Opinion
No. 2-043 / 01-1362
Filed February 20, 2002
Appeal from the Iowa District Court for Cedar County, Max Werling, Judge.
Respondent appeals the district court's refusal to modify the custodial provision of the decree dissolving her marriage to petitioner and placing primary physical care of their six children with petitioner. AFFIRMED.
Bradley Norton, of Norton Norton, Lowden, for appellant.
Michael Kennedy of Kennedy, Cruise, Anderson Frey, Iowa City, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Respondent-appellant Inez G. Winekauf appeals the district court's refusal to modify the custodial provision of the April 23, 1999 decree dissolving her marriage to respondent-appellee Ward A. Winekauf and placing primary physical care of their six children with Ward. Inez contends she met the necessary burden to have primary physical care of her three youngest children placed with her. We affirm.
Inez and Ward's children are Joyce, born in 1981, Brandy, born in 1982, Holly, born in 1985, Daisy, born in 1988, and twins Ward Jr. and Story, born in 1990. Primary physical care of all the children was contested at the time of the dissolution. After a hearing the district court placed all six children in Ward's primary care. Inez was given visitation and ordered to pay child support. In making its decision the dissolution court found that Inez, who had been the primary-care parent through much of the marriage, was not at that time capable of attending to the children's needs because of her substance abuse and mental health problems. The court found Ward had the capacity and interest to provide for the children's needs and was providing them a relatively stable environment. The court further found that the children were not likely to be in physical danger in Ward's care, but that their emotional and social needs were suffering and their supervision was not adequate. The court noted the family was in need of help in resolving issues with their children and hoped they would seek it.
Inez filed her application for modification on July 14, 2000. The action was tried in July of 2001 and the district court filed its order denying modification on July 23, 2001.
At the time the modification was sought, the five younger children lived with their father. The older daughter had married, and the second daughter, a senior in high school, planned to enter the armed services. Though it appears Inez originally sought primary care of the four younger children, on appeal she only asks for physical care of Daisy and the twins, Ward Jr. and Story.
Following the filing of the petition for modification and pursuant to court order, an extensive custody evaluation was made by Psychology Associates, Ltd. in Davenport, Iowa. The entire family was interviewed, as well as Inez's boyfriend. Additionally, the evaluation included testing as well as a series of joint interviews. The evaluators also checked with the children's schools. The evaluating team's recommendation upon concluding the evaluation was that the current physical custody arrangement should not be changed. The evaluators recognized that both parents had placed the children in the middle of their personal disputes and recommended that the parents attend a Children in the Middle course, if they had not done so. In recommending that the children be left with Ward, the evaluators said that he had created an environment where the children felt safe and loved.
In reaching its decision the district court gave weight to the evaluation team's recommendation. The court also found that Holly, the third daughter, would not live with her mother, and that it would not be in the younger children's interest to be separated from Holly. The court found Ward to be the more stable of the parents and found that Inez had not met the burden necessary to change custodial care.
The issue we address on appeal is whether the facts of this case warrant modification of the custodial provisions of the parties' original dissolution decree.
Our review of the district court's modification of the custody provisions of a dissolution decree is de novo. Iowa R. App. P. 4. Although we give weight to the findings by the district court, especially those concerning credibility of witnesses, we are not bound by them. Iowa R. App. P. 14(f)(7). Good reasons exist for us to give close consideration to the district court's assessment of the credibility of witnesses. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). The district court "is greatly helped in making a wise decision about the parties by listening to them and watching them in person." Id. (quoting In re Marriage of Callahan, 214 N.W.2d 133, 136 (Iowa 1974)).
Modification of a dissolution decree is allowed only when there has been a material and substantial change in circumstances since the filing of the original decree. Mears v. Mears, 213 N.W.2d 511, 514 (Iowa 1973). To change the custodial provisions of the dissolution decree, the applying party, here Inez, must establish by a preponderance of the evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); In re Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992).
There have been changes. Inez's living conditions have improved. She left the windowless apartment located behind a laundromat where she lived at the time of the dissolution and moved in with her boyfriend, Roger, in his farmhouse in Cedar County in February of 2000. She was living in the farmhouse at the time of the modification hearing. Also, to Inez's credit, she has been able to quit drinking after receiving treatment in the early part of 2000 and enrolling in AA meetings. She has remained interested in the children and has exercised her visitation by having the children for a substantial period of time in the summer of 1999 and during September of that year. Inez has shown she is more capable of assuming primary care than she was at the time of the dissolution. We applaud her efforts.
However, our inquiry does not end here. In addition to showing by a preponderance of the evidence that conditions since the decree was entered have materially and substantially changed, in order to take primary physical care from Ward, Inez must prove she has an ability to minister more effectively to the children's well being. In re Marriage of Jahnel, 506 N.W.2d 473, 474 (Iowa Ct. App. 1993); s ee 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).
The children's lives in their father's home are not without problems. His working hours, among other things, result in the children spending time alone or in the care of older siblings. Ward has, however, remained in the same home. The children remain a top priority. Ward communicates with the school and goes there to lunch with his children. Ward has a good relationship with the children. The children have the proper nourishment, and Ward keeps a clean home.
Inez has failed to meet the heavy burden of proving she can give the children superior care. The district court had concern, as do we, about the stability of her current relationship. There is a founded child abuse report that Inez's live-in boyfriend has mistreated one of her sons. The older daughters living in their father's home are not speaking to their mother. While we applaud Inez's improvement and interest in her children, as did the district court, she has not met the heavy burden necessary for modification. The record does not convince us she can render superior care.
We also give some weight to the very thorough recommendation of the evaluation, as did the district court, which indicated it was in the children's interests to stay where they are. We find no valid reason to reverse the decision of the district court and affirm its decision not to modify custody and affirm. We award no appellate attorney fees.
AFFIRMED.