Opinion
No. 0-516 / 00-0060.
Filed August 30, 2000.
Appeal from the Iowa District Court for Marshall County, William J. Pattinson, Judge.
Kufner appeals from the provisions of an order denying her petition for habeas corpus but modifying the parties' original dissolution decree to name Barker as their children's primary physical caretaker.
AFFIRMED.
Barry S. Kaplan of Fairall, Fairall, Kaplan, Hoglan Condon, Marshalltown, for appellant.
Brian L. Danielson of Hinshaw, Danielson, Kloberdanz Haney, P.C., Marshalltown, for appellee.
Considered by Sackett, C.J., and Streit and Vaitheswaran, JJ.
Parents cannot place their children's lives on the proverbial back burner without consequence. Christina Kufner and Jeffrey Barker, divorced parents of two young girls, both claim they are the better primary caregiver for their daughters. The district court found Barker was better and modified the parties' original dissolution decree. Because Kufner voluntarily relinquished her role as the girls' primary caregiver for an extended period of time, we affirm.
I. Background Facts Proceedings .
Barker and Kufner's marriage was dissolved in 1995. The dissolution decree gave Barker and Kufner joint legal custody of their two daughters, Melissa (born May 1991) and Ashley (born September 1993), and made Kufner responsible for the girls' primary physical care. Pursuant to the decree, Melissa and Ashley lived with their mother — first in Texas and then in Indiana — until March 1997. Because of Kufner's anticipated move and financial difficulties, Melissa and Ashley then moved into Barker's Marshalltown home. When Melissa finished the school year, the girls returned to Indiana.
In July 1997 Melissa and Ashley moved back to Marshalltown because of Kufner's ongoing financial difficulties and her concerns regarding the amount of time her daughters were spending in daycare. A month later Kufner signed an acknowledgment stating Barker and Kristen, his current spouse, would be the girls' primary caretakers until at least June 1998. The district court suspended Barker's child support obligation shortly thereafter. In November Barker asked the court to modify the dissolution decree to establish a visitation schedule for Kufner. In March 1998 he and Kufner signed a stipulation regarding visitation, which addressed her visitation rights for both during and after the 1997-98 school year.
The order, filed in April of 1997, provided the suspension would become permanent six months thereafter.
Kufner moved to Des Moines in September 1998. In March 1999 Kufner filed a petition for habeas corpus asking the district court to enforce the original dissolution decree and reinstate her as the girls' primary caregiver. Barker filed a counterclaim to modify the decree. The court denied the habeas petition and modified the decree to name Barker as Melissa and Ashley's primary caregiver.
Kufner appeals, claiming primary physical care of her daughters should remain with her as the original dissolution decree provides.
II. Standard of Review .
We review the record de novo in a proceeding to modify the custodial provisions of a decree for dissolution of marriage. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). We are not bound by the district court's findings of fact, but do give weight to them because the court was present to observe and listen to the parties and witnesses. Id.
III. The Merits .
The district court's modification of Barker and Kufner's dissolution decree was only appropriate if Barker showed, by a preponderance of the evidence, a substantial change in circumstances since the court entered the decree. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); see also In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa App. 1997) ("The burden for a party petitioning for a change in dissolution is heavy."). Such change must not have been contemplated by the court when it entered the decree, must be more or less permanent, and must relate to the welfare of Melissa and Ashley. See Frederici, 338 N.W.2d at 158. Moreover, Barker must also have proven an ability to minister more effectively to the girls' well-being. His heavy burden stems from the principle that once custody is fixed, it should be disturbed only for the most cogent reasons. See id.
A de facto transfer of primary physical care from one parent to the other can constitute a substantial change in circumstances that supports a modification of the custodial provisions of their dissolution decree. In re Marriage of Scott, 457 N.W.2d 29, 32 (Iowa App. 1990). Kufner's actions in this case warrant a modification of Kufner and Barker's dissolution decree. The original trial court could not have contemplated Kufner would place physical care of Melissa and Ashley with their father for nearly two years. Moreover, even though Barker and Kufner may have initially intended Barker would only temporarily act as the girls' primary caregiver, the circumstances in this case indicate his assumption of their physical care became permanent. Barker's child support obligation was permanently suspended, Melissa's disability compensation payments were sent to Barker, and Barker and Kufner agreed to a long-term visitation schedule for Kufner.
Barker claims Kufner's petition for habeas corpus in March 1999 was the first indication she wanted the girls back. Whether Kufner made her desire to reclaim her role as primary caregiver clear before this time is unclear from the trial record. Significantly, the district court "generally considered Barker to be the more credible of the two parties." See Iowa R. App. P. 14(f)(7).
Melissa has arthrogyrposis, a condition that affects her ability to use her arms and legs and for which she receives monthly payments.
Finally, although Barker and Kufner have both shown they are loving parents, Barker has proven he has the ability to minister more effectively to their daughters' well being. Barker has been an involved father who has provided a stable, positive, and comfortable home environment for Melissa and Ashley while they have lived with him since 1997. Barker regularly reads with the girls, plays with them, and takes care of their daily needs. He has also coordinated his work with his wife so daycare for the girls is unnecessary. The girls are doing well academically and are well adjusted to their life in Marshalltown.
Kufner has a positive relationship with Melissa and Ashley, but her recent history has been less stable than Barker's. Since Kufner was given responsibility for her daughters' primary physical care, she has moved to various locations in Texas, Indiana, Florida, and Iowa to pursue her career goals and to be with the gentleman with whom she has a relationship. While these may be legitimate pursuits, Melissa and Ashley — like all children need stability and continuity rather than uncertainty in their lives. See In re Marriage of Green, 417 N.W.2d 252, 253 (Iowa App. 1987) (placing primary physical care of two children with their father after their mother allowed them to live with their father for two consecutive school years). Barker has demonstrated he is more capable of providing this to the girls and thus can offer them superior care. The substantial change of circumstances in this case clearly relates to Melissa and Ashley's welfare and justifies modifying the parties' decree to name Barker as the girls' primary caregiver.
This modification is in harmony with Melissa and Ashley's best interests. Returning the girls to Kufner's physical care would threaten the bonds that have grown between the girls, their younger half-sister, and the other two children in Barker's home. Furthermore, it would uproot them from the home where they have flourished over the years. Kufner recognized her daughters' interests would be best served by placing the girls in the primary physical care of their father in 1997 — their best interests continue to be served by this placement today.
After de novo review, we find Jeffrey Barker should be responsible for Melissa and Ashley's physical care. We affirm the district court.
AFFIRMED.