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In re the Marriage of Newell

Court of Appeals of Iowa
Dec 30, 2002
No. 2-871 / 02-0689 (Iowa Ct. App. Dec. 30, 2002)

Opinion

No. 2-871 / 02-0689

Filed December 30, 2002

Appeal from the Iowa District Court for Polk County, PETER A. KELLER, Judge.

Melissa Newell appeals from a district court order modifying the physical care provisions of her dissolution decree. AFFIRMED.

Susan Stockdale of Roehrick, Hulting, Krull Blumberg, P.C., Des Moines, for appellant.

Roger Hudson and Andrew Howie of Hudson, Mullaney Schindler, P.C., Des Moines, for appellee.

Heard by SACKETT, C.J., and MILLER and EISENHAUER, JJ.


Melissa Newell appeals from a district court order modifying the physical care provisions of her dissolution decree. She contends the court erred when it ruled on the admissibility of testimony regarding what the parties' daughter told a witness, in modifying physical care, and in calculating her child support. She also requests an award of appellate attorney fees. We affirm.

I. Background Facts and Proceedings. Greg and Melissa Newell were married in July 1990 and the marriage was dissolved in July 1997. Their union produced one child, Megan, now ten. The parties were awarded joint legal custody of Megan, with Melissa receiving primary physical care.

In December 1998, Melissa began dating Joe Harris. He moved into her home six months later. Joe's criminal record at that time included convictions for selling methamphetamine and cocaine. Melissa was using marijuana and methamphetamine three times a day, smoking it in her bedroom. Joe smoked methamphetamine five times per day. Joe began manufacturing methamphetamine in the garage and supplied methamphetamine to Melissa. Melissa knew Joe sold drugs to other people. Other drug users were invited into the home.

In June 2001, the police searched Melissa's home. Over two pounds of methamphetamine was discovered in addition to other drugs and drug paraphernalia. Joe was arrested and charged with manufacturing methamphetamine, possession of methamphetamine, and drug stamp violations. He pled guilty to lesser charges and was incarcerated for ninety days. After he was paroled, Melissa welcomed Joe back to her home.

One month after Joe's arrest, Greg filed a petition for modification of the parties' dissolution decree, in which he sought primary physical care of Megan. After a trial, the district court concluded a substantial change of circumstances existed warranting modification of Megan's physical care. The court ordered Melissa pay child support in the amount of $214.07 per month.

II. Scope of Review. We review the record de novo in proceedings to modify the custodial provisions of a dissolution decree. In re Marriage of Pendergast, 565 N.W.2d 354, 356 (Iowa Ct.App. 1997). We give weight to the findings of the trial court, although they are not binding. Id. III. Substantial Change in Circumstance. A modification of child custody is appropriate only when there has been a substantial change in circumstances since the time of the decree that was not contemplated when the 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. Id.

Melissa contends the district court erred in determining a substantial change in circumstance exists which warrants modification of the dissolution decree. She argues she is no longer using illegal drugs, or allowing others to use drugs in her home, and therefore this change in circumstance was not permanent.

We conclude a substantial change in circumstances exists, and the change is more or less permanent. Melissa admits to a history of drug use in excess of four years. During the time Melissa was using drugs, she was very neglectful of Megan. Although Melissa claims she is now drug-free, less than one year had passed from the time Melissa and Joe's drug use was discovered until the trial in this matter. Joe has an even lengthier history of drug use as well as manufacturing and selling drugs, but Melissa invited him back into her home upon his release from prison. As the district court noted, the impact of this choice cannot be understated. Melissa has shown a desire to put her wants before her daughter's needs. We find Melissa has continued to do so by continuing to involve herself with Joe. Her actions constitute a permanent change in circumstance.

IV. Physical Care. The criteria for determining child custody in original dissolution actions are applied in modification proceedings as well. In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.App. 1996). The best interests of the child are the governing factor in custody cases. Id. "In determining which parent serves the child's best interests, the objective is to place the child in an environment most likely to bring the child to healthy physical, mental, and social maturity." Id. at 38. We can look to a parent's past performance because it may be indicative of the quality of the future care that parent is capable of providing. In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct.App. 1992).

Upon de novo review of the record, we conclude Greg can best minister to Megan's needs. Greg's home offers stability that Melissa has been unable to provide. Megan has a good relationship with Greg's wife, and Greg allows Megan contact with Melissa's extended family. Greg ministered to Megan's needs while Melissa was in the throes of her drug addiction. It is in Megan's best interest that Greg has primary physical care.

V. Hearsay. The Department of Human Services (DHS) contacted Lisa Richards to assess whether Megan was in danger in Melissa's home. Richards was called to testify at trial regarding her opinion as to where Megan should live. Richards stated that she was reporting what Megan wants and what she had seen in Melissa's home. Greg's counsel objected to testimony regarding what Megan wants as being hearsay. The district court sustained the objection, and an offer of proof was made. Richards testified that Megan wished to stay with her mother because she had lived there her whole life and she felt close to her mother.

After the search of Melissa's home and Joe's subsequent arrest, the DHS was contacted. The DHS investigated Melissa and confirmed she had denied Megan critical care.

The district court should have received objections to the evidence, but not ruled on the objections and allowed the evidence into the record. In re Marriage of Anderson, 509 N.W.2d 138, 142 (Iowa 1993).

Melissa contends the district court erred in sustaining the hearsay objection to Richards's testimony because it falls within the exception denoted in Iowa Rule of Evidence 5.803(3) as a statement of existing mental, emotional, or physical condition. Assuming arguendo this is true, the outcome of this case remains the same. Megan's desire to live with her mother does not alter our view that it is in Megan's best interest that Greg be granted physical care.

VI. Child Support. Melissa contends the district court erred in imputing an income of $10,700 to her when she has not worked since 1998. Melissa chose not to work while she had primary physical care of Megan, and her decision was reasonable. See In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997). Because Melissa no longer has primary physical care, her decision not to work is a voluntary reduction of income. When a parent voluntarily reduces his or her income or decides not to work, it may be appropriate for the court to consider earning capacity rather than actual earnings when applying the child support guidelines. Id. We find the district court appropriately imputed income to Melissa. Failure to do so would be unjust.

VII. Appellate Attorney Fees. Melissa requests an award of appellate attorney fees. An award of attorney fees on appeal is not a matter of right, but rests within the discretion of the court. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court's decision on appeal. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). We award Melissa no attorney fees on appeal.

AFFIRMED.


Summaries of

In re the Marriage of Newell

Court of Appeals of Iowa
Dec 30, 2002
No. 2-871 / 02-0689 (Iowa Ct. App. Dec. 30, 2002)
Case details for

In re the Marriage of Newell

Case Details

Full title:IN RE THE MARRIAGE OF GREG NEWELL and MELISSA NEWELL. Upon the Petition of…

Court:Court of Appeals of Iowa

Date published: Dec 30, 2002

Citations

No. 2-871 / 02-0689 (Iowa Ct. App. Dec. 30, 2002)