Opinion
No. 2-225 / 01-1774
Filed April 10, 2002
Appeal from the Iowa District Court for Butler County, Stephen P. Carroll, Judge.
The respondent appeals the grant of a modification of the decree of dissolution. AFFIRMED.
Karl A. Nelson of Nelson Toenjes, Shell Rock, for appellant.
John J. Rausch of Rausch Law Firm, Waterloo, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
The question in this appeal is whether the district court was correct in modifying the split custody provisions of a 1999 dissolution decree, placing primary physical care of three children with their father, awarding their mother visitation, and ordering her to pay child support. We agree with the district court and affirm.
Leona Gallmeyer and Daniel Gallmeyer had three daughters, born in November of 1993, April of 1995 and December of 1997. During part of their marriage they were both in the military. After leaving the military, they shared the care of and responsibility for the children. They were divorced in December of 1999, at which time they agreed they would have joint physical care of their children. Their stipulation indicated that they maintained good communication with each other and had similar discipline patterns, and that their homes were similar in environment and in close geographic proximity to each other and the children's school and friends. Neither parent was granted primary physical care. Their agreement was approved by the district court and made part of the decree.
Following the dissolution, Leona and Daniel both continued to live in Clarksville, Iowa, where they resided at the time of the dissolution. The agreed arrangement worked well. The children were well-adjusted and had no noticeable problems. Both parents were actively involved in all aspects of the children's upbringing. While neither denies the other's participation in the children's upbringing, both seek to criticize the care given by the other parent and the other parent's lifestyle. While they both made some valid criticisms of the other, we find, as did the district court, that the children would be well cared for in either of their homes.
In November of 2000 Leona married Carl Myers in Las Vegas, Nevada. Carl is on active duty with the United States Army as a counterintelligence agent. Shortly after the marriage he was scheduled for a three-year tour of duty in Puerto Rico. Leona made a decision to move to Puerto Rico with her husband and take the three children with them. Daniel claimed he first learned of Leona's intention to leave Clarksville from one of the children. The district court specifically found,
In January of 2001, Leona informed Dan that she was going to Puerto Rico with the children. Dan asked her if there were any other options. According to Dan, she replied that she and the children were doing this and it was "too bad."
On February 21, 2001 Daniel filed a petition to modify custody. The petition alleged that Leona had remarried and planned to move to Puerto Rico in the summer of 2001. Daniel asked for primary physical care of the three children and further requested that Leona be granted visitation on holidays and for an extensive time in the summer. Leona answered the petition, admitting she had remarried, that her husband would be stationed in Puerto Rico in May of 2001, and that at some point she planned to move there with the children. She admitted in her answer that this was a substantial change in circumstances necessitating a modification of the custody provisions of the decree. She contended she was the proper parent to have primary physical care and that Daniel should have visitation.
The district court heard evidence on June 12 and 13, 2001, and on October 15, 2001, the court filed the ruling from which this appeal is taken. The court found Leona made the decision to move to Puerto Rico with the children without Daniel's input, a factor the court found adverse to Leona's position. The court also found the parents both shared the day-to-day duties of caring for the children. The court found the children enjoyed a stable environment in Clarksville, and that the two older children were doing above average schoolwork and had a network of friends and family, which they would not have in another location. The court went on to find that the children's successes in Clarksville were a given, and that although the court did not doubt testimony of Leona and her husband as to the amenities they would have while living in Puerto Rico, the environment there was not known. The court went on to conclude that primary physical care of the three children should be awarded to Daniel.
The court also responded to the argument made by Leona in her posttrial brief that if she were not granted primary physical care she would not move to Puerto Rico but would instead stay in Clarksville, in which case she contended there was no basis for modification. The court said it was asked to decide the issue of placement of the children based on Leona's announced plans to move to Puerto Rico with her husband. The court further found Leona told Daniel she planned to move there with the children, which was the reason he filed the application for modification. The court said it was making its decision on the basis that Leona was moving to Puerto Rico. The court then went on to fix a consecutive six-week period of visitation for Leona in the summer for the next three years and provided that after that time visitation should be adjusted or expanded based on where she was living. The court further allowed unlimited telephone and e-mail contact. The court ordered the parties to split the cost of summer visitation and ordered Leona to pay child support of $540 a month.
