court to enlarge its findings to consider the issue of sanctions. An issue neither addressed nor ruled on by the district court will not be considered for the first time on appeal. See Benavides v. J.C. Penny Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995).
We affirm the district court. The costs of this appeal are taxed to Laura.