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In re the Marriage of Donner

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 373 (Iowa Ct. App. 2003)

Opinion

No. 2-872 / 02-0781.

Filed February 28, 2003.

Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.

The petitioner appeals a district court ruling denying his modification action for change of custody. AFFIRMED.

Eric Hansen of Gallner Patterman, P.C., Council Bluffs, for appellant.

Drew Kouris, Council Bluffs, for appellee.

Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.


A father appeals a ruling denying his application to modify the physical care portion of a dissolution decree. We affirm.

I. Background Facts and Proceedings

Hank and Stephanie Donner divorced in late 1998. Under the decree, the parties shared physical care of their daughter Kaitlyn on an alternating weekly basis.

The arrangement proved unworkable. Within three months of the decree, Stephanie assumed physical care of Kaitlyn during the week and Hank exercised weekend visitation. This arrangement lasted for about a year. At that time, Hank asked to return to the shared physical care provision of the decree. Stephanie declined, in light of Kaitlyn's preschool schedule. For another year, the parties continued with the post-decree arrangement they had set up.

On June 27, 2001, Hank applied to modify the physical care portion of the decree. Stephanie was served with the application on July 9, 2001 but did not file an answer until August 16, 2001. Hank moved for entry of a default judgment against Stephanie. The district court overruled the motion and entered a temporary modification order setting a visitation schedule.

Following a hearing, the district court modified the decree by awarding Stephanie Kaitlyn's physical care and awarding Hank every other weekend visitation. Hank has appealed.

II. Preliminary Matters

As a preliminary matter, Hank argues the court erred in overruling his application for entry of default and in entering a temporary visitation order. We note, however, that the order deciding these matters was "prepared and submitted" and "approved as to form and content" by Hank's counsel. Hank cannot now complain of actions he invited. McCracken v. Edward D. Jones Co., 445 N.W.2d 375, 378 (Iowa Ct.App. 1989).

III. Physical Care

Hank contends the district court acted inequitably in failing to transfer physical care of Kaitlyn to him. To modify the custody provisions of a dissolution decree, an applicant must establish a substantial change in circumstances since the time of the decree that was not contemplated by the district court when the original 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 child. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002). The applicant also must show an ability to provide superior care. Id. Where both parents share equally in the care of a child, both are deemed suitable care givers, but the burden of showing superior care remains with the applicant. Id. at 369. Our review of this issue is de novo. Iowa R.App.P. 6.4.

Although the dissolution decree provided for a shared care arrangement, Stephanie assumed physical care of Kaitlyn at least two years prior to the filing of Hank's modification action. The district court found this arrangement amounted to a substantial change in circumstances since the entry of the decree. The court further found:

Stephanie has been the primary caretaker for Kaitlyn. Either Stephanie or Hank would be a suitable custodian for Kaitlyn. Even if primary custody of Kaitlyn is placed with Stephanie, Kaitlyn will maintain the same amount of contact with Hank as she has had over the past three years. Though Hank and Stephanie do not communicate well with each other, Stephanie recognizes the importance of Hank's visits to Kaitlyn. Hank has not proven that Kaitlyn's best interests will be served by placing her primary custody with him.

We agree with this assessment. While we recognize Hank's housing situation was more stable than Stephanie's in the two years following the divorce, Stephanie appeared to have corrected this problem by the time of trial. She had moved to Red Oak, where her new boyfriend had a plumbing business. She remained there for all but the first month and a half of Kaitlyn's kindergarten year. Stephanie also testified that her boyfriend's business furnished the family with a stable source of income for basic necessities. She further noted her boyfriend was regularly attending Alcoholics Anonymous meetings to deal with the drinking problem cited by Hank. Finally, Stephanie stated she had resolved her own pre-hearing problems with the law, also cited by Hank in support of his modification application.

Hank moved to reconsider the ruling based on Stephanie's apparent post-hearing arrest, which he argued was newly-discovered evidence. The district court summarily overruled the motion. Hank does not challenge that ruling on appeal.

As for Kaitlyn's welfare, the record reflects she was doing well academically. Although she had some trouble with aggression, Stephanie testified she was working with school staff to address this behavior.

In affirming the district court, we do not minimize Stephanie's lapses in judgment and her poor communication with Hank. Had Hank played a more active role in parenting Kaitlyn after the divorce, this conduct might have been sufficient to warrant placement of Kaitlyn with Hank. On this record, however, there is not enough.

IV. Continuance.

Hank finally contends the district court should not have granted Stephanie's ex parte motion for a continuance just one day prior to the hearing. Our review of a ruling on a continuance motion is for abuse of discretion. Weigel v. Weigel, 467 N.W.2d 277, 279 (Iowa 1991). Although we sympathize with Hank's contention that the belated continuance seriously inconvenienced him, we find no abuse of discretion, in light of Stephanie's claim that her attorney was unaware of the originally scheduled trial date.

AFFIRMED.


Summaries of

In re the Marriage of Donner

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 373 (Iowa Ct. App. 2003)
Case details for

In re the Marriage of Donner

Case Details

Full title:IN RE THE MARRIAGE OF HANK LEE DONNER and STEPHANIE LYNN DONNER. Upon the…

Court:Court of Appeals of Iowa

Date published: Feb 28, 2003

Citations

662 N.W.2d 373 (Iowa Ct. App. 2003)