Opinion
No. 4-354 / 03-2070.
July 14, 2004.
Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.
A mother appeals from the district court's modification decree placing physical care of the parties' two children with their father. AFFIRMED.
Stephen Ebke of Porter, Tauke Ebke, Council Bluffs, for appellant.
Michael Winter, Council Bluffs, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Tammy Sena appeals from the district court's grant of David Volz's petition to modify the physical care provisions of the parties' dissolution decree. She contends the court erred in finding there was a substantial change in circumstances and that David is able to provide superior care to the parties' two children. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Tammy and David were married on October 19, 1990. They had two children from this marriage, Alycia, born January 20, 1992, and Andrew, born April 19, 1993. The marriage was dissolved by dissolution decree in Nebraska on June 25, 1997. The parties were granted joint custody of the children with Tammy as "primary caretaker," subject to David's visitation. Tammy and the children lived in the family home in Nebraska following the divorce until May of 2002 when they moved to Council Bluffs to live with Tammy's boyfriend at the time, Tim Whalen. The children began attending school in Council Bluffs in the fall of 2002. Tammy and Whalen separated in March of 2003 and she moved back to Nebraska. The record reveals that some of their relationship and their separation involved violence. There was drinking, mutual assaults, police involvement, and protective orders issued against both parties. After her separation from Whalen Tammy appropriately asked, and David appropriately agreed, that the children reside with David during April and May so they could finish out the school year in Council Bluffs and not have to change schools so close to the end of the year.
David filed a petition for modification of the decree in late April 2003, seeking temporary and permanent physical care of the children. David alleged modification was warranted because Tammy had anger problems, she had been involved in several violent relationships with men, she had been physically and verbally abusive to the children, and she had an alcohol problem. A hearing was held on the issue of temporary physical care and the court ordered that the children stay with David until the end of the school year and then return to Tammy under the terms of the Nebraska decree. Trial on modification of permanent physical care was originally scheduled to be held before the fall school term was to start, but was continued and rescheduled for a day after the new school term began. Due to this timing, David again filed for temporary care which the court denied. The children continued to live with Tammy in Nebraska, attending the school they had always attended except for the year in Council Bluffs, until the court granted David's request for modification of physical care on November 17, 2003.
David had become remarried in September 2001, to Amy. Amy's two children, ages twelve and eleven, reside with David and Amy. David is employed at Driver Sewer and Water and farms on a small scale. He and Amy have purchased a four bedroom home in rural Pottawattamie County. The trial court found that Alycia and Andrew have a good relationship with Amy and her children. David was current with his child support at the time of the modification hearing, although the court noted he frequently ran a month behind until shortly before the hearing.
Tammy has not remarried since the dissolution. She has owned the same home in Omaha for eight years and has worked for over ten years for the City of Omaha. The court found that Tammy is very involved with her children's lives, attending their games and meets, as well as supporting their schooling and extra-curricular activities. Alycia was in sixth grade at the time of the modification hearing and Andrew was in fifth grade. The court found that Alycia and Andrew were both normal, healthy children, were reportedly doing quite well in school, and were both involved in a number of extra-curricular activities.
A guardian ad litem (GAL) was appointed at David's request to represent the children's interests. The GAL prepared a report for the court recommending that the physical care of the children be transferred to David because it would be in the children's best interest. The GAL relied primarily on the children's stated preference to live with David in making his recommendation. The GAL noted in his report that both children told him Tammy is angry and hollers at them a lot, and both children reported she had hit them in the past. The children also stated to the GAL that they wanted to live with David because they were tired of all the fighting between Tammy and her boyfriends and of "being treated the way they were by their mom."
As noted above, the district court granted David's petition to transfer physical care of the children to him, finding there had been a substantial and material change in circumstances since the decree was entered, that David would provide superior care for the children, and that it would be in the children's best interest for David to have their "physical custody." Tammy appeals contending the court erred in transferring physical care of the children because David failed to meet his burden to show either a substantial change in circumstances or that he can provide superior care to the children.
