Opinion
No. 4-277 / 04-0011.
June 23, 2004.
Appeal from the Iowa District Court for Fremont County, James S. Heckerman, Judge.
A father appeals from a district court's decision denying his application to modify the physical care provisions of the parties' dissolution decree. REVERSED AND REMANDED.
Suellen Overton of Overton Law Office, Council Bluffs, for appellant.
Richard Davidson of Davidson Law Firm, P.C., Clarinda, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Jason Schebaum appeals from the district court's decision denying his application to modify the physical care provisions of the decree dissolving his marriage to Valerie Schebaum. Because we conclude Jason established a substantial change in circumstances that warranted a change in physical care, we reverse the district court, and remand this matter for additional proceedings.
I. Background Facts and Proceedings.
Jason and Valerie Schebaum were married on July 17, 1999. The couple separated eight months later. Their brief marriage was dissolved by a decree entered on January 8, 2001, following a contested trial. In its decree, the district court granted the parties joint legal custody of their daughter, Paige, born January 12, 1999. The decree provided that each party would exercise physical care of Paige for six months of each year. The decree further provided that the court would review the physical care arrangement in July 2004. Neither party appealed from the provisions of the original decree.
Under the decree Valerie received physical care of Paige from December to July of each year, with Jason assuming Paige's physical care from July to December of that same year.
In March 2003 Jason filed an application to modify the dissolution decree. He requested that the district court award him primary physical care of Paige. Valerie filed an answer and counterclaim, asking the court to dismiss Jason's application or, in the alternative, to modify the decree by awarding her primary physical care. On November 24, 2003, following a contested hearing, the district court entered an order denying Jason's application. As part of its order, the court scheduled a hearing for July 16, 2004, to further consider the issue of physical care based on "circumstances which present themselves subsequent to November 24, 2003." The court's order included the provision, "Parties to participate in parental counseling sessions with Amy Faust pending hearing on July 16, 2004."
Jason appeals. He argues a substantial change in circumstances warrants modification of Paige's physical care. He also contends the court erred in appointing one of Valerie's witnesses, Amy Faust, to serve as counselor to both parties. Both Jason and Valerie request an award of appellate attorney fees.
II. Scope of Review.
Our review is de novo. Iowa R. App. P. 6.4. We give weight to the fact-findings of the district court, especially in determining witness credibility, but are not bound by them. Iowa R. App. P. 6.14(6)( g). Our overriding consideration is the children's best interests. Iowa R. App. P. 6.14(6)( o).
III. Physical Care.
As the party seeking modification of the dissolution decree Jason must establish, by a preponderance of the evidence, that a substantial change in circumstances has occurred since entry of the decree, and the change was not within the contemplation of the district court when the prior decree was entered. See In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). The change must be more or less permanent, and relate to Paige's welfare. See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). In addition, Jason must demonstrate a superior ability to minister to Paige's well-being. See Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). Upon our de novo review of the record, we agree with Jason's contention that a modification of the decree is warranted.
Valerie has moved five times since the original decree was entered, and has demonstrated little financial stability. At times she has been uncooperative in facilitating Jason's visitation. See In re Marriage of Vrban, 359 N.W.2d 420, 425 (Iowa 1984) (finding attempts to isolate children from the other parent an important factor). Valerie has also initiated conflicts with Jason during visitation exchanges. During one confrontation she threw rocks at Jason's car, causing damage. She also made disparaging remarks about Jason's new wife, Mandy. Even if Jason verbally provoked Valerie's outburst, that fact does not excuse Valerie's behavior, particularly as she engaged in these acts in Paige's presence.
In addition, the record raises some serious concerns regarding Valerie's choice of companions. Valerie has been involved with Tim Myers for approximately two years. Myers has a criminal record, about which he was less than forthcoming. On March 16, 2003, Myers assaulted Valerie leaving a black and blue bruise on her stomach and a red mark on one of her eyes. He pled guilty to domestic abuse assault as a result of the event. He now attempts to minimize the seriousness of his actions. Myers has also made a threat to kill Jason. In light of Myers's actions, his continuing involvement in the lives of Valerie and Paige raises concerns about not only the impact his presence may have on Paige, but also Valerie's priorities. See In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct.App. 2003).
In contrast, Jason continues to have stable employment and a stable residence. His new wife, Mandy, is a licensed practical nurse. There is no doubt that Jason can provide Paige with a loving, nurturing and stable environment. Although past difficulties in communication between the parties cannot be laid solely at Valerie's doorstep, it appears Jason has been and continues to be willing and able to support Valerie's relationship with Paige.
In addition, the court-appointed guardian ad litem, while recognizing both parties needed to "grow up" for Paige's benefit, recommended that physical care be awarded to Jason. We are mindful of the fact that counselor Amy Faust did not reach the same conclusion, and took issue with portions of the guardian ad litem's report. However, Faust's opinions must be viewed in light of the fact that her counseling relationship was developed with Valerie and Paige, rather than with Jason. See In re Marriage of Pothast, 539 N.W.2d 199, 202 (Iowa Ct.App. 1995) (affording little weight to custody evaluation conducted with mother and child only).
Based on the evidence in the record, we believe Jason demonstrated a substantial change in circumstances has occurred since the entry of the dissolution decree. Jason also established that he is the parent who will minister more effectively to Paige's needs. The record demonstrates that it is Jason who is most likely to provide an environment that will cultivate a physically, mentally and socially healthy child. See In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
Because we disagree with the district court's determination that no substantial change in circumstances has occurred, we modify the dissolution decree to award the physical care of Paige to Jason. As a result, we vacate the court's additional order setting a further hearing in July 2004. We also vacate the requirement that Jason and Valerie participate in parental counseling sessions. We remand this matter to the district court for further proceedings not inconsistent with this opinion, including but not limited to the issues of setting a visitation scheduled for Valerie, and establishing Valerie's child support obligation.
We would, however, encourage the parties to voluntarily continue counseling in a mutually-agreed-upon setting, to address their difficulties in communicating with one another.
IV. Attorney Fees.
Both Jason and Valerie request an award of appellate attorney fees. Such fees are discretionary and determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Upon consideration of those factors, we decline to award appellate attorney fees in this matter.