Opinion
No. 2-457 / 01-1300.
Filed June 19, 2002.
Appeal from the Iowa District Court for Webster County, WILLIAM C. OSTLUND, Judge.
Appellant appeals the district court's denial of his application to modify the primary physical care of his son. AFFIRMED.
Dan McGrevey, Fort Dodge, for appellant.
Deanna Moore of Handley, Block, Lamberti Moore, Ankeny, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Appellant, Scott Vande Stouwe, appeals contending the district court should have modified his dissolution decree so as to award primary physical care of his son, Drew, born in May of 1990, to him. Appellee/cross-appellant, Renita Vande Stouwe, in her cross-appeal contends that the district court should have given her more discretion in where Drew could be educated. We affirm on both appeals.
Scott and Renita were divorced in September of 1992. At the time the district court approved a stipulation of the parties granting Renita primary physical care of Drew. In October of 2000 Scott filed an application for modification asking that he be granted Drew's primary physical care. Renita answered resisting Scott's application and asking for an increase in child support. The district court, after a hearing, denied Scott's application subject to Renita enrolling Drew in the public school system in a special education program. Renita's application for additional child support was denied. Scott was ordered to pay $1000 towards Renita's attorney fees.
The district court specifically said,
The Court believes it imperative that Drew be allowed to avail himself of the tax provided specialties of our school systems before he is irretrievably lost. The Court, therefore, denies Scott's request for modification of custody subject to immediate placement in the school system and the special ed programs. The Court will retain jurisdiction for noncompliance.
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, here Scott, must establish by a preponderance of the evidence that conditions since the decree was entered have so materially and substantially changed that Drew'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 child'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).
Scott's challenge to Renita's care of Drew focused almost exclusively on the manner and method by which she sought to see that he receive an education. The district court found Drew had been evaluated by the University of Iowa Hospitals and Clinics and profiled as an attention deficit hyperactive child, and this special need of his remains to date. Drew's difficulties began as early as his fourth year, and it is clear from the record that as the district court found Drew continues to require special attention. He was in the public school system through second grade. He had to repeat first grade and was identified as a child eligible for and entitled to special education services.
After second grade, apparently with Scott's assent, Renita began teaching Drew at home. He made what the district court chacterized as "meager" progress. Despite Drew having been identified as a special needs child, no one involved with his education after he left the public school system had the credentials to teach or assist children with his needs. The court also expressed unhappiness with Renita's behavior on the schooling issue. While suggesting it may be an example of her lack of qualifications to meet Drew's special needs, the court found her shepherding of his attendance alarming.
The district court found Renita met Drew's other every day needs. In rejecting Scott's claim, the district court further found Scott had prior substance abuse problems, and on at least one occasion had struck Renita during an argument.
We agree with the district court that both parties are interested in their son and wish to be involved in his care. Drew presents special problems, which the district court determined would best be solved by returning Drew to the public school system where he would receive help from the special education programs in place there. The district court asked Renita, if ordered, if she would see that Drew were placed in school, and she answered in the affirmative. Based on this the district court denied Scott's application. From our review of the record, we agree with the very complete findings made by the district court and find no reason to disagree with its conclusion. We affirm the refusal to modify physical care on this basis.
Renita asks that we modify the district court's finding to give her discretion to explore alternatives other than the school system and special education for Drew's education. We decline to do so. We recognize that there are alternatives for the education of children, and as long as children are progressing satisfactorily, the parent or parents should have discretion within the confines of the law to make choices for their children of the kind of and place for their children's education.
Renita is a concerned and dedicated mother, but the record reflects, and the district court found, she made poor educational choices for Drew, did not follow regulations in the choice she made, and she was unable to give him the assistance he needed. While the public education system is not always a perfect place; it is regulated and staffed by certified professionals. Renita made a poor choice for her child in the past. Consequently, Scott and this court have legitimate concerns that she may make poor choices in the future. Therefore, we do not find that the district court erred in finding that Drew should be placed in and remain in the public school system and such special education classes as the school district determines are appropriate for Drew. We affirm the court on this issue.
Renita has requested appellate attorney fees. These parties are both of modest means. Neither was successful on their issue on appeal. We award no appellate attorney fees. Costs on appeal are taxed to Scott.
AFFIRMED.