II. SCOPE AND STANDARD OF REVIEW.
In this equity case our review is de novo. Iowa R. App. P. 6.4. 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 witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). Prior cases have little precedential value with respect to custodial issues, and this court must make its decision on the particular circumstances unique to each case. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct.App. 1995).
III. MERITS
The legal principles governing modification actions are well established.
To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children's well being. The heavy burden upon a party seeking to modify custody stems from the principle that once custody of children has been fixed it should be disturbed for only the most cogent reasons.
Petition of Anderson, 530 N.W.2d 741, 741-42 (Iowa Ct.App. 1995) (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).
Here, unlike in an original custody determination, the question is not which home is better, but whether the parent seeking the change has demonstrated he or she can offer the child superior care and show an ability to better minister to the child's needs. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct.App. 1994). If the parents are found to be equally competent to minister to the children, custody should not be changed. Id. The burden upon the parent seeking to change custody is heavy "because children deserve the security of knowing where they will grow up, and we recognize the trauma and uncertainty these proceedings cause all children." Id. at 213-14. Children's preference of where to live is given some weight, but less weight in a modification than in an original custodial determination. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998). "Deciding custody is far more complicated than asking children with which parent they want to live." In re Marriage of Behn, 416 N.W.2d 100, 101 (Iowa Ct.App. 1987).
David's main argument for modification, discussed briefly above, centers on Tammy's anger management problems, her drinking, and her often violent relationships with men. Tammy testified that she had dated several people in the years since the divorce, including two long term relationships, one for two and one-half years with Scott Taylor, and her fifteen month relationship with Whalen. She admitted that both of these longer term relationships involved drinking, mutual assaults and often violent confrontations. She also admitted that she had a problem with her temper but said that she had attended anger management classes and it was now under control. Tammy denied David's allegations that she loses her temper with the children or uses physical violence toward them. Although Tammy admitted to drinking, she said she only did it when the children were not around. Similarly she admitted there were violent incidents with Whalen, but testified that the children were never around during any of the fighting. The court did find the children were not exposed to any danger while with Tammy, but that they were "aware though of the instability in their lives surrounding their mother's relationships."
Tammy claimed at trial that the children's preference for living with David was due to his manipulations, and because he does not discipline them or back up her discipline decisions but undermines her authority. However, the court found that the GAL had interviewed the children several times, both alone and with each parent, and the children consistently stated their preference to live with David. The court further found that the children expressed anxiety over Tammy's temper and that there was "no evidence that David intentionally manipulated the children or coerced them to elicit a preference." The GAL expressed similar beliefs in his report. Based on our review of the record, we agree with the trial court that no evidence other than Tammy's bare assertions support her claim that David has somehow manipulated or coerced the children into stating a preference to live with him.
The trial court ultimately concluded,
The evidence shows that David is a loving and concerned parent. He can provide appropriate care and a suitable environment for [the children]. The evidence shows that the children's environment with David will be more stable than it has been with Tammy. The evidence shows that David will provide superior care for the children at this time. Tammy clearly loves her children, and she has been their primary caretaker. However, the children have been buffeted by Tammy's temper and her chaotic relationship situations.
The Court concludes that there has been a substantial and material change of circumstances since the Decree was entered. Alycia and Andrew have changed school districts, and changed back again. They have expressed strong preference to live with David, and those preferences were not coerced or manipulated. Alycia and Andrew have experienced Tammy's temper and instability resulting from her relationship choices. Both parents are suitable custodians for Alycia and Andrew. Both parties are loving and capable parents and both are concerned with Alycia and Andrew's upbringing. David has demonstrated that the children's best interests will be served by placing their physical custody with him.
We conclude that the court's findings and conclusions are fully supported by the record and we adopt them as our own.
IV. CONCLUSION.
Based on our de novo review of the record, and for all of the reasons set forth above, we conclude the district court did not err in granting David's petition for modification of the physical care provisions of the parties' dissolution decree. The evidence shows there has been a substantial and material change in circumstances and that although both parents clearly love their children and are concerned with their upbringing David can provide superior care to them and minister more effectively to the children's well being at this time. The court's order transferring physical care of Alycia and Andrew from Tammy to David is affirmed.