Opinion
No. 2-963 / 02-0807
Filed February 12, 2003
Appeal from the Iowa District Court for Linn County, Larry J. Conmey, Judge.
Appellant appeals the ruling of the trial court denying his application for modification of the physical care provisions of the dissolution decree. AFFIRMED.
Richard Kavanaugh, Olin, appellant pro se.
Karen Volz of Ackley, Kopecky Kingery, Cedar Rapids, for appellee.
Considered by Habhab, Harris, and Snell, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
This is an appeal from the ruling of the district court denying the appellant's application for modification of the physical care provisions of the dissolution decree. We affirm.
The marriage of Richard and Darla Kavanaugh was dissolved on August 10, 1993. The decree provided that Richard and Darla would exercise joint legal custody over their son, Jordan, born February 12, 1990. Primary physical care was assigned to Darla and visitation to Richard.
At the time of the entry of the decree, Darla lived in Fairfax, Linn County, Iowa, and Richard in Central City, Linn County, Iowa. She was employed at St. Luke's Hospital in Cedar Rapids as a registered nurse, and he was employed as a staff engineer for Howard Green Company.
Both parties have now remarried. Richard filed a petition to modify the decree on April 20, 1998, after learning that Darla and her then husband planned to move to Des Moines. At that time, Richard and his wife lived in Olin, which is approximately 176 miles from Des Moines. Darla's move to Des Moines was necessary for her husband, Dr. Joseph Toulouse, was doing his medical residency there.
Richard's 1998 modification petition proceeded to hearing, and the trial court, on April 9, 1999, entered its decree denying his request to modify primary care of Jordan, but it did modify the decree by expanding the visitation provisions. That ruling was appealed to this court and we, on April 12, 2000, affirmed the trial court. In our ruling, we held:
After careful review, we agree with the district court Richard has not met his heavy burden of showing a material and substantial change in circumstance that would warrant a modification in the custody provision. However, even if he had shown a material and substantial change in circumstance, he did not meet the additional burden of showing he is the superior parent over Darla. The record indicates both parties have remarried and can provide a stable and happy home for Jordan. Jordan also has a good relationship with his younger brother and sister, from Darla's marriage to Joseph, and being separated from them would not be in his best interest.
Richard filed the present modification action on May 7, 2001, after learning that Darla's husband had accepted a position with a medical practice in Florida. Trial was held and on February 26, 2002, the court entered its decree denying Richard's request to modify primary physical care but it did modify the visitation provisions of the decree. Richard appeals.
Darla and her husband have two children together, and the family now lives in Avon Park, Florida. She has been the primary caretaker of Jordan since his birth, and, from our de novo review of the record, Jordan has adjusted to his new living conditions in Florida. Darla does not work outside the home and is able to devote her full attention to raising Jordan and her other two children. As we held in our previous ruling, Jordan loves both of his parents and "both are very good parents and care deeply about Jordan." The dissolution decree, after providing that Jordan's parents were to have his joint legal custody, vested his physical care with Darla. Where, as is the case here, both parents are found to be equally competent to administer to the child, custody should not be changed. In re Marriage of Smith, 490 N.W.2d 538, 541 (Iowa Ct.App. 1992). The question before us in a modification proceeding is not which home is better, but rather, has the parent seeking a change of custody demonstrated that he or she can offer the child superior care. In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1993). The burden placed on the parent seeking the custody change is heavy. In re Marriage of Downing, 432 N.W.2d 692, 693 (Iowa Ct.App. 1988). Richard has failed to meet this burden by the required proof of preponderance of evidence. As we stated in In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000) (citations omitted):
Brian has asked the parties' children be placed in his physical care. He must prove, by a preponderance of the evidence, a substantial change in circumstances justifying his requested modification. He must also prove he has an ability to minister more effectively to the children's well-being. His heavy burden "stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons."
Richard directs to our attention section 598.21(8A) (2001). It provides, in essential part, that a relocation of the residence of a child to a location which is one hundred and fifty miles or more from the child's residence at the time of the decree may be considered as a substantial change in circumstances. As we stated in Thielges, 623 N.W.2d at 237:
Section 598.21(8A) does not change the burdens of proof applicable to custody modification requests. As is clear on its face, section 598.21(8A) does not eliminate the requirement a parent requesting either a visitation modification or physical-care modification must prove the requisite change in circumstances. Nor does it eliminate the requirement a parent requesting a physical-care modification must also prove he or she has the ability to minister more effectively to the well-being of the parties' children. After stating "the court shall modify the custody order" if the court determines a move of 150 miles or more is a substantial change in circumstances, section 598.21(8A) states "[I]f modified, the order may include a provision for extended visitation during summer vacations and school breaks and scheduled telephone contact between the nonrelocating parent and the minor child." Thus, if a party proves only a substantial change in circumstances, section 598.21(8A) explicitly contemplates only a visitation modification. This does not mean section 598.21(8A) is not applicable to physical-care modification requests. Rather, it confirms the statute is consistent with modification cases like Frederici that require a parent requesting a physical-care modification to prove a substantial change of circumstances and an ability to minister more effectively to his or her children's well-being.
We have considered each of the appellant's arguments, whether touched upon in this opinion or not. Like the trial court, we find that there is no credible evidence which substantiates the suggestion that Darla's move to Florida was for the purpose of denying visitation to Richard. We find that Richard has not met the elements of his heavy burden. He has failed to meet the additional burden of showing he is the superior parent over Darla.
The trial court wisely extended his visitation rights. The extent of those visitation rights is not argued on appeal. We affirm.
Costs of the appeal are assessed to Richard. Richard is to pay $500 toward Darla's appellate attorney fees.