Opinion
No. 2-563 / 02-0381
Filed November 25, 2002
Appeal from the Iowa District Court for Scott County, JOHN A. NAHRA, Judge.
Sarah Holst appeals from a ruling modifying a dissolution decree to grant physical custody of her two children to their father. AFFIRMED AS MODIFIED.
Carol Walker Davis, Bettendorf, for appellant.
Dennis D. Jasper, Bettendorf, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Sarah Holst appeals from a district court ruling modifying a dissolution decree to grant physical care of her children, Laikyn and Kaedin, to their father, Robert Holst. We affirm as modified.
I. Background Facts and Proceedings.
Sarah Holst filed a petition for dissolution of marriage on September 22, 2000. On September 18, 2001, the district court entered a decree of dissolution of marriage consistent with a stipulation executed by the parties. The decree granted Sarah physical care of the children and ordered reasonable visitation for Robert.
Within a few months, Sarah and the children relocated from Scott County, Iowa, to Kansas, a move of more than 500 miles. Robert Holst filed an application to modify the decree of dissolution. Hearing was held on his application on December 21, 2001. The district court modified the decree to provide that physical care be placed with Robert. Sarah was granted visitation with the children and was ordered to pay child support. Sarah appealed.
Sarah raises three issues in her appeal. She argues (1) the district court erred by ordering the change of physical care; (2) the district court abused its discretion by excluding certain testimony; and (3) the visitation schedule prescribed by the district court is unworkable and should be modified.
II. Standard of Review.
The standard of review of a modification of physical care is de novo. Iowa R.App.P. 4; See In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998). We have a duty to examine the entire record and adjudicate anew. In re Marriage of Steenhock, 305 N.W.2d 670, 671 (Iowa 1980). We give weight to the fact-findings of the trial court, but are not bound by them. Id. The trial court had the benefit of hearing evidence and observing the witnesses. Thus, we recognize the reasonable discretion of the trial court to modify custody and visitation rights and will not disturb its decision unless the record fairly shows it has failed to do equity. In re Marriage of Salmon, 519 N.W.2d 94, 95 (Iowa Ct.App. 1994) ( citing Norenberg v. Norenberg, 168 N.W.2d 794, 797 (Iowa 1969)). In actions seeking modification of a dissolution decree, we recognize the district court "has reasonable discretion in determining whether modification is warranted and that discretion will not be disturbed on appeal unless there is a failure to do equity." In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998). We give considerable weight to a trial court's assessment of the credibility of witnesses. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984); In re Marriage of Johnson, 499 N.W.2d 326, 327 (Iowa Ct.App. 1993).
III. Change in Physical Care.
"[O]nce custody of children has been fixed it should be disturbed only for the most cogent reasons." In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000) (quoting In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1989)). Thus, to successfully petition the court for a change in physical care, Robert has a heavy burden. He must prove by a preponderance of the evidence that there has been a significant change of circumstances and that he is better able to minister to the needs of the children. Id. We conclude Robert met his burden and therefore affirm the district court's decision.
A. Significant Change in Circumstances
Iowa Code section 598.21(8A) (1999) provides that a relocation of 150 miles or more may be considered a significant change in circumstances. This statutory provision applies in the determination of physical care modifications. See Thielges, 623 N.W.2d at 237. Because Sarah's move places the children over nine hours and 500 miles away from their father and extended family, it clearly constitutes a significant change in circumstances.
B. Ministering to the Needs of the Children
Our foremost concern is the best interests of the children. In re Marriage of Erickson, 491 N.W.2d 799, 803 (Iowa Ct.App. 1992). Sarah emphasizes that she has been the children's primary caretaker throughout their lives. Indeed, the record indicates that during the last few years of the marriage, while the parties were separated, the children resided with Sarah. We give consideration to a parent's role in child raising when determining physical care. In re Marriage of Volding, 544 N.W.2d 457, 459 (Iowa Ct.App. 1995); see also In re Marriage of Love, 511 N.W.2d 648, 650 (Iowa Ct.App. 1993); In re Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct.App. 1992). But this factor alone does not determine physical care. Rather we attempt to predict which parent will in the future provide an environment where the child is most likely to thrive. See In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct.App. 1993).
The district court's decision to modify the physical care provisions of the decree was clearly affected by Sarah's belief in and use of alternative medicine and herbal supplements. In particular, the district court expressed concern that Sarah's practice of "wanding" might lead her to neglect the children's need for traditional forms of medical care during serious illness. Sarah challenges the factual basis for the court's concern by pointing out that she has never withheld from the children traditional medical care when it was needed. She further contends that Robert at least temporarily neglected Kaedin's need for medical care for a severe leg injury sustained in a motor vehicle collision. Although we are not convinced of the efficacy of the wanding procedures performed by Sarah, we do not share the district court's concern on this record that Sarah might deprive the children of appropriate medical care.
Proponents apparently believe a wand passed along the body can remove toxins from the system.
The record demonstrates that both parties have their share of good and poor parenting qualities. The district court's decision was clearly influenced by Sarah's concealment of her intent to relocate the children to Kansas. We acknowledge, as did the district court, that the record shows Robert also kept secrets from Sarah. He engaged in an extramarital affair that resulted in the birth of a child with whom he has no contact. Thus, Robert enjoys no particular advantage over Sarah as we assess the credibility of the parties.
However, a parent's willingness to encourage contact with the noncustodial parent is a critical factor in determining custody. Iowa Code§ 598.41(1); In re Marriage of Shanklin, 484 N.W.2d 618, 619 (Iowa Ct.App. 1992). See also In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992); In re Marriage of Abkes, 460 N.W.2d 184, 186 (Iowa Ct.App. 1990); In re Marriage of Gravatt, 371 N.W.2d 836, 840 (Iowa Ct.App. 1985). Insofar as is reasonable and in the best interests of the children, the court should make an award of custody that will assure the children the opportunity for the maximum continuing physical and emotional contact with both parents and which will encourage the parents to share the rights and responsibilities of raising the children. Iowa Code § 598.41(1)(a). The parties negotiated on August 7, 2001 a stipulation which resolved disputes as to custody, physical care and visitation. At that time, Sarah assured Robert that she had no plans to move from the area where he lives. The stipulation was approved by the district court and incorporated in the dissolution decree on September 18, 2001. She testified during the modification trial that she made the final decision to move to Kansas on October 12, 2001. When this testimony was challenged on cross-examination, she conceded that she might have lied to Robert about her intention to move; but that if she did lie to him, "[H]e deserved it." We find on this record that Sarah concealed from Robert her plan to move the children to Kansas. Sarah's dishonesty about this matter affecting Robert's access to and relationship with the children, and her persisting anger toward Robert causes us grave doubt that she would, as a provider of physical care, promote the children's relationships with their father. After a careful review of the record, we conclude Robert has met his burden to prove a superior ability to minister to the needs of the children. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
IV. Excluded Hearsay Evidence.
Sarah contends the district court erred in excluding from evidence (1) statements made by Kaedin to a medical care provider after a motor vehicle crash, and (2) a child abuse report. The district court sustained Robert's hearsay objections to this evidence. Sarah failed to make an offer of proof disclosing the substance of the evidence. Failure to make an offer of proof precludes us from determining the issue of admissibility of the evidence. State v. Vincik, 398 N.W.2d 788, 796 (Iowa 1987); State v. Harrington, 349 N.W.2d 758, 760 (Iowa 1984). Underlying this requirement of an offer of proof is the premise that in ordinary circumstances in the absence of an offer of proof, we lack an adequate record to review the ruling. State v. Hahn, 259 N.W.2d 753, 759 (Iowa 1977). Accordingly, we conclude Sarah has failed to preserve error on the district court's evidentiary rulings.
"We have held trial judges should ordinarily reserve ruling on objections in equity cases. Answers are received subject to objection. This procedure facilitates de novo review of the record in this court." In re Marriage of Ralston, 242 N.W.2d 269, 271 (Iowa 1976).
V. Visitation.
The district court ordered visitation on alternating weekends and holidays, and two, two-week periods during the summer. Sarah contends the visitation schedule is inadequate because it (1) fails to provide for visitation during the children's Spring Break; (2) allows her no "Thanksgiving break" visitation in alternating years; (3) permits her inadequate time with the children during the Christmas holiday; (4) grants her insufficient time during the children's summer vacation; and (5) places the burden of transportation exclusively upon her. We conclude the distance separating the parents justifies a modification of two aspects of the visitation ordered by the district court. Sarah will be allowed summer visitation for two three-week periods. She shall also be permitted visitation for at least forty-eight hours during the children's Spring Break each year.
VI. Conclusion.
We affirm the district court's order placing the children's physical care with Robert. We modify the visitation schedule as set forth above.
AFFIRMED AS MODIFIED.
HUITINK, J., concurs; SACKETT, C.J., concurs in part, dissents in part.
I would affirm on all issues.