Opinion
No. 2-469 / 01-1907.
Filed June 19, 2002.
Appeal from the Iowa District Court for Cerro Gordo County, RALPH F. McCARTNEY, Judge.
Appellant appeals from an order modifying the provisions of the December 1996 decree dissolving her marriage to appellee. AFFIRMED.
J. Mathew Anderson of Laird, Heiny, McManigal, Winga, Duffy Stambaugh, P.L.C., Mason City, for appellant.
W. Wayne Oltrogge of Oltrogge Law Office, P.C., Clear Lake, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Appellant, Bonnie Lee Meinders, appeals from an order modifying the provisions of the December 1996 decree dissolving her marriage to appellee, David W. Meinders. Bonnie contends the district court should not have transferred primary physical care of the parties' son, Tyler, who was born in February of 1986, to David. We affirm.
Bonnie and David have three children. The oldest, Troy, was born in 1981. The second, Krista, was born in 1983. At the time of the dissolution all three children were placed in Bonnie's primary physical care. At the time of the modification hearing in August of 2001 Troy did not live with a parent. Krista, who was about to enter her senior year of high school, was living with her mother. Tyler had lived with his father since he left his mother's home in February of that year.
The district court found Tyler left Bonnie's home because of disagreements the two had. The court also found that Tyler was a discipline problem at school both before and at the time he moved in with his father. However, the district court found there had been no further discipline problems with Tyler at the time of the hearing, and that since moving in with his father Tyler had seen a modest improvement in his grades at school. The district court further found Tyler was adamant that he wanted to continue to live with his father, and noted that Tyler had refused to go to his mother's home in the three months preceding the hearing.
The district court recognized that Tyler cannot dictate where he will live, but gave weight to Tyler's preference. The district court also recognized that there is a preference for keeping siblings together, but noted that at the time of the hearing Krista was a senior in high school and the children attend the same school. The found that David had met the necessary burden to support modification.
On appeal Bonnie argues that she has been the custodial parent. She contends she has more structure in her home life than does David, and that she is more available to Tyler. She indicates that David lives with a woman to whom he is not married, and this sets a bad moral example for David. She contends that Tyler's preference to live with his father is not controlling, and that the district court decision impermissibly split siblings.
The primary question is whether the physical care should have been modified. Our review is de novo. Iowa R. App. P. 6.4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Id.
To change the custodial provision of a dissolution decree, the applying party, David here, must establish by a preponderance of the evidence that conditions since the decree was entered have so materially and substantially changed that Tyler's best interests make it expedient to make the requested change. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The party seeking to take custody from the other must prove an ability to minister more effectively to the children's well being. Id.; see also In re Marriage of Gravatt, 371 N.W.2d 836, 838-40 (Iowa Ct.App. 1985). This burden stems from the principle that once custody of a child has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980).
We, as did the district court, find both Bonnie and David to be decent people who love Tyler and are able to give him adequate care and a good home.
The district court found, and Bonnie does not deny, that Tyler, some six months prior to the modification hearing, established his primary place of residence with his father.
Kyle has expressed a preference for his father's home, both by moving and staying there and by his testimony at trial. He testified he moved to his father's because his mother was making it difficult for him to spend the time with his father. He also testified he was disturbed with his mother because she had told lies.
David and Bonnie both love Tyler and are able to provide him an adequate home. Because this is a modification, the question is can David provide a superior home.
A focal issue is what weight should be given to Tyler's preference. The question is what part does Tyler's preference play in determining his best long-range interest. The ultimate question of whether David can provide a superior home is far more complicated than merely asking Tyler with which parent he wants to live. See In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981); In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct.App. 1985). We give less weight to Tyler's preference in this modification action than we would if this were the original custody decision.
In assessing Tyler's preference we look at, among other things, his age and educational level, the strength of his preference, his relationship with family members, and the reasons he gives for his decision. In re Marriage of Jahnel, 506 N.W.2d 473, 474 (Iowa Ct.App. 1993); see also Ellerbroek, 377 N.W.2d at 258-59.
At the time of trial Tyler was fifteen years old and about to enter his sophomore year of high school. He is an average student. He is involved in a number of sports. Since moving in with his father, who lives on an acreage, Tyler has helped his father with livestock chores and does chores for neighboring farmers, for which he is paid. Tyler got a permit to drive to school after moving in with his father. It was not available to him when he lived with his mother as she did not live the required distance from school for him to qualify for the permit. Tyler violated the permit requirements both by driving outside the restricted area of the permit and by getting a speeding ticket. Bonnie contends the chance to get the school permit was a reason Tyler moved, and she indicates his violation of the permit requirement shows that David is not able to give Tyler proper discipline. It appears that one of the permit infractions involved his driving to his mother's home.
There has been a modest improvement in Tyler's grades since he moved in with his father, and he testified that his father has encouraged him to improve his grades even more. Tyler testified he gets along with David's girlfriend and her child who sometimes is in the house. There is no evidence David has pressured Tyler to make the decision he did.
This issue of the modification splitting siblings is now moot, as it appears that Krista has now graduated from high school, and Troy was gone from his mother's home at the time of the modification hearing.
Costs on appeal are taxed to Bonnie.
AFFIRMED.