Leona contends that (1) she, not Daniel, should have been named the primary physical custodian, and (2) the court, having determined that Daniel should be the custodial parent, was without a basis to modify the decree.
We review de novo. Iowa R. App. P. 6.4; In re Marriage of Riggert, 537 N.W.2d 789, 791 (Iowa Ct.App. 1995); In re Marriage of Harris, 499 N.W.2d 329, 330 (Iowa Ct.App. 1993). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses. Iowa R. App. P 6.14(6)( g). Yet, we are not bound by these determinations. Id. We base our decision primarily on the particular circumstances of the parties before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). The children's interests are our primary consideration. See In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984); Neubauer v. Newcomb, 423 N.W.2d 26, 27 (Iowa Ct.App. 1988).
Formerly Iowa Rule of Appellate Procedure 4.
Formerly Iowa Rule of Appellate Procedure 14(f)(7).
The Iowa courts have historically not changed custody when the parent with custody moves from the area in which both parties reside, absent other circumstances. See Vrban, 359 N.W.2d 420, 425-26; In re Marriage of Frederici, 338 N.W.2d 156, 160 (Iowa 1983). These cases pre-date legislative changes providing that if a parent is to relocate the residence of a minor child to a location 150 miles or more from the residence of the minor child at the time custody was granted, the court may consider the relocation a substantial change in circumstances. Iowa Code § 598.21(8A) (2001). If the court determines that the relocation is a substantial change in circumstances, the court shall modify the custody order to, at a minimum, preserve, as nearly as possible, the existing relationship between the minor child and the non-relocating parent. See id. This legislative change is compatible with other legislative changes in the past decade focusing on the opportunity for substantial parental involvement in a child's life by both parents even when there has been a marriage dissolution. In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct.App. 1998).
Leona argues that without her move to Puerto Rico there is no basis to modify. The trial court noted that Leona made this argument in a posttrial brief. The district court rejected this argument, commenting that Leona's position appeared to be that if she prevailed in the modification action, she would take the children to Puerto Rico, but if she did not, she would remain in the area and the decree should not be modified. The district court commented that this seemed to be a position of, "If I win, I win, but if [I] lose, Dan doesn't win.'" The district court judge rejected this argument and made his decision based upon Leona's announced plan to move to Puerto Rico with her husband.
We find no reason to disagree with the district court's decision on this issue. Leona alleged in her answer that at some point she planned to move to Puerto Rico with the children and that this was a substantial change in circumstances. The district court found she announced to Daniel she was going to Puerto Rico in January of 2001. We find no reason to disagree with this factual finding made by the district court. The fact that Leona announced she was moving, coupled with her remarriage, is a substantial change in circumstances. In re Marriage of Thielges, 623 N.W.2d 232, 237 (Iowa Ct.App. 2000). Additionally, Leona, as well as Daniel, petitioned to have the split physical care provisions of the decree changed.
Because they shared the primary physical care, Leona and Daniel are both considered adequate primary care parents and the question on this modification is where will the children's interests be better served. See Frederici, 338 N.W.2d 160-61. The question is not whether Puerto Rico or rural Iowa is the better place to reside, but rather which parent will more effectively minister to the children's welfare as the primary care parent. Id.
Leona made a decision without consulting Daniel that she was taking the children to Puerto Rico, despite the fact that he had retained equal custodial rights and equal input in decisions regarding the children's welfare. Apparently the terms of the decree as to joint custody were not working, as Leona did not think it necessary to consult Daniel or seek court permission before making plans for such a significant change in the custodial arrangement. This weighs heavily against Leona. The Iowa courts have been clear that the ability to support the other parent and not exhibit hostility or ill will toward him or her is an important factor for consideration in making a custodial award. See In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.App. 1994); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct.App. 1991).
Daniel supports the children's relationship with their mother. He has assumed at least fifty percent of the children's care, if not more. The children are happy and well-adjusted, and they have supportive extended family in Clarksville. We find no reason to disagree with the district court's conclusion that Daniel should have primary physical care.
We award no appellate attorney fees. Costs on appeal are taxed to Leona.
AFFIRMED.