Opinion
No. 1-659 / 00-1947.
Filed February 6, 2002.
Appeal from the Iowa District Court for Chickasaw County, JAMES L. BEEGHLY, Judge.
The respondent appeals from the district court's modification decree. AFFIRMED.
David L. Strand of Strand Ripker Law Office, Decorah, for appellant.
Christopher F. O'Donohoe of Elwood, O'Donohoe, Stochl, Braun Churbuck, New Hampton, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Respondent-appellant Janette Reicks appeals from a modification decree placing the primary physical care of her children with their father, petitioner-appellee Daniel J. Reicks. Janette contends she, not Daniel, should have been named the primary care parent. We affirm.
At the time Daniel and Janette's marriage was dissolved in April of 1999, they stipulated that they would have joint custody of their children, Fallon, born in 1990; Ivan, born in 1992; and Dayton, born in 1994. They further agreed that they would have joint physical care. In dissolving the marriage the district court approved their stipulation.
Iowa Code Section 598.1 (1999) provides,
"Joint physical care" means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, providing routine care for the child and under which neither parent has physical care rights superior to those of the other parent.
Some eight months later, in November of 1999, Janette filed a petition for modification, contending that there had been a substantial change in circumstances since the entry of the original decree providing for joint physical care. She alleged that the arrangement was not manageable and not in the children's interests. She asked that the children be placed in her primary physical care and that Daniel be ordered to pay child support and provide health insurance. She also requested an award of alimony. Daniel answered, also contending that there had been a substantial change in circumstances, but he contended that he, not Janette, should have sole custody of the children and that Janette should have supervised visitation.
The matter came up for hearing. The district court was of the opinion that Daniel was better able to minister to the long-range interests of the children and awarded him primary physical care. Janette challenges this finding.
Our review is de novo. Iowa R. App. P. 4. We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses. Iowa R. App. P. 14(f)(7). 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 child-sharing agreement began shortly after the parties signed the stipulation of settlement in January of 1999. The parties shared the family home, with Daniel living in the basement and Janette living on the first floor. The children moved back and forth at will, their bedrooms being upstairs. The arrangement broke down early, as the boys began spending more time with their father and Fallon more time with her mother. There was tension over use of the house, and in July of 1999 Daniel moved out of the basement and into an apartment attached to the shop where he conducted his trucking business, located less than half a mile from the house.
The parties disagreed about the facts surrounding an altercation between them and a situation concerning their son Ivan. The altercation occurred in September or October of 1999. Janette became angry over the topic of disciplining the boys, and a physical confrontation with Daniel ensued. Janette admitted she slapped Daniel's face and alleged Daniel punched her in the stomach. Daniel denied he physically abused Janette. The district court found it was unable to determine which party correctly reported the incident and made no finding in that regard.
Regarding Janette's physical confrontations with the children, the Department of Human Services found that Janette struck Ivan on the hip with a wooden spoon and caused him bruising. At the time of trial Janette had appealed this finding, but the district court found it was likely that Ivan's bruises had resulted from Janette's striking Ivan with a wooden spoon, as Ivan had originally reported.
Following this incident the child abuse investigator recommended Janette for counseling. She received services and a prescription for an anti-depressant. The medication assisted Janette in becoming more compliant. Daniel was concerned that Janette's improvement was only temporary. Daniel also suffered some depression. At the time of the hearing Janette had improved.
The burden to modify a dissolution decree is a heavy burden. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998). The parent seeking to change the physical care has a heavy burden and must show the ability to offer superior care. Mayfield, 577 N.W.2d at 873.
The parties here stipulated to joint physical custody and joint physical care. Although there is case law indicating that joint physical care of the children in a dissolution is not favored, s ee, e.g., In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct. App. 1996); In re Marriage of Brainard, 523 N.W.2d 611, 614-15 (Iowa Ct. App. 1994), the legislature has proclaimed joint physical care to be a viable disposition to a custody dispute if it is in the best interests of the children. In re Marriage of Swenka, 576 N.W.2d 615, 616-17 (Iowa Ct. App. 1998); Iowa Code § 598.41(5). Where parents respect their former spouse and their children, recognize that cooperation and communication are important to their children's welfare, and put that welfare ahead of their own needs and petty differences, joint physical care can be beneficial to the children. This arrangement allows both parents to remain a viable and real part of their children's lives. See Swenka, 576 N.W.2d 616-17.
In this case the shared custody provisions agreed to by these parties and incorporated into the decree have not evolved as either the parties or the court would have envisioned. Both parents contend their agreed-upon custodial arrangement is not working. Discord between parents that has a disruptive effect on children's lives has been held to be a substantial change of circumstances. This change in circumstances warrants a modification of a joint physical care award through the designation of a primary physical caregiver if it appears that the children, by having a primary physical caregiver, will have superior care. See In re Marriage of Walton, 577 N.W.2d 869, 870-871 (Iowa Ct. App. 1998).
A parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden and must show the ability to offer superior care. Mayfield, 577 N.W.2d at 873; Mikelson, 299 N.W.2d at 671. In the case where one parent has primary physical care, he or she would have been found to be the better parent. Here both parents were found to be suitable primary-care parents in the dissolution decree. See Frederici, 338 N.W.2d at 160 (holding a finding of either parent as suitable custodian was a predicate to joint custody). Both parents in this case love their children, and both are able to serve as adequate custodial parents. We find no reason to disagree with the district court's finding that Daniel is the better parent. We look not only at Daniel's parenting ability, but also to the fact that the joint physical care award is not in the children's interests. Giving the required deference to the factual findings of the district court, we affirm.
We award no appellate attorney fees.
AFFIRMED.