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In re the Marriage of Rosenthal

Court of Appeals of Iowa
Feb 6, 2002
No. 1-690 / 01-0125 (Iowa Ct. App. Feb. 6, 2002)

Opinion

No. 1-690 / 01-0125.

Filed February 6, 2002.

Appeal from the Iowa District Court for Cerro Gordo County, JAMES D. DREW, Judge.

Mary Rosenthal appeals from the district court's ruling on Lon Rosenthal's modification petition. AFFIRMED.

Stacy N. Warren of Babich Renzo, P.C., Des Moines, and Phillip L. Garland, Garner, for appellant.

James M. Stanton of Stanton Sorensen, Clear Lake, for appellee.

Considered by ZIMMER, P.J., and VAITHESWARAN and EISENHAUER, JJ.


Mary Rosenthal appeals from the district court's modification of the parties' dissolution decree. She contends the district court should not have transferred primary physical care of the parties' daughter, Rebecca, to Lon Rosenthal. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS .

Lon and Mary Rosenthal were married in July 1990. They have one child together, Rebecca, born October 7, 1991. Mary also has a son and a daughter by a prior marriage.

The parties' marriage was dissolved by stipulation and decree entered on May 16, 2000. Under the terms of the decree, Lon and Mary have joint custody of Rebecca with Mary having primary physical care.

Lon and Mary agreed to have a geographical restriction put in the decree concerning Rebecca. The parties' stipulation provides in part, "that it is in Rebecca's best interest that she remain enrolled in the Clear Lake Community School District and that, further, she remain a resident of the community of Clear Lake, Iowa." Their stipulation further provided that if either party moved Rebecca more than fifty miles from Clear Lake, it would be a substantial change of circumstances allowing either party to seek relief from the court.

In September 2000, Mary decided to move to St. Charles, Missouri to accept a position as a legal secretary with a law firm. Lon in turn filed a petition for modification seeking primary care of Rebecca. He also obtained an injunction preventing Mary from moving Rebecca outside the geographical area described in the parties' stipulation. Mary and Rebecca's sixteen-year-old half-sister, Ashley, then moved to St. Charles. Rebecca remained in Clear Lake with her father.

Following hearing on Lon's application to modify in December 2000, the district court transferred primary care of Rebecca to Lon. Mary appeals. She seeks a reversal of the court's primary care determination and an award of appellate attorney fees.

II. SCOPE OF REVIEW .

We review the record de novo in proceedings to modify the custodial provisions of a dissolution decree. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996). We give weight to the findings of the trial court, although they are not binding. Id.

III. MODIFICATION OF PRIMARY PHYSICAL CARE .

The court can modify custody 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. Additionally, parents seeking custody must prove an ability to minister more effectively to the child's well being. Dale, 555 N.W.2d at 245. This strict standard is premised on the principle that once custody of a child has been determined it should be disturbed for only the most cogent reasons. Id.

Mary's move from Clear Lake, Iowa to St. Charles, Missouri was clearly a substantial change in circumstances. Iowa Code section 598.21(8A) (1999) provides that if the parent having physical care of a child relocates more than 150 miles from the residence of the minor child at the time that custody was awarded, the court may consider the relocation a substantial change in circumstances. Because St. Charles is much more than 150 miles from Clear Lake, we find Lon has shown a substantial change of circumstances. Mary's move was also a substantial change in circumstances under the terms of the parties' stipulation. Once a substantial change in circumstances is established, the question becomes whether Lon has demonstrated he can render superior care. In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998).

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.

After careful consideration of all the evidence, the district court concluded Rebecca's primary care should be transferred to Lon. Upon de novo review of the record, we reach the same conclusion.

We begin by expressing some disappointment in how Mary made her decision to move. The trial court concluded Mary made her decision to pursue employment in Missouri and move there with Rebecca before bringing the matter to Lon's attention. Upon review of the record, we reach the same conclusion. Mary did inform Lon of her intentions in a conversation with Lon in mid to late September; however, it appears the purpose of that conversation was to tell him she was leaving rather than to seek meaningful input from her former spouse. We consider this action adverse to her position. Further, while we do not consider the geographical restriction in the parties' dissolution decree controlling on the issue of where Rebecca should live, the provision certainly suggests both Mary and Lon felt very strongly about the importance of Rebecca living and attending school in the Clear Lake area at the time their marriage was dissolved. The parties stipulated to a geographical restriction addressing that issue just a few months before Mary decided to move.

The record reveals Lon has substantial involvement in Rebecca's life. Although Mary was designated as primary caretaker in the parties' decree, Lon has Rebecca in his care nearly fifty percent of the time by virtue of other provisions in the decree. In addition, Rebecca maintains a very close relationship with her grandparents who reside in Clear Lake. They play a very active role in Rebecca's life and assist Lon with Rebecca's care when he is at work. By all accounts, Rebecca is thriving in her current environment.

The record also suggests that Lon offers Rebecca more stability than Mary. At the time of trial, Mary was living in her sister's home in Missouri. She had not begun to look for a residence of her own. Although Mary had just started a new job at the time of trial, her recent employment history has not been encouraging. Her last two business ventures failed and she proved unable to maintain the family home she was awarded in the dissolution decree. Mary's efforts to find work in Iowa during the summer of 2000 were lackluster.

Lon, on the other hand, continues to show stability in his personal life. He is the part owner of a pharmacy in Clear Lake. His income allows him to provide well for Rebecca. He has his own residence which is well suited for him and Rebecca.

Mary contends the trial court erred in splitting Rebecca from her half-sister, Ashley. There is a presumption that siblings should not be separated. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994). In order for the court to part from this general rule, it must appear that separation "may better promote the long-range interests of the children." In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981). These principles apply to half-siblings as well as others. In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). As the trial court observed, there is a considerable age difference between Rebecca and her half-sister Ashley. At the time of trial, Ashley was sixteen years old and in high school. She has a part-time job and is involved in a number of high school activities. She will soon be an adult. Brian Phipps, age nineteen at the time of trial, is Rebecca's half-brother. Brian did not accompany his mother to Missouri. He continues to reside in the Clear Lake area and is a student at North Iowa Area Community College. Under the circumstances of this case we conclude the long-range best interests of Rebecca outweigh the presumption that siblings, and half-siblings, should not be separated.

For these reasons, we conclude Lon has proven a substantial change in circumstances and has shown a superior ability to minister to Rebecca's well-being. As a result, we affirm the district court's order granting his application for modification of custody, and awarding him primary physical care of Rebecca. Mary's application for an award of appellate attorney fees is denied.

AFFIRMED.


Summaries of

In re the Marriage of Rosenthal

Court of Appeals of Iowa
Feb 6, 2002
No. 1-690 / 01-0125 (Iowa Ct. App. Feb. 6, 2002)
Case details for

In re the Marriage of Rosenthal

Case Details

Full title:IN RE THE MARRIAGE OF MARY ANN ROSENTHAL AND LON G. ROSENTHAL Upon the…

Court:Court of Appeals of Iowa

Date published: Feb 6, 2002

Citations

No. 1-690 / 01-0125 (Iowa Ct. App. Feb. 6, 2